R v Papworth
[2010] VSC 422
•20 September 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT BENDIGO
CRIMINAL DIVISION
No. 56 of 2010
| THE QUEEN |
| v |
| CHARLES ANDREW PAPWORTH |
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JUDGE: | OSBORN J | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 30 August 2010 | |
DATE OF SENTENCE: | 20 September 2010 | |
CASE MAY BE CITED AS: | R v Papworth | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 422 | |
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CRIMINAL LAW – Sentencing – Plea of guilty – Intentionally causing serious injury – Stab wound to forearm – Offender under influence of drugs and alcohol – Offender also suffering injuries – Gravity of offence – General deterrence – Specific deterrence – Youthful offender – Prospects of rehabilitation – 4 years imprisonment – Minimum non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr E Thompson | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr D Daniel | Victoria Legal Aid |
HIS HONOUR:
Charles Andrew Papworth you have pleaded guilty to one charge of intentionally causing serious injury on 26 April 2009 and one charge of possessing a drug of dependence on 23 May 2009.
In April 2009, you were living in unit 4 of a block of residential units at 42 Victoria Street, Kyneton. One of your neighbours was a young woman who lived at unit 3. On 25 April 2009, you went to her unit at about 7:00 pm and started to drink there and to listen to music. A little later, one Griffiths, the boyfriend of your neighbour, arrived and the three of you continued consuming beer and spirits. At about 10:00 pm a third male named Hennessy also attended. As the evening progressed you and Griffiths exchanged words concerning advances that you had made towards your neighbour. At one stage you stood up and moved towards Griffiths but fell backwards into a wall. Griffiths and Hennessy then attempted to take you back to your own unit next door. Whilst this was occurring you attempted to punch Griffiths. At one point, while you were being restrained by Hennessy, Griffiths pushed you away and you fell to the floor knocking over a TV as you did so. Griffiths then left the unit and it appears drove away leaving Hennessy and your neighbour to walk you home.
Approximately 10 minutes later your neighbour rang Griffiths and asked him to return to her unit. He returned and parked his motor vehicle in the communal car park beside unit 2 of the premises. He got out of his car and was in the process of locking the driver’s side door when he heard you say ‘You’re fucked cunt, wait till you see what I’ve got.’ Griffiths then heard the door of your unit slam and turned to see you approaching with your arm outstretched and a knife in your right hand. The knife was a kitchen knife taken from your unit. You confronted him and lunged at him. Griffiths raised his left arm across his chest to protect himself and you stabbed him in the left forearm. The knife penetrated through the muscle of the forearm to just under the skin on the other side. Griffiths feared for his life and fought back striking you and causing you a series of injuries.
You again attempted to stab Griffiths and he grabbed your arm while you tried to force the knife into him. He managed to knock you off balance and onto the ground and ultimately disarmed you.
At this stage Griffiths was observed to be spraying blood from the wound in his arm with each heartbeat. He went directly to the Kyneton Hospital where he was assessed and taken by ambulance to the Royal Melbourne Hospital. On admission there, physical examination revealed a left forearm incised wound with the entry point at the left ulnar aspect of the upper forearm with no exit breach of skin but bruising on the opposite side of the forearm to the wound. He subsequently underwent surgery for repair of the muscle in the left forearm.
You were arrested approximately one month later and when arrested were found to be in possession of a small quantity of marijuana. You told investigating police that you had no memory of the events in issue and had been advised not to answer questions.
The victim impact statement made by Griffiths states:
I received two deep lacerations, one to the forearm and one to the upper arm. I received plastic surgery and needed muscle and tendons put back into place because they had been dislodged. I still suffer extreme pain that comes and goes even though the wounds have fully healed and during these times have great difficulty in moving the fingers in my left hand.
Griffiths further states that as a result of his injuries he had one month off work with a consequential loss of pay and has since been restricted in his working capabilities and has lost an average of eight hours of work per week. He has also had to pay ambulance costs and his clothing was damaged by bloodstains.
Since the incident he has been seeing a psychologist and has suffered from anxiety and depression. His social activities have declined and he has suffered from insomnia.
There are five aspects of the circumstances of your offending which are of particular relevance to the sentencing task I must undertake.
First, your victim suffered a serious stab wound to the forearm as a result of a deliberate and vicious attack.
Secondly, you used a dangerous weapon. It is apparent that if Griffiths had not blocked the blow which wounded him then the outcome of the stabbing could have been fatal.
Thirdly, your actions are explicable in part by reason of a mix of excessive drinking and intake of benzodiazepines. The self-administration of this cocktail does not excuse your behaviour but it does go some way to explaining the savagery of your attack. It was a combination of drugs and alcohol that had led you to both self-harm and violence to others on other occasions. Your actions were a manifestation of a serious recurrent problem.
Fourthly, you received a series of injuries when your victim fought you off. You were also taken to the Royal Melbourne Hospital in the aftermath of the assault on Griffiths. You were found to be suffering from fractures to your nose and fourth and fifth lumbar vertebrae, there was extensive soft tissue injury around your left eye, you had a lacerated posterior scalp and also a small frontal subdural haematoma. Photographs taken at the time confirm that you appear to have been badly beaten.
Fifthly, you have no memory of the events in question and in particular no memory of the circumstances of the stabbing itself.
You are now aged 24. You grew up in very unhappy family circumstances. Your father died when you were 6 and your mother died when you were 13. You were placed under the protection of the Department of Human Services but it seems became homeless.
You commenced the use of alcohol and cannabis from the age of 14 and developed addictions to these substances by the age of 17.
You also developed a severe anxiety condition by the age of 17 and you have been treated for that condition with Valium and other medications on a continuing basis since. You are currently using Avanza, Lexapro, Largactyl and Valium. Your counsel advised the Court that you tend to turn to alcohol to top up this medication, because extensive as it is, it still does not quell your anxiety. You are aware that this leads to episodes when you are out of control and acknowledge that this is an ongoing problem.
You have come before the courts on two previous occasions as a result of incidents of assault when you were affected by alcohol. One of these incidents resulted in a conviction being recorded. On both occasions you were given a Community Based Order subject to conditions that you undertake treatment with respect to your pattern of substance abuse. Your current offending occurred during the currency of these orders.
You also have a prior conviction for possession of a dangerous weapon, namely a knife, in respect of which you were fined. I should add that you also have convictions for other matters but I do not regard them as relevant to this sentence.
In addition to this history of prior offending, you have engaged in a series of attempted suicides and inflicted self-harm by way of deliberate drug overdoses, laceration to the arms and attempted hanging.
Medical records show that you have received treatment both from a local general practitioner and by way of hospitalisation in attempts to confront your substance abuse.
A report from a general practitioner in Woodend in late 2007 confirms that you have been treated for depression, anxiety, social phobia and alcohol abuse since June 2007. In the four months during which the general practitioner had been treating you, you had made four attempts at self-harm involving overdoses and self-inflicted lacerations. You had been admitted to Bendigo Psychiatric Services for brief periods. You had seen drug and alcohol counsellors and had also received treatment from St Vincent’s Hospital.
Records from St Vincent’s Hospital in 2008 further record that by October 2008 you had had your third admission to that hospital for detoxification purposes. The discharge summary of 30 October 2008 states:
Completed cannabis withdrawal on 29 October 2008. Experienced moderate withdrawals throughout detox; had been abstinent from alcohol since February 08 however began to crave when detoxed off cannabis – commenced Camprol and Baclofen anti-craving medications. Discharged home … Discharge medications were sent to Cobaw Community Health Centre as client will be picking up medication every three days following discharge.
Dr Lester Walton, a consultant psychiatrist, saw you on 16 August 2010. His opinion is that you are suffering from a chronic anxiety disorder of substantial proportions. He notes that you are not well educated and in his view are of low intelligence but you are not intellectually disabled. In his view your extensive history of alcohol and cannabis abuse indicates frank addiction. He doubts that your chronic anxiety condition had any immediate relevance to your assault on Griffiths other than indirectly in that benzodiazepine drugs such as Valium may interact adversely with alcohol rendering you more intoxicated than might otherwise have been the case.
He states that you have applied yourself to drug and alcohol rehabilitation and more effective psychiatric treatment in the aftermath of the incident. He comments that this can be described as ‘a work in progress’ but at least some gains appear to have been achieved with significant subsiding of anxiety and some moderation of substance abuse. He observes that you should be encouraged to continue in this direction.
He also observes that given your ongoing disabling anxiety it is fair to conclude that you would find enduring imprisonment more onerous than others do. Further treatment and rehabilitative issues are also likely to be better addressed in a community rather than a custodial context. In his view, your mental health prognosis is favourable in the sense that you are not suffering from a severe psychotic illness but the anxiety disorder from which you suffer has proved to be treatment resistant and has been aggravated by substance abuse.
Impressive evidence was called on your plea from your youth worker, Mr Turner of the Castlemaine District Community Health Centre, and from your girlfriend of some 18 months. Their evidence corroborates the fact of continuing episodes of self-harm over the last 12 months. Nevertheless it also supports the view that in your current relationship you are able to spend time away from other persons with substance abuse problems and that you have undertaken a detoxification program this year which enabled you to remain alcohol free for a period of some five weeks.
You have also found someone in your girlfriend who has expressed an ongoing willingness to assist you to find employment and to live a positive life participating more actively in society upon your completion of such sentence as I may impose.
Mr Turner told me that in the last six months, he has observed you progressing from drinking every day, to move through a period of detox and a subsequent five weeks of staying clean, and then into a period of not drinking every day but relapsing into some significant binge drinking. There have been episodes of self-harm during these binges. In the two weeks leading up to the plea you moderated your drinking considerably.
It is submitted on your behalf that the Court should maximise your prospects of rehabilitation by fixing a shorter than usual non-parole period, which allows you to resume the supportive relationship you currently enjoy, while undergoing ongoing supervision within the parole system.
I have come to the conclusion that the most salient sentencing considerations in your case are as follows.
First, I must sentence you to a period of imprisonment which reflects the gravity of your offence and punishes you accordingly. The maximum penalty for intentionally causing serious injury is imprisonment for 20 years. The injury which you inflicted was a serious stabbing injury with ongoing effects for your victim. The community cannot tolerate assaults of this nature.
Secondly, my sentence must reflect the need for an element of general deterrence. The resort to the use of knives is something which carries with it the inevitable risk of serious and potentially fatal injury to others. The Court must give a clear message that such conduct will result in a serious penalty and that the use of knives for the purposes of assault is simply unacceptable to our society. Knives are lethal weapons.
Thirdly, my sentence must convey to you that you have come to a point where the combination of alcohol affected behaviour and violence on your part must stop. You have come this far and you are lucky not to have killed your victim. The offence that brings you before me is far more serious than those which have previously brought you before the courts. Nevertheless, you have now come before the courts on a series of occasions in which you have engaged in violence when affected by alcohol. You have reached a point where you will either find a means to control your addiction or it will in all likelihood completely destroy you and in all probability cause serious suffering to others. My sentence must bring home to you the fact that you cannot go on living your life in the way that you have.
Fourthly, your criminal history culminating in the stabbing which brings you before me now raises significant issues of protection of the public.
As I observed during the plea hearing, a consequence of the severe beating which you received from the man you stabbed is that you have had inflicted upon you injuries which must have conveyed to you some of the potential consequences of violence.
I am prepared to accept that the injuries you received modify to some extent the need for a sentence involving a substantial element of specific deterrence. Nevertheless as I have said, my sentence must make clear to you that the violence which you inflicted on this occasion was a totally unacceptable escalation of your previous behaviour and you must learn new behaviour. As your counsel put it, it is plain that your impulse control is very poor once the alcohol kicks in. In those circumstances you have inflicted violence on others and yourself. It is difficult to foresee other than tragic consequences if you continue as you have done.
This said, I accept that the principal matters put on your behalf by way of plea should temper the sentence I might otherwise impose. Those matters are:
(1) Your plea of guilty which acknowledges responsibility for your offending.
(2) Your age. You are a relatively young man of 24 with your life before you. You have not had a good start to life, but you have been lucky enough to find a supportive relationship with a young woman, which provides some basis for hope for your future. You have also benefited from the guidance and care of Mr Turner. You have shown some signs of progress in recent months. You do have some prospects of maturing and living a significantly more positive life.
(3) Your rehabilitation is clearly principally dependent upon your capacity to confront your addiction to alcohol. I accept that you have made some efforts in this regard. You have also remained free from further offending for the last 18 months. You will now have to confront a period of abstinence from alcohol whilst in custody. The period you will spend in custody is one which you will have to use as an opportunity to reassess the grip that alcohol has had on your life. You will have to get on top of the grog or it will destroy you. Nevertheless, you are not without prospects of rehabilitation and the Court must maximise these prospects both in the interests of society and yourself. Relevant case law makes clear that your age and prospects of rehabilitation are important considerations. [1]
(4) I accept that as Dr Walton says, it is likely that your ongoing anxiety condition will render imprisonment more onerous for you than for other prisoners and that this is a fact which I must take into account.[2] I accept that your longstanding anxiety condition will render you vulnerable both psychologically and in respect of treatment by other prisoners.
[1]R v Mills [1998] 4 VR 235.
[2]R v Verdins (2007) 16 VR 269.
Mr Papworth, taking the above matters into account, I sentence you to four years imprisonment. I fix a minimum non-parole period of two years. I have fixed a shorter non-parole period than I otherwise would have because of the matters counting in your favour to which I have referred.
I declare that you have already served 21 days of imprisonment.
I fine you $100 on charge 2 which relates to the possession of cannabis.
I declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty on charge 1 I would have sentenced you to a period of five years and six months imprisonment and fixed a minimum non-parole period of three years and six months.
I record for the assistance of the prison authorities that insofar as it is practicable, it is desirable that you be incarcerated at a location which facilitates visiting from your girlfriend who lives at Romsey.
I also direct that the prison authorities be provided with a copy of Dr Walton’s report. It is plain that you would benefit from treatment for your substance abuse problems insofar as that can be offered in a custodial setting.
I further record that in my view you are at serious risk of ongoing self-harm.