R v Kemp
[2014] VSC 631
•12 December 2014 (Melbourne)
| IN THE SUPREME COURT OF VICTORIA | Not restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 55 of 2014
| THE QUEEN | |
| v | |
| JONATHON KEMP | Accused |
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JUDGE: | LASRY J | |
WHERE HELD: | Wangaratta; Melbourne | |
DATES OF HEARING: | 8 September 2014, 7 November 2014 (Wangaratta) | |
DATE OF SENTENCE: | 12 December 2014 (Melbourne) | |
CASE MAY BE CITED AS: | R v Kemp | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 631 | |
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CRIMINAL LAW – Sentence - Intentionally cause serious injury – Plea of guilty – Offending linked to pre-existing mental state – Offending linked to excessive use of prescription drugs and alcohol – Offending apparently inexplicable - General deterrence – Verdins principles – Complex condition – Post traumatic stress disorder – Depressive disorder – Extensive history - Moderation of the principle of general deterrence – Whether non-custodial sentence a proper option – Prior convictions - Protection of the community.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Justin Lewis | Office of Public Prosecutions |
| For the Accused | Charles Morgan | Kerry Clancy Solicitors |
HIS HONOUR:
Jonathon Kemp, on 6 August 2014 you pleaded guilty before me to one count of intentionally causing serious injury. You had earlier been charged with the more serious offences of attempted murder and armed robbery. The offence to which you have pleaded guilty took place on 27 August 2013 at Whitfield, a small country town in Northeast Victoria. You attacked Trevor Grimshaw in his home with a knife, stabbing him 27 times and leaving him in a critical condition. The maximum penalty for intentionally causing serious injury is 20 years’ imprisonment.[1]
[1]See s 16 of The Crimes Act1958 (Vic).
On 8 September 2014, I heard a summary of the case against you from counsel on behalf of the prosecution and submissions from counsel on your behalf including as to the sentence I should impose on you. It became apparent that the presentation of evidence and submissions on your behalf could not be completed on that day and on Friday 7 November 2014 I heard further submissions and evidence concerning your mental state at the time you committed this offence. I will deal with those issues shortly. I must now sentence you for this crime.
The circumstances in which this crime was committed can be briefly summarised as follows. On the evening of 26 August 2013 you had been drinking with Mr Grimshaw at the home of John Evans. This was a social get together and during the evening there was no animosity displayed by you towards Mr Grimshaw. Mr Grimshaw stayed at Mr Evans’ home for only a short time, as he had to start work early the next morning. Having drunk a large amount of beer, you left Mr Evans’ home in an intoxicated state at around 12.30 am. You were seen to be falling and staggering.
At 6.00am on 27 August 2013, you attended Mr Grimshaw’s home in Whitfield, the town in which you also lived. At this time Mr Grimshaw was already awake and dressed for work. He heard you knock, knew it was you and went to the front door to let you in. Upon opening the front door he observed you had garbage bags tied to your feet and legs. He invited you in and turned to walk back into the house. At this point you grabbed Mr Grimshaw from behind. You said to him, “You’re dead you dog”, and repeatedly stabbed him in the back. Mr Grimshaw struggled with you and managed to twist the knife out of your hand. He then threw it out onto the lawn. The knife, however, has never been found. Next, you apparently attempted to strangle Mr Grimshaw with a heater cord. After being disarmed, you entered the kitchen, picked up a paring knife and resumed your assault on Mr Grimshaw. The evidence indicated that in total Mr Grimshaw had been stabbed 27 times by you.
Having been seriously injured by this stage, Mr Grimshaw fell to the ground. You then reached into his front shirt pocket and took his tobacco pouch. You demanded to know the location of his beer, and you were told it was in the fridge. You took a dozen Victoria Bitter cans from the fridge and then left the premises.
After you had left, Mr Grimshaw managed to crawl into his lounge room and call 000. An ambulance attended his home shortly after this call and paramedics treated Mr Grimshaw for his significant injuries. He suffered a cardiac arrest at the scene. He was taken to the Royal Melbourne Hospital where he was operated on and remained there until 9 September 2013. Mr Grimshaw had stab wounds to his back, chest and a laceration to his finger.
Police attended your home on the morning of 27 August 2013. Your clothing was bloodstained. You admitted you had gone to Mr Grimshaw’s house at 6.00 am to get more beer, and you claimed that whilst you were there you had argued with Mr Grimshaw and that Mr Grimshaw had attacked you with a knife. You claimed to have disarmed him twice, and during the second struggle he was somehow stabbed. You said you did not remember stabbing him, and everything you had done was in self-defence. You no longer rely on those assertions.
Indeed, since the police interview you have been unable to recall the circumstances of this assault in any detail. You have told doctors that you had no animosity towards Mr Grimshaw and no reason to want to harm him. Such as you do recall seems to suggest that you did have some irrational feeling of being threatened, though you now accept there was no genuine basis for such a feeling.
Victim Impact Statements
Three victim impact statements were tendered by the prosecutor on your plea. These statements came from Trevor Grimshaw, Julie Grimshaw and Hayley Grimshaw.
In his statement, Mr Grimshaw described you as his mate. He was clearly traumatised and confused as to why you had attacked him. Mr Grimshaw believed, with good reason, that he was about to die. Since returning home from hospital, Mr Grimshaw suffers from anxiety about his circumstances. He continues to feel pain. He describes feeling that he can no longer live where he had been. That is due, in part, to him having lost his house in a subsequent fire, but his change is also due to the impact of your attack on him.
In her statement Julie Grimshaw, Mr Grimshaw’s wife, describes the effect on her and her husband of the attack, and the anxiety it has caused their family. Hayley Grimshaw, Mr Grimshaw’s daughter, is also affected by the stress and refers to the stress and the fear she now feels when visiting her grandfather in Whitfield and her fear of running into you.
These statements are a clear reminder of the effect of violent crime on the victims of such crime and their families and I have taken these victim impact statements into account in determining the sentence I should impose on you.
Seriousness of offending
Inflicting 27 stab wounds such as to place Mr Grimshaw in a critical condition represents very serious offending. You committed the offence in the early morning in Mr Grimshaw’s own home. When you knocked on his window he allowed your entry no doubt having no sense that he was at risk from you. You had apparently prepared for the attack in a way that you thought might conceal your identity as the attacker. Clearly, you had thought about it. This cannot be regarded as an entirely spontaneous attack, despite the fact that it was without any reason. Mr Grimshaw was seriously injured and the attack you launched on him was sustained.
You and the community must understand that such conduct results in significant punishment. In addition, for the reasons I will refer to again, there is a particular need to protect the community from attacks such as this.
Personal Circumstances
You are now 49 years of age having been born on 11 November 1965. As I understand the evidence, you had a difficult childhood dominated by a strict father who was abusive towards your sister. Your father died suddenly when you were in year 6. On the other hand your mother lived until about four years ago. You are the youngest of four siblings. Unfortunately, as I understand it, you have no contact with the other members of your family.
So far as your education is concerned, school was difficult for you as you were bullied and you recall fighting back and becoming aggressive. You left school in year 10 after being expelled for hitting a teacher.
Prior to joining the military at age 19, you worked in various labouring jobs. You were only in the Army for about two months. During that time you were apparently witness to a suicide and an attempted suicide. You found the Army difficult for that and other reasons and you were discharged from the Army in 1984. You received your Totally and Permanently Incapacitated Pension (TPI) in 2001. Since then you have had a few odd jobs such as being a chef and mowing lawns.
It appears that you were involved in two significant motor vehicle accidents. One was when you were 19 years old in around 1975 in which you were the victim of a hit and run accident and suffered injuries. Later in 1998 you were involved in a fatal accident from which you have suffered post-traumatic stress disorder.
Your medical history includes a number of conditions including continuing pain from the car accidents you were involved in. You have a history of hypertension which has been treated in the appropriate clinic at Austin Health.
You had been residing in Whitfield since 2006 and receiving a TPI pension from the Department of Veteran Affairs. A few jobs aside, you have not been able to work since 1995.
You have a well-documented history of post-traumatic stress disorder and have suffered from depression for 20 years. You have suicidal thoughts. Your first treatment for your mental state was in 1995. You have been hospitalised for various reasons associated with your conditions from 2003 to the present. In 2013 and 2014 you were admitted for treatment on several occasions. At the beginning of 2013 you spent almost two months as an inpatient being treated for post-traumatic stress disorder, depression as well as drug and alcohol issues and self-harm. After these matters occurred and you had been charged, you were again admitted to the veterans unit in October 2013 and for 6 weeks in November 2013 to January 2014. That was repeated in April 2014.
At the time of committing this offence you were living alone and the only people with whom you associated were those present on the night of 26 August 2013.
Prior Convictions
You have a prior criminal history commencing in 1986 with theft of a car and driving offences. In 2010, you were convicted of making a threat to inflict serious injury. In 2012, you were convicted of making a threat to kill and possessing a controlled weapon as well as refusing a preliminary breath test. You were placed on a community corrections order for those offences. This offence of course represents a significant step beyond threats, to actually carrying out an attack on someone. Your previous history is obviously relevant and of some significance. Those considerations in themselves remove a non-custodial sentence from the list of appropriate sentences in this matter.
Mental State
On your behalf, it was argued by your counsel that certain legal principles apply to you which have the effect of reducing the extent to which you can be blamed for this offence. The reason why it was argued that those principles apply to you is because of your mental state at the time you committed this offence. That mental state, as I have said, involves your post-traumatic stress disorder, your major depressive disorder and an acquired brain injury. The law says that if your mental state could be said to have contributed to causing you to commit the offence, or if the mental state affects your ability to exercise appropriate judgment, make calm and rational choices or think clearly, then you may be less blameworthy.
Likewise if your condition was such as to make you disinhibited or interfere with your ability to appreciate the wrongfulness of the conduct. One of the considerations in imposing a sentence for an offence like this is to deter others from acting in the way you have acted. However, if you have acted as you did as a result, in part, of a particular mental condition, in those circumstances the law regards the punishment to be imposed on you as a less appropriate example for others who do not suffer from such a condition.[2]
[2]See R v Verdins; Buckley; Vo (2007) 16 VR 269.
The question I have to decide is whether your mental state at the time you committed this offence has a “realistic connection” with what you did.[3]
[3] R vVuadreu [2009] VSCA 262 at [37].
I suspect this may not be easy for you but it is necessary to analyse the information and evidence that has been presented on your behalf. I begin by saying to you that I have considerable sympathy for your predicament and your condition. I accept that you face very difficult problems in coping with life at the moment.
In March 2014, Dr Geoff Thompson from Austin Health prepared a report. In addition, the Psychiatry Registrar provided details of your discharge summary as at 6 November 2006. You have multiple admissions to Austin Health over the years and they have offered you very regular care and assistance. It reveals that your post-traumatic stress disorder and major depressive disorder were first diagnosed 14 years ago. Over that time you have consumed cannabis, alcohol and prescription drugs. Dr Thompson has expressed concern about you. He is of the view that the combination of your post-traumatic stress disorder, acquired brain injury, substance use and abuse and limited coping strategies have resulted in you exercising poor judgement on occasions.
The next step in the process is Dr Anthony Cidoni. He assessed you on 2 July 2014 and subsequently prepared a report dated 30 August 2014. Dr Cidoni is a consultant psychiatrist. He diagnosed the condition of post-traumatic stress disorder as the result of the traumatic car accident, and an associated major depressive disorder. He also concluded that you have disorders in relation to alcohol and cannabis use. You also have an acquired brain injury.
In relation to the offence you committed, there was no evidence of any psychosis. That means you were not out of contact with reality and you were not delusional. However, Dr Cidoni reported that you were likely in a vulnerable state at the time, and you may have had a flash back resulting in you feeling impulsive and panicked particularly if you felt somehow threatened by your victim, though there is nothing to suggest Mr Grimshaw did anything to create such a feeling. Dr Cidoni’s opinion was that your post-traumatic stress disorder and heightened state of anxiety were “factor[s] in the offending” and produced a degree of impulsivity “that contributed to the offending behaviour”.
Dr Cidoni also reached conclusions about the effect of your complex psychiatric condition on your ability to serve your sentence and concluded that it would make it much more difficult. He forecast that your condition will deteriorate in custody.
On 7 November 2014, Dr Cidoni gave evidence and was cross examined. He described your sensitivity to the environment and your continuing fear that something bad is going to happen as a result of the conditions from which you suffer. With the combination of your mental condition and the drugs you consumed, his opinion was that your ability to exercise appropriate judgement and make rational decisions was significantly impaired. Dr Cidoni seemed to be of the view that you were acutely distressed by a flash back you experienced and suicidal thoughts. As he explained it, when the flash back occurred you found yourself back in the moment of trauma and it was very intense. That triggered heightened anxiety. Your increased stress and anxiety impaired your ability to inhibit your behaviour. For the purpose of analysing how you would cope with being imprisoned, Dr Cidoni again described you as vulnerable and concluded that you would experience a high degree of difficulty in coping with that environment.
Unsurprisingly, Dr Cidoni was not able to conclude how each of the factors operating on you specifically contributed to your state of mind at the time of the offence. The connection he made was that the post-traumatic stress disorder created the flash back which triggered your heightened state of anxiety. The supervening factor was the overdose of diazepam that you took coupled with a frontal lobe impairment. Complicating the issue is the fact that the impulsivity from which you suffer as a result of your conditions may itself be the cause of taking an excessive dose of diazepam. Dr Cidoni accepted that the consumption of alcohol by you on the night before you attacked Mr Grimshaw would have contributed to the effect of the diazepam. He made the point that your behaviour was quite extreme and not explained by your previous history.
Dr Cidoni was not optimistic about the prospects for your improvement. He also expressed the view that even without alcohol, your conditions of post-traumatic stress disorder and depression would not be improved. Importantly, in his evidence he dealt with the prospect of you re-offending. He expressed the view, which I urge you to bear in mind, that avoiding substance abuse might significantly reduce the risk factors for you committing another similar offence.
On 5 November 2014, a further report was prepared by Dr Kevin Ong, Consultant Psychiatrist from Forensicare. He confirmed the diagnoses of post-traumatic stress disorder and a major depressive disorder which he described as well-established. Dr Ong seemed to conclude that the most obvious cause of your conduct in stabbing Mr Grimshaw was your consumption of alcohol and benzodiazepines. He said he thought that there was no clear evidence that your offending was driven specifically by psychosis, major depression or post-traumatic stress disorder. He appears to be correct about the lack of psychosis but I am of the view that your offending is directly linked to your post-traumatic stress disorder and your major depressive disorder.
So, to the extent to which it is contended that your offending is less blameworthy as a result of your psychiatric condition, your counsel’s submission appears to be as follows. You have an acquired brain injury, post-traumatic stress disorder and a major depressive disorder. These conditions cause you significant difficulty; particularly the post-traumatic stress disorder which causes you flash backs to earlier trauma. That condition is made worse by alcohol and diazepam, particularly the paradoxical effect of the diazepam. Mr Morgan, while accepting that these matters are complex, has argued that I should examine the combination of factors. If I do that, he argues, the realistic link between your psychiatric condition and your offending is established. The prosecutor, on the other hand, submitted that your consumption of excessive prescription drugs and alcohol effectively broke the chain of causation between your psychiatric condition and your offending. Later, however, he conceded that the legal principles to which I have referred did apply but their application is a question of degree.
Thus, there can be little doubt that at the time of the commission of this offence you were suffering from a mental disorder, abnormality or an impairment of your mental function. The question then is whether those impairments had a “realistic connection” with the offending.[4] In my opinion, it is entirely artificial to separate your consumption of prescription drugs and alcohol from your complex psychiatric state and therefore leave that state out of consideration. The two things are clearly linked and the complete set of circumstances is realistically connected to your offending. As I said during the submissions of counsel, you have been dealing with this mental state for a long time. Your unfortunate method of self-medication has involved drugs and alcohol, but that has only been necessary in your mind because of the struggle you have had. It would be quite absurd to equate you to a person who makes a choice to drink too much or take drugs and then violently offend in circumstances where there was no pre-existing mental illness. The circumstances of your case and the causes of your behaviour are far more complex than that and, in my opinion, they make you a less appropriate example for the community in the context of the principle of general deterrence. In addition, they indicate that despite your serious offending some mercy should be shown to you.
[4]See R v Vuadreu [2009] VSCA 262 at [37] – see also Arthars v R [2013] VSCA 258.
The principles lead to the result that if I am satisfied that there is a realistic connection between your mental state and your offending then a sensible moderation of the application of the principle of general deterrence is appropriate. I have no doubt that it is.
However, these matters also have an aspect that affects my consideration of the need to protect the community. As I have already said, Dr Cidoni is not particularly optimistic about your prospects of rehabilitation and that is a matter of concern for me. For whatever irrational reason you did what you did to Mr Grimshaw, it must not be repeated. If it is, you can expect to spend a very long period of time in custody.
Finally, I am, of course, satisfied that given your long-standing mental state your time in custody will be more onerous and I have also taken that into account in the sentence I will impose.
Submissions as to outcome
On your behalf, Mr Morgan submitted that I should consider a non-custodial sentence given your unfortunate circumstances. The prosecutor disagreed and, with respect, so do I. A non-custodial sentence for offending like yours is simply out of the question. You will have to spend some time in custody and to the extent that I could I have significantly moderated that aspect of your sentence.
So far as your future rehabilitation is concerned, it was submitted, in effect, that your conduct since your arrest is something to consider. You have been receiving drug and alcohol treatment from Austin Health, and you are responding well. It was submitted that your future rehabilitation prospects are closely tied to this facility. True it is, your rehabilitation is still some distance away. Austin Health have provided you with very helpful assistance and you have taken advantage of that, but I do not think anyone regards the risk of you offending again as being insignificant.
In my opinion a sentence must be imposed on you which pays attention to the need to protect the community.
Conclusion
As I noted at the beginning, you pleaded guilty. Your plea of guilty is a sign of your remorse and I accept that you are remorseful. In my opinion, you do have an insight into what you have done. Your plea also avoided the need for a trial and there is a significant benefit in that for Mr Grimshaw and his family as well as the Court and the community. In addition, after your arrest you were kept in custody for a period of 36 days and then admitted to bail in the Magistrates’ Court. At that stage I understand you had not been charged with attempted murder. However, during your time on bail no question has arisen of any non-compliance with bail conditions, or the commission of any further offences. You have remained on bail until today. I thus consider that with continuing treatment and your willingness to comply, your future prospects of a life without further offending are moderately good.
Whilst your attack was a very serious unprovoked attack, I accept that it was not the product of any rational decision to behave violently. It was a bizarre incident. You are, I think, a very troubled man. I hope that for the relatively short time you must spend in custody, and afterwards, you can receive the assistance you need to stabilise your condition and have some degree of peace in your life. I strongly urge the Corrections authorities to ensure that you receive the treatment and medication that is appropriate for your condition.
With those principles in mind your sentence will be as follows. For intentionally causing serious injury to Trevor Grimshaw you will be sentenced to be imprisoned for a period of two years. I direct that you serve a period of 15 months’ imprisonment before being eligible for release on parole. In addition I will impose on you a Community Corrections Order for a further 18 months to take effect on completion of your sentence of imprisonment. That means you may be required to undergo a period of up to nine months of parole after your release, depending on if and when the Parole Board is willing to release you. That will then be followed by a Community Corrections Order for a further 18 months after that. I propose to impose a Community Corrections Order with the standard conditions[5] plus the following additional conditions pursuant to ss 47 and 48 of the Sentencing Act 1991 (Vic):
[5]The standard conditions are set out in s 45(1) of the Sentencing Act 1991 (Vic).
1.You will abstain from consuming alcohol.
2.You will abstain from consuming any drug other than in accordance with the type and amount of drugs prescribed for you by a medical practitioner.
3.You will undergo a mental health evaluation and receive treatment accordingly.
4.You will undergo assessment and treatment for drug abuse and dependency accordingly.
5.You will undergo assessment and treatment for alcohol abuse and dependency accordingly.
6.You continue the treatment offered you by Austin Health.
7.You will be supervised, monitored and managed as directed by the Secretary.
I note that pursuant to ss 8A and 37(b) of the Sentencing Act1991 (Vic) I have received and considered a pre-sentence report prepared by Corrections Victoria. The report confirms that the above conditions are appropriate for you and have been explained to you, and informs me that you consent to the order being imposed.
I declare pursuant to s 6AAA of the Sentencing Act1991 (Vic) that, but for your plea of guilty, the total effective sentence I would have imposed would have been a period of five years’ imprisonment with a minimum period to be served before being eligible to apply for release on parole of three years.
Your pre-sentence detention is 36 days not including today, and I direct that this be reckoned as time already served and entered in the records of the Court.
The Crown has sought disposal orders. They were not opposed on your behalf and I make those orders this day.
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