R v Kibble
[2002] VSC 52
•1 March 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1519 of 2001
| THE QUEEN |
| v |
| JOHN NAUNTON KIBBLE |
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JUDGE: | Gillard J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 and 19 February 2002 | |
DATE OF SENTENCE: | 1 March 2002 | |
CASE MAY BE CITED AS: | R v Kibble | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 52 | |
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Criminal law – Sentence
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C. Hillman SC | Office of Public Prosecutions |
| For the Prisoner | Mr I. Hayden | Ellinghaus & Lindner |
HIS HONOUR:
Mr Kibble, you may be seated, this may take some time. I also grant authority to members of the media to record these reasons.
John Naunton Kibble, you have pleaded guilty to one count of intentionally causing serious injury to Catherine Mary Cranko, without lawful excuse, at Yarraville on Thursday 30 November 2000.
The offence of intentionally causing serious injury to another has been on the statute books for well over a hundred years. The latest offence was created by the Crime (Amendment) Act 1985, which is now s.16 of the Crimes Act 1958. It carries a maximum sentence of 20 years' imprisonment. On any view, it is a serious offence.
It is necessary at the outset to trace a few basic facts to show the history of your plea of guilty. The offence occurred on 30 November 2000 and you were arrested on the evening of that day. You participated in a record of interview that night, during which you admitted that you had inflicted injuries on the victim, Catherine Mary Cranko. However, you gave a version which, in one fairly important area, is inconsistent with the version of Ms Cranko.
At the committal held on 28 June 2001, you were represented by Mr Peter Faris QC, a very experienced senior member of the profession, much experienced in the area of criminal law. At that stage, you were facing three charges, including a charge of attempted murder. After some discussion, it was agreed that the attempted murder charge should be withdrawn and that you would plead guilty to intentionally causing serious injury. That is what happened. You did plead guilty to that one charge.
Subsequent to 28 June 2001, you decided to change your plea and as a result, a presentment was filed in this Court. This occurred on 10 October 2001. You pleaded not guilty on that occasion to three charges, including attempted murder.
Through your legal representatives, you made application to this Court for an order that certain witnesses be cross-examined pursuant to what is now known in this State as a Basha inquiry: see R v Joseph Basha (1989) 39 A.Crim.R. 337, New South Wales Court of Criminal Appeal; and DPP v Denysenko (1998) 1 V.R. 312 at 316-7.
The application came on before Teague J on 20 December 2001 and your Counsel, Mr Ian Hayden, cross-examined three witnesses, including the victim, Miss Cranko. Her cross-examination was lengthy and detailed.
You were re-arraigned before me on Tuesday 12 February 2002 on the three charges and you pleaded not guilty. Application was made by your Counsel to exclude the evidence of your plea of guilty at the Magistrates' Court. After hearing submissions, I ruled that the plea of guilty was admissible in evidence in respect to the count of intentionally causing serious injury. The matter was stood down, discussions took place between Counsel. The attempted murder count was dropped and you pleaded guilty to a new presentment alleging the one count of intentionally causing serious injury.
I expressed the view at the time, which is confirmed on a re-reading of the material, that the course taken by both the Crown and you was appropriate in the circumstances. It has had the effect of shortening the trial and avoiding the necessity of witnesses to give evidence, some of whom would be giving evidence in somewhat trying circumstances.
I have carefully considered the depositions and, in particular, your record of interview and in my opinion, you have no defence to the charge. I have no doubt that you were advised this by both of your Counsel, barristers with substantial experience. Despite that advice, you changed your plea, gave instructions to have Ms Cranko cross-examined, and maintained your stand until lunchtime on the first day of the hearing when you changed your plea again. That conduct provides an insight into your character and your attitude to Ms Cranko. You still retain a degree of anger. These matters are relevant to the issue of remorse.
You were born on 4 March 1959 in England. You are now aged 42 years and will turn 43 in a few days. At the time of the offence, you were aged 41 years.
Ms Cranko was born on 28 July 1969, and is now aged 33 years.
Your background can be briefly summarised. You were a successful secondary student, attended university in London and completed a one year accountancy course with distinction. You were employed in an accountancy firm in London and over the following years, you trained as a chartered accountant. You had a long-standing interest in music and you managed a rock band. You enjoyed that type of work and eventually, that became your primary employment, acting as a manager, organising tours, records and the like. You entered into a relationship with a woman for a number of years. You also played sport and were captain of a hockey team.
In 1987, you commenced work as a public relations officer with a nightclub and you worked in that role for some 18 months. You enjoyed it. You also did design work for the same nightclub. In 1990, you visited the United States and commenced a career as a sound engineer. You did your training in the Netherlands, where you established a de facto relationship. You lectured at the sound engineering college in London and after some 18 months, you went to the United States and managed a band. You returned to London in 1996 and commenced work at the sound engineering college. You had had a number of relationships with females which were satisfactory, free from any problems and amicably ended.
The victim, Ms Cranko, is an Australian who, like a lot of young Australians, travelled to London in late 1995 and was employed at a sound engineering college. You and she met in February 1996. You commenced a relationship about May 1996 and your relationship continued until the end of August 1998, when Ms Cranko returned to Australia. Her visa had expired by this time and she was going home for some six months, and apparently had intended to return to London after that. Evidently, you and she had had some discussions about your relationship, but by this time, she was somewhat cool towards you because, as she said, of the way you had treated her during the previous two years. She stated that she would not go back to you unless you changed in your ways. You were evidently not working from time to time, were in debt and generally lived a fairly inactive type of existence.
Ms Cranko returned to Australia in late August 1998 and over the following ten months, she performed temporary work. When she returned home, you called her and she called you and you both maintained contact.
She noticed in late 1998 that your conduct was a little erratic and in February the following year, she informed you that it was all over. She stated that you appeared to be "weird" and was unaware that you had a problem with cocaine. She also stated that she would not return to London. That was in February 1999 and she did not hear again from you until about August 1999. You had written a few letters and made a few telephone calls, and you were obviously showing some interest in trying to re-kindle the relationship. However, she was less than enthusiastic.
The next contact was in about April 2000. You spoke to her and raised the question of coming to Australia. Again, she indicated that she was not enthusiastic about the idea. In June 2000, you informed her that you had purchased a ticket, she stated that you would not be welcome, and in early July, you arrived in Melbourne and rang her from the Exford Hotel in the city. You and she saw each other over the next few weeks about twice a week and you were seeking to re-establish the relationship. Evidently, you were to return to London and as the time got closer, you begged her to resume the relationship. You were to return on or about 6 September 2000 and around that time, Ms Cranko relented and asked you to stay. You agreed to have a three month trial period to see how things were going and you moved into her rented premises at 43 Ovens Street, Yarraville, on 17 September 2000. As your visa was about to expire, you went to Auckland and returned. When you moved in, Ms Cranko's good friend, Monica, moved out. This evidently caused some concern to Ms Cranko.
Ms Cranko found, over the following two months, that things were not to her liking. She observed that you were possessive, you would create situations from nothing, and that you were jealous. At times, you were in a foul mood. You became insecure and you were extremely jealous. You made accusations that she was dressing up for others and you became somewhat argumentative. She described you in her statement to the police as being "a real drama queen". You evidently got some casual jobs, but most of the time, you stayed at home.
After two months, Ms Cranko had had enough and on 18 November 2000, she informed you that the relationship was over and that she was going to move to her sister's. On the following morning, she packed her bags, said she was leaving and you got somewhat upset and angry, but then you calmed down. She had, in the previous week, told you to buy a ticket to go back to England and in fact, had given you $1,000 to purchase the ticket. She asked you to contact her at her sister's to tell her when you were leaving. She was in fact leaving premises that were rented by her.
That afternoon, you called her and informed her that you would be flying out at 5.00 p.m. that afternoon. You requested that she take you to the airport, which she declined. Thereafter, there were conversations in which you told her that you were thinking of staying, then you were going, and then you were staying, but eventually, on the following Wednesday, you rang to say that you would be leaving the next day. She spoke to you on Wednesday night at about 11.30 p.m. and said goodbye, and as far as she was concerned, it was all over.
On the Thursday, you travelled to Sydney. You were delayed and spent a night at a hotel in Sydney, eventually leaving the following morning, that is, Friday morning. According to your record of interview with the police, you flew back to London via Japan, arriving some time on the Saturday. On your arrival in London, you came to the view that you had made the wrong decision and later, you decided you would return to Australia. You were able to get a cheap charter flight back to Sydney and you left on the Monday, arriving in Sydney on the Wednesday afternoon. You caught an overnight bus to Melbourne, arriving on the morning of Thursday 30 November 2000, the day of the offence.
You did not tell Ms Cranko that you were returning or that you had returned. In the meantime, she had moved back into the premises in Ovens Street on Tuesday 28 November.
In your record of interview, you described your thoughts in London when you had arrived back from Australia.
"So I got back to London and I just thought - no, this is - you know, it's really not the right thing to have done. I felt humiliated that I had been press-ganged out of the country and I was just sort of paid off to go. Because I'd really enjoyed myself over here and had made a lot of friends. The other thing was, I just stupidly had this abiding feeling that we would sort our problems out."
You earlier told the police in that interview the following:
"I wanted to come back to Melbourne and attempt to set up a life independent of Cath as a lover, but to try and reconcile the differences that we had just recently and to try to make a - you know, a decent friendship with her."
Later, after you were given every opportunity to fully explain without interruption your version, you were asked a number of questions by the investigating policeman. The answers to these questions give a very good insight into your attitude at the time. You were asked these questions as a result of what occurred that afternoon and then you were asked this question:
"Obviously the way you've described the use of the knife in the stabbing motions that you've described - it's certainly not accidental, the injuries inflicted on Cath?---I think at the time they happened - at the moment it was happening, it wasn't accidental.
What do you think you were - what were you trying to do to her?---I think at the time - at the time it was taking place. I think I felt like I was fighting back for a lot of humiliation that I had suffered over the previous weeks.
And what were you actually trying to do to Cath - if you were fighting back, what were you trying to do to her?---I guess at that moment - the intention was, you know, to - to cause an injury, yeah. At that moment, but, you know, just - just prior to that, the first thing that I said to her when she came in - into the house was, you know, 'look, I - I want to talk to you' and I think up to that point, you know, I don't think - there hadn't been any intention for - for anything violent to happen that afternoon. And at the moment when I saw this look of complete abhorrence on her face at the fact that I was there, then all the sort of indignities that I suffered over the previous weeks and chosen to stay around and try and work through because we had been very happy previously - I think it just all rushed to the forefront and I - I just - you know, I just got angry and lashed out."
The reference to humiliation and being press-ganged out of Australia also gives a very good insight into your attitude and intention. There is a significant body of evidence that you were angry, and that you felt humiliated. You are the type of person who does not like to be treated lightly, and the strong inference is that the real motivating force to return to Australia was to punish your victim. I will refer to the other evidence hereafter which supports that view.
After arriving here on Thursday 30 November 2000, you booked into a hotel in the city, did a few jobs, wrapped some Christmas presents that you had for Ms Cranko and others, and at about two o'clock, you caught the train to Yarraville. You said that you had a beer in her back garden, then purchased a rubber mallet which you proposed to use to break a window, but were unsuccessful. You then purchased a hammer, broke a window and got in through the side rear.
Ms Cranko came home at about 6.30 p.m. and spoke to her next door neighbour, Liza. The discussion got around to your relationship and Ms Cranko told Liza that you had gone home and that your relationship had ended. Liza said that that was strange because she thought that you had gone into Ms Cranko's house during the day. Ms Cranko went into the house, walked down a hallway and observed that the back sliding glass door was open. She moved to the back door, looked out and then turned around to observe you near a television set, and you walked towards her.
Your version to the police is inconsistent with the version given by Ms Cranko in her statement made 4 December 2000. In making that statement, she acknowledged it to be true and correct and was aware that a person making a false statement could be liable for perjury. She was cross-examined at some length on the Basha inquiry by your Counsel, Mr Hayden, and much of the cross-examination was concerned with the events which occurred when you and she saw each other that evening. She gave that evidence on oath. I have carefully read the transcript of her evidence.
You have not given evidence. Your Counsel informed the Court that he did not propose to call you. Hence, I am confronted with your unsworn statement to the police given on the night of the offence. On the other side, I have Ms Cranko's original statement and transcript of her evidence given on oath.
Her statement and the evidence that she gave on the Basha inquiry are consistent. Given those matters and that nothing is being put to suggest that I should not accept her evidence, I accept her version of the events which occurred when she turned around and saw you on that evening.
When she saw you, you walked towards her and said words to the effect: "Just be quiet." She was initially shocked by your presence. She observed that your hair was cut short and that you looked menacing. She noted that you had a small knife in your right hand; it had a short blade. You moved towards her, she stepped back, you grabbed her, she fell to the floor on her back, you got on top and commenced to stab her with the knife. Your stabbing motion was a little bit unusual and no doubt explains why the attempted murder count was withdrawn. You were not seeking to plunge the knife into Ms Cranko; rather, you were trying to push the knife into her. She was yelling, kicking, pushing and fighting to get away. She was screaming. She felt the knife cut her hand and arm. She felt you push the knife into her stomach twice and then into the neck. You had her down on the ground whilst you were doing this, and you had your knee on her chest at one stage. She felt the stab into her neck the most because you took some time to do it. She felt you pushing the knife into her neck and realised that if you slit her throat, she would die. She went crazy, as she describes it, fought hard, got away from underneath you and kicked you in the groin. She then ran out of the house into the next door neighbour's residence. You did not follow her. She had blood spurting from her abdomen and blood coming out from the other wounds. Shortly thereafter, the police arrived and apprehended you. You did not seek to run away and gave yourself up without any opposition.
Ms Cranko went to the Footscray hospital, where she remained for two days. She discharged herself on the following Saturday.
She has consistently maintained throughout that when she first saw you, you had a knife in your hand as you moved towards her. As a result of the stabbings, she received a number of stitches to her abdomen, and a number of stitches to her neck, right thumb and middle finger on her right hand. She had grazing scratches to her arms, shoulders and chest.
Fortunately, the physical injuries were not grave, but they could have been. The emotional damage has been considerable. She became very frightened and has refused to return to the property.
According to the medical report, she sustained a 7 cm wound in the upper part of her neck, a 2 cm wound on the front of her neck, a 3 cm wound on the left side of the lower chest wall, and a number of small lacerations over her chest and forearm. She also suffered a laceration to the right thumb. All the wounds were sutured and other than that, physically, she was normal. Dr Crawford expressed the view that "the wounds were all of a superficial nature", and expressed the view that the prognosis was good. He expected a full recovery with some scarring. Medical evidence also revealed that Ms Cranko, in the two days that followed the incident, was extremely emotional and frightened by the ordeal.
You were interviewed by the police that night at about 11.00 p.m. It is clear from reading the record of interview that you were alert and loquacious. You gave a very long version of your relationship with Ms Cranko, the events leading up to the offence and the circumstances surrounding the offence. You told the police that you became angry when, inside her home, you observed that she had bought some new clothes and had a hairdresser's appointment. You felt that she was making efforts to look attractive and you informed the police that during the latter part of your relationship, she spent less and less time making herself attractive for you. You say that you became angry. You found a small quantity of marijuana and you smoked it.
You told the police a version, which I reject, that she found you at the home and began screaming at you to get out of the house and as to what you were doing there. You stated that you thought, at that time, that you had done the wrong thing and that you should not have returned. You became angry and confused, you observed the knife on the counter next to the telephone, you picked it up -
"and the next thing I knew I was just slashing at her and poking and stabbing and - and it seemed - seemed just like a second, but I know that we - we rolled around for a while and she was screaming at me and I don't recall saying anything to her apart from 'look, I just - I just want to talk to you.'"
You told the police that, at that time, you felt that you could kill her and you stated that fortunately, although you were uncertain about this, she grabbed the knife out of your hand, pulled it across your thumb and stuck it into your hand. You then went on to tell the police:
"But I grabbed it back off her and stabbed her back. I think I stabbed - once stabbed her in the tummy, and definitely tried to cut her around the face and throat".
As I have already stated, I reject your version as to the beginning of the confrontation. Your statements as to what you were doing are chilling and you are indeed extremely fortunate that you did not succeed in causing Ms Cranko more serious injuries.
After your apprehension and interview by the police, a thorough search of Ms Cranko's premises revealed a frame in the front bedroom which is used for hanging clothes. Suspended from a horizontal rung were ten strips of grey duct tape, which appeared to be approximately 4 cm wide and of varying length of about 50 to 70 cm. The police were unaware of the existence of this tape when they apprehended you and hence, you were not asked about the tape. The evidence leads to the conclusion that you were responsible for removing the tape from the roll and hanging the strips. There is no evidence as to why you purchased the tape nor is there any explanation in the evidence as to why you suspended the strips in the way that you did. It was asserted from the Bar table by your Counsel that you had purchased the tape for the purpose of placing it on the window before you broke it and that having got into the house, you made a decision to attempt to fix the broken window by placing the strips on the cracked glass. As against this, there is another explanation, namely, that you were going to use the strips to restrain Ms Cranko after you had confronted her. If the latter is correct, then it throws considerable light on your intentions and suggests substantial premeditation and an attitude of inflicting punishment on Ms Cranko.
It bears directly upon the seriousness of the offence. Before I could draw that conclusion, I would have to be satisfied beyond reasonable doubt that that was your objective. There is much support for that conclusion in that you were in the house for some hours after you had broken the window and yet you did nothing to fix the window. Secondly, the strips were hung in a room which was far removed from the area where you had broken the window. Thirdly, the clothes-horse could have easily been moved by you to where the window was and you could have performed the alleged task. Fourthly, the room in question was in fact the front bedroom.
Fifthly, the tapes were arranged of sufficient length to lead to the conclusion that they were going to be used to restrain somebody. Tape on a roll is notoriously difficult to remove and you had sufficient presence of mind to cut off the lengths of tape to facilitate their use as a restraint.
Sixthly, you never mentioned purchasing the tape when interviewed by the police. In the course of the long interview, you did mention that you had purchased a rubber mallet. You did not disclose the existence of the hammer. However, after you had given your version of events, you were asked a series of questions, and one of the questions asked was what you did after you arrived at Yarraville. You then disclosed that you had purchased the hammer. Yet you made no mention of the roll of duct tape.
Seventhly, the psychiatric evidence found in the report of Dr Walton and the psychologist's report of Ms Katerina Volny show you as a person who is a perfectionist, orderly and methodical by nature, but also of an obsessional personality. Persons having that temperament are able to tolerate lengthy periods of frustration, but sometimes, when underlying anger is finally expressed, it occurs explosively, as Dr Walton reported in his report. As Ms Volny reported: "This profile (that is test results) is indicative of a rigid, inflexible personality that has a low tolerance to stress. " I add to that observation what you told the police as to the reasons why you came back and in particular, your reference to being humiliated.
Eighthly, you came back into this State without warning, broke into Ms Cranko's house and lay in wait for her - hardly the actions of a person who was hoping to renew, on a friendly basis, a relationship.
Ninthly, as you told the police, you became extremely angry in the house and the clear inference is that you wished to punish Ms Cranko. Your actions also support that conclusion. Finally, I do not accept the submission of your Counsel being asserted from the Bar table.
In my opinion, you returned with punishment more in your mind than conciliation. Your whole conduct showed a substantial period of premeditation and bears directly upon the seriousness of the offence and shows a high level of criminal culpability. In my view, the evidence overwhelmingly supports the view that you bought that tape for the purpose of restraining Ms Cranko.
Ms Cranko has completed a victim impact statement pursuant to s.95A-E of the Sentencing Act 1991. I discussed the principles of law relating to victim impact statements, the various procedural requirements, and the use that can be made of a victim impact statement in the case of R v Afrim Medini, an unreported decision delivered 15 February 2002. It is unnecessary for me to set out what I stated on that occasion. I apply those principles.
The statement by Ms Cranko is in writing and is a statutory declaration in accordance with the provisions of the Act. It graphically describes the appalling effect that your attack has had upon her.
Ms Cranko summarised her injuries. She had two stab wounds to the neck requiring stitches, two stab wounds to the abdomen requiring stitches, and two wounds to her right hand. All told, 30 sutures were used to repair the wounds. She states that some nine months after the event, areas of her throat and neck remain numb, scarring is still visible, and she has a loss of feeling to the tip of her middle finger. She also suffered financial loss of some $1,280 and an estimated loss of earnings of some $4,800. However, it is the emotional trauma suffered as a result of your attack which has left its mark. Ms Cranko described how she was afraid, afraid of coming home to an empty house. She is now living with her sister and brother-in-law, and she tries to avoid being in the house on her own. She is extremely tense and stressed and any noise around the house is a cause of concern to her. She is also concerned about what might happen when you are eventually released. Her sense of well-being has been shattered. She feels tense, nervous and edgy most of the time. She feels depressed and has been taking antidepressants. She lacks confidence about taking on any relationship.
The impact of the crime upon the victim is relevant to the sentencing process. This was the position at common law. The impact goes to the issue of seriousness of the crime: see R v Webb (1971) VR 147 at 150-1.
The principles of sentencing which guide the Court were discussed by me in the decision of R v Afrim Medini (supra). It is unnecessary for me to repeat what I said on that occasion. In summary -
·The law requires me to determine the facts, apply the relevant principles of law and in the exercise of my discretion, determine what is a proportionate and appropriate sentence in the circumstances.
·The principles are found in the common law, in the statutes, and in particular, the Sentencing Act 1991.
·The object of the exercise is to pass a sentence which the Court regards as the appropriate sentence.
·The purposes of criminal punishment are various - protection of society, deterrence of the offender and of others, retribution and reform. The weight to be attached to each factor depends upon the particular circumstances of each case.
·In the end result, the punishment must fit the crime. In other words, the sentence must be appropriate or proportionate to the gravity of the crime, considered in the light of the objective circumstances.
·The Court is bound to consider the matters set out in s.5 of the Sentencing Act 1991; sub-s.1 sets out the guidelines and sub-s.2 sets out the matters that the Court must have regard to.
·The Court must consider the nature and gravity of the offence, your degree of criminal culpability and responsibility, any aggravating and mitigating factors and all relevant circumstances. The issue of remorse is also relevant.
This offence is serious. If one traces the history of the statutory offence, it can be seen that the maximum term of imprisonment has varied. In 1958, s.17 of the Crimes Act provided a maximum term of 15 years for any person who unlawfully and maliciously wounded with intent. This offence was replaced by a new offence which was introduced into the Act by the Crimes (Amendment) Act 1985. It is now s.16 of the Crimes Act. It carried a maximum term of 12-and-a-half years. As a result of the Sentencing Act and other Acts (Amendment) Act 1997, the maximum term was increased from 12-and-a-half years to 20 years: see s.60(1) and Schedule 1 of that Act (Clause 10). By that substantial increase in the maximum term, the Legislature has made it abundantly clear that an offence under s.16 of the Crimes Act 1958 is indeed a serious one and the sentence must recognise that.
A person in a relationship with another has every right to terminate the relationship and walk away without fear of reprisal. Too often, upon the termination of a relationship, the physically stronger person pursues a course of conduct of harassment and violence towards the other person. That is what has happened here. Your conduct was serious and has had a long-lasting, emotional effect upon the victim. The Legislature views any offence under s.16 as serious. The circumstances surrounding the commission of this offence supports that conclusion and you are guilty of a high level of criminality.
There are a number of factors which aggravate the gravity of the offence -
·Your conduct was premeditated. I do accept that you returned to Australia with mixed feelings: on the one hand, hoping to restore the relationship, but knowing in your own heart that that was most unlikely, and having feelings of annoyance and humiliation and thoughts of punishment. Your actions were not the result of an on-the-spot, spur-of-the-moment decision.
·You lay in wait for Ms Cranko in her home.
·Your whole conduct caused her terror and fear.
·Your conduct has had a long lasting, significant emotional effect upon Ms Cranko.
The gravity of the offence is the starting point in the sentencing exercise. In fixing the appropriate sentence, the Court is obliged to not only clearly denounce your criminal conduct, but also to take into account general deterrence. Also, as you will have to leave Australia after the completion of your prison sentence and the probabilities are indeed high that you will never return to this country, in taking into account your previous history of no violence, I have a degree of confidence that you will not transgress again yourself. I have no doubt that the fact that you will not be permitted to come back into this country in the future will be of considerable comfort to Ms Cranko. However, the sentence must send a clear message to those who are like minded to use their superior physical strength to punish a partner in a relationship, after it has terminated.
The sentencing process requires the Court to not only take into account matters that may be generally described as aggravating, but to also take into account matters personal to you, and mitigating factors. In my opinion, there are a number of mitigating factors which I take into account.
·You frankly admitted your involvement in the commission of the offence at the first opportunity, namely, when you were apprehended by the police and interviewed.
·You pleaded guilty at the first opportunity. This is a factor which is normally accorded some weight in the sentencing process. However, you changed your plea in August 2001, which resulted in the matter being referred to this Court. Through your Counsel, you required Ms Cranko to attend what is known as a Basha inquiry in December last year, and she was cross-examined at some length. As her supplementary impact statement reveals, this change of attitude by you and the delay in finalising the matter brought further stress and strain to Ms Cranko. In those circumstances, very little weight can be placed on your initial plea of guilty.
·Having been arraigned in this Court at the beginning of this month, after a preliminary application, you changed your plea and pleaded guilty to one count on a new presentment.
How one should approach the question of a plea of guilty and what weight should be given to it depends on the circumstances, as was recently discussed by the High Court in Cameron v R (2002) HCA 6, delivered 14 February 2002. I do place some weight on the fact that you pleaded guilty, mainly because it has meant that there has been no trial, with a consequent saving of time and expense. But nevertheless, in context, your changing attitude and your demand that Ms Cranko be cross-examined goes to the question of contrition and remorse. I place some weight upon your plea of guilty, but the weight is to be determined in accordance with your fluctuating, inconsistent conduct, and the effect that this has had upon others.
·You have no prior convictions. You have no history of any violence in your past. You have never been violent towards Ms Cranko.
·That the physical injuries are at the lower end of the scale, although, in making that observation, the emotional damage is present and substantial.
·That it is onerous for you to undergo your sentence in Victoria when your family is located in England and you have few friends in this State.
·That the commission of the offence was out of character, which I do accept. I have read the statements sent by your parents and brother to the Court, and notice the facts concerning your background, showing an educated, responsible person and that what you did was out of character. I note the sincerity of the reports. The reports are impressive and show the concern that your family has for you.
·That both parents are elderly, i.e. late 70s, early 80s, and their state of health is indifferent. It is unlikely that they will be able to travel to Australia and of course, there is the prospect that either may pass on in the next few years.
·That you are unlikely to re-offend.
·That on the completion of your sentence, you will be leaving Australia and the probabilities are high that you will not be permitted to return.
·That your prospects of rehabilitation are good.
Remorse is relevant to the sentencing exercise. The Sentencing Act 1991 requires the Court to consider the issue in relation to your conduct concerning the trial - see s.5(2C). Remorse is a mitigating factor. Your conduct sends mixed messages on the question. Your Counsel apologised to your victim at the beginning of the plea, and there is some evidence in the two reports of your upset and concern for your victim. As against this are the record of interview, your change of plea after the committal, the Basha inquiry and the maintenance of your pleas of not guilty up to the first day of the trial. I am prepared to accept that there is some remorse, but I do not attach much weight to it.
The circumstances of the commission of the offence, the aggravating and mitigating factors, the purpose of sentencing, all have to be carefully weighed and the Court is to impose a sentence which is appropriate and proportionate to the gravity of the offence.
Too often, as I have already stated, a person in an intimate relationship, on its cessation, considers it appropriate to punish the other party. Each case must depend upon its own circumstances and one has to be extremely careful in referring to previous cases. I note that this offence is treated seriously in England. In R v Konstantinos Symeon (2002) 1 Cr App R (S) 211, the English Court of Appeal upheld a sentence of 8 years' imprisonment for a man causing grievous bodily harm with intent, to a former partner. Evidently, the prisoner had carried out a prolonged attack, preceded by threats, on a woman, after she had ended their relationship. It was evidently a fairly stormy relationship and the woman brought it to an end. The prisoner sent her abusive and threatening phone calls and text messages. He was warned to stay away, but he continued to send the messages. The woman arrived home from work at about midday. Shortly thereafter, the prisoner forced his way into her house, attacked her, punched her in the face and attempted to throttle her. She fell to the ground where he kicked her around the face, chest and sides. The woman was found to have lacerations to her scalp, one of which exposed the skull bones, with cuts and bruising elsewhere. The Court of Appeal refused to interfere with the trial judge. The sentence of 8 years, and the case, graphically demonstrate the attitude of English courts to this type of conduct. I mentioned it to bring to your attention what the courts in your country think of this type of conduct. Of course, it does not give me any guide as to what is appropriate in this country and I put it to one side. On any view, this offence is viewed seriously in this State.
In R v Laffey (1998) 1 VR 155, the Court of Appeal imposed a sentence of 7 years with a minimum of 5 years for this type of offence where the prisoner had deliberately shot his girlfriend in the leg with a shotgun, after she had more or less indicated that their relationship had ceased. It is clear from the reasons for judgment that as it was a successful appeal by the Crown, the factor of double jeopardy had to be taken into account and if it had not been, the sentence would have been higher. The injuries suffered in that case were very serious and disabling. I also observe that that case was decided when the maximum sentence was 12-and-a-half years. It is now 20 years. Effect must be given to the legislative change.
Mr Hayden has also referred to a recent decision of Bongiorno J of R v Melten, delivered 7 June 2001. The 39 year old prisoner had argued with his female former partner and stabbed her, causing cuts to the throat and chest. He offered to plead guilty to the charge under s.16 of the Crimes Act and pleaded not guilty to, inter alia, attempted murder. He was acquitted of the latter. The victim suffered some permanent damage to her voicebox and also some permanent scarring. Bongiorno J sentenced the prisoner to five years with a non-parole period of three years. However, the victim withdrew her victim impact statement and clearly was very sympathetic towards the prisoner, and there were other mitigating factors.
These cases indicate the views of judges, but do no more than that, and indicate possible ranges of sentence. But it has been emphasised many times that each case must depend upon its own circumstances. I treat them as a guide and a guide only, and in the end result, I decide this case after weighing all matters and reaching what is described as an instinctive synthesis of all the circumstances: see R v Nagy (1992) 1 VR 637.
I have carefully considered the reports of Dr Walton and Ms Volny and taken them into account. I note that Dr Walton's report was prepared in February 2001 for the purpose of the bail application.
After carefully weighing all relevant matters, including the mitigating factors, I convict you on the count and sentence you to a period of six years' imprisonment.
It is now necessary to consider the minimum period of imprisonment. Under s.11(1)(b) of the Sentencing Act 1991, the Court is bound to fix a period during which the offender is not eligible to be released on parole, unless there are particular circumstances which makes the fixing of such a period inappropriate. In my view, the general rule should apply and I will fix a minimum period. It must be borne in mind that the minimum term is part of the sentence and the Court is concerned, when fixing the minimum term, to determine what is the appropriate period that you should be imprisoned. I refer to the observations made by the Court of Appeal in R v Chan (1994) 76 A Crim R 252 at 255.
The same factors which are taken into account on the head sentence are also relevant and to be weighed carefully in fixing the minimum period. The weight that should be attached to each particular relevant matter depends upon the circumstances. As a general rule, the factors that are favourable to the prisoner are given more weight, i.e. the mitigatory factors, risk to the community upon release and rehabilitation: see Iddon and Crocker v R (1987) 32 A Crim R 315 at 325-6; and Bugmy v R (1990) 169 CLR 525 at 530-32 and 536-38.
Having weighed the relevant matters carefully, and in particular giving weight to the more favourable factors, it is my opinion that the minimum period during which you are not eligible to be released on parole is four years.
Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of imprisonment is to be reckoned from 30 November 2000 when the prisoner was arrested. I declare that period to be 457 days, inclusive of today's date, and I direct that the records of the Court note the said declarations.
Mr Hillman SC, on behalf of Detective Senior Constable O'Halloran, has made an application pursuant to s.464ZF(2) of the Crimes Act 1958 that the prisoner, John Naunton Kibble, undergo a forensic procedure in accordance with the Crimes Act 1958. The proposed forensic procedure is a saliva sample. I have been informed by Counsel for Mr Kibble that there is no objection to the order being made.
The conviction is a forensic sample offence within the meaning of Schedule 8 - see s.464ZF(1). I am satisfied, taking into account the seriousness of the offence, that the order is not opposed and that the granting of the order is in the public interest that the order should be made.
Mr Kibble, I am bound to inform you that a member of the police force may use reasonable force to enable a forensic procedure to be conducted. What is sought in this application is the taking of a sample of saliva. I can assure you that the taking of the sample will be relatively simple and a painless procedure.
I order that -
Pursuant to s.464ZF(2) of the Crimes Act 1958, John Naunton Kibble undergo a forensic procedure for the taking of a saliva sample in accordance with sub-division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database.
I will sign the order in a moment.
In addition, Mr Hillman SC, on behalf of the Director of Public Prosecutions, has made an application pursuant to ss.77 and 78 of the Confiscation Act 1997 that certain property referred to in the schedule to a proposed order be forfeited to the State. Mr Hayden, on behalf of Mr Kibble, does not oppose the making of the order.
Accordingly, I order -
Pursuant to s.78 of the Confiscation Act 1997 that the property referred to in the schedule to the order be forfeited to the State.
It is further directed that such property be placed in the custody of the Chief Commissioner of Police to be held by her for 28 days from this date or the conclusion of any appeal proceedings and then to be destroyed by her.
According to the schedule, the property in question is the knife which was used in the attack, the wooden mallet and the metal claw hammer which were purchased by the prisoner, and the strips of grey duct tape which were found in the premises.
I will now sign the orders.
I order -
(i)that John Naunton Kibble be convicted of the count that at Yarraville in Victoria on the 30th day of November 2000 without lawful excuse intentionally caused serious injury to Catherine Mary Cranko;
(ii)that he be sentenced to a period of six years' imprisonment;
(iii)that the minimum period during which the prisoner is not eligible to be released on parole is four years;
(iv)and declare pursuant to s.18(4) of the Sentencing Act 1991 that the period of imprisonment be reckoned as from 30 November 2000 when the prisoner was arrested and that the period is 457 days inclusive of today's date and I direct that the records of the Court note the said declaration.
I personally take the view that the declaration I made is in accordance with the Act, but to avoid any controversy hereafter, I am prepared to follow what appears to be the accepted form of declaration.
So I declare, pursuant to s.18(4) of the Sentencing Act 1991, that the period of 457 days during which he has been held in custody be reckoned as time already served under the sentence which has been imposed. I direct that the records of the Court note the said declaration.
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CERTIFICATE
I certify that this and the 22 preceding pages are a true copy of the reasons for Sentence of Gillard J of the Supreme Court of Victoria delivered on 1 March 2002.
DATED this first day of March 2002.
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