R v Finn
[2009] VSC 236
•16 June 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1583 of 2006
| THE QUEEN |
| v |
| STEVEN LESLIE FINN |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 22-26, 29-30 September, 1-3 October 2008 and 20 April 2009 | |
DATE OF SENTENCE: | 16 June 2009 | |
CASE MAY BE CITED AS: | R v Finn (Sentence) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 236 | Amended 7 May 2012. |
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CRIMINAL LAW – Sentence – Intentionally causing injury – Defendant jumped on head of apparently unconscious victim.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A Forrester | Office of Public Prosecutions |
| For the Prisoner | Mr J P Dickinson S.C. | Slades and Parsons |
HER HONOUR:
Steven Leslie Finn, on 3 October 2008 you were found guilty by a jury of intentionally causing injury to Maurice Nugnes on 24 October 2003. A plea was eventually made on your behalf on 20 April 2009. It is now my duty to sentence you in relation to your crime.
There were submissions made during the plea about the relevant facts. The prosecution had told the jury that it could only convict you if it accepted the account of events given by the witness, Ms Kylie Driscoll. Your counsel had also said that the prosecution case depended entirely upon her evidence and he put to the jury an alternative hypothetical view of the facts which involved Mr Nugnes being injured before you came on the scene.
You maintain your denial of Ms Driscoll’s version of the assault upon Mr Nugnes. During the plea, counsel submitted on your behalf that the jury might have rejected Ms Driscoll’s evidence and might have concluded from your admission to your friend, Mr Grima, that you had injured Mr Nugnes in some other way after finding him burgling a house. As will be clear from my factual findings, I am not persuaded by that submission. I am satisfied beyond reasonable doubt of the following facts which I consider to be consistent with the jury’s verdict.
The circumstances of the offence
On 24 October 2003, Mr Greg Power and Ms Driscoll were living at a property where Ms Driscoll said cannabis was being grown in several rooms. I make no finding about that assertion. They returned home in about the early afternoon to find Mr Nugnes apparently burgling the house. You were living in a nearby house. They contacted you and waited for you at the front of the house. You arrived by car and approached Mr Nugnes, shouting words to the effect of, “You broke into my house while I’m not here. My missus and my kids could have been here.”
You then began throwing punches at Mr Nugnes and fought with him in the garden at the front of the house. When he began to get the better of you, Mr Power stepped in and hit him twice, knocking him out with an upper cut to the chin. His head landed on the concrete path and he lay there unconscious whilst Mr Power sat astride him and punched him two or three more times in the face with closed fists. Mr Power was a very fit muscular man who was approximately six feet tall. You appear to be of solid build and Ms Driscoll described you as being shorter than Mr Power and fat at the time. Seconds after Mr Power got off Mr Nugnes, you jumped on the apparently unconscious man’s head with both feet, about three times. He was lying on his back facing slightly sidewards. Ms Driscoll saw Mr Nugnes’ head appear to be bouncing on the ground.
Mr Nugnes was then making gurgling noises and you and Mr Power carried him, by the feet and head, around to the back of the house. You put him on concrete pavers at the rear and Ms Driscoll was told to go into the loungeroom at the front. At one point, she heard Mr Nugnes gurgling and making loud noises and she came down to where you were at the back of the house and suggested that he should be brought inside because the neighbours might hear him. Mr Nugnes was brought inside into a back room and laid on the floor. He continued to make noises. Ms Driscoll was in the front room for what she thought was at least an hour.
During that time, Mr Power told her that he was leaving the house and she subsequently heard a car driving away. Before he eventually returned, you asked her to get you some of his clothes and a pair of shoes and a rubbish bag. She gave you a top, pants and shoes and a rubbish bag.
You rang Mr Dragan Stanisavljevic, a foreman in the building industry working at Bayswater, and told him to come to the house. When he knocked on the door, you gave him a rubbish bag which contained what he thought was an Adidas tracksuit and instructed him to throw it into a bin. He did so.
Mr Nugnes was found the following morning, lying across the back wheel arch in the rear of a parked station wagon in a street in Flemington. The ambulance paramedic who attended the scene described Mr Nugnes as being in an altered conscious state with apparent bruising to both eyes and bleeding from the nose and the mouth. He was taken by ambulance to the Royal Melbourne Hospital where he was found to have a closed head injury, facial, nasal and mandibular fractures, haemorrhages, a collapsed left lung, septicaemia, a pulmonary embolism and a hypoxic brain injury. His head injury was assessed, using the Glascow Coma Scale, as very severe and he was transferred to a rehabilitation centre where he remained between 9 January and 1 July of 2004. When he first arrived at the unit in January 2004 he required full care, including nasogastric feeding. He was incontinent and not walking and unable to look after himself independently.
Mr Nugnes’ brain injury has affected his balance, thinking, memory and planning and other functions involved in working out ways of doing things and living independently.
Victim Impact Statements
Mr Nugnes and his sister have provided victim impact statements telling the Court about the very serious impact of his injuries in both their lives. I have read them thoroughly.
It is agreed, however, that these statements are of limited relevance to you and your sentence, because the jury found you guilty only of intentionally causing injury, as opposed to serious injury to Mr Nugnes. I make it clear that I have not sentenced you on the basis that you are responsible for his serious injuries. I am not able on the evidence to determine which of his injuries is attributable to your jumping on his head. I sentence you on the basis that the jury has found that you intentionally caused him injury, as opposed to serious injury.
Your personal circumstances
You were born on 18 July 1966 and are now 42 years old. Counsel told the Court that you had a difficult upbringing. Your mother left when you were between six months and about two years old and your father and grandparents raised you. Your father had a number of relationships with other women and you were not close to him. You left home at 15 and began living in places like drains, railway stations and the streets. You returned home from time to time, but gravitated towards drugs and alcohol. You drank whisky and beer and used amphetamines extensively. You were using heroin in a significant way at the age of 18.
When you were 20, you began a relationship with Renee Winfield which lasted until about the time of your current imprisonment. Together you have four children, daughters aged 20 and 17 and sons of 19 and 11.
Counsel making the plea was unable to give a clear picture of your life in terms of your work and other activities. He did inform the Court, however, that you have worked as a tattooist and as a trader in antiques.
You have admitted a criminal history which commenced with your conviction and fining, on 23 August 1984 when you were 18, on a charge of possession of property suspected of being stolen. The next year, on 29 August 1985, you were convicted of a relevant indecent assault of a female under 16 and placed on 12 months probation. You were also fined for a public order offence and resisting police on 6 February 1986.
Convictions for sexual penetration of a person aged between 10 and 16, tattooing a person aged under 18 and other similar offences resulted in a suspended sentence of three months’ imprisonment and a fine being imposed on you on 25 February 1987. On 27 May 1987, you were convicted of theft and firearm offences and placed on a good behaviour bond and fined.
Your drug related convictions started on 21 March 1988 when you were convicted of trafficking in heroin and received a community based order. On 31 May 1988, you were convicted and fined for possessing, using and trafficking heroin and possession of suspected stolen property.
A relevant conviction and fine for assault during a fight outside a hotel followed on 29 June 1989. You were released on a good behaviour bond and fined, after being convicted of possession of heroin, on 10 December 1991. You were fined for using false identification to enter a prison on 20 February 1992.
Then, in 1992, you were injured in an August car accident and a November shooting. You have provided the Court with 1994 reports relating to the consequences of your injuries. You rely on these reports only in your plea and have not provided any more up to date material relating to your mental or physical health.
Your general practitioner in 1994, Dr Andrew Woodard, reported on 20 November 1994 to your solicitors that, after the car accident, you suffered from hydrocephalus, secondary to a closed head injury. The condition required monitoring and it had remained stable and did not need treatment. You had last consulted Dr Woodard in March 1994, complaining of recurrent headaches and concentration difficulties which, you claimed, had made it impossible for you to continue your profession as a tattooist.
Dr Woodard noted the complication arising from the fact that you had received serious injuries from the shotgun wounds to the back of the head in November 1992, (although you were then maintaining that the majority of your symptoms resulted from the motor car accident). Dr Woodard did not expect any significant permanent disablement from the car accident injuries. He said that your hydrocephalus might require treatment if symptoms deteriorated, but he thought that was unlikely, given the two year interval which had by then elapsed since the accident.
Dr Woodard also provided another undated report in relation to the shotgun injury, noting serious wounds, including a left haemopneumothorax and extensive soft tissue injury to the back and the back of the head. You had had gunshot pellets removed from your head and back in Western Hospital between 30 November and 5 December 1992.
The psychologist, Mr Bernard Healey, had also provided a report dated 3 October 1994 at your then solicitor’s request. Mr Healey had previously seen you for assessments in August and September 1990, on 5 September 1991 and 3 October 1994. He thought your general presentation and functioning in October 1994 was in sharp contrast to that noted earlier. He described you as suffering from distressing consequences of the motor accident in terms of pain, restricted movement, fatigue, depression, irritability, loss of self-esteem, loss of purpose, suicidal ideation, sleep disturbances, anxiety, hypervigilance, impaired cognitive powers, reduced concentration and attention and memory problems. Mr Healey said these had all been exacerbated by the wounding incident in November 1992 when you had suffered significant reduction of your capacity to function. He found you had a reduced capacity for mental effort and that it was not possible to administer all the tests he had previously given you. Whereas you had earlier indicated that you had an IQ placing you in the 76th percentile, your test results in 1994 showed that your verbal IQ had fallen to the 17th percentile and from the testing Mr Healey was able to do, you showed reduced cognitive functioning generally. He concluded that your capacity to exercise judgment had been significantly impaired by the effects of your head injury exacerbated by the wounding.
There was little information provided to the Court about events between 1992 and the present, although it appears that you started to receive a disability pension after the accident and the shooting and have continued to be on that pension. Counsel told the Court that the accident and the shooting ended your tattooing career as you could no longer concentrate sufficiently.
On 29 April 1994, you were convicted of driving whilst disqualified and failing to answer bail and you were sentenced to suspended terms of imprisonment for two months and 14 days, respectively.
On 11 October 1994, you were sentenced to be imprisoned for two charges of driving whilst disqualified. You were again convicted of driving whilst disqualified on 13 October 1994 at another court and were sentenced to two months imprisonment for that and four months after also being convicted of trafficking heroin. (Mr Healey’s 3 October 1994 report was prepared for the purposes of the hearing in relation to the charges of driving whilst disqualified.)
Fines for dishonesty offences followed in December 1994 and February 1995, with an additional term of 7 days’ imprisonment in February 1995.
You were relevantly convicted of assault again on 31 October 1996 and fined $600. According to your counsel, you can’t remember the circumstances of the offence. Public order offence convictions and a fine followed on 30 June 1997. You were then relevantly sentenced on 11 March 1998 to 14 days’ imprisonment for assaulting a police officer who had pulled you up for testing for blood alcohol.
On 22 October 1999, you were sentenced to the significantly longer period of three years and seven months’ imprisonment and a concurrent term of three years for trafficking cannabis, burglary and theft. A 30 month non-parole period was fixed.
Notwithstanding the effects of the accident, you admit four further convictions and fines on 17 June 2004 on charges of tattooing a person under the age of 18. Counsel explained that you had been trying then to resurrect your tattooing career.
As far as your work history and financial situation is concerned, the Court was told that you have traded in antiques and have continued to receive a disability pension. It was alleged by the prosecution that property, alleged to have been worth in the vicinity of $1m, was forfeited at the time of your 22 October 1999 convictions. Your counsel simply said that he did not know when asked by the Court whether this was admitted. He sought instructions subsequently and told the Court that you admitted that a number of properties were forfeited at the time, although you maintained that they were not in your name and denied that they belonged to you. You also deny the allegations made in the trial that the property where Mr Nugnes was assaulted and another house were owned by you at the time of the current offence.
You and Ms Winfield are presently being tried in the County Court for cultivation and trafficking in commercial quantities of cannabis at two properties, including the property where the assault took place. Your trial has been adjourned until August this year.
Sentencing considerations
The maximum penalty for your offence under s 18 Crimes Act1958 is imprisonment of 10 years.
I agree with counsel for the prosecution that your crime is a serious example of the offence, requiring denunciation, punishment and general and specific deterrence. It was a cowardly and vicious attack on an apparently unconscious and defenceless man. You had time to desist when Mr Power intervened. Your conduct is not explained by anything other than your angry reaction to an attempted burglary and Mr Nugnes having fought with you.
You have maintained your innocence, as you are entitled to do, but you cannot claim the benefit of any demonstration of remorse. Indeed, you did nothing to help Mr Nugnes in the way of seeking medical attention for him. You later offered what might be regarded as an explanation for your behaviour when you told your friend, Mr Anthony Grima, that you had caught Mr Nugnes trying to rob your house, stating that nobody “raised a hand” against you.
You are a mature man with relevant prior convictions for assault and a lengthy criminal history.
You have not provided the Court with any evidence as to your current physical or mental health which might have been taken into account in your favour. The material you have provided is well out of date. It is not of much assistance to the Court, particularly in terms of demonstrating your rehabilitation or potential for it. Your personal history is unclear but it does appear that you have been well enough to have conducted an antique trading business in some way since about 1992.
Counsel on your behalf has handed the Court information on sentencing statistics. I have taken them into account in sentencing you.
I consider that it is appropriate to sentence you to three years and nine months’ imprisonment.
In all the circumstances, I consider that the interests of justice would be served by fixing a non-parole period of two years and nine months. In arriving at that conclusion I take into account the sentencing objectives to which I have already referred and the lack of material relating to your prospects of rehabilitation.
You have already served 1,021 days of pre‑sentence detention which should be declared as time served under this sentence.
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