R v Nicholas Clark
[2013] VCC 1303
•20 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00843
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CLARK, Nicholas Stephen |
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JUDGE: | HER HONOUR JUDGE LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 August 2013 | |
DATE OF SENTENCE: | 20 September 2013 | |
CASE MAY BE CITED AS: | R v Nicholas Clark | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1303 | |
REASONS FOR SENTENCE
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Subject:Recklessly causing serious injury, possession of a drug of dependence namely cannabis, R v Verdins (2007) 16 VR 269.
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Ballek | Office of Public Prosecutions |
| For the Accused | Ms Lynch | Melinda Walker |
HER HONOUR:
1 You, Nicholas Stephen Clark, have pleaded guilty before me to one charge of causing serious injury recklessly and one charge of possession of a drug of dependence, namely cannabis. The maximum penalty for causing serious injury recklessly is 15 years imprisonment. The maximum penalty for possession of cannabis is 5 penalty units.
Circumstances of the offences
2 At 1.50 pm on Friday 21 December 2012 Andrew Robert Clements went to a tram stop on Flemington Road outside the Royal Children’s Hospital. He was with a female. Andrew Clements was 34 years old. You did not know Mr Clements before the incident.
3 You were also standing with a female friend at the tram stop. You engaged in a conversation with Mr Clements which escalated into an argument. You threw a number of punches at Mr Clements and missed. Mr Clements tried to push you away and grabbed you by the neck. You kept trying to punch Mr Clements but again the punches missed. Mr Clements picked up a beer bottle and held it up. He continued to push you away.
4 You took a flick knife out from the back of your pants and moved towards Mr Clements. The knife had a wooden handle and an 8 centimetre blade. You moved the knife in a slashing motion about six times towards Mr Clements. Mr Clements moved around trying to avoid the knife and put his hands up to defend himself. One of the slashes connected with Mr Clements’ stomach causing a 15 centimetre long deep laceration.
5 You then ran off in the direction of Royal Park and were pursued by witnesses and police. At about 2.05 pm you were located near some bushes in the park. You had the flick knife, a silver knife sharpener and a small amount of cannabis in your possession.
6 Mr Clements was taken to the Royal Melbourne Hospital and was treated for the laceration to his abdomen. Mr Clements stayed in hospital for 3 nights. The wound was stapled and there were no internal injuries.
7 You were taken to the Melbourne North Police Station and then to hospital as you were complaining of a heart condition. You returned to the police station at 11.07 pm that day and were interviewed. You stated that you had an altercation with a man and felt physically threatened, that you pulled out a knife and prodded him with it, that you did not want to stab him and that you just prodded him five or six times. You said you carried the knife to cut up fruit and vegetables. You said that you had consumed about a dozen alcoholic drinks that day and that you intended to smoke the cannabis to help you deal with the side effects of antidepressant medication.
8 Prior to the offending, you had been living with your father. When that accommodation ceased, you moved in with a friend who drank alcohol and you relapsed into alcohol use about a week before the offence. You were intoxicated on the date you committed these offences. On the night you were interviewed by the police, you were at first too intoxicated to be interviewed.
9 You had attended the SIA Medical Centre on 13 November 2012.[1] You were suffering from palpitations and were diagnosed with arrhythmia and high cholesterol. You were suffering from high anxiety at that time and were prescribed a combination of medications. You had been taking that medication for about a month prior to the offence. Dr Cidoni gave evidence that you were reacting badly to that medication.
[1]Exhibit 7.
10 The facts in this case are very serious. The aggravating aspects include the use of a flick knife which you had in your possession.
11 No victim impact statement has been tendered in this matter. I have been informed that the victim was offered the opportunity of making such a statement but chose not to do so. It is clear from the depositions and the evidence I have before me, which include the photographs of the victim’s stomach wound, that there was considerable suffering on the part of the victim as a result of your actions.
12 As has been pointed out by your counsel, there are however some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. I take it into account in your favour that, after a contested committal, you indicated your intention to plead guilty to the lesser charge of recklessly causing serious injury, having previously being charged with intentionally causing the injury.
13 You were remanded in custody following the commission of the offence. I accept your counsel’s submission that you have indicted remorse in relation to your behaviour since you were remanded in prison by engaging with support services to try and address all of the personal issues which contributed to the incident which occurred on 21 December 2012. In the circumstances I accept that in your case your plea indicates remorse for your actions.
Personal background
14 I have been told something of your personal history and your circumstances. You were born in England on 20 January 1974 and are now 39 years old.
15 You came to Australia in 1978 when you were four years old. Your parents’ relationship was unstable. You have a younger sister who cares for her autistic child. Your father suffered from alcoholism. Your mother was a stable influence.
16 Most of your schooling was completed at Wellington High School but you transferred to the Craigieburn Secondary College after your family moved to Craigieburn. You found it difficult to settle in that environment but managed to complete Year 11.
17 You left school after year 11 and worked for Visy Board as a machine operator and forklift driver for 15 years. You sustained significant back injuries as a result of a motorcycle accident in 2007 which led to the loss of your employment at Visy. You have been on New Start benefits since 2009. You have undergone training in hospitality but did not pursue that course because of your addiction to alcohol. You have completed some computer courses and obtained Certificate 3 in community services at Victoria University in St Albans. You hope to perhaps one day obtain employment in the community service industry and put your life skills in relation to recovery from addictions to the benefit of others.
18 You had a previous relationship from 1996 to 2004 and have two children, a daughter aged 14 and a son aged 11. You have regular contact with your children.
19 You have admitted before me to prior convictions. There are 7 such convictions, involving two court appearances between February and June 2010. The nature of some of those prior convictions and in particular the convictions for unlawful and common assault are relevant to my task of sentencing you today. However, I accept your counsel’s submission that you do not have any prior convictions for possession or use of weapons.
20 In February 2010 you were given the opportunity to participate in a treatment -focused Community Corrections Order in which you participated from February to May 2010. You then became homeless and went to Queensland and were therefore breached for non-compliance with that order. You were dealt with in relation to that breach on 8 February 2013 at the Melbourne Magistrates Court. A 12 month Corrections Order was imposed with the condition that you engage in assessment and treatment for mental health issues and drug and alcohol issues. At present that order is still in place.
Substance Use History
21 Dr Anthony Cidoni, forensic psychiatrist, gave oral evidence and referred to his report dated 16 August 2013 which was tendered.[2]
[2]Exhibit 6.
22 Dr Cidoni set out the following history of your substance use:
He has a history of significant substance abuse including cannabis from age 14, using from age 20 up to 3 times a week, and from age 20 to 34, using 0.5g daily. From age 34, he has used less frequently, and usually when he drank alcohol.
He described alcohol use since age 14, binge drinking for several years. By age 22, he was drinking until he blacked out. At age 30, his wife and children left him and his drinking increased to 2 litres of wine per day. He has not been intoxicated since 19 December 2012, the time of his recent offending. He used amphetamines up to 0.1g per day including ice from aged 19 to 29 at every weekend. He has used magic mushrooms and LSD a few times and has used heroin intravenously on approximately 10 occasions.
He has had four periods in rehabilitation, including three at The Mill for approximately 3 months at a time, the most recent being in 2009. This program is now closed.
Mental Condition
23 In Dr Cidoni’s opinion, you have suffered from significant anxiety which includes a range of symptoms including obsessive compulsive disorder, panic disorder and a generalized anxiety disorder.[3]
[3]Transcript p 32.
24 In Dr. Cidoni’s opinion you also suffer from a mood disorder and a borderline personality disorder. You said that you also have a history of polysubstance dependence including alcohol and cannabis. Dr Cidoni said that it is his understanding that each of these conditions have all been longstanding problems.
25 Dr Cidoni referred to the SIA Medical Centre Report[4]. In that report Dr Kouteris said that he had prescribed a combination of medications which included alprazolam which is a commonly prescribed medication for anxiety. Dr Cidoni said that anti depressant medication can cause behaviour which is disinhibited and have the propensity to set off or exacerbate manic symptoms.[5]
[4]Exhibit 7.
[5]Transcript p 27.
26 Dr Cidoni conducted a mental state examination on 1 August 2013 and stated:
Mr Clark presented as anxious in affect. There was no evidence of mania or psychosis. There was no suicidal ideation. He did not appear [to] have significant cognitive impairment. His insight appeared good.
27 Dr Cidoni reviewed your medication over a number of months. He increased the Olanzapine medication and prescribed some Chlorpromazine which is a sedative medication to try to assist with your anxiety. Dr Cidoni said that your anxiety had improved and that you seemed more settled in terms of your mental state. However, he said that you were experiencing an escalation in your anxiety when he recently saw you due to the stress of the pending court proceeding.
28 In Dr Cidoni’s opinion, your current medication has been good for you. However there are a lot of factors involved in your case. A major factor in terms of the stability of your mental state is your ability to be abstinent from alcohol because the consumption of alcohol has a destabilising effect on your mental state.[6]
[6]Transcript p 31.
29 In R v Verdins[7]the Court of Appeal stated that impaired mental functioning is relevant to sentencing in at least six ways.
[7][2007] VR 269.
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 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.
30 In Verdins the Court of Appeal stated that impaired mental functioning at the time of 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.
31 I accept Dr Cidoni’s opinion that you were suffering from acute stress at the time of the offending. Some of the specific triggers of the level of stress included the increased level of alcohol use and your intoxication at the time of the offending. In Dr Cidoni’s opinion the destabilisation of your mental state at the time of the offending is likely to have contributed to disinhibition, impulsivity and impaired judgment. [8] I accept your counsel’s submission that your mental state at the time of the offences reduces your moral culpability of the offending conduct.
[8]Exhibit 6.
32 Your counsel submitted that in the circumstances of your case, general deterrence should be moderated although not eliminated.
33 I am satisfied on a balance of probabilities that you are suffering from generalised anxiety disorder, a mood disorder and a borderline personality disorder and that in the circumstances the weight given to general and specific deterrence is to be sensibly moderated.
34 I take into account that your mental condition may mean that a sentence of imprisonment will weigh more heavily on you than it would on a person in normal health. The prosecutor conceded that incarceration may be more difficult for you, given the evidence of Dr Cidoni.
35 I also take into account that you have not served a term of imprisonment before.
36 In Dr Cidoni’s opinion there is a significant risk of your mental state being worse when you are in custody. There would be a risk of self harm.[9] However Dr Cidoni conceded that you can receive treatment in custody. He also stated that you can receive the same medication whilst in custody. He agreed that if you were in custody, you would not be able to drink alcohol or have other types of medication which might interfere with the correct medication.[10]
[9]Transcript p 36.
[10]Transcript p 49.
Rehabilitation
37 I take into account in your favour that you have not committed any offences since this incident.
38 You were remanded on the day you were arrested on 21 December 2012. Bail was granted on 10 January 2013. You spent 21 days in prison which was your first experience in prison. I accept your counsel’s submission that that experience motivated you to engage in significant rehabilitation through residential programs.
39 Since you were released from custody you have participated in the Court Integrated Services Program (CISP). You attended with Ms Angeline Swan of Perception Psychiatry to explore the issues that may have precipitated your misuse of alcohol. A report dated 12 February 2013[11] states that you attended all CISP appointments and that it was evident through discussions that you were determined to make long-term positive changes in your life and continued to acknowledge the negative impact alcohol has had.
[11]Exhibit 2.
40 As part of the CISP referral, you attended regular appointments with Caraniche, a drug and alcohol service. You also attended Alcoholic Anonymous meetings during that time and your sponsor was present in Court to support you.
41 You were subsequently accepted into The Basin Centre, a long term rehabilitation facility. You were admitted on 9 April 2013 to 30 July 2013 and completed the 16 week drug and alcohol residential program. A report by the case manager, Monika Brennan, states that you were “an exemplary client who gained much knowledge and self-awareness which enabled [you] to make significant life changing decisions.”[12] As part of your stay at that facility drug screens and PBT tests were conducted. The results of those tests were negative for all drugs tested.[13]
[12]Exhibit 3.
[13]Exhibits 4 and 5.
42 You left the Basin Centre on 30 July 2013 and went into supported accommodation through the Maroondah Addictions Recovery Project. You participated in the supported accommodation program and were a “welcome” resident. Glynis M Harris, the administration manager, reported that “we will not hesitate to offer [you] a further 4 months in the program.”[14]
[14]Exhibit 8.
43 On Sunday 25 August 2013 you moved into 11 Daly Street, Frankston , with a friend from primary school.
44 You were referred to Dr Cidoni under the CISP program at the Melbourne Magistrates Court. Dr Cidoni first assessed you on 12 February 2013 and then reviewed you twice, on 19 March and 9 April 2013. In Dr Cidoni’s opinion, your risk of reoffending is significantly lower than it would have been at the time of the offending.
45 The Community Correctional Services has assessed your general risk of re-offending as being moderate according to the Victorian Intervention Screening Assessment Tool (VISAT Risk Assessment) to determine your general risk of reoffending .
46 I am, on balance, satisfied that the chances of your rehabilitation are reasonable provided that you continue to continue to abstain from alcohol and continue to receive treatment for your medical conditions.
47 As well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending.
48 Your counsel conceded that this is a serious offence but it happened quickly and does not appear to have been planned. You were certainly in possession of a knife but did not use it until the very end when the offence escalated and in circumstances where the combination of your mental health issues lead to a lack of judgment and disinhibition.
49 Your counsel referred to your significant engagement in intensive rehabilitation and submitted that the scope of the conditions that are now available under a Community Corrections Order can certainly assess principles of punishment, denunciation and moderating deterrence and have the community’s protection in mind by the continuation of your treatment in the community.
50 Your counsel submitted that I could also impose a combination sentence of up to three months’ imprisonment together with a Community Corrections Order pursuant to s.44 of the Sentencing Act 1991.
51 Although you have been assessed as suitable for a Community Corrections Order, in my judgment the imposition of a community corrections order or a combined sentence of an immediate term of imprisonment of three months with a Community Corrections Order would not be sufficient to reflect the seriousness of the offending.
52 This is a very serious offence in that you inflicted a serious injury requiring the victim to be hospitalised for three days. You used a sharp weapon, a flick knife and attempted to slash the victim a number of times. The offence occurred in a public place in the middle of the day and you have a relevant prior history in relation to the offence.
53 The prosecutor in sentencing submissions submitted that the appropriate sentence would be a head sentence in the range of 18 months to 30 months imprisonment and that the appropriate non-parole period is within the range of 9 to 18 months.
54 Recklessly causing serious injury is without doubt a serious offence. Having given the matter a great deal of thought, I have come to the conclusion that in all the circumstances I have no alternative to imprisonment. I propose to record convictions on both counts and sentence you as follows:
· On Charge 1, recklessly causing serious injury – to a term of imprisonment of fifteen months.
·On Charge 2, possession of a drug of dependence direct that you be fined $100. Do you require time to pay?
55 MS LYNCH: No, Your Honour.
56 HER HONOUR: In the alternative your counsel submitted that in all the circumstances, I should consider a disposition that would afford you a lower parole period .
57 The matters I have mentioned, and particularly your plea of guilty, the steps you have taken towards rehabilitation and the need to maximise the chances of your successful rehabilitation, lead me to the view that I should fix a non-parole period than is shorter than might be appropriate in other circumstances, to give you the opportunity to be supervised upon your release as you serve the balance of your term on parole within the community. I direct that you serve a minimum term of 6 months before becoming eligible for parole.
58 The prosecutor has sought ancillary orders for the disposal of property. That application was not opposed. I make an order pursuant to s.78(1) of the Confiscation Act 1977 for the forfeiture to the State of the property referred to in Schedule 1 of the Order I have signed this day.
59 I declare that you have served 21 days by way of pre-sentence detention in relation to this sentence, and direct that that declaration be recorded in the records of the Court.
60 Section 6AAA of the Sentencing Act 1991 requires me to state the sentence and non-parole period that I would have imposed but for the plea of guilty. Your plea has saved time, expense and the need for witnesses to give evidence, and is reflective of remorse. But for your plea of guilty, I would have sentenced you to a term of imprisonment of two years with a non parole period of 12 months. I would have imposed a fine of $150.
61 Finally I make an order pursuant to s.464ZF that you provide a sample of your saliva. I am required by law to say to you that those charged with taking that sample are authorised to use such force as may be necessary to effect the taking of the sample.
62 Does that take care of all matters?
63 COUNSEL: Yes, Your Honour.
64 HER HONOUR: Thank you, I will hand the orders down. Yes, could you please take Mr Clark into custody? I will leave the Bench.
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