R v Peters

[2005] VSC 373

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1410 of 2005

THE QUEEN

v

STEPHEN PHILLIP PETERS

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2005
DATE OF SENTENCE:	23 September 2005
CASE MAY BE CITED AS:	R v Stephen Phillip Peters
MEDIUM NEUTRAL CITATION:	[2005] VSC 373

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Criminal Law - Sentencing – intentionally causing serious injury – prisoner serving sentence slashing back of fellow prisoner - considerations of totality – differing opinions of psychiatrists - cumulation – fixing of new parole period

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Elston S.C.	Office of Public Prosecutions
For the Accused	Ms J. Dixon	Victoria Legal Aid

HIS HONOUR:

1. Stephen Peters.  You have pleaded guilty to one count of intentionally causing serious injury.  On Sunday 21 March 2004, you were sharing a cell at the Melbourne Assessment Prison with a 26 year old man.  I will refer to him after this as your cellmate.

1. On that Sunday, another prisoner in the same unit had attempted to hang himself.  You and your cellmate were locked down in your cell from shortly after 4 p.m.  You were on the bottom bunk.  Your cellmate was on the top bunk.  Without saying what you were doing to your cellmate, or why, you started to cut your forearm with a sharp blade extracted from a safety razor.  The blood had started to run from the cut onto the floor at a time when your cellmate chose to get off the top bunk in order to go to the toilet in the cell.  Your cellmate saw the blood and the razor blade as he was getting down.  Your cellmate asked you to give him the blade.  You said to him: “I’m the devil.  I’m here to kill you.”  Your cellmate thought it prudent to summon help.  He reached out and pushed the intercom button.  His doing so necessitated his stretching across partly in front of you.  You still had the razor blade in your hand.  You chose to use it as a weapon on your cellmate.  You aimed at his neck.  He turned his back.  You slashed his back twice with the razor blade.  He then used a chair to protect himself until prison officers came.  Your cellmate had to have 28 stitches inserted into the two long, but not deep, wounds to his back.  You said later to the police that you had not been taking your medication for some days, that you could become violent after not taking medication, that you had been hearing voices, that you had cut yourself before your cellmate had interrupted you, and that when he did so you had tried to kill him by cutting him to the neck.

1. You have admitted to committing a serious offence.  Only a sentence of imprisonment could be imposed.  However, the events of 21 March 2004 have to be seen in the context of a number of matters, most notably your criminal history and your mental health history.  They are inextricably intertwined.  You have a history of imprisonment that extends over more than fifteen years.  You have been sentenced to quite long periods of imprisonment in each of Victoria, South Australia and New South Wales.  You also have a history of treatment for mental health problems for more than fifteen years and in those three states. 

1. You are now 36 years of age, having been born on 2 October 1968.   Your family and work background are comprehensively set out in the report of Dr Debra Wood dated 28 May 2005.  Dr Wood clearly took a great deal of time and trouble to prepare that report.  She arranged to obtain materials from a number of sources, particularly as they related to your treatment for mental health issues.  She was clearly troubled by certain contradictory aspects of your history.  Those contradictory aspects are separate from the respects in which the history that you gave to Dr Wood was incorrect.  Some details of those other respects were provided to me towards the end of the plea by your counsel, Ms Dixon.

1. Before you were seen by Dr Wood, you had been seen by Dr Lester Walton.  In his report prepared in February 2005, Dr Walton, in the light of the history given by you and other material, and after expressing some reservations, was prepared to accept that you suffered from chronic schizophrenia, and that you had a defence of mental impairment available to you.  Before he gave evidence before me, Dr Walton had had the opportunity to read the report of Dr Wood.  Expressing admiration for the extensive research done by Dr Wood, Dr Walton was willing to accept that the position as to whether you suffered from schizophrenia was more complex that his earlier report suggested.  His opinion was changed but not to the extent that he would accept that you should be treated as essentially an experienced manipulator, as some of the material revealed by Dr Wood could be seen to suggest.  In the end, it seemed that the opinions of  both Dr Walton and Dr Wood, who was present in court when Dr Walton gave his evidence, were not too far apart.  There appeared to be an acceptance of the position that I propose to work to in sentencing you.  That is that, in March 2004, you were suffering from, as before that for a long time you had suffered from, significant mental health problems, most particularly depression.  Those problems are not seen by me to be such as to warrant my significantly moderating the sentence to be imposed for reasons linked to your being seen not to be a suitable candidate for general deterrence in sentencing.

1. You have extensive prior convictions.   There are four court appearances, and there is one granting and cancellation of parole, that merit specific noting.  On 7 December 1999, you were sentenced in the Central District Criminal Court of the State of South Australia on 6 counts of breaking entering and committing a felony and 4 other offences. There was imposed a total effective sentence of 2 years and 6 months. A non-parole period of 6 months was set.  On 29 June 2001, you were sentenced in the Central District Criminal Court of the State of South Australia on 7 counts of sacrilege, 6 counts of breaking entering and committing a felony and 5 other offences. There was imposed a total effective sentence of 5 years and 11 months, cumulative on the previous sentence.  A non-parole period of 18 months was set.  On 11 February 2002, you were sentenced in the Magistrates’ Court at Holden Hill in South Australia on 1 count of attempted arson to imprisonment for 9 months.  On 22 August 2003, you were granted parole by the Parole Board of South Australia.  The parole was noted as being scheduled to expire on 1 August 2008.  It was cancelled automatically by force of the relevant South Australian statutory provision on 18 February 2004.

1. On 18 February 2004, you were sentenced in the Magistrates’ Court at Melbourne on 10 counts of burglary and 13 other offences. There was imposed an aggregate term of imprisonment for 2 years.  A non-parole period of 12 months was set.  Parole was not granted on your eligibility date.  You are still serving that sentence, imposed the month before the events for which you have to be sentenced by me. I do not therefore fix a period of pre-sentence detention.  I must and will fix a new Victorian non-parole period.

1. I know little as to the background to the offences for which you were sentenced on those four occasions.  What I do know has come from your counsel on the plea.  Your past offences are primarily if not totally for burglaries and other property crimes, rather than from crimes of violence.

1. There is the need for me to respect the principle of totality.  I propose to do so in part by allowing concurrency as between the period that I impose and the period imposed by the previous sentence, and in part by how I set the new non-parole period.  I am conscious of not ameliorating the problems that arise where a long period of parole eligibility is rendered relatively ineffective because of persistent re-offending.  In your case those problems are compounded by reason of your South Australian sentencing.  Given the long period of potential parole, there are two options. You either work out a way of avoiding re-offending or you will have to spend a long time more in prison. 

1. I also note that I accept that there are a number of mitigating factors to be taken into account in sentencing you.  You have pleaded guilty.  Having injured a cellmate once, you are likely to have to serve further periods of imprisonment in relative isolation, if not protection.  You have a supportive family.  I do accept that you are not to be written off as having no prospects of rehabilitation.  I also note that no victim impact statement was placed before me.  On the other hand, people in custody need to be protected.  The injury that you inflicted could easily have been very much more serious.

1. I impose a sentence of imprisonment for 4 years.  I order concurrency as to 2 years with the sentence imposed on 18 February 2004.  The sentence imposed by me adds two years to the previous aggregate sentence.  I set a new non-parole period at an additional two year period beyond that set on 18 February 2004.