R v Savage
[2019] VSC 111
•1 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0280
| THE QUEEN | |
| v | |
| JACKSON SAVAGE | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 February 2019 |
DATE OF SENTENCE: | 1 March 2019 |
CASE MAY BE CITED AS: | R v Savage |
MEDIUM NEUTRAL CITATION: | [2019] VSC 111 |
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CRIMINAL LAW – Sentence – Intentionally causing serious injury, assault with a weapon, and possession of a prohibited weapon – Accused struck victim with hammer in unprovoked attack - Serious example of offense –Plea of guilty, albeit late – Prior good character – Immediate remorse – Positive prospective of rehabilitation – General deterrence of revenge attack – Sentenced to five years with non-parole period of three years – Sentencing Act 1991 (Vic) s 6AAA.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Brown | Office of Public Prosecutions |
| For the Accused | Ms F Todd | Patrick Dwyer & Associates |
HIS HONOUR:
Jackson Savage, on 30 November 2018 in this Court, you pleaded guilty to a charge of intentionally causing serious injury. On 26 February 2019, you also pleaded guilty to two related summary offences of possession of a prohibited weapon and assault with a weapon.
After your arrest on 12 March 2018, you had originally been charged with, among other things, the offence of attempted murder. It is for that reason that the matter is being dealt with in this Court.
The maximum penalty for intentionally causing serious injury is 20 years’ imprisonment. The maximum penalty for possession of a prohibited weapon is two years’ imprisonment, and the maximum penalty for assault with a weapon is also two years’ imprisonment.
It is now my responsibility to sentence you for these offences.
On 26 February 2019, I heard a prosecution opening, received a victim impact statement, and heard submissions on your behalf in relation to the sentence I should impose on you.
Circumstances of offending
The relevant factual circumstances are as follows. On 10 March 2018, the victim of your attack, Kearne Cannon, and his partner, Sarah Davis, drove to the Eastland Shopping Centre in the afternoon in Ms Davis’s black BMW sedan. The purpose of their trip was to do some shopping and the vehicle was parked in Eastland’s multi-storey car park.
At about 4.00 pm on that day, having completed their shopping, they attended the Eastland food court to eat and meet some friends. Whilst Mr Cannon and Ms Davis were sitting at a table with friends, an announcement was made over the public address system at Eastland, requesting that the owner of a vehicle, which matched the description of Ms Davis’s sedan, return to their vehicle. Initially, they ignored the announcement but, when it was repeated, they decided that they would return to the car and continue eating their food there.
You were also at Eastland Shopping Centre on that day with a friend. As Mr Cannon and Ms Davis were returning to their vehicle, you saw him and determined to follow him back to the vehicle. As I understand it, you believed you recognised Mr Cannon from a previous incident in which you had been attacked. You went to your own vehicle to obtain a hammer from your work toolkit to use as a weapon to confront Mr Cannon. You then took the trouble to conceal your identity by the use of a hoodie and a shirt to cover your face.
When Mr Cannon and Ms Davis arrived at their vehicle, Ms Davis saw you jump over a concrete barrier near the vehicle and run towards Mr Cannon. You were heard to yell words to the effect of, ‘I’m going to fuckin’ kill you’ as you ran towards him. Ms Davis endeavoured to warn Mr Cannon but, as he turned around, you struck him to the head with the hammer.
You took a full swing at Mr Cannon’s head with your weapon. After he had fallen to the ground, you continued to hit him with it as Ms Davis yelled for you to stop. You waved the hammer at her before you ran off through the car park. That gesture constitutes the charge of unlawful assault with a weapon.
As I have already described, before you launched this attack on Mr Cannon, you had taken steps to retrieve the hammer from your own car, conceal your identity and then locate him; all of which suggests a degree of planning had gone into this attack.
After you ran away from the scene, some shoppers came to the assistance of Mr Cannon. The police and ambulance were called. Mr Cannon was treated by paramedics at the scene and taken to the Alfred Hospital, where he was observed to have the following injuries:
(a)a right orbital blowout fracture;
(b)traumatic optic neuropathy of the right eye, with residual severely decreased visual acuity; and
(c) an eyelid laceration.
The orbital fracture required surgical intervention. A maxillofacial surgeon performed an open reduction and internal fixation.
Mr Cannon remained at the Alfred Hospital from his admission on 10 March until 15 March 2018. The nerve damage to his right eye meant that he lost almost all of the sight in that eye. It is expected that the loss of vision will be permanent, as there is no current medical treatment that can reverse the damage that you caused.
The incident in which you struck Mr Cannon was captured on closed circuit television, which was provided to me during the course of this plea proceeding. You were identified by police from the footage and, two days later on 12 March 2018, you were intercepted by police in Croydon and taken to the Ringwood Police Station.
In a record of interview with police, you admitted that you followed Mr Cannon to his car, and that you struck him in the head with a hammer. As previously mentioned, you claimed to have recognised Mr Cannon as being one of a group of males who had attacked and robbed you the previous year. It is accepted by the prosecution that you held that belief. Whether there was any factual basis for it is unknown and inconsequential. It is put forward by you as an explanation for your conduct but it is in no sense relied upon as a justification.
You also told police that you took the hammer from your car and that you wanted to confront Mr Cannon about the robbery. You agreed that you followed him to Ms Davis’s car and hit him with the hammer; although you claimed that you only made one real connection. You also admitted that you put on a black hoodie and a shirt over your face so that you would not be recognised. You expressed regret for your actions.
During a break in the record of interview, police executed a search warrant at your home in Croydon. There they located a pair of plastic knuckle dusters, which constitutes the offence of possession of a prohibited weapon to which you have pleaded guilty.
This is a very serious matter for a number of reasons. First, you determined to take the law into own hands by exacting revenge on someone you believed had done you harm. Such actions are akin to vigilantism, and require a clear message of condemnation from the court by the operation of general deterrence. I note there is a police station immediately beside the Eastland Shopping Centre. The responsible thing for you to have done, upon seeing Mr Cannon, would have been to take your concerns to the police station. Second, you made the effort to arm yourself with a weapon and to conceal your identity for the purpose of attacking this man. Third, you gave Mr Cannon no chance to defend himself by the manner of your attack. This was not a confrontation; this was a surprise attack. Fourth, you struck a substantial blow, or blows, with your weapon. Fifth, you left your victim with an injury to his eye that resulted in loss of sight for, potentially, the rest of his life. Finally, by your actions, you threatened Ms Davis who had done no more than try to warn Mr Cannon of your impending attack.
Victim impact statement
In the plea proceedings on 26 February 2019, I received a victim impact statement from Sarah Davis, the partner of Mr Cannon. She was both the witness to your attack on Mr Cannon and the victim whom you assaulted by threatening her with a weapon, being the hammer. She read her victim impact statement to the Court, and it is clear that she suffered substantially from witnessing what occurred and the consequences. It is also obvious that these effects will be with her for a considerable time. I have taken Ms Davis’ statement into account in determining the sentence I should impose on you.
Plea of guilty
It appears you first pleaded guilty in this matter on 7 November 2018, which is relatively late in the proceedings. However, the more important consideration is that you have always accepted responsibility for your actions and have been willing to plead to the appropriate charge. Despite your exclamation as you attacked Mr Cannon, in my opinion, this was never likely to be a viable case of attempted murder.
I, therefore, accept that your plea of guilty carries with it your remorse for what you have done. Commencing with the record of interview, the evidence indicates that you truly regret your actions and the violence of them.
Personal circumstances
You were born on 23 October 1990, and you are now aged 28 years. Your parents separated when you were a young child, and both your parents had heroin difficulties in their early adulthood. It appears from the description provided to me that your parents’ marital difficulties were characterised by family violence against your mother. For a time, you and your mother lived in a refuge in Fitzroy.
You had a satisfactory education both primary and secondary; completing Year 12 and excelling in creative subjects, such as art, woodwork and graphic design. You were apparently a satisfactory student and completed VCE with a good circle of friends and good results.
Your employment led you to cabinet making, and you completed a cabinet-making apprenticeship. I am told you have never been unemployed.
You had a relationship over a period of five years that produced a daughter, who is now aged seven. The relationship has not continued, but you are involved in the parenting of the child.
I have been provided with references from several people who attest to your character, including your mother. Kassie Schutt, who is your former partner and the mother of your child, is supportive of you, despite the end of that relationship, and she attests to qualities as a person and a father. Her mother, Karen Wright, likewise writes well of you. Mr Hansen, a friend of 16 years, has written of your personal qualities and commitment to your family.
In addition, I have also been provided with a report from Ms Gina Cidoni, who has carried out a psychological assessment of you that indicates that there is nothing untoward about your psychological state, and no indications of a personality disorder or serious psychological illness. That report does support the conclusion that your prospects for rehabilitation are positive.
You are effectively without prior convictions except unrelated traffic matters. I regard you as a person of good character.
This was, of course, a most serious assault leading to lasting consequences for the victim. Your counsel appropriately referred to some of the usual features of similar offences that did not arise in this case. Your attack on Mr Cannon was relatively spontaneous and was over quickly. Your conduct was not accompanied, for example, by the use of methylamphetamine or consumption of an excess of alcohol. However, for the reasons I have already given, I regard this as a very serious example of the offence with significant and permanent consequences for your victim. I have already referred to the importance of general deterrence, which is a significant sentencing factor. In your case, I am confident that you well understand the consequences of your actions, and I do not regard specific deterrence as being a particularly relevant sentencing consideration. I accept that you are genuinely shocked by your own conduct as you told police in the record of interview.
You have pleaded guilty to the charge of intentionally causing serious injury and, as a result, the original charge of attempted murder was withdrawn. It was put, on your behalf, that your plea indicates acceptance of responsibility and remorse, and I accept that submission. I have concluded that your prospects of rehabilitation are good, and you are unlikely to reoffend.
You have been in custody since 12 March 2018, and you appear to have made the best you could of that time by undertaking work and educational opportunities. Despite the fact that you have had regular family visits while in custody, your absence has resulted in both emotional and financial consequences for your family.
Conclusion
In all the circumstances, on the charge of intentionally causing serious injury, I sentence you to be imprisoned for a period of five years. On the charge of assault with a weapon, you will be sentenced to six months’ imprisonment. On the charge of possession of a prohibited weapon, you will be sentenced to three months’ imprisonment. I direct that these sentences be served concurrently making a total effective sentence of five years. I fix a minimum period to be served before you are eligible to make an application for parole of three years.
I declare that your pre-sentence detention is a period of 354 days including this day, and I direct that such period be entered in the records of the Court and counted as time already served by you.
Section 6AAA of the Sentencing Act
Pursuant to s 6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, and there had been a trial on these charges, the total effective sentence I would have imposed on you would have been six years’ and six months’ imprisonment with a minimum period before eligibility for parole of four years and six months.
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