R v Owen

[2002] VSC 104

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1525 of 2001

THE QUEEN

v

PETER DAVID OWEN

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 April 2002
DATE OF SENTENCE:	8 April 2002
CASE MAY BE CITED AS:	R v Peter David Owen
MEDIUM NEUTRAL CITATION:	[2002] VSC 104

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Criminal law – Sentencing – Recklessly causing serious injury – stabbing without provocation – various mitigating circumstances – 5 years prison with 3 years non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Tinney	Office of Public Prosecutions
For the Accused	Mr H. Mason	Balot Reilly & Associates

HIS HONOUR:

1. You have pleaded guilty to having recklessly caused serious injury to Christopher Holliday on 7 June 2001.  As at that date, you had known Christopher Holliday for about two years.  Generally, when you were clear-headed, you enjoyed each other’s company.

1. On the evening in question,  you and Christopher Holliday met and had some drinks at the Derrimut Hotel in Sunshine.  You had been drinking  before you got to the hotel.  After drinking at the hotel for a while, the two of you left the hotel.  You went back to the flat in which you were then living.  That flat was above a shop in City Place Sunshine.  Present at the flat when you got there was Joseph Aukusitino.  At the flat,  you and Christopher Holliday smoked some marijuana and you talked.  The two of you were then significantly adversely affected by the alcohol and marijuana.

1. For no reason that was apparent at the time, you took up a knife.  You then stabbed Christopher Holliday in his chest with the knife.  Joseph Aukusitino left.  A struggle took place between you and Christopher Holliday.  In all, you stabbed Christopher Holliday three times.  After a time being held down by you, Christopher Holliday was able to break free.  He got away from you by slamming a door behind him, then hiding in a toilet.  There, he listened to your movements, and he waited for the right time for him to move.  He then ran out of the building and got attention at the Sunshine Railway Station.  He was taken by ambulance to hospital.  At the hospital, his three stab wounds, two in the chest and one in the back, were treated.  His lungs had collapsed, and he had to be placed on life support.

1. You were arrested that night by police.  At the time of your arrest, you were assessed as being unfit to be interviewed due to the apparent effects of the consumption of alcohol and marijuana.  You were interviewed the next morning.  At that interview, you provided a patchy account of the events of the night before.  Eventually, you said that you could recall stabbing Christopher Holliday, but could not say why.  You did say that you were sorry for what you had done.

1. The offence to which you have pleaded guilty is a serious one.  It carries a maximum penalty of 15 years imprisonment.  This is a bad example of the offence.  There was no provocation on the part of Christopher Holliday.  You chose to use a knife which can be a dangerous weapon, particularly in the hands of a person skilled in handling one, as you were.  You chose to indulge in alcohol and marijuana to excess.

1. You inflicted extremely serious injuries.  You were fortunate that Christopher Holliday did not die.  In that regard, I have noted the contents of the medical reports of the doctors who treated him.  I have also read the victim impact statement of Christopher Holliday, and the accompanying material.  Your unprovoked attack on him with a knife has had devastating traumatic consequences. If you have not already studied the victim impact statment, you should make a point of doing so.

1. You are 28 years of age, having been born in January 1974.  You were raised in country Victoria by your mother and stepfather, along with three other children.  For many years, you were subjected to violence by your stepfather.  That led to your leaving home after only a basic education.  Your work record has been reasonable.  Despite handicaps of various kinds, you have shown a willingness to work in a number of occupations.  You went through a period of some stability between 1996 and 1998.  During that period, you lived in South Australia in a relationship with a woman named Lisa.  By that relationship, you have had two children.  Eventually, that relationship soured.  An intervention order was obtained against you.  You were later to breach that order, but only after certain events to which I will shortly turn.

1. You have many prior convictions.  There are several for assaultative behaviour.  More than once, you have had to be dealt with for breaches of orders which gave you the chance of avoiding prison.  You have also been sentenced to prison.  The number of convictions suggests a lack of respect for the law.  The number of breaches of orders made by the courts giving you another chance is a further indication of a disdain for consequences.  The nature of the convictions suggests a pattern of behaviour.  You chose to drink too much alcohol.  You then became aggressive to others.  Just as on 7 June 2001.  You knew then that you used to drink too much alcohol.  You said so to the police after you stabbed Christopher Holliday.

1. Just over three years ago, you went from South Australia to Eden in New South Wales.  There, on 3 March 1999, you were involved in events at a hotel, in which you sustained head injuries.  You were then clearly the victim of a criminal assault, and a vicious one.  Those head injuries were serious.  They led to your spending time in hospital in Canberra.  They later led to your being treated in 1999 at the Western Hospital in Footscray, and in the year 2000 at the Mercy Hospital in Werribee.  I have read three medical reports detailing the treatment.  I have also read the December 2000 Neuropsychological assessment made by  Ms Stacey.  You have clearly suffered a brain injury with a number of adverse consequences including as to memory.  You have been prescribed medication directed to depression, anxiety and  psychotic symptoms.  You have made attempts on your own life.  You are diagnosed as having a mixed anti-social and borderline personality disorder.

1. I have also read the report of the psychologist, Nicki Lefkovits who has recently examined you.  I weigh in your favour that you have already taken steps to have counselling through a Ms Sue Fitzgerald while on remand.  The report makes several references to the need for you to undertake, or to continue with, appropriate treatment, social skills training and counselling.

1. In September 2001, while on remand, you were assaulted in prison with a knife.  The resultant lacerations led to your having to be treated in hospital.  You chose subsequently not to seek protection, but to remain in the mainstream.  Nonetheless, I accept that your period in prison will be the more onerous because of the risk of a repetition of that assault.

1. I do make an allowance for your being remorseful, although there are clearly some strong contra-indications.  I refer to the troubling indications of your suggesting, and persevering with the suggestion, that Christopher Holliday was responsible for the events which led to his stabbing.  I refer to aspects of what you said after the stabbing to Michael Papalia, and of the questioning to which Christopher Holliday was subjected at the committal hearing, and of what you said to Ms Lefkovits to the effect that you were the victim and needed to defend yourself.  There are respects in which the accounts of Christopher Holliday and Joseph Aukusitino are irreconcilable.  But on both accounts, your taking up the knife was an unprovoked act.  Included in the indications of remorse are that you told the police on the morning after the stabbing that you were sorry, that you have pleaded guilty at an early stage, and that you have expressed remorse to Ms Lefkovits.

1. I am prepared to moderate the sentence I impose to take account of your being, by reason of your impaired intellectual functioning and mental state, a less appropriate subject for general deterrence.

1. I would assess as  fair to good your prospects of rehabilitation.  A fair rating might be considered generous given your record of attendances before the courts.  However, you are to be commended for keeping out of the courts between 1996 and 2000, and for attending AA meetings in prison and continuing there the counselling work with Ms Fitzgerald.  You can build on that by doing further courses and counselling both in prison before becoming eligible for parole, and while on parole.  I propose to allow for that in fixing the non-parole period.

1. Finally, I allow for the fact that you have pleaded guilty.  In doing so, you have accepted responsibility for this serious crime.  You have also demonstrated a willingness to facilitate the course of justice.

1. You have served up to today, 306 days of pre-sentence detention.  I direct that that be entered in the records of the court.  I sentence you to imprisonment for 5 years.  I set a non-parole period of  3 years.