R v Fishman
[2003] VSC 273
•4 July 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1524 of 2002
| THE QUEEN |
| v |
| SIMON JAMES FISHMAN |
---
JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 JUNE 2003 | |
DATE OF SENTENCE: | 4 JULY 2003 | |
CASE MAY BE CITED AS: | R v FISHMAN | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 273 | |
---
Intentionally Causing Serious Injury – Stabbing – Offence committed while on parole – Where offender had a previous conviction for manslaughter related to a stabbing – Where offender suffered from schizophrenic illness which had been diagnosed while in custody for previous offence – Plea of guilty – Relevance of illness to issues of general and specific deterrence and moral culpability.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Pullen | Office of Public Prosecutions |
| For the Accused | Mr J. Montgomery |
HIS HONOUR:
Simon James Fishman, you have pleaded guilty to the charge of intentionally causing serious injury to Adam Robertson on 15 February 2002.
You were born on 14 October 1977 and at the time of the offence you were 24 years of age. You were living at your mother's flat in Neill Street, Carlton. Your victim Robertson was also 24 years of age and was known to you as you had both lived for some years in the same housing estate. It appears that Robertson had a drug habit and resorted to dishonesty to support it. When you came across him on the day in question, he was seeking to dispose of cameras and a watch, which he had obtained by burglary. You believed that Robertson was responsible for the previous burglary of your mother's flat on 14 November 2000 and the theft from her of property including a DVD player. I accept that you had some reasonable basis for this belief, although you had no direct knowledge of the incident which occurred while you were undergoing imprisonment.
In any event, when you met Robertson at the flats on the day in question, you arranged to speak further with him. Robertson subsequently went to the location in which you were waiting, but stood back from you. After some words were exchanged, you jumped over a metal railing fence and when he produced a watch to show you, you reached behind your back and produced a knife. Robertson tried to run away, but slipped and fell. You lent over him and stabbed him forcefully four times inflicting wounds to the chest, upper abdomen and back.
Both Robertson and you are very lucky that Robertson did not sustain a fatal injury. One blow from the knife pierced one of his lungs and might easily have struck the heart or major blood vessels. Robertson has lodged a victim impact statement with the court, and I accept on the basis of that statement and of the medical reports tendered to me that the wounds inflicted upon him were very serious, causing damage both to a lung and to the liver.
Your attack on your victim was totally disproportionate to the harm you believed he had done to your mother. He was unarmed and you stabbed him after he fell. You stabbed him not only as he faced you, but also in the back. You stabbed him to an area of the body which, as you were aware, was one which carried a high risk of serious injury.
Following your arrest, you initially denied responsibility for the stabbing and have only pleaded guilty relatively recently. Even now, although you accept responsibility for the stabbing, you have expressed only limited remorse.
You are an only child whose parents separated when you were young. I accept that you have a strong bond to your mother and that burglary of your home, while you were in custody, was a matter which would have disturbed you greatly. You told Dr Walton you were convinced Robertson was responsible for the burglary of your mother's flat and you said to Dr Walton: "I bumped into him. He had sold the stuff to people I knew. I stabbed him a few times. I just wanted to smack him one in the mouth. I wasn't in good shape." the last statement was a reference to your state of mind as a result of not taking anti-psychotic medication after you were released from prison.
I accept Dr Walton's opinion that you are schizophrenic and that your schizophrenic illness is relevant to the offence. Dr Walton states your animosity towards the victim seems to have been grounded in reality but may well have been influenced by your psychotic thoughts. He says further: "I believe it is probable your schizophrenic illness contributed to both situations, i.e. Both this and a prior offence of violence.".
Although no predominant causal link is postulated between your illness and your actions of a kind which would give rise to a defence, the possible contributory effect of your illness is obviously relevant to your moral culpability and other considerations relevant to your sentence.
Having regard to the material before me and in particular Dr Walton's report, I am prepared to accept on the balance of probabilities that your illness did contribute to the degree of animosity you felt and expressed towards Robertson. In this regard, I note that Dr Walton's report was tendered without objection from the Crown as to its receipt in evidence and that Dr Walton first saw you as a treating psychiatrist and not just for the purposes of a medico legal opinion. I also note that you required psychiatric treatment for a psychotic state when in custody prior to the incident and you required crisis treatment very shortly after the incident and have required ongoing treatment since.
Furthermore, Dr Walton states, and I accept, that you are more prone to psychotic behaviour when appropriate medication is not maintained and that this was the situation at the time of your offence.
Despite the above matters, it is clear, nevertheless, that your attack comprised conscious, voluntary and deliberate actions which were premeditated and unprovoked by any immediate action of your victim, or previous conduct which could possibly be regarded as justifying the savagery of your behaviour.
Dr Walton expresses three further opinions which are of particular relevance to my task. First, he is of the opinion that you will require ongoing psychiatric treatment and supervision indefinitely. Second, he believes it is probable your schizophrenic illness contributed to your violent behaviour on both this occasion and on the occasion of the homicide in respect of which you have previously been convicted and sentenced. It follows that if you can be treated successfully, this may carry the promise of significantly lowering the risk of further offences. Third, because of your schizophrenic illness, it is open to view your case as one which does not provide an appropriate medium for expression of the principle of general deterrence.
The most difficult aspect of your case derives from the fact that you have a prior conviction for manslaughter arising out of the stabbing of another youth when you were 19. That case also involved circumstances in which it appears you initially confronted your victim because of a belief that he had acted wrongfully towards your mother. The killing occurred after you had been stabbed by your victim with a syringe said to be infected with Hepatitis C and you had been further threatened by him. The sentencing judge, Hedigan J, imposed the merciful sentence of five years' imprisonment with a three year non-parole period, having regard to your youth, your largely good character, and the existence of provocation and threats - indeed, as he put it, "highly dangerous behaviour by your victim leading to the commission of the crime".
In the present case you are somewhat older and have offended not as a teenager but as a man in your mid-20s. You cannot now be said to be of prior good character. Indeed, this offence was committed when you were on parole for manslaughter. Further, the attack in the present case was not the product of immediate provocation of any material sought. It rather appears to have been a calculated act of revenge, although, as I have stated, I am prepared to accept Dr Walton's opinion that it is likely your emotions were, to some extent, inflamed by psychotic illness.
[1](1996) 1 VR 398
The offence to which you have pleaded is a serious one carrying a maximum penalty of 20 years' imprisonment. In these circumstances, I must weigh up the serious criminality of your behaviour while having due regard to Dr Walton's diagnosis of underlying schizophrenia and possible psychosis at the time of the offence. In
R v. Tsiaras[1]the Court of Appeal stated that a psychiatric illness not amounting to insanity may be relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from a serious psychiatric illness is not generally an appropriate medium for general deterrence, whether or not the illness played a part in the commission of the offence. Fourth, specific deterrence may be more difficult to achieve and is not often worth pursuing as such. Fifth, psychiatric illness may mean that a given sentence may weigh more heavily on the prisoner than it would on a person in normal health.
In the present case, I accept your psychiatric illness does bear upon your moral culpability in two ways. First, although it does not excuse your conduct at the time of the offence, it helps to explain it to some extent and second, your illness may be regarded as helping to explain why you have been guilty of repeat offences of serious violence.
I do not, however, accept that your illness makes your case one which does not raise relevant issues of general deterrence. In particular, the repeated use of knives in violent assaults must be the subject of some specific consideration in relation to general deterrence. Although I accept that your condition bears on the extent to which your case can properly be regarded as a medium for general deterrence (see R v Anderson)[2] and calls for moderation of the weight that can be given to this element, nevertheless, the use of knives as offensive weapons with the resultant consequences of very serious injury must be the subject of condemnation and general deterrence.
[2] (1982) VR 155
I also take the view that you personally must be deterred from carrying and resorting to the use of knives. Although I accept Dr Walton's view that ongoing management of your condition is a key component to avoiding further offending, if you continue to carry a knife or to use a knife in confrontations with others, it is in my view, unfortunately, almost inevitable that you will inflict further injuries on others. You must learn that the carrying of a knife as an offensive weapon is not acceptable to the community and carries with it very serious consequences for yourself.
Mr Fishman, you must give up the knives and take up the pills if you are to have any prospect of staying out of ongoing trouble and living a fulfilling life.
In terms of the matters referred to by the Court of Appeal in Tsiaras, I am also not satisfied that your psychiatric condition means that a custodial sentence will weigh more heavily upon you than it would for a person in normal health.
The most difficult question for the court, however, is an assessment of the bearing your illness should have upon the kind of sentence imposed and the conditions in which it should be served. Dr Walton has expressed the understandable concern that a further extended period in custody may result in you becoming institutionalised. I recognise that your imprisonment does not appear to have achieved much to date. Although it has resulted in the diagnosis of your psychiatric condition and appropriate medication, it appears that it has also led to addiction to heroin and infection with Hepatitis C. Further, you do not seem to have taken the opportunity to improve your prospects in life in any material way.
Having regard to the circumstances of your offence and your prior history, it is in my view necessary to impose a substantial custodial sentence, but I accept first that the period of imprisonment should be materially reduced from that which would otherwise be appropriate but for your psychiatric condition and its probable role in your offence; and second, that the court should facilitate your supervised re-entry into the community by facilitating a substantial parole period. The Adult Parole Board will no doubt take into account the opinion of Dr Walton with respect to your ongoing and fundamental need for treatment and medication when considering the matter of parole.
Mr Montgomery, who made a careful and comprehensive plea on your behalf, did not suggest that any other course should be taken by me as a result of your condition.
Having regard to all of the above matters, I have reached the following conclusions. It is incumbent upon me to express the condemnation of the community with respect to your conduct and to punish you to an extent and in a manner which is just in all the circumstances. You inflicted serious injury upon an unarmed man by way of a cowardly and vicious attack with a knife. Although I accept that such behaviour was in all probability partly the product of emotions inflamed by psychotic thoughts, nevertheless, it cannot be tolerated by the community. Moreover, as I have stated, both you and others like you must be deterred from the carrying and use of knives as offensive weapons.
Your offence involved very concerning similarities with the fatal stabbing perpetrated when you were 19 which resulted in you being convicted of manslaughter. Whilst I accept Dr Walton's opinion as to your underlying condition, you now present to the court as an offender with a serious criminal history and one whose pattern of behaviour gives rise to a significant concern as to the need to protect the community.
Mr Fishman, having regard to the above matters, and to the purposes and considerations set out in s.5 of the Sentencing Act 1991, I sentence you to a term of 7 years' imprisonment for intentionally causing serious injury to Adam Paul Robertson on 15 February 2002. I fix a non-parole period of 4 years. I declare pursuant to s.18(4) of the Sentencing Act that you have already served a period of 501 days in custody.
I direct pursuant to s.16(3B) of the Sentencing Act 1991 that the term of imprisonment I have imposed be served concurrently to the extent possible with any period of imprisonment you may be required to serve in custody in a prison on cancellation of the parole order under which you were released at the time of the commission of the offence before me. In my view, exceptional circumstances arise under s.16(3B) justifying such an order because of the progression, diagnosis and treatment of your schizophrenic condition while in custody and the contribution of such condition to your behaviour at the time of the offence in the absence of appropriate medication while released on parole.
---
0