R v Melten
[2001] VSC 184
•7 June 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1495 of 2000
| THE QUEEN |
| v. |
| JAN JACOBUS MELTEN |
---
JUDGE: | BONGIORNO J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 25, 28-31 May; 1 and 2 June 2001 |
DATE OF SENTENCE: | 7 June 2001 |
CASE MAY BE CITED AS: | R. v. Melten |
MEDIUM NEUTRAL CITATION: | [2001] VSC 184 |
---
CATCHWORDS: Criminal Law – Sentencing – Victim impact statement
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. G. Silbert | Office of Public Prosecutions |
| For the Accused | Mr. I. Hayden | Victoria Legal Aid |
DRAFT
HIS HONOUR:
Jan Jacobus Melten, you have been convicted by a jury of intentionally causing serious injury to Kim Maree Hughes, having been acquitted by the same jury of her attempted murder. It is now my duty to sentence you according to law.
You are aged 39. You are of Dutch extraction, born in Melbourne into a family of four children, two of whom are older and one younger than you. Your father was a station master and moved around the State in the course of his employment. He was transferred to Moe when you were 14. He and the rest of the family left Moe about three years later, by which stage you had commenced an apprenticeship with the then State Electricity Commission as a refrigeration mechanic. You stayed in Moe and, in effect, became the adopted son of the McKnight family. This de facto adoption, which occurred as a result of your friendship with Steven McKnight, eventually supplanted your relationship with your natural family. Your counsel informed the Court that you have had no contact with them at all for the last five years.
Although you eventually completed your refrigeration mechanic's apprenticeship, since doing so you have worked in a number of other skilled and semi-skilled manual occupations. It is sufficient for present purposes to note that your employment appears to have been steady over a long period and that notwithstanding the economic adversity which has affected the LaTrobe Valley you have been able to maintain effectively constant employment. At the time of your assault on Ms. Hughes you were working as a manager at a hotel in Moe associated with the Moe Football Club.
You have never married and indeed the relationship which you had with Ms. Hughes appears to have been the only long term relationship you have ever engaged in with a person of the opposite sex.
You told Mr. Bernard J. Healey, a clinical psychologist who examined you for medico-legal purposes on 1 May 2001, about the sexual abuse to which you were subjected, which was perpetrated by the husband of your maternal aunt over a period of about nine years between the ages of four and 13. He concurs with a psychologist you consulted after the events of 2 April 2000, Mr. Garry Lawler of Traralgon, that your uncertainty in relationships with women results from a lack of closeness and trust that could be explained by your having suffered at your uncle's hands in this way. I have little further information about these events other than that you declined to join your sister, who was likewise a victim of the same predator, in instigating proceedings against your uncle, a fact which may offer some explanation for your present apparent estrangement from your family.
It is fair to summarise the opinions of both psychologists that there are issues remaining from this period of sexual abuse which have never been appropriately dealt with. Mr. Lawler refers to unresolved anger and guilt affecting your self-confidence, ability to form relationships and ability to feel secure. Mr. Healey refers to your episodic alcohol abuse leading, on occasions, to alcoholic amnesia.
Your relationship with Ms. Hughes commenced some 14 months prior to April 2000. So far as details emerged during your trial, it may be said that it was a somewhat less than committed de facto relationship which involved each of you staying at each other's homes from time to time and at least insofar as such contact would permit, engaging in some domestic activities on each other's behalf. It is significant that it is not suggested that your relationship was in any way abusive or violent at any stage until the events of 2 April 2000.
On 27 March 2000 you had a telephone conversation with Ms. Hughes in which she expressed some misgivings about your relationship and, in effect, expressed her wish to finish it. Over succeeding days you had no contact with her until she attended the hotel at which you were working on Saturday evening, 1 April with a female friend. It appears that you were concerned about her behaviour at the hotel which you regarded as flirtatious and inappropriate.
Ms. Hughes and her friend remained at the hotel drinking, dancing and enjoying the entertainment provided until about 1.20 a.m. when they left with another mutual friend, one Michael Anderson who is commonly called Boris. They returned to Ms. Hughes' home where, after some discussion, it was decided that Boris would sleep in or on Ms. Hughes' bed, there being no other convenient place for him to do so.
Meanwhile, at the hotel, you had concluded your night's work and had a few drinks. This alcohol was in addition to drinks you had consumed at the football in the afternoon and during the evening whilst you were working. You retired to your unit at the hotel where, it appears, you drank a further several cans of a mixed drink containing bourbon.
Some time after 3.30 a.m. you left the unit and went to Kim Hughes' home, perhaps in response to a suggestion made by Michael Anderson before he left the hotel or perhaps, as you have asserted, because you wanted to confront her with what you regarded as her inappropriate behaviour during the preceding evening.
Upon arrival at Ms. Hughes' house you entered and went directly to her bedroom where you discovered her and Anderson in the same bed. She protested that nothing had occurred between them at which point you went to leave. You claim that she called you back, which claim she at least partially concedes. In any event, you went to your car, ostensibly to retrieve cigarettes, and returned to the house carrying not only the cigarettes but also a Swiss Army pocket knife.
Ms. Hughes told the Court in her evidence that she was concerned to, as she put it, "diffuse" the situation. However she had no time to do so as, upon entering the house, you approached her from behind, held her and drew the Swiss Army knife twice across her throat inflicting a superficial wound the first time and a considerably more serious wound the second time. You also inflicted a wound to her chest area.
It seems clear that immediately upon seeing the copious flow of blood caused by the second cut you attempted to assist Ms. Hughes by stemming the bleeding and offering to take her to hospital. She rejected this offer and called for emergency assistance.
Fortunately for Ms. Hughes a competent paramedic was quickly on the scene and able to render effective first aid. She was transferred to the Alfred Hospital where she received appropriate treatment to the cuts to her neck which had damaged her trachea, her thyroid gland and her recurrent laryngeal nerve which supplies the vocal chords on the right hand side. Despite this treatment Ms. Hughes has been left with a weakness in her vocal chords and unsightly scarring to her neck.
After the events of the early hours of that Sunday morning you fled to bushland near Moe where you remained until giving yourself up to police the following day. You were in a distressed and probably depressed state to such an extent that you attempted suicide and generally behaved in a somewhat chaotic and disorganised manner.
Upon being interviewed by the police you were co-operative but were unable to describe the events surrounding your attack on Ms. Hughes perhaps, as Mr. Healey suggests, because of a period of dissociation caused by lack of sleep and the ingestion of alcohol.
In September of last year you indicated your willingness to plead guilty to the offence in respect of which you have been convicted. Unfortunately the Crown did not accept that plea and persisted with the trial of a presentment containing a count of attempted murder. Thus you are not strictly entitled to the benefit of s.5(2)(e) Sentencing Act 1991. However, your willingness to plead guilty to intentionally causing serious injury is indicative of the remorse to which witnesses on your behalf have deposed and which has been apparent from your behaviour since this dreadful event occurred. Thus you are entitled to the benefit of that circumstance as a mitigating factor.
I have already detailed the physical effects of this event upon Ms. Hughes. A victim impact statement filed by her confirms those effects as well as referring to the psychological effect of having been attacked in the way in which she was. In a further document which I received after you were remanded for sentence Ms. Hughes informed the Court that despite the impact of the events of 3 April 2000 she has forgiven you for. She has told the Court that she believes you to have accepted the enormity of your actions which she considers to be totally out of character and that she believes the sincerity of your apology to her for that act.
If one had any doubt as to the depth of your remorse Ms. Hughes' statement to which I have referred puts it beyond question.
Whilst it is important that reliable information as to the effects of a crime upon a victim should be placed before a sentencing court, it must be borne in mind that the sentencing process is one in which the Judge must balance the interests of the State against those of the offender. Whilst it is entirely appropriate, and indeed required, that the Court take into account the effects of a crime upon a victim it must be vigilant to ensure that the views of a victim as to what might or might not be an appropriate sentence in a particular case do not intrude upon the sentencing process. Were they to do so the process would be distorted so that the perpetrators of crime would be dealt with, in part at least, according to whether the victim was prepared to extend or withhold mercy as the case may be. A moment's reflection demonstrates that the victim of a crime is the worst possible judge of what is fair and just treatment of an offender. This is so whether the victim's inclination is to forgive or to urge the Court to exact vengeance.
Accordingly, in this case, the victim impact statement and its addendum to which I have referred can be used to determine the effect on Ms. Hughes of your conduct and to confirm, as a matter of evidence, that you have displayed a significant measure of remorse.
In fixing a sentence in your case questions of specific deterrence, rehabilitation and the protection of the public do not loom large. I consider it unlikely that you will offend in this way again. You have not done so in the past and apart from an insignificant brush with the law in 1995 you have displayed all the attributes of a good citizen. Witnesses have attested to your excellent reputation and to your admirable community activities in the Country Fire Authority and the Moe Football Club.
I do not believe that you are a danger to the public at large. Your attempt to solve a relationship problem with the use of violence arising from a personality problem compounded by the consumption of alcohol is likely to only endanger those with whom you are in some sort of relationship. The sentence which I am about to impose will prevent your being in any such relationship for some time. Your realisation of the enormity of the act you committed should be sufficient to protect anyone to whom you become close in the future.
The principal sentencing factors in your case are those which relate to the necessity for the Court to express the community's denunciation of violence generally and particularly violence arising out of relationship conflicts, to deter others who might be minded to resort to violence in a similar way and, most importantly, to punish you for the deed which you committed. Your actions were, in effect, a form of domestic violence and, as such, are to be condemned in the strongest possible terms.
Your counsel submitted that the ends of sentencing in your case could be accomplished by the imposition of a sentence of which a considerable portion could be suspended. I am unable to accede to that submission. It seems to me that it is necessary for the Court to impose a substantial custodial sentence to achieve the purpose or purposes for which the sentence is to be imposed.
It is the sentence of the Court that you be imprisoned for five years. It is further ordered that you serve a minimum of three years before being eligible for parole. It is declared that the period to be reckoned as already served under that sentence up to today is the period of seven days and it is directed that that declaration and its details be noted in the records of the Court.
---
0
0
0