R v Schroeder
[2010] VCC 2023
•29 November 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
CR-10-00886
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MIKE VERN SCHROEDER |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 September 2010 | |
DATE OF SENTENCE: | 29 November 2010 | |
CASE MAY BE CITED AS: | R v Schroeder | |
MEDIUM NEUTRAL CITATION: | [2010] VCC 2023 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty - Intentionally causing serious injury - Offence committed in 1999 - Defendant absconded and contested extradition proceedings – Defendant has acquired brain injury – No Verdins considerations applicable
Legislation:Crimes Act 1958 (Vic)
Sentence:Total Effective Sentence 6 years and 10 months’ imprisonment with a non-parole period of 4 years’ and 8 months’ imprisonment – Ancillary orders Forensic sample and Disposal orders – Pre-sentence detention 489 days declared – s.6AAA Sentencing Act 1991 declaration
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A. Harris | Solicitor for Public Prosecutions |
| For the Accused | Mr M. Dempsey | VLA |
HER HONOUR:
1 Mike Vern Schroeder, you have pleaded guilty to one count of intentionally causing serious injury, which carries a maximum penalty of 20 years imprisonment.
2 The circumstances of your offending were opened as follows:
On Friday 1 October 1999, the victim, Luke Kenley, who was 18 years old at the time, was at home with some friends, having a small party. In the early hours of 2 October 1999, you and some friends came over to the party, uninvited. You and your friends started playing a basketball game with the victim and another friend. You began getting aggressive with the victim and tried to provoke him into a fight.
3 The victim told you to leave but you refused. After the game, a scuffle started between you and the victim, during which, punches were thrown by both of you. The victim pinned you down and again told you to leave. The victim let you go and a short time later, he was again attacked by you and thrown to the ground. During this second scuffle the victim was bitten on the face by you.
This bite caused a cut and bleeding to the victim which later required stitches. The bite forms part of the serious injury, to which you have pleaded guilty. You were still being told to leave.
4 The victim gave the following account:
“I had a conversation with him where I told him to pull his head in or fuck off. He started frothing at the mouth, he was so angry. I can't remember who started it, but we both ended up wrestling on the nature strip. I don't think any punches were thrown. We came together pretty quick so it was just a quick wrestle. After a little bit we both got to our feet and he started to walk up Potts Road away from the house. I followed him up the road from a distance behind just to make sure he was leaving. He just kept walking off. When I could see he was leaving I turned around to come home and felt a blow to my head.
I don't know what hit me, but it was an object of some description. The force of the blow knocked me to the ground. It knocked me out because the next thing I remember I was on my hands and knees on the ground and I kept thinking
‘I wish he would stop kicking me in the head’. I could feel feet kicking me straight into my head. They were really hard kicks. It was a strange feeling and experience because although I knew what was happening and could feel my head being kicked around with a lot of force, I couldn't do anything to protect myself and was just copping it while trying to stay on my hands and knees. I don't know how many times I was kicked in the head, but it was a lot more than a few. I couldn't look up, just at the ground. I didn't see who was kicking me. I think it was the kicks in the head that actually woke me back up from being knocked out. The next thing I remember was waking up in Monash Medical Centre”.
5 A Lance Soden gave the following account:
He said that the victim walked down toward you, and you both ended up in a fight. You were both swinging punches. He said, ‘Luke landed a good one’, causing you to fall to the ground. He said that Luke got on top of you, and leant over you. He said, "I had followed him down the driveway, was about three metres away from them. Luke said ‘Piss off now before I hurt you.
Go home." He said that Luke got up and walked back toward his friends.
6 Mr Soden said that you got up, walked away from the house, walked towards the victim, screaming at him, saying "Do you want a piece of me. Come here." He was walking backwards slowly, he said, trying to lure Luke Kenley up the road. The victim walked up towards you and when he was about five metres away, you launched yourself at Mr Kenley and started throwing punches with both hands. He saw the victim grab you by your collar and throw you against a parked car. You fell to the ground and somehow got a hold of the victim's feet and pulled him down. The witness said that he was about ten metres away, and it was pretty dark. He heard Mr Kenley yell pretty loudly. He says that he screamed out that he had been bitten by you.
7 Mr Soden said, "Luke got half way back to walking back to us, and I could see he was holding his cheek." You then picked up a big handful of stones from the road, ran up to Luke Kenley, and threw them at his head. Mr Soden said that you threw them as hard as you could.
8 Then the victim ran after you up the road. You had walked further up the road into the darkness. Mr Soden said that as this was happening he slowly walked behind you and the victim with a friend, ‘Damian’ and a neighbour of the victim. He said that when Luke got up to you, he could see two figures fighting. He said: "Whenever they would break up, Luke would start walking back toward us", and he could see you bend down, pick up stones and throw them at the back of the victim’s head. He said "Luke would then turn around and they would fight again."
9 According to Mr Soden, the last time he saw you fighting, the victim dropped. He did not know what made him drop. He just heard a big thud as if he had had a baseball bat around the back of his head. When he dropped to the road, you ran up to him and started ‘booting’ into his head. You were making an aggressive grunting noise as you were kicking Mr Kenley, and screaming at him. He said that you would have kicked the victim at least ten times.
10 Friends of the victim ran to help him and then you ran away. The victim was helped back to his home where an ambulance was called.
11 Another witness, Damian Drake, said that he saw you throw a "stone" or a "handful of stones" at the victim's head and then saw you pick up “another rock”, to quote him, and throw it at his head, which caused him to drop flat on the ground, after which you, to quote him, “laid the boots in” and would have kicked him four to six times.
12 Witness Mark Baric, a friend of yours, said “When they did start fighting, the victim", to quote him "beat" you and pinned you down. He said that the victim then told you that it was over and told you to go. Mr Baric said “Luke could have beaten the crap out of Michael but didn’t.” Mr Baric saw you throw
“a handful of large stones … really hard” at the victim twice before, on the Crown case, the third stone throwing occurred, which knocked him out.
Mr Baric saw you standing over him and kicking the victim “about six times” in the head, swearing at him as he kicked him.
13 The victim was examined by Dr Liew at the Monash Medical Centre.
On examination Dr Liew found a compound left skull fracture, left brain contusion (he was unable to speak), and left facial laceration.
14 Neurosurgery was performed on 2 October 1999. After leaving Monash Medical Centre on 8 October 1999, the victim went to Hampton Rehabilitation.
15 Police were unable to locate you, as you had fled to New Zealand on the day after the assault.
16 On 14 March 2007, you were interviewed by Cranbourne detectives whilst in the Auckland Central Remand Prison in New Zealand. You admitted to being at the scene and playing basketball. You remembered having a fight, but did not remember kicking the victim in the head or causing injuries to the victim, you said.
17 At the time of this offending you were 19 years old.
18 The facts that I have just recited were not disputed on your behalf. Notwithstanding this, you appeared to want to deflect some responsibility for your actions in your interview with Carla Lechner, psychologist, and
Mr Brewer, neuro-psychologist. Although you had a poor recollection of these events, you portrayed the victim as the aggressor to Ms Lechner, notwithstanding that you said you felt sorry for the victim and were apparently angry with yourself for becoming involved in the situation.
19 You told Mr Brewer that you and the victim, to quote you, "got into a fight", and said that the victim, to quote you again, "simply lost". You also said that whilst you felt sorry for the victim, had you been less intoxicated, you would have probably pursued assault charges against him. Such expressions fly in the face of the facts in this case, as opened by the Crown, in that even though the victim was ultimately willing to physically engage with you, your savage attack upon him, which caused his injuries, occurred when he was walking away and then when he lay defenceless on the ground. From the outset, you were spoiling for trouble, having attended the victims premises, uninvited, aggressive and unwilling to leave, despite his requests in this regard.
20 Moreover, although you pleaded guilty to this most serious charge, you fled to New Zealand afterwards; that is, after you committed the offence, and made no enquiry as to the victim’s wellbeing. You fought extradition proceedings which further delayed you being brought to justice.
21 In all, I am far from convinced that you are genuinely remorseful about your actions. The fact that you fled to New Zealand, now 11 years ago, following this offending whether this be due to fear of your uncle or fear of apprehension by police or both, has meant that the victim has had to endure not only his devastating injuries, but also the knowledge that you, his attacker, was still at large.
22 The impact to the victim has been profound. In a most expansive victim impact statement, he spoke of the fact that prior to the assault upon him, he had been a most talented and successful student, in the top 5% on his VCE, with a keen interest in architecture and engineering. It would appear that the world was his ‘oyster’ before your savage intervention. He is now a concreter, who has found life extremely difficult. His speech has been permanently marred by your attack upon him, and he has been afraid to speak in his workplace as he said that he was afraid that he sounded, to quote him, ‘like a retarded person’.
23 He has also missed out on socialising at hotels because he has appeared drunk, due to his impaired speech, and spoke of his immense upset at missing his brother’s 21st birthday celebration because of this.
He cannot even indulge in the simple pleasure of singing along to a song on the radio, because of his speech difficulties; nor can he effectively socialise in a group or with family, as he says he is likely to clam up and slur his speech; nor can he involve himself in any public speaking activity.
24 His right hand is permanently damaged and he has no feeling in his fingertips. Again, this has caused him significant problems in his every day life. He has endured great hardship and deprivation due to his injuries and still has nightmares about this attack.
25 Your offending on this occasion was thuggish and cowardly. You were fuelled by alcohol, which, unfortunately, has had a good deal to do with your level of aggression on this occasion and since.
26 By way of background, I was told that you were raised in an impoverished household where you were subjected to corporal punishment at the hands of your father. You reported to Ms Lechner, clinical and forensic psychologist, that you have tried most illicit substances at least once, but that you had smoked marijuana at the rate of about 1 gram a day, which, you stated, calmed you down.
27 You had been smoking marijuana since you were about
11 years old. This was the age at which you started to drink alcohol, which you are slowly realising has a good deal to do with you committing offences. You reported that you had never thought of giving it up, but that this time you would, as you belatedly appreciate it seems to get you into trouble. It has also interfered with your ability to maintain employment.
28 You are the fourth of seven children and were raised in Samoa until aged
14 years when you moved to New Zealand; then after seven months, apparently because of poor company and substance abuse leading to trouble, you were sent to Australia to live with a maternal aunt in Frankston.
29 Whilst in Samoa, when you were not at school, you would help your family work in a plantation. According to you (as reported to Ms Lechner) you were an, (to quote you), 'alright’ student, and ultimately, in Australia, you attended the Langwarrin Secondary School until part way through Year 11. You then worked with your uncle’s friend for about 12 months delivering compost and after you fled to New Zealand you worked as a roof tiler for 3 years, then in many different jobs on a part time basis.
30 You have been in three long term relationships, two of which have resulted in children; however, you reported to Ms Lechner that alcohol abuse led to each of these relationships ending.
31 On balance, on the basis of Mr Brewer’s report, I am prepared to accept that as at the time of this offending you had an acquired brain injury, most likely caused by prolonged substance abuse, negatively compounded to an uncertain degree by head injuries you had apparently suffered in the past.
I refer to Mr Brewer's report at page 6. Further, this acquired brain injury in combination with other pre-existing factors (in relation to your intellectual functioning and emotional distress born of early childhood abuse) appears to have a causal link with your resort to violence on the occasion of this offending.
32 Further, notwithstanding that Mr Brewer obtained from you a history of psychotic symptoms, I can find no link between such symptoms and your offending. There was no suggestion that on this occasion you were subjected to intrusive thoughts or were hearing voices which led you to act in the way that you did. The difficulties you were experiencing at the relevant time left you, to quote Mr Brewer, ‘ill equipped to independently regulate primal emotional arousal’, such as anger; and resort to substance abuse or violent reaction when you felt provoked, was a means used by you to alleviate apparent emotional distress.
33 According to Mr Brewer, your intellectual profile does not preclude you from either the capacity for remorse or interfere significantly with your ability to understand the difference between right and wrong. So that, at the present time, notwithstanding eleven years of substance abuse since this offending, you still have such capacities. On the whole, I am prepared to marginally reduce the weight that I would otherwise accord to your moral culpability, and marginally reduce specific and general deterrence. Your Counsel did not submit that because of your impairment of mental function, such as it is now, that your time in gaol would be harder than someone without it. So I make no moderation of sentence in relation to that aspect of the Verdins considerations.
34 At the time of this offence, you had no prior convictions and so I take this matter into account in your favour and I sentence you on this basis. On the other hand, in the eleven years since your offending, you have accumulated a number of convictions for offences of violence committed in New Zealand, which I ought factor in, when considering your prospects of rehabilitation and the need to protect the community.
35 I also take into account in your favour the fact that you pleaded guilty to this most serious offence at the committal stage and that you have saved the witnesses, particularly the victim, the trauma of a trial and saved the community the trouble and expense of contesting this matter. Accordingly, you are entitled to a not insubstantial discount in your sentence, although this cannot be removed from the context of you being brought to account many years after the incident, and after a good deal of resistance to extradition.
36 It is true that you were a young man at the time of this offending and had you been sentenced at that time, it may well have been argued on your behalf that you were deserving of a sentence that would maximise your prospects of rehabilitation. Indeed, this is argued on your behalf now, and it is true that
I ought have regard to the sentencing practice that pertained at the time that you committed the offence.
37 Whilst I must have regard to your prospects of rehabilitation and the need to impose a sentence which assists these, your conduct is so serious that, even allowing for slightly lesser moral culpability on your part, I have come to the view that I must accord substantial weight to just punishment and denunciation of your conduct.
38 Although you show a spectre of belated insight into your offending in terms of your alcohol intake, your subsequent offences, lack of genuine remorse and difficulties with impulse and anger control, lead me to assess your prospects of rehabilitation as being quite poor. You express the hope that your partner and your children are there for you upon your release from gaol, which will hopefully motivate you not to re-offend.
39 However, in view of my assessment, I must impose a sentence which gives adequate weight to the need to protect the community.
40 I was handed a summary of cases by your Counsel on the hearing of the plea, which involved sentences for intentionally causing serious injury, dating from 2007, as reviewed by the Court of Appeal.
41 Unsurprisingly, because of the myriad of facts and circumstances in those cases, including those personal to the offender, there is a good deal of variation in those sentences. In a number of the cases where relatively low sentences were given, the offender had managed to show promise in relation to rehabilitation. Unfortunately that is not your situation. You have re-offended on a number of occasions.
42 I have sought to look at other cases going further back than those which
I have been handed, and I have also looked at the sentencing snapshot concerning this period, in order to appraise myself as to the current sentencing practice at the relevant time; being the time of your offending.
43 Again, the sentences for this offence have been variable. I note that the maximum penalty of 20 years’ imprisonment for this offence was increased on 1 September 1997 (just two years before you offended) from a previous maximum of 12 years and 6 months. No doubt, this was reflective of the serious view taken in relation to this most serious offence.
44 In the end, I am of the view that, in attributing appropriate weight to all sentencing factors, such as are relevant in your case, I ought impose the following sentence:
(Would you please stand up, Mr Schroeder)
45 Firstly, in relation to the order for a forensic sample that is sought, you have been convicted or you are to be convicted of a forensic sample offence under Schedule 8 of the Crimes Act 1958. The prosecution has applied for an order pursuant to s.464ZF of the Crimes Act that you should undergo a forensic procedure, so as to provide a forensic sample. That application is not opposed by you.
46 I am satisfied that in all of the circumstances the making of the order is justified for the following reasons; namely the seriousness of the offence, the order is not opposed, and the granting of the order is in the public interest. Accordingly, I order that you provide a scraping from your mouth in accordance with Sub-division 30A Part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.
47 Notwithstanding your present lack of opposition to the making of the order,
I should tell you that the police may use reasonable force, if necessary, to enable the forensic procedure to be conducted. I will sign the form or I have signed the form which has been provided to me by the prosecution.
48 I also make a disposal order in the terms sought by the Prosecution which is not opposed by you.
49 On the count of intentionally causing serious injury, you are convicted and sentenced to 6 years 10 months’ imprisonment with a non-parole period of four years and eight months’ imprisonment.
50 I declare that you have already served 489 days pre-sentence detention, which will be reckoned as served as part of that sentence.
51 If not for your plea of guilty I would have sentenced you to 8 years and 6 months’ gaol, with a non-parole period of 6 years 8 months’ imprisonment.
52 Is there anything further, counsel?
53 MS HARRIS: No, Your Honour.
54 MR DEMPSEY: No, Your Honour.
55 HER HONOUR: All right. We’ll adjourn.
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