R v Nash
[2012] VSC 507
•1 November 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No S CR 7 of 2012
| THE QUEEN |
| v |
| BEN ANTHONY NASH |
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JUDGE: | ROBSON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 September 2012 | |
DATE OF SENTENCE: | 1 November 2012 | |
CASE MAY BE CITED AS: | R v Nash | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 507 | |
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CRIMINAL LAW – Sentencing – Intentionally causing serious injury – Kicking and punching a mature-aged woman – Plea of guilty – Offender suffering from impaired mental functioning – Major depressive disorder – R v Verdins enlivened – Causal connection with offending conduct – Disinhibiting effect of alcohol and drugs.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D A Trapnell SC | Department of Public Prosecutions |
| For the Accused | Ms M Walker (solicitor) | Melinda Walker – Criminal Solicitor |
TABLE OF CONTENTS
Introduction............................................................................................................................... 1
My role in sentencing you......................................................................................................... 1
Maximum penalty prescribed for the offences........................................................................... 3
Circumstances of the offences.................................................................................................... 3
Injuries....................................................................................................................................... 6
Arrest and Investigation............................................................................................................ 7
The impact of the offence on any victim of the offence and her personal circumstances........... 7
The Plea on your behalf............................................................................................................ 10
Personal circumstances............................................................................................................ 10
Evidence of Dr Cidoni.............................................................................................................. 12
Dr Ross’s report....................................................................................................................... 15
Plea of guilty............................................................................................................................ 15
Remorse.................................................................................................................................... 17
Your previous character........................................................................................................... 17
Prospects of rehabilitation........................................................................................................ 19
Circumstances of the offence.................................................................................................... 19
Your mental state..................................................................................................................... 20
Moral culpability..................................................................................................................... 23
General deterrence................................................................................................................... 23
Specific deterrence.................................................................................................................... 24
The sentence will weigh more heavily upon you..................................................................... 24
Is there a serious risk of imprisonment having a significant adverse effect on your mental health? 25
The influence of alcohol and drugs.......................................................................................... 25
Current sentencing practice.................................................................................................... 26
Nature and gravity of the offences........................................................................................... 26
Conclusion............................................................................................................................... 27
HIS HONOUR:
Introduction
Ben Anthony Nash, you have pleaded guilty to these offences:
(a)Count 1: intentionally causing serious injury contrary to s 16 of the Crimes Act 1958;
(b)Count 2: driving a motor vehicle whilst disqualified contrary to s 30(1) of the Road Safety Act 1986; and
(c)Count 3: using a drug of dependence namely heroin contrary to s 75 of the Drugs Poisons and Controlled Substances Act 1981.
My role in sentencing you
It is my duty to sentence you for these offences. In doing so I must form a conclusion as to the relevant facts relating to the counts to which you have pleaded guilty.[1] Save for one matter (which I will address later), there has been no objection by you to the Crown summary of the relevant facts relating to the counts to which you have pleaded guilty, and, accordingly, I will adopt the Crown’s description of the relevant facts. I must also take into account all relevant matters relating to you.
[1]Cheung v The Queen (2001) 209 CLR 1, [14] (Gleeson CJ and Gummow and Hayne JJ).
I shall proceed to do so, mindful of the relevant principles, namely –
(a)that I must be satisfied beyond reasonable doubt of any fact which might be relied on in aggravation of the offence for which you have been convicted; and
(b)that I am required to be satisfied on the balance of probabilities of any facts which I take into account in mitigation of the offences or in mitigation of sentence.[2]
[2]R v Mohammed (2004) VSC 423, [2].
In sentencing you, I am required by the Sentencing Act 1991 to have regard to several matters including:[3]
[3]Sentencing Act 1991 s 5(2).
(a)the maximum penalty prescribed for the offence;
(b)current sentencing practices;
(c)the nature and gravity of the offence;
(d)your culpability and degree of responsibility for the offence;
(e)the impact of the offence on any victim of the offence;
(f)the personal circumstances of any victim of the offence;
(g)whether you pleaded guilty to the offence and if so the stage at which you did so or indicated an intention to do so;
(h)your previous character; and
(i)the presence of any aggravating or mitigating factors concerning you or of any other relevant circumstance.
I must also consider the purposes for which sentences may be imposed, being:[4]
(a)to punish the offender to an extent and in a manner which is just in all the circumstances;
(b)to deter the offender or any other persons from committing offences of the same or a similar character;
(c)to establish conditions within which it is considered by the Court that the rehabilitation of the offender may be facilitated;
(d)to manifest the denunciation by the Court of the type of conduct in which the offender engaged; and
(e)to protect the community from the offender.
[4]Sentencing Act 1991 s 5(1).
This is not an exhaustive list of all relevant matters, which matters I nevertheless take into account.
Maximum penalty prescribed for the offences
The maximum penalty for these offences are:
(a)intentionally causing serious injury: 20 years imprisonment;[5]
(b)using a drug of dependence: one year imprisonment or 30 penalty units;[6] and
(c)driving whilst disqualified: two years imprisonment or 240 penalty units,[7] as this is not your first offence – you have six prior convictions for driving whilst disqualified.
[5]Crimes Act 1958 s 16.
[6]Drugs, Poisons and Controlled Substances Act 1981 s 75(b).
[7]Road Safety Act 1986 s 30.
Circumstances of the offences
Throughout July and into August 2011, Mrs Jean Payne (Mrs Payne) and her daughter Erin Payne (Erin) were having a dispute about a motor car. At the time, you were Erin’s boyfriend. Erin gave her mother a Ford TX5 coupe which Erin had purchased from a friend for $1,000, and Mrs Payne gave Erin her BA Ford Falcon so that you could do some work on it. The TX5 subsequently had engine problems and Mrs Payne asked for her BA Falcon back. Initially, Erin and you would not return it.
The dispute reached a point where an agreement was made between Mrs Payne and Erin where there would be a swap of cars in order to avoid any further confrontations. Mrs Payne was to leave the keys to the TX5 in the letterbox of her house in Jane-Maree Place, Cranbourne, so that Erin could come and collect the keys, and at the same time Erin would leave keys for the BA Falcon in the letterbox, so that an exchange of motor cars could take place. You were to leave the BA Falcon in Mrs Payne’s driveway.
The car swap was to occur on 12 August 2011. Erin drove her own car, a blue Holden Commodore, and arrived at her mother’s house at around 10.50 pm. You drove the BA Falcon. Erin parked her car one or two houses away from her mother’s house, and you parked the BA Falcon around the corner in another street.
When Erin arrived at her mother’s house, Mrs Payne saw that the BA Falcon had not been parked in the driveway pursuant to the arrangement, so she went outside to speak to Erin. Mrs Payne was angry. Mrs Payne walked up behind Erin and asked what was going on. The two women started arguing and got into a scuffle. Mrs Payne had a piece of glass in her hand, which she had grabbed from a broken picture frame. She used the glass to threaten Erin, demanding that her car be returned. The two women were screaming at each other. The two women fell to the ground during the course of the scuffle. According to Erin, Mrs Payne started to attack her by swinging her arm towards Erin’s neck whilst holding the piece of glass in her hand. At this point you were not present at the property.
A short time later, the scuffle came to an end with the two women releasing their hold on each other. Erin returned to her car and called you and told you that her mother had tried to stab her. Erin then drove off, but stopped at the end of the road for a minute to clean her face because she had been crying. Erin spoke to you again and said, “Don’t worry about the car lets just get out of here”. Shortly after Erin drove off, you called her and asked where she was because you had lost her.
While Mrs Payne started to stand up from being on the ground, you approached her. As Mrs Payne turned around to see you approaching, you kicked her in the face, causing her to fall down onto the driveway. In her deposition, Mrs Payne says that you jumped her from behind and that she felt like she was being kicked repeatedly. I will return to the kicking shortly. You said to her, “I will kill you, you fucking cunt of a bitch… you’re not getting the fucking car back”. Mrs Payne was punched a number of times in the upper part of her body by you.
You have admitted by your plea that by kicking and punching Mrs Payne you intended to cause Mrs Payne a serious injury.
Some of these events were seen by a neighbour, Glen Tapson. He arrived home on 12 August at about 10.50 pm and while inside his house, he heard a dog barking aggressively, causing him to wonder what was going on outside.
Mr Tapson heard the screeching of car tyres and went outside. He saw the tail lights of a dark blue Holden Commodore sedan in the street – he thought the Commodore belonged to his next door neighbour as he had seen it in Mrs Payne’s driveway earlier that day. This was Erin leaving the area in her car. Mr Tapson noticed that the car stopped a little way down the road, just before Clairmont Avenue.
Mr Tapson saw some movement out of the corner of his eye and walked towards the boundary of his property where it divided with number 14. He noticed Mrs Payne sitting on the grass on the nature strip near her driveway. He spoke to her, asking her what happened. Mrs Payne said nothing at that stage, but was making sobbing sounds. A short time later Mrs Payne said that her car had been stolen, and she asked for help a couple of times. Mr Tapson then noticed the Commodore drive off and turn left into Clairmont Avenue.
While Mr Tapson was talking to Mrs Payne and looking down the street, he saw you run into Jane-Maree Place from the side street nearby. He saw you run directly towards Mrs Payne, who was still sitting on the ground, and saw that by using a front forward kick, you kicked Mrs Payne directly in her face as she was looking at you approaching.
After you kicked Mrs Payne in the face, Mr Tapson saw her fall sideways onto the concrete and hit her head. Mr Tapson saw you punch Mrs Payne in the head with your right hand, and saw you punching all the way down Mrs Payne’s upper body. The incident happened quickly and once it was finished, Mr Tapson saw you run off around the corner into the side street from where he had originally seen you come.
Mr Tapson then looked at Mrs Payne, who was lying on the concrete and not moving. She began asking for help, saying that she was hurt, and at the same time trying to get up. Mr Tapson jumped over the fence dividing the two properties and helped Mrs Payne sit up, as she had fallen back down after having tried to get up. He assisted Mrs Payne to her feet with the intention of taking her inside her house, however after some distance Mrs Payne collapsed. He went back to his house and asked his partner to call an ambulance. The call was received by paramedics at 11:14 pm.
As I have already indicated, Mrs Payne says that she felt that she was kicked repeatedly. Mr Tapson only refers to seeing a single kick. In your defence response, you admit kicking Mrs Payne once only but deny the additional kicks she alleges. Your counsel, Ms Walker, contends that I should proceed on the basis that you only kicked Mrs Payne once. I will do so, as I am not satisfied beyond reasonable doubt that you kicked Mrs Payne more than once.
Injuries
As a result of the assault, Mrs Payne was conveyed to the Alfred Hospital where she underwent surgery and was placed in an induced coma for several days. As a result of the assault by you, Mrs Payne received the following agreed injuries:
(a)Right frontal scalp haematoma;
(b)Abrasion to the left knee;
(c)Buckle fracture left 3rd rib;
(d)Displaced fracture left 4th rib;
(e)Displaced fracture left 5th rib;
(f)Two part fracture 7th rib; and
(g)Left scapular tip fracture.
Arrest and Investigation
On Saturday, 13 August 2011, you were arrested by police in relation to the assault the night before in Cranbourne. You were formally interviewed by the police.
In the record of interview you lied to the police, denying that you assaulted Mrs Payne. You stated that at about 6.30 pm Erin Payne arrived at your home and a short time later you and Erin drove to Blackburn where you purchased heroin and returned home. You admitted to using drugs once or twice a week. You told the police that at about 8.30 pm you and Erin drove to Jane-Maree Place, Cranbourne in separate vehicles and both parked outside Mrs Payne’s home. You said you observed a fight between Mrs Payne and Erin whereby Mrs Payne produced a broken bottle and attempted to stab Erin. You told the police that you did not get out of your vehicle at any stage. After the fight Erin returned to her vehicle and you and Erin both drove off separately to your homes. You said you had no further contact with Erin in person or by phone. You admitted to driving whilst your licence was disqualified.
The impact of the offence on any victim of the offence and her personal circumstances[8]
[8]Sentencing Act 1991, s 5(2)(daa) and (da).
There was no relevant victim in relation to counts 2 and 3. In relation to the assault on Mrs Payne, Mrs Payne filed a victim impact statement which she read to the Court. As to the emotional impact on her of your attack, she says that:
(a) she thought she was going to die and she thought she was already dead;
(b) she kept begging for it to stop “please, please stop”;
(c) she is scared all the time;
(d) when she goes to the supermarket, she does not let anyone stand behind her;
(e) she is scared of enclosed spaces;
(f) she is scared of the dark;
(g) she used to be a friendly person and speak to everyone, but she has changed since the incident;
(h) she isolates herself;
(i) she does not want to leave her home;
(j) she has lost interest in herself, she cannot be bothered doing her hair or wearing make-up;
(k) she has bought nice things to wear, but they remain in the shopping bag in her room;
(l) she cannot wear a bra now, due to her injuries;
(m) she does not understand why this happened to her and she just wants to know why;
(n) she takes medication to help her sleep, but her sleep is constantly broken;
(o) she wakes from nightmares, shaking;
(p) she is constantly tired;
(q) she has disturbed sleep patterns;
(r) she does not eat regular meals, she has lost interest in food;
(s) she had given up smoking prior to the incident, but now smokes more than she ever did;
(t) she is depressed and she is medicated for this;
(u) she is anxious;
(v) she is stressed;
(w) she is re-traumatised every time she thinks about the court-related matter;
(x) she has been prescribed medication, but she also self-medicates with cigarettes and coffee;
(y) during the incident, she was praying to God;
(z) she wants her life back; and
(aa) she wants to stop being scared of everything.
As to the physical impact of the crime on her, she says that:
(a)she can vaguely remember the police and paramedics saying, “Hang on, hang on, we’re almost there, Jean” whilst in the ambulance;
(b)someone was holding her hand;
(c)she remembers her clothes being cut off, as she felt cold;
(d)her next memory was waking from her induced coma nine days later;
(e)she asked the male nurse if she was going to die, and he told her “No”;
(f)she did not believe him, as she still thought she was going to die;
(g)she lapsed back into sleep and when she woke, she was trying to talk but still had a tube down her throat and fell back into unconsciousness;
(h)she woke again and the tube had been removed;
(i)she could barely talk;
(j)she was thirsty;
(k)she was given a small amount of ice shavings;
(l)she was placed in the intensive care unit in a separate room for nine days before being moved into a general ward;
(m)it was not until she reached the ward that her injuries were confirmed;
(n)prior to the accident, she had undergone a hearing operation; however, as a direct result of kicks to her head, bones were broken in both ears and she has now lost all hearing to her right ear and only has 6% hearing to her left ear;
(o)she was badly bruised;
(p)she now also suffers from asthma;
(q)following the incident, she could not move;
(r)she could not cough, and went through “hell” with her recovery and she never knew such pain existed;
(s)she is in constant pain as the nerve ends are regrowing. Her pain stretches from the left to the right side of her body;
(t)due to her ongoing pain in relation to her ribs, the doctor has told her that the breaks are overlapping and have rough edges. She says that over time the ribs will wear down and heal;
(u)she has little balance and takes medication three times a day to assist her with her balance; and
(v)she is unable to take any pressure around her ribcage and this restricts the clothes she wears to this day.
Mrs Payne told the Court that she is petrified all the time and that she did not want to be like that. Mrs Payne is now being treated for pain at a Caulfield pain clinic.
The Plea on your behalf
On the hearing of your plea, you were ably represented by Ms Walker. You called one witness, Dr Cidoni, tendering a report by him and another by Dr Ross. No witnesses were called as to your character save that you tendered a letter by your mother. Much of what follows was put by your counsel.
Personal circumstances
You are currently 30 years of age. You were 29 years old at the time of the offending conduct. You have two younger sisters – one is employed at a bank, and the other is residing in Queensland where she is studying for an Arts degree. You have two children from a past relationship with your ex-partner, Kylie, who you met when you were 23 years of age. You have a daughter who was born in 2006, and a son who was born in 2007.
You have informed your counsel as follows. The relationship between you and Kylie has always been tumultuous. Kylie suffers from depression and that that would cause continual conflict. There has, however, been no violence. The relationship broke down in January 2011. You have had very little contact with your children since you have been in custody as Kylie has been resistant to bringing them to see you in custody.
According to your counsel, you have struggled with mental health problems, manifesting depressive symptoms at the age of 25, and not receiving treatment until the age of 27. You have instructed her that there is a familial history of depression, and that you have twice attempted suicide and on occasion had suicidal ideation. I will return to the issue of your mental health when I examine the evidence of Dr Cidoni.
You have an extensive history of drug use which is set out in Dr Cidoni’s report. You used cannabis between the ages of 13 to 28, heroin for a short period between 17 and 22 and then resuming at the age of 25, and amphetamines for a short period between 17 to 22 also. You attended at Odyssey House in 2009 for three months’ residential treatment and then for ten weeks as an outpatient. You were on Suboxone substitutive pharmacotherapy between 2008 and 2009, prior to going into Odyssey House. By late August 2010, you were once again using heroin (dependent three times daily use), and requested to go onto the methadone program.
According to the report of Dr Ross (of 17 September 2012), during August and November 2010 you were an erratic attender and continued dabbling with heroin use. Your counsel described this period as “extremely tumultuous”. You are currently on the methadone program whilst you are in custody. At the time of the offence, you were on 47.5 mLs, but that has been just increased recently to 65 mLs.
You attained Year 10 in secondary school. You have had a consistent employment history. After leaving school, you did factory work for five years, four of those as a leading hand, and then one year as an installer for the same company. You then did roof tiling for six months and factory work constructing curtains for six months in 2003. You then worked at another factory for five years, until the end of December 2008. You were installing cable television between 2009 and 2010, after you left your short period at Odyssey House rehabilitation.
At the time of the offending, you were prescribed Lexapro, Xanax, and Seroquel.
Evidence of Dr Cidoni
Dr Cidoni gave evidence on your behalf and produced a written report. He is a practising consultant forensic psychiatrist, who in the past has worked with Forensicare. Dr Cidoni saw you at the Melbourne Remand Centre on 31 August 2012 for approximately one hour.
Dr Cidoni recorded your past psychiatric history. You told him that you first noted depressive symptoms at 25, and went to the doctor for treatment at 27. You said that you had a depressed mood most of the time, with a reversed sleep pattern and reduced appetite, energy, and concentration. You had suicidal ideation and attempts in the context of your breakup with Kylie with two heroin overdoses.
You described to Dr Cidoni your ongoing depression. You informed Dr Cidoni that you had been medicated for depression. You have been treated long-term with the antidepressant escitalopram. You were initially on 20 mg per day since age 27, and this has been stopped and started several times whilst in custody.
You informed Dr Cidoni that you had been suffering from irritability and panic attacks. You told Dr Cidoni that you had problems with anger and impulsivity. You said that you had some days of elevated moods and some mood swings, but no convincing symptoms of bipolar disorder. Dr Cidoni states that there was no history of psychotic symptoms. You denied any relationship instabilities.
You described some anxiety with panic attacks, with treatment with alprazolam over four months prior to your offences and incarceration. You described anxiety mainly around people and whilst in cars. Dr Cidoni says there was no phobia.
You told him that you had a prior CAT team referral, but were not seen by them and have not had contact with public mental health services.
Dr Cidoni records that you told him that you presently have ongoing depressed mood, with impaired sleep and appetite.
Dr Cidoni opined that you have suffered from a major depressive disorder that has been characterised by recurrent depressive symptoms. He says that the disorder is in relapse at the moment. He did not find convincing evidence of bipolar disorder. Dr Cidoni opined that you have a mild degree of impulsivity, which is part of your personality, although you do not have a personality disorder as such.
He opined that you have suffered from polysubstance abuse, including opiates and amphetamines.
Dr Cidoni expressed the opinion that you were a low risk of future violent behaviour and the risk of you re-offending was low. He believes that imprisonment will have a strong deterrent affect on you. He also believes that you will be motivated to cease taking drugs. He expressed the opinion that your prospects of rehabilitation are good.
Dr Cidoni also expressed the opinion that at the time of the offending you were suffering from a significant amount of stress due to the conflict over the car. He expressed the opinion that at the time of the offending you had a pre-existing depression and anxiety condition and that those conditions combined with your intoxication and medication meant that you were not able to control your behaviour or behave properly.
Dr Cidoni also expressed the opinion that you were likely to experience imprisonment with greater difficulty than you otherwise might because of your pre-existing anxiety and depression condition. Dr Cidoni said that he did not believe that you would receive appropriate treatment whilst in custody.
You told Dr Cidoni that at the time of the offence you had consumed three-quarters of a bottle of Canadian Club whisky, five to six 2 mg Xanax tablets and alprazolam tablets, and 0.5 g of heroin.
Dr Cidoni opined that the offending occurred in a particular set of circumstances, including a relationship that you are no longer in and a conflict between your ex-girlfriend and her mother in which you became embroiled. He opined that intoxication with substances, particularly alprazolam or Xanax (which has an effect of disinhibition and impairing judgment), also contributed to the offending. Dr Cidoni says that he believes that these set of circumstances were peculiar and unlikely to occur again. He noted that you had no history of assaultive behaviour. As such, he believed that the risk of reoffending was low and the prospects of rehabilitation good.
Under cross examination, Dr Cidoni agreed that he had not been told by you that you had stopped taking your prescribed medication of Quetiapine for two days prior to the offence. Dr Cidoni agreed that your failure to take your medication may have contributed to your behaviour. Dr Cidoni also agreed that your drinking three quarters of a bottle of Canadian Club whisky would have a disinhibiting effect on your behaviour.
Dr Cidoni also agreed that in taking five or six Xanax tablets for your anxiety, you would have taken an excessive dose and that it would have had a disinhibiting effect on your behaviour.
Dr Cidoni agreed that the combination of alcohol and the Xanax tablets would have an additive effect where they would interact to disproportionally increase the disinhibiting effect.
Dr Cidoni agreed with the Crown’s suggestion that, in your failure to take your medication, combined with your overdosing on Xanax tablets and consumption of whisky, you could be described as “a walking time bomb” on the day of the offence.
Dr Cidoni agreed that he could not say whether your mental condition had deteriorated whilst in custody.
Dr Ross’s report
A report from Dr David Ross was tendered. The report indicates that in 2009 you were stressed, that you were on drugs, and that you had received counselling from a psychologist, Leanne Livingston. You entered Odyssey House due to your drug addiction in March 2009, but by August 2010 you told Dr Ross that you were once again using heroin. In January 2011, your relationship with the mother of your children broke down.
Dr Ross said that you commenced on the antidepressant medication Avanza. Your instructions are that you did not, but have taken Lexapro. You returned to see Dr Ross in August 2010. At that stage you were back on drugs and you requested that you go on methadone.
Your counsel explained how on 15 February 2011 you were ordered to undergo home detention for driving whilst disqualified. You breached your home detention order as your aunt, who was housing you, evicted you when she discovered you were once again using heroin. As a consequence you were ordered to serve two months imprisonment wholly suspended on 1 June 2011.
I accept that this evidence establishes that you have experienced a constant struggle with heroin and depression in recent years.
Plea of guilty[9]
[9]Sentencing Act 1991 s 5(2)(e).
As I have said earlier, I am required to have regard to whether you pleaded guilty to the offences, and – if so – the stage in the proceedings at which you did so or indicated an intention to do so.
You have pleaded guilty to the offences. In having regard to the stage in the proceedings at which you did so, it is necessary, however, to go to the history of the matter. You were remanded on 13 August 2011. You served 404 days of pre-sentence detention before your sentencing hearing on 20 September 2012. You have not made any application for bail.
You were originally charged with intentionally causing serious injury. The additional charge of attempted murder was laid on 24 September 2011. A committal hearing was held on 19 January 2012. It was contested by you, but you were committed on all charges.
Up to this time, the Crown case was that the assault injuries were caused by the use of a weapon and that the injuries caused to Mrs Payne were stabbings. On 8 August 2012, you were arraigned in this Court on the attempted murder charge. Subsequently, the Crown indicated that it would not be contending that a weapon was used, and the charge of attempted murder was withdrawn. You thereupon entered a plea of guilty to the charge of intentionally causing serious injury.
In May 2012, in your response to the Crown opening filed, you admitted that you kicked Mrs Payne once and punching her body generally.
Although you denied to the police when interviewed that you had assaulted Mrs Payne, you did admit the driving and purchasing drugs which are the subject of the summary charges.
I accept that there is a public benefit in your pleas.[10] There is a material benefit to the State in not having to conduct a contested trial. There is also a benefit to the witnesses and to Mrs Payne by lessening the inconvenience, stress and trauma accompanying a contested trial. Your counsel submits that your plea of guilty is an indication of your remorse and thus will be conducive to your rehabilitation.
[10]See R v Ferman and Stoforo [1999] VSCA 76 ,[19] (Chernov JA).
On the other hand, in view of the eyewitness account of the assault, the evidence against you was strong and to that extent the weight given to your plea of guilty is diminished.[11] The evidence in relation to counts 2 and 3 was based on your own admissions.
[11]See R v Donnelly [1988] 1 VR 645, 648-9 (Charles JA).
Your admission of the assault was not made until May 2012. On the other hand, I accept your counsel’s submissions that you indicated a guilty plea when the charge of attempted murder was withdrawn and a charge of intentionally causing serious injury was laid.
I have taken all these matters into account, and (as I will indicate later) I have discounted the sentence I would otherwise have been minded to impose.
Remorse
Remorse is a relevant consideration at common law and is recognised in the Sentencing Act 1991.[12]
[12]Sentencing Act 1991 s 5(2C); see also s (2B) and (2D).
In his written report, Dr Cidoni says that you were extremely remorseful about the offence, adding that you could not believe that you acted in this way. You told Dr Cidoni that you had no prior history of any such behaviour. In his oral evidence, Dr Cidoni said that he discussed with you the offending and the impact of it on Mrs Payne. Dr Cidoni says that you were distressed about this and regretful that it had happened. Dr Cidoni says that you did have a reasonable amount of understanding, recognition of the impact of your actions, and a significant amount of regret in relation to your actions.
The Crown concedes that you have exhibited some remorse by your late guilty plea.[13]
[13]Transcript of Proceedings, DPP v Nash (Supreme Court of Victoria, S CR 2012 007, Robson J, 20 September 2012), 94 (Mr D A Trapnell).
I accept that you have shown some remorse for the attack on Mrs Payne.
Your previous character[14]
[14]Sentencing Act 1991 s 5(2)(f).
You have had an extensive criminal history. The Victoria Police Criminal History Report on your criminal record extends to five pages. This does not augur that well for your rehabilitation, and does to some extent strengthen the need for specific deterrence. Your previous offences are predominantly driving offences, such as drink driving and driving whilst disqualified, together with several drug possession offences, and several property offences (including burglary and theft of a motor vehicle). Your counsel tendered a list of your prior convictions and the context relevant to each conviction. I have had regard to that list and the relevant context.
You have completed all previous orders imposed upon you, with the exception of the suspended sentence that was last imposed in June of 2011 of two months. You were ordered to serve home detention in 2011. Your counsel submitted that this evidence supports your prospects of rehabilitation. Your counsel emphasised the lack of offending between 2002 (when you completed Youth Justice Parole) and 2007 – the period during which you met the mother of your children and during which the two children were born.
At the time of the offending, you were serving six months imprisonment, home detention granted, for driving whilst disqualified. This home detention started on 15 February 2011, and the two month suspended sentence breached by you through the offending conduct was a variation of the six month sentence necessitated by a change of living arrangements. There does not appear to be a history of previous violent offending.
Your mother has written a letter in support of you and about your character. She says that you are the eldest of three children, you have an ex-partner and two young children Kiandra (6 years) and Tyron (5 years), and your family is an honest, hard-working, average family. Mrs Nash says that your father is a bus driver and that she works at a university as a student adviser.
Mrs Nash says that your family has found themselves in difficult circumstances – financially and emotionally – as a result of your state of mental health and your issues with heroin addiction. She says that you are a good person with a kind nature, and have always been a part of a wider loving family.
She says that until recent times you have always sustained full time employment and that you are a doting father to your children. Your mother says that your family are devastated by the circumstances that bring you to this situation today.
Your mother says that you were very supportive of your younger sister Emma when she was diagnosed with a bone tumour in her wrist as a teenager.
Your mother says that in future your family will offer you a stable environment where you can work towards achieving a clean, balanced and fulfilled life, working and supporting yourself and your children.
You are indeed fortunate to have such a supportive family, whom you have badly let down by your actions.
Prospects of rehabilitation
Your counsel submits that your prospects of rehabilitation are good. Dr Cidoni has assessed you as a low risk of re-offending. You have no prior convictions of violence. This will be your first adult term of imprisonment. Your counsel suggests that this will have a significant impact upon you. As indicated above, you have no history of violence. This particular offence was clearly associated with substance abuse. If you are able to overcome your substance abuse, I consider that your prospects of rehabilitation are reasonable. I take all these matters into account as a mitigating factor.
However, as mentioned above, your lengthy criminal record does not speak of a law-abiding nature.
Circumstances of the offence
Your counsel submits that you have told Dr Cidoni that you consumed alcohol on the day of the offence and had taken Xanax tablets. You have informed your counsel that you hadn’t taken any Seroquel for the previous two days. You admitted to the police that you had had heroin on that day, but instructed your counsel that that is not entirely correct. Your counsel submits that you only admitted to police that you had begun using drugs once or twice a week in the last few months leading up to the offence, and that due to the consumption of drugs on that day your total recall as to that day is blurry. You admitted taking heroin on the day of the offence to Dr Cidoni.
Through your counsel, you accept that the injuries to Mrs Payne were serious. Your counsel contends, however, that the injuries fall short of the catastrophic type of injury that would result in a sentence at the extreme end of the range for intentionally causing serious injury. I accept that the injuries fall short of the catastrophic type, but I do find that the injuries inflicted on Mrs Payne by your cowardly and brutal assault were serious, long–lasting, and devastating in their effect on Mrs Payne’s health, wellbeing, and enjoyment of life. Her life has been forever changed for the worse by your actions.
Your counsel contends, however, that there was no pre-planning of the offence. I accept that submission.
Your mental state
Your counsel relied on R v Verdins,[15] where the Court of Appeal held that where an offender suffers from impaired mental functioning then the condition is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
[15](2007) 16 VR 269 (Verdins).
Your counsel suggested that principles 1, 3, 4, 5, and 6 are enlivened in this matter. The Crown accepted that principle 5 is enlivened in this case, but rejects the enlivening of principles 1, 3, 4, and 6.
The Crown did not dispute that at the time of the offence you had impaired mental functioning by suffering depression. The Crown contended, however, that I should not be satisfied on the balance of probabilities that your condition was shown to have caused or contributed to the offending conduct.[16]
[16]See Charles v The Queen [2011] VSCA 399, [162] and [166].
In Charles v The Queen,[17] I (with whom Maxwell P and Redlich JA agreed) set out the principles that I discerned from my examination of the relevant authorities when dealing with the establishment of a link between a mental condition and the offending conduct as follows:[18]
[17][2011] VSCA 399.
[18][2011] VSCA 399, [162] (citations omitted).
1.The Verdins’ principles are and should be should be regarded as exceptional.
2.The onus lies on the offender to establish the facts to enliven the Verdins’ principles on the balance of probabilities as a mitigating factor.
3.Cogent evidence, normally in the form of an expert opinion, is ordinarily necessary if the principles in Verdins are to be enlivened.
4.It is always necessary to consider how the particular condition affected the mental functioning of the offender at the time of the offence and how it is likely to affect him or her in the future.
5.The offender must establish that the offender’s disability had the effect of impairing the offender’s ability to exercise appropriate judgment, or impairing the offender’s ability to make calm and rational choices or to think clearly at the time of the offence.
6.Verdins has no application in respect of a mental condition postulated to have existed at the time of the offending unless the condition relied upon can be seen to have some ‘realistic connection’ with the offending; or ‘caused or contributed’ to the offending; or is ‘causally linked’ to the offending.
In Verdins, the Court of Appeal said:[19]
[19](2007) 16 VR 269, [26].
Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of:
(a)impairing the offender’s ability to exercise appropriate judgment;
(b)impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited;
(d)impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e) obscuring the intent to commit the offence; or
(f) contributing (causally) to the commission of the offence.
As we have said, this is not to be taken as an exhaustive list.
In my opinion, it is difficult to identify the degree to which your mental condition or your conduct in drinking to excess, not taking your medication, overdosing on tablets, and taking heroin may have contributed to your actions. Nevertheless, after hearing the evidence of Dr Cidoni I am satisfied that to some extent your mental condition did impair your ability to exercise appropriate judgment, or make calm and rational choices, or to think clearly at the time of the offence.[20]
[20]See R v Romero [2011] VSCA 45, [13] (Redlich JA).
Accordingly, I am satisfied that there was some causal link between your depressive mental illness and the offence to warrant some reduction in your moral culpability for this offence and in ameliorating factors of general and specific deterrence in determining your sentence. Of course, principles 3, 4, 5, and 6 do not necessarily require a causal link as they may also be enlivened at the time of sentencing.
Moral culpability
As I have said, it is difficult to assess the degree to which your mental condition may have affected your offending conduct. Your counsel contends that a finding that it did contribute is supported by the absence of prior convictions for violence throughout your record. Your counsel submits that the offending can be seen to be outside of the scope of your everyday response to stress. I accept this submission.
On the other hand, you did intend to cause Mrs Payne serious injury. You knew that what you were doing was wrong. I am satisfied that you deliberately and consciously set out to and did attack Mrs Payne; albeit impulsively, in response for what you believed she had done to Erin. Your moral culpability for this outrageous attack on a defenceless woman remains a significant factor to be taken into account, although reduced somewhat by reason of your mental condition.
General deterrence
In Verdins, the Court said:[21]
Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
In R v Vardouniotis,[22] Maxwell P noted that ‘the considerations which reduce moral culpability are also likely to reduce the weight to be given to general deterrence.’[23]
[21](2007) 16 VR 269, [32].
[22](2007) 171 A Crim R 227.
[23](2007) 171 A Crim R 227, [28].
As I have previously said, I find that your moral culpability for intentionally causing serious injury to a middle-aged defenceless woman whilst you were drunk and drugged remains significant. This leads me to the conclusion that this case remains an appropriate vehicle for general deterrence in making an example to others despite your mental condition. I do, however, moderate this factor because of your mental condition at the time of the offence and now.
Specific deterrence
In Green v The Queen, Maxwell P (with whom Lasry AJA agreed) discussed the relationship between specific deterrence and mental illness. The President said: [24]
The principle of specific deterrence is premised on the assumption that an appropriate punishment will operate to deter an offender from repeating the same or similar conduct in the future. Whether and to what extent that assumption is applicable to a person whose mental functioning was impaired at the time of the offending will depend on the circumstances. As Steytler J explained in Payne v The Queen:
[I]n a case in which the mental illness contributed to the commission of the offence, the importance of personal deterrence may, depending upon the nature and effect of the illness, be lessened. The whole notion of personal deterrence assumes some rational analysis or reasoning in the course of comparing the likely gains from the crime against the prospect, and likely severity, of punishment. Where the illness affects the person’s ability to make that very analysis, there is no justification for affording the consideration of personal deterrence the same measure of significance as it might have in the case of a well person, although there may then be a greater need to protect the public.
In the present case, specific deterrence still had real significance. On the uncontested evidence, TG had been fully aware of what he was doing and that it was wrong. Although his decision-making was, on the evidence, impaired to some extent by his chronic illness, the evidence showed that he had been able to act in a logical and purposeful way, first in planning and then in carrying out the armed robberies. It was appropriate to treat as one of the purposes of this sentence the deterring of TG from engaging in similar conduct in the future.
[24][2011] VSCA 311, [28]-[29] (citations omitted).
Similarly, in this case (as mentioned above) there is no suggestion that you did not know that what you were doing was wrong, or that you did not deliberately and consciously set out to and did attack Mrs Payne. In those circumstances, specific deterrence should be taken into account to deter you from engaging in violent conduct in the future. I have, however, ameliorated this factor due to you mental condition at the time of the offence and now.
The sentence will weigh more heavily upon you.
The Crown accepts that principle 5 of Verdins is enlivened, and that due to your major depressive condition imprisonment will weigh more heavily upon you that it otherwise might, as explained by Dr Cidoni. I take this into account as a mitigating factor.
Is there a serious risk of imprisonment having a significant adverse effect on your mental health?
Dr Cidoni opined that you will not be able to receive appropriate treatment for your mental condition whilst in custody. Dr Cidoni also expressed the opinion that you need psychological input to assist you with your depression and this will be difficult for you to get in custody.
Dr Cidoni says that you have been using a seditative medication Quetiapine to reduce your levels of anxiety and your depression. He said that this medication had been withdrawn whilst in custody and that that has been detrimental to you. Dr Cidoni had access to the medical records relating to your time in custody. He could not see why this medication had been withdrawn, given that you were prescribed it prior to your incarceration.
Under cross examination, Dr Cidoni conceded that he was not able to say that your mental condition had deteriorated whilst you have been in prison. He was not able to say that your symptoms may be more than the natural anxiety that arises whilst in prison and awaiting the outcome of your case.
I accept that imprisonment may have some effect on your mental health. However, I am not satisfied on the evidence that there is a serious risk of imprisonment having a significant adverse effect on your mental health. As the Crown pointed out the relevant test required me to find a ‘serious’ risk rather than a mere risk and a ‘significant’ adverse effect rather than an adverse effect. Accordingly, I am unable to give weight to principle 6 of Verdins.
The influence of alcohol and drugs
The Crown correctly pointed out that the fact that you were affected by a cocktail of alcohol and drugs at the time you committed the offence is not mitigatory. In DPP v Zullo,[25] Nettle JA said that the Court of Appeal had repeatedly held that “those who are disinhibited by alcohol in unbridled violence in public places must expect condign punishment in which the principles of general and, on many occasions, specific deterrence will play major roles.”
Current sentencing practice[26]
[25][2004] VSCA 153 (Zullo), [9]; see also (generally) R v Terrick (2009) (2009) 24 VR 457, [56].
[26]Sentencing Act 1991 s 5(2)(b).
The Crown submitted that the very top of the range for causing intentionally causing serious injury is upwards of fifteen years, relying on the observations of Nettle JA in Zullo.[27] The Crown tendered the Sentencing Snapshot published in June 2012 and an Overview of Intentionally Cause Serious Injury. I have had regard to these.
[27][2004] VSCA 153, [10].
At my request, the Crown suggested a possible range of sentence: six to eight years for the intentionally causing serious injury, with a minimum of three and a half to five and half years imprisonment. The Crown suggests twelve months for driving whilst disqualified which ought to be largely (if not wholly) cumulated, and the some seven days or so for the drug of dependence offence (wholly concurrent).
Nature and gravity of the offences
The Crown submitted that your behaviour in assaulting Mrs Payne was a breach of trust. However it is characterised, your conduct constituted a cowardly attack on a middle-aged, frail woman who was the mother of your then partner. Your behaviour was despicable. The impact of your attack on Mrs Payne has been horrific.
Your attack on Mrs Payne was not limited to an isolated kick (which would have been bad enough in itself), but involved a sustained and severe beating with your fists. Your assault may not be in the upper range of intentionally causing serious injury cases, but in my opinion it falls only a little short. Mrs Payne was sitting on the ground when you attacked her. She was practically defenceless. She was clearly much weaker than you, as you were many years younger than her. A civilised society cannot tolerate men assaulting women, let alone a defenceless woman who was attacked without warning and in such a vicious and heartless manner.
Conclusion
As I must, I recognise and adopt the ‘instinctive synthesis’ approach to sentencing.[28] Adopting that approach, I believe that the sentence that I propose to impose on the intentionally causing serious injury:
[28]Markarian v The Queen (2005) 228 CLR 337 (see, especially, [50] et seq).
(a)does not exceed that which can be justified as appropriate or proportionate to the gravity of your crime considered in the light of its objective circumstances;
(b)is just in all the circumstances;[29]
(c)gives weight to you pleas of guilty;[30]
(d)gives weight to your mental condition at the time of the offence and currently;
(e)gives weight to general and specific deterrence;[31]
(f)gives weight to the protection of the community;[32]
(g)has regard to the facilitation of your rehabilitation[33] and your personal circumstances;
(h)manifests the denunciation of the Court for the conduct you have engaged in;[34]
(i)is no more severe than that which is necessary to achieve these purposes;[35] and
(j)has proper regard to all other matters required of me in passing sentence upon you.
[29]Sentencing Act 1991 s 5(1)(a).
[30]Sentencing Act 1991 s 5(2)(e).
[31]Sentencing Act 1991 s 5(1)(b).
[32]Sentencing Act 1991 s 5(1)(e).
[33]Sentencing Act 1991 s 5(1)(c).
[34]Sentencing Act 1991 s 5(1)(d).
[35]Sentencing Act 1991 s 5(3).
The sentences I propose to impose on Counts 2 and 3 also take into account these matters; in particular, that your being charged on these offences arose out of your record of interview.
Mr Nash, please stand.
For these reasons:
(a) I record convictions against you of:
(i) Count 1: intentionally causing serious injury;
(ii) Count 2: driving a motor vehicle whilst disqualified; and
(iii) Count 3: using a drug of dependence.
(b) I order that you serve the following terms of imprisonment:
(i) Count 1: 7 years;
(ii) Count 2: 1 year; and
(iii) Count 3: 7 days.
(c)I order that 6 months of count 2 be served concurrently with count 1 (which is the head count) and that count 3 be served concurrently with count 1 making a total effective sentence of 7 years and 6 months.
(d)I fix a period during which you are not eligible to be released on parole of 5 years and 3 months.
(e) I disqualify you from obtaining a driver’s licence for 5 years.
(f)Pursuant to s 18(4) of the Sentencing Act 1991 I declare that the period of 447 days, including today, be reckoned as already served under the sentence I have ordered.
(g)I cause and direct that the fact that I have made this declaration and its details be noted in the records of the Court.
But for your pleas of guilty to the three counts,[36] I would have imposed a total effective term of imprisonment of 9 years, and a non-parole period of 6 years and 3 months.
[36]See Sentencing Act 1991 s 6AAA.
I propose to publish this judgment. I will include as footnotes case citations and other references.
On the Crown’s application under s 464ZFB of the Crimes Act 1958, I order that Mr Nash’s DNA sample be retained on the database.
Remove the prisoner.
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