R v Koelman
[2010] VSC 561
•2 December 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1659 of 2008
| THE QUEEN |
| v |
| FREDDI KOELMAN |
---
JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 November 2010 | |
DATE OF SENTENCE: | 2 December 2010 | |
CASE MAY BE CITED AS: | R v Koelman | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 561 | |
---
CRIMINAL LAW – Causing Serious Injury Recklessly – Guilty plea – Protracted Court proceedings – Whether change of plea application granted - Circumstances of offending – Background of offender - Prior criminal history – Acquired Brain Injury – Capacity for remorse – Form of custodial sentence - R v Verdins (2007) 16 VR 269 - s 27(1)(a) of the Sentencing Act 1991 (Vic).
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C. Ryan SC | Office of Public Prosecutions |
| For the Accused | Mr P. Higham | Robert Stary Lawyers |
HIS HONOUR:
Freddi Koelman, you were committed to this Court on 23 March 2008 on charges of attempted murder and the alternatives of intentionally or recklessly causing serious injury.
The matter first came on before the Court for directions on 3 April 2008 and a presentment alleging the counts on which you had been committed was filed on that day.
You were arraigned on that presentment on 5 August 2008 and pleaded not guilty.
The matter was first listed for trial in late 2008 but was adjourned, on your behalf, until 2 February 2009. For some reason, an application for leave to file an identical presentment was made on 2 February 2009 and leave was granted.
In any event, the trial was not ready to proceed on that day and was then adjourned to a date to be fixed.
There were some further mentions in the interim, and the matter came on again on 16 November 2009, when the present presentment was filed over. This presentment alleges one count of causing serious injury to Skender Sinanaj recklessly.
When arraigned on that presentment, you pleaded guilty and the matter was adjourned until 8 February 2010 for plea. On that day, Mr Kilduff, of counsel, appeared on your behalf and indicated to King J that the plea was contested on the issue of who had first produced the knife and probably, although it is not entirely clear, who had held the knife at the time that Mr Sinanaj suffered his injuries. Her Honour took the view that there was potential, if the case was put on that second basis, for the plea of guilty to thereby be traversed.
It is fair to say that you were not particularly well on that occasion. On that day, you were assisted by Ms Muir, who I have allowed to assist you on each of the occasions you have appeared before me. Ms Muir had not been with you at the time that the plea had first been entered into in November 2009.
A joint issue as to whether you were fit to plead or whether you properly understood the plea arose and her Honour adjourned the matter so that you could be examined by Forensicare.
Her Honour did indicate, at least in argument, that if an application was made on your behalf to change your plea, she would be inclined to allow it, but because of the investigations which were pending, no such application was actually made.
In that sense, your plea of guilty has been in place since November of 2009 and no application has actually been made to vacate that plea. It is for that reason I have not had you re‑arraigned in the course of these proceedings.
After a number of other mentions relating particularly to the question of representation, and ultimately the replacement of Mr Tait as your solicitor, the matter came on before me on 21 October 2010. This was so I could hear an application for you to be allowed to change your plea, preparatory to the commencement of your trial. It was anticipated that if you were given leave to change your plea, version three of the presentment alleging attempted murder and the relevant alternatives would have been filed and a draft presentment in that form had been given to me.
It emerged during discussion with Mr Higham, who appeared on your behalf, that, contrary to whatever the earlier belief was, you were prepared to accept the proposition that you must have had hold of the knife at the time that Mr Sinanaj suffered his injuries. Yet, you continued to be absolutely insistent on the proposition that it was he who had produced the knife.
It appeared, when the matter was raised with King J, that your position was that the injuries had occurred in the struggle with Mr Sinanaj holding the knife, which raised the question of accident. Mr Higham said that if the matter was to proceed as a plea, it would do so as a matter of excessive self‑defence, and it has so proceeded.
It became clear after some discussion that the prosecution would accept that a plea could proceed generally on that basis and that they would proceed by accepting that it could not be established beyond reasonable doubt who first produced the knife.
When the circumstances of the case are looked at, and in particular, when the contents of the statement of the somewhat difficult witness Domazet are examined, it was equally likely that either of you might have produced the knife. Further, that the position was otherwise, on the evidence, that each of you from the very outset had said that the other man had it; Mr Sinanaj saying that you had it, you saying that he had it. So it was in such context that the Crown accepted the proposition that it could not be proved beyond reasonable doubt who first had the knife.
The Crown subsequently filed an opening for the plea which became Exhibit 1. The relevant facts may be stated briefly, but can be found in that summary.
In April 2010, Skender Sinanaj was a drug user and had been for about seven years. It was likely that he was also a drug dealer and dealt at least for the purposes of supporting his own habit.
On Friday 20 April, you contacted him seeking to buy drugs; heroin, according to Sinanaj; amphetamine, according to you. Not much at the end of the day turns on that distinction and I am happy to accept for the purposes of this plea, that you did so for the purpose of buying amphetamine.
Sinanaj was somewhat reluctant, you were fairly insistent, and the two of you arranged to meet. You did so in Hoppers Crossing. Sinanaj supplied you with what you thought was amphetamine, but which was in reality, crushed up Panadol. He claimed to have obtained that from a dealer, on his version of events, as heroin.
Shortly after the transaction, Sinanaj went to the house of a friend, Vasco Domazet, in Werribee. Earlier an arrangement had been in put place whereby Domazet would collect Sinanaj from his home and they would travel to Domazet's place, but, for whatever reason, Sinanaj chose to go to Domazet’s place before Domazet arrived.
Some time later, Domazet arrived home and you were with him. You had met up with Domazet when you had gone back to Sinanaj's house to confront him about the ‘drugs’ with which you had been supplied.
You made some remarks to Sinanaj about the quality of the drugs which you had been provided with. Sinanaj says he threw your $100 at you. A fight ensued, during which a knife was produced and which eventually came under your control. During the fight, you stabbed Sinanaj three times, causing the serious injury which is the subject of this count. It should be noted that the definition of “serious injury” includes more than one injury.
Eventually, medical treatment was obtained for Mr Sinanaj and he finished up at the Royal Melbourne Hospital, where he was found to have suffered the following injuries: firstly, a 1.5 centimetre laceration to the right upper abdomen which passed through the liver and was approximately 10 centimetres deep; second, a 1.5 centimetre stab wound to the left chest about the level of the seventh rib; third, a 1.5 centimetre laceration over the lateral aspect of the left upper arm which was five or six centimetres deep approximately; and, fourth, a 1.5 centimetre laceration over the extensor surface of the right wrist which was fairly deep. That is, to the bone, but as was pointed out by the prosecutor in his opening, the bone of the wrist is not far from the surface.
The most serious wound by far was the wound to the abdomen, the blade having entered Mr Sinanaj's liver and resulted in extensive internal bleeding which was controlled by medical intervention.
The wound to the left chest was stapled and the other wounds were sutured. Mr Sinanaj spent three days in Intensive Care at Royal Melbourne Hospital and a further seven days in a ward.
For completeness, I note you were first interviewed by police on 14 May 2007. It is fair enough to say that although you accepted some involvement in the incident, your claim from the outset was always to have acted in self‑defence. To a large degree, you had also taken the view that Mr Sinanaj, at all times, had the knife and what had occurred had really occurred as a result of the struggle.
In the material I was provided came a report from Professor Ranson, who is one of the most highly qualified forensic pathologists in the State of Victoria. Professor Ranson expressed the view that there was nothing about the nature of the wounds themselves that precluded them having been inflicted in a struggle.
There is, however, no doubt that the injuries were very serious and at least the laceration to the liver was life threatening.
I received two victim impact statements from Mr Skender Sinanaj and one from his father, Isa Sinanaj. Both men have been seriously affected by these events. Mr Skender Sinanaj suffers from a post‑traumatic stress disorder, has a sense of isolation and is afraid. He still receives regular counselling and continues to suffer some of the physical consequences of his wound, particularly the wound to his liver. His father suffered a fair amount of shock as a result of these events and it is fair to say that the consequences for the Sinanaj family have been serious.
This offence carries a maximum penalty of 15 years.
You have a significant criminal history involving 126 convictions from 23 court appearances between December 1988 and October 2005. You committed further offences whilst on bail for this offence and in June 2009 you were dealt with for theft of a motor car and sentenced to an intensive corrections order for three months, which you successfully completed.
It should be noted that among your prior convictions there are these: causing injury intentionally; causing serious injury recklessly; causing serious injury intentionally; causing serious injury intentionally; and causing injury recklessly. Those offences having been committed between 1991 and 1996.
It is, however, very important in your case to note that after you were released on a community based order in October 2005, your re-offending has been limited to this offence and to the car theft to which I have just referred. That is a period now of over five years.
Your performance and behaviour during that time (this very serious offence put to one side for a moment) has been much better than might otherwise have been anticipated, given the criminal history you had at that time and given the level to which some of that offending had escalated, including armed robbery, false imprisonment and causing serious injury intentionally.
Even apart from your anti‑social behaviour, as indicated by your prior court appearances, your life has been a difficult one. You were born in Melbourne. When an infant, your family moved to Broadmeadows, then to Werribee when you were four. You grew up in the Werribee area and throughout your adult life you have lived more or less around that area. You are one of five children to your parents, you being the second eldest, with three sisters and a younger brother. Six years separate the five children. It followed that your mother spent the whole of her time doing her best to look after you and your father worked as a labourer.
When you were two years old, you were knocked down by a vehicle of some kind in circumstances where you had just been playing out on the road, as children did, and you suffered a brain injury. Not surprisingly, considering both your age and of the circumstances of the event, you have no particular memory of it. You believe, and there is no way of analysing it otherwise, that that event has impacted on your development and, in particular, in matters of your behaviour over the period from about 13 onwards in your life.
The relationship you had with your father was a difficult one. He had been a violent alcoholic who had behaved violently towards your mother, you and your siblings. It is not entirely clear, but I suspect because of your behavioural difficulties, you may well have been singled out. At the age of 13 you ran away from home. Ironically, your father ceased drinking after that and became a Born Again Christian. He has adhered to his faith since. Whatever the history had been, your current relationship with your family and both of your parents is good.
From the age of about 13, you spent time at various institutions including Turana, having been placed there as a result of a care and protection order. There were some placements in other institutions, a return to home, further instances of running away from home, further placements in hostels and time spent living on street.
In terms of your drug abuse history, you began using cannabis at the time you left home at 13. By the age of 16 you were a user of heroin. By 17 you were using heroin intravenously and had started using amphetamines.
It was at the age of 16, however, around 1987, that you met Ms Keifer, your current partner, for the first time. From that time on she became, as it was expressed on the plea, a constant in your life. It is an understatement to say that because of your behavioural problems, there are various points in the relationship which have been difficult, made even more so by your offending over the next period of years.
Together you have two children: Jesse, born in 1992, and Thomas, born in 1996. There were difficulties about your early relationship with your children due to the time that you spent in custody. It was really as a result of Ms Keifer taking the view that you would not have any true ongoing relationship with your children unless you did something about your life, that has caused you to make the positive changes that you have made. Ms Keifer regards you as a good father.
Your elder child, Jesse, is currently undertaking a carpentry apprenticeship. Thomas has a disability in terms of his hearing and suffers from anxiety. You do receive some specialist support in that regard, but with that support it seems that the family unit is able to function well. You take your responsibility as a parent seriously and have great regard for your children.
It was put to me on the plea that once these matters are concluded, you and Ms Keifer plan to marry and probably relocate to the Ballarat area where your mother and father have a farm.
Over the last five years, you have been in regular employment in the building industry, but as the trial - or plea as it then was - was listed to begin in January of this year, you ceased work. You did so in an attempt to cope with all the things that were happening around you and, because this matter has been put off in the way that I have described, you have not recommenced work since.
Your medical and psychological history is complicated. As already observed, you suffered a head injury at the age of two. You suffered a further head injury in 2003.
I received a number of reports in this regard which I received as exhibits. I received reports from Dr Kathryn Hoskin, Associate Professor Malcolm Hopwood, and Dr Fiona Toal.
Dr Hoskin, who is a clinical neuropsychologist, summarised your position on 12 February 2009 when she said:
“In terms of every day life there is no evidence of a disorder of impulse control to explain Mr Koelman's impulsive behaviour in everyday life. However, the assessment indicated that Mr Koelman would become a little overwhelmed by complex verbal information and would have difficulty deciding on a plan of action in complex situations, particularly when tired or under pressure. He would benefit from information presented in shorter chunks or in a repetitive manner to allow him to fully register it, plus assistance to carefully consider his plan of action in complex situations.”
Associate Professor Hopwood, who was a psychiatrist specialising in patients with brain disorders and acquired brain injuries, said this in his report of 4 September 2009 under the heading, “Summary and Conclusions”:
“It was thus my impression that this 38 year old married father of two and current building industry employee has a clear history of one, ABI (meaning acquired brain injury) and potentially three injuries. These injuries clearly occur on a background of significant turbulence in his development history and probable anti‑social personality traits. It is difficult to estimate with any accuracy the contribution of an injury suffered at the age of two years to personality development. There is equally some complexity in estimating the ongoing contribution of his ABI from 2003 to his current behaviour or behaviour at the time of the offence.
Please note, it would be my view that the injury described in 2008 is unlikely to be making a major contribution to his current presentation.
Neuropsychological assessment at the time of Mr Koelman's injury indicated some inefficiency in the executive cognitive function which may well be pertinent to his capacity to plan and consider carefully the nature of his actions. Some impulsivity was described although the offence on this occasion did not appear to be particularly impulsive as described.
I consider it is likely that Mr Koelman has considerable limitations on his capacity to consider the complex ramifications of his own actions. Any deficits in cognition Mr Koelman suffers from are clearly highly likely to be exacerbated by his ongoing substance abuse. I would thus respectfully suggest that any future management plan take this into consideration. Whilst his ongoing cannabis abuse is less likely to contribute to any impulsivity, it would clearly further exacerbate his capacity to think through complex situations and form a reasonable course of action.
I note his description of his recent cessation of amphetamine use following the time of the alleged offence. If this is indeed true this is of some considerable promise.”
Then in a further report of 6 October 2009 he said:
“I can report it is my opinion that at the time of the alleged offence in April 2007 Mr Koelman was suffering from an acquired brain injury. The cognitive deficits associated with this injury are likely to be exacerbated in their impact in settings where Mr Koelman is emotionally aroused or has to consider and deal with complex information. It is conceivable that a police interview would constitute such a situation.”
Associate Professor Hopwood’s comments there were in response to a specific question that he had been asked by your solicitors.
The circumstances of the offending as outlined on your behalf, were that you had been working during the week and on Friday night, the night of the offending, you sought to obtain some amphetamine. This was in order to help you get through the weekend, during which you were to attend an important social function involving Ms Keifer's father. The drugs with which you were supplied were not what you expected to get. In fact they were not an illicit substance at all. I have no doubt that you were very upset about that.
It was submitted on your behalf that I should have regard to the principles set out in R v Verdins[1] in fixing this sentence. It is the Crown submission that I should not.
[1](2007) 16 VR 269.
The Verdins principles are those which govern the way in which courts are to deal with those suffering from mental disorders, illnesses and deficits.
Your behaviour over a number of years has been complicated by your abuse of illicit substances and this offending is at least linked to that part of your life. Yet, given that this case proceeds for sentencing on the basis of excessive self‑defence, I am not sure that it can be said that your offending was connected with your brain injury. I suppose it is fair to say that your excessive behaviour, your over‑reaction to the whole of the circumstances, may well have something to do with your injury and to that extent I have taken it into account. That seems to accord with precisely those passages that I have read from the reports that I have received.
I accept, however, that if you were to serve a term of imprisonment other than in the community, your condition is such that it would make such a sentence more onerous for you than it would others.
I also suspect that your condition is such that it is difficult for you to be genuinely remorseful. I accept that, in general, you regret what happened to Mr Sinanaj, but I suspect also that you would tend to blame him for it.
Your plea in the circumstances is of value, and I will say something about that in a moment.
The case itself is now more than three years old. You have largely kept out of trouble in the meantime. You have, over the last period in your life, maintained a significant continuity of employment and there is no reason to think that you will not return to employment. You are in a stable relationship which has, in more recent times, had a very positive effect upon you. You appear to relate well to your children and now have a good relationship with your parents.
I find your prospects of rehabilitation are at least reasonably good and perhaps the best that they have been for a very long time. Your behaviour over the last five years has been vastly improved when compared with your earlier history.
This is a serious offence with serious consequences, and the effect on your victim and his extended family has been equally serious.
Your conduct must lead to a custodial sentence. The prosecution have submitted that the form of custodial sentence is a matter for me, that is, the prosecution accept that it would be open for me to fully suspend any sentence I impose upon you.
I would not ordinarily have contemplated a fully suspended sentence for this offending and for someone with your history, but when you go through the matters that I have been through, there is a lot more to be said about both the offending and about you than might simply appear from a superficial analysis of the whole of the circumstances.
One of the features of the case is, and these matters are difficult, the history of the matter has at best, been drawn out. Many of those difficulties are as a result of your brain injury. It is exactly the things that the expert neuropsychologist and psychiatrist reported about, the difficulties that relate to the complexity of trying to conduct a criminal trial, that have given rise to those difficulties and it is fair to say, made it much harder for you to handle.
I am personally grateful for Ms Muir's presence, and for the times she has been here while I have deal with you. It means there has been someone here who can explain things to you in a simpler way; much of the language used by the courts not being all that simple.
So, ultimately, your plea of guilty - that is, the resolution of this case - from the point of view of everybody involved in it - that is you, the victim, the Court and everyone else - is of value and importance.
I have had regard to all the matters set out in s 27(1)(a) of the Sentencing Act 1991.
If you just stand up for a moment, please.
You are sentenced to be imprisoned for three years. I suspend all but 23 days of that sentence.
I declare that 23 days have already been served pursuant to that sentence and order that this declaration and its details be entered in the record of the Court.
Although it is extremely artificial in a case such as this, I am obliged to state what sentence I would have imposed had you not pleaded guilty. Doing my best, I would have imposed a sentence of four years with a non‑parole period of three years. I direct that this statement and its details be entered in the record of the Court.
I should note that upon the conclusion of the plea on Tuesday, I gave an indication of the sentence I was likely to impose, and I did so because I wanted it explained to Mr Koelman very carefully what the consequences of a suspended sentence are. I am satisfied that he fully understands those consequences.
I repeat for the purpose of the record, Mr Koelman, that if you re-offend in the next three years, I will not have any choice but to send you to gaol for the three years, although there would probably be some non‑parole period, but given your history that might be a pretty short non‑parole period, so you would be looking at serving almost the entire three years ‑ it is not in your interests, not in the interests of Ms Keifer who by then will be Mrs Koelman, we hope, not in the interests of your children, not in the interests of your parents, and I would regret it.
So it is three years fully suspended, three years, all but 23 days suspended for three years and the 23 days taken as already served. That means you qualify for immediate release, Mr Koelman.
PRISONER: Thank you.
2