R v Stewart
[2006] VSC 514
•20 December 2006
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
CRIMINAL DIVISION
Case No1558 of 2006
| THE QUEEN |
| V |
| MATTHEW PHILLIP STEWART |
JUDGE: | Warren CJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 December 2006 |
DATE OF SENTENCE: | 20 December 2006 |
CASE MAY BE CITED AS: | R v Stewart |
MEDIUM NEUTRAL CITATION: | [2006] VSC 514 |
REASONS FOR SENTENCE
CRIMINAL LAW – Sentencing – One count of intentionally causing serious injury – Sentenced to three years’ and six months’ imprisonment with a non-parole period of two years.
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B Kayser | Office of Public Prosecutions |
| For the Accused | Mr G Gergiou | Victoria Legal Aid |
HER HONOUR:
1 Matthew Phillip Stewart, you have pleaded guilty to one count of intentionally causing serious injury to one Graham McPherson. The offence carries a maximum penalty of 20 years' imprisonment.
2 The circumstances of the offending were that at around the end of October 2005, Mr McPherson moved into Ozanam House, a men's hostel in North Melbourne. It was there that you met Mr McPherson. You were also living at Ozanam House, a place for the homeless.
3
On 9 December 2005, you moved out of Ozanam House into a flat in Westbury Street, East St Kilda, as organised by the Ozanam House outreach program. About a week after that, Mr McPherson also moved into a block of flats nearby. About three weeks after he moved in, Mr McPherson saw you in the Safeway supermarket in Carlisle Street, East St Kilda. You invited
Mr McPherson back to your flat in order to catch up. You also invited him to share some marijuana in the same manner in which you had done previously when you were both apparently at Ozanam House.
4 For a number of weeks after that you attended at Mr McPherson's flat on an almost daily basis. During this time you told Mr McPherson that you did not want to associate with anyone else and that Mr McPherson was your own friend. According to Mr McPherson, you appeared at that stage to be going through relationship difficulties, having recently separated from your de facto partner of five years. Mr McPherson described himself as providing support by listening to you so that you could talk about your problems. He described in his statement to the police that his support continued until about the end of March 2006.
5 At about that time, Mr McPherson started to distance himself from you because he was experiencing his own problems and wanted to have some time and space of his own. Mr McPherson said at that stage he noted a change in your attitude. He expressed a level of concern about the way in which you were starting to talk to people who were associated with your ex-partner. Mr McPherson also said in his statement to the police that you were taking prescription drugs such as Valium and Diazepam, together with Panadeine Forte.
6 Around 22 May 2006, Mr McPherson went to your flat one morning and had a cup of tea with you. Whilst he was there, according to Mr McPherson, you had a considerable number of pills in front of you. They appeared to be Valium and Diazepam and he said that you took about 70 of them. You dispute that assertion. For present purposes it is unnecessary for me to make a finding save to observe that you have a history of drug taking, including prescription drugs. In any event, Mr McPherson said he wanted to get away from you.
7 Later that day it transpired that you went to Mr McPherson's flat and on coming in said words to the effect, "I can't believe you did it to me". You expressed the belief that Mr McPherson had taken your medication. He denied that he had stolen your pills and then there followed an altercation between you both which led to Mr McPherson pushing you backwards out of the door of the flat.
8 There was then a wrestling match between the two of you. You are alleged to have kicked Mr McPherson a few times whilst yelling abuse and to have then left.
9 Then you returned to Mr McPherson's flat again at about 6 to 6.30 a.m. on 22 May 2006, the day the offending occurred and pressed the security buzzer downstairs.
10 You then started throwing rocks at Mr McPherson's third floor window and challenged him to come down and fight. Mr McPherson did not reply but the window of his flat was eventually broken by the rocks you threw.
11 Mr McPherson grabbed an umbrella for protection and ran down to see you. By the time he arrived downstairs you had fled. He then called triple 0 from a telephone box nearby, and around 20 minutes or so later, two police officers attended and Mr McPherson explained the events.
12 Meanwhile, at around 8.00 a.m. that morning you went to the St Kilda Police Station where Phillip Hully was performing supervision duties. You demanded a statutory declaration from the police in regard to some medication that you claimed had been taken by your flat mate, as you describe it, or words similar, as understood by the police.
13
You told Mr Hully that the pills stolen were methadone and Temazepam.
Mr Hully told you that he did not know what you were talking about, insofar as the statutory declaration was concerned, and advised you to go and see your doctor.
14 You told Mr Hully that your doctor was too far away and swore at him and threatened that he would hear further from you and would regret not helping. You asked for his name. Mr Hully then suggested that you not threaten him and ask for your name to which you responded with a curse and swearing. You said "I will do something." You then left the police station.
15 Mr Hully, in his statement, described you as being angry and agitated, although he said that his impression was that your demeanour and state of mind left little concern in him that you would cause any trouble to other people. You were abusive and aggressive, but Mr Hully thought that you presented no problem, otherwise.
16 Then a little while later, at about 8.15 a.m. one Kerry Hubert, a traffic officer, at the City of Port Melbourne issued a ticket to a vehicle that was parked in a loading zone in Hampton Street, Balaclava, and there was a tense conversation between you and the traffic officer about that vehicle.
17 Again that same morning, after 9.00 a.m. Mr McPherson stopped at Safeway supermarket in Carlisle Street, to buy some milk. Whilst he was in Carlisle Street, he saw you walking towards him from the other direction.
18 According to Mr McPherson you came up to him straight away. He pushed you back with open hands. The two of you then commenced to wrestle. You enveloped Mr McPherson in a head lock and he reciprocated. This all occurred in Argyle Street, not far from the intersection of Chapel Street and Carlisle Street, St Kilda. The scuffle was observed by a number of witnesses who were unfortunate enough to observe what occurred.
19 Mr McPherson said in his statement that in the course of the altercation his breathing was being affected so he poked his finger in your eye to try and have you remove your arm from his throat. You both separated before you came back at Mr McPherson, and you both grabbed one another by the shirt.
20 Then there was a series of blows delivered by the two of you and both of you fell to the ground. Some pedestrians tried to break you apart.
Mr McPherson then went to a rubbish bin close by to retrieve his sunglasses and hat which had somehow fallen into it. Whilst Mr McPherson was doing that he heard a male voice call out, "Hey you, stop there, stop there." Mr McPherson looked up and saw two uniformed police officers, Constable Bloom and Constable Appleton.
21 They had attended almost immediately as a result of people who saw the fight and called the police. The police attended almost immediately. Mr Bloom said that he called in Mr McPherson's direction and that next they saw you leaving the Chapel Gate Pharmacy which is on the intersection of Chapel Street and Carlisle Street.
22 The two police saw you leaving the Chapel Gate Pharmacy and walk straight up behind Mr McPherson. You raised your right arm and stabbed him once with a knife to the back. There were other witnesses who were inside the pharmacy. They were shop assistants who gave descriptions of your actions.
23 All the witnesses described your manner as highly aggressive. The knife that was used to stab Mr McPherson was a fishing knife you sometimes used on fishing expeditions. After you came up behind Mr McPherson and stabbed him in the back, Mr McPherson turned around to face you and you again lifted your arm and stabbed him once in the chest. After that you ran up Chapel Street. As you ran away you were apprehended by the police, brought to the ground and handcuffed. As you were retained by the police your conduct was violent and aggressive and involved slamming your head and face into the pavement.
24
Meanwhile Mr McPherson staggered into the pharmacy. He was bleeding profusely and later transferred by ambulance to the Alfred Hospital.
Mr McPherson suffered a penetrating shoulder injury into the facia of the right deltoid, a penetrating chest injury with the lung on view and a left humor thorax so that the lung on the left hand side was penetrated. Emergency surgery was performed. The police officers involved said that the knife blade penetrated Mr McPherson for its entire length to the handle.
25 Undergoing emergency surgery the doctors who treated Mr McPherson explored his chest wound, divided and repaired the stab wound, placed the left intercostal catheter to drain the hum thorax, performed a laparoscopy and explored the shoulder wound. Mr McPherson was in hospital for some five days as an in-patient and then for several weeks attended as an out-patient.
26 According to Constable Appleton during the entire time he had you under his control you were ranting and raving and saying that Mr McPherson had deserved to be stabbed. You were ultimately walked back to the St Kilda Police Station and attended by a police forensic medical officer, Dr Zingalier. She considered that you were not fit for interview in her opinion, hence no record of interview save for a very preliminary interview was ever taken.
27 The Victim Impact Statement of Mr McPherson was provided to the court. Clearly he suffered a dreadful and frightening experience. He is indeed fortunate not to have died in the attack. His physical and psychological symptoms are ongoing and may well haunt and trouble him for a long time. I find the offence and the facts as described proven against you.
28 The prosecution submitted that this was an attack with a knife, an obviously lethal weapon. It was submitted that the injuries suffered by Mr McPherson were serious, especially the injury to the left hand side of the chest. It was submitted that a considerable amount of weight ought be given to generally deter individuals from using knives to inflict serious injury upon others. Hence it was submitted that general deterrence must be given considerable weight in this instance. The prosecution's submission was this offence is at least in the range which is approximately half the maximum penalty.
29 I turn then to the matters in mitigation put on your behalf. It was conceded for you that this is a serious matter to which you have pleaded guilty. It was accepted that general deterrence was an important principle in determining the overall sentence. It was also accepted that an immediate term of imprisonment was an appropriate penalty. However, it was submitted that particularly in light of your personal circumstances a sentence of imprisonment which would have a lower than normal non parole period and thus allow for a period of supervision on parole upon your eventual release from gaol was appropriate.
30 It was further put on your instructions that the circumstances that occurred that led to the altercation between you and Mr McPherson on the day of the offending was spontaneous. It was said that the circumstances of the altercation were that you had attended the pharmacy to collect methadone medication and after leaving the pharmacy you had turned the corner and quite accidentally bumped into Mr McPherson. A witness from the pharmacy confirmed that you had undergone your methadone collection. Indeed, it was the very same pharmacy in front of which the incident occurred.
31 A psychiatric report was obtained to determine whether or not there were any mental state issues that related to you and clearly there were none. It was acknowledged in the course of the plea on your behalf that you were an individual in an extremely emotionally distressed state at the time of the incident and it was that in turn which led to your unfitness to be interviewed by the police.
32 Hence it was said in light of these matters that the circumstances of the offending could not be viewed as a planned or premeditated occurrence and that the stabbing occurred in the heat of the moment following a chance meeting of the two of you, that is you and Mr McPherson, following a fight that had occurred earlier. I accept that this is so.
33 Emphasis was placed on the fact that the knife that was the subject of the wounding to Mr McPherson was one that was in a bag, together with a number of possessions, including a towel, some keys, some tweezers, but importantly a fishing reel and fishing line. You were described as a fisherman and had said that it was one of your hobbies. For this reason it was said you were in possession of the fishing items, including the knife. Indeed, I observe that your fishing interest was confirmed by the victim himself, Mr McPherson, where he said that he had seen that knife being used by you on fishing expeditions.
34 Turning directly now to your personal circumstances, you are now aged 30, having been born on 30 August 1976. Your childhood was not an easy one and, perhaps rather unusually, it was marked by a loving and caring relationship with your father following apparent abandonment and neglect by your mother. Your father, Lawrence Stewart, provides a continuing source of support and contact. I was informed that he is a good man who is concerned at your plight. He is employed as a butcher and has been employed with his present employer for the period of the last 27 years. I was informed that he endeavours to support you in every way he can, including visiting you every Sunday in gaol.
35 Your estranged mother now lives in Geelong and you have a relationship with her. You also have two full siblings and a stepbrother. All members of your family have endeavoured to support you in these circumstances and, notwithstanding the sad family break up that occurred younger in your life, you now enjoy a fairly close-knit family circumstance.
36 You grew up in the Broadmeadows area with your father as the principal carer. You did not have an easy childhood given the absence of your mother. Your father remarried and unfortunately your stepmother was killed in a car accident in a car in which you were present and injured at the time. You were only 11. It is apparently after that incident that many of your problems commenced.
37 As a consequence of losing your stepmother and as a consequence of the accident you were emotionally devastated but received no counselling or other assistance. Some two years later after the accident your father remarried again, but things did not work out between you and your new stepmother. You left school in Year 8 at around 14 years of age. You acknowledge that you were a poor student who struggled academically. You went to Queensland for a short time and then returned to Victoria and obtained some work with your father's employer. Generally you had a good employment record, principally as a butcher, and you underwent a substantial component of an apprenticeship. Sadly, that apprenticeship was not completed but notwithstanding those circumstances you endeavour to do the best you can to maintain an employment record. That is to be commended.
38 Up until October 2005 you had been involved in a de facto relationship with one Irene Ryan. She has a child from a previous relationship and together you have two children of your own. Those children are now aged four and 16 months. Your relationship with Ms Ryan was not an easy one; indeed, it was problematic and it has been marked by periods of separation, illicit drug use and violence, and indeed this is reflected in your list of prior convictions to which I will return shortly.
39 When the relationship ended in about October 2005 you moved to Ozanam House. Your emotional state at the time I was informed was extremely fragile and you were suffering depression over the breakdown of the relationship as well as loss and separation anxiety from your children.
40 I was informed that you have made a number of serious attempts to free yourself from a drug habit, including embarking on a methadone program. You have continued during your time in custody to free yourself even of that form of treatment. Such attempts are to be commended.
41 You have a history of prior convictions, including offences for violence. Clearly, in light of that history and the circumstances surrounding these events on the day of the offending and the days beforehand, you have an anger management problem. Notwithstanding the mitigating factors that were put to me, yours was a serious offence and one that shocks the community. Specific deterrence is required in light of your violent history and your difficulty with anger management. General deterrence is required. The carrying of knives and using them at all, let alone in broad daylight in a public open shopping centre in an aggressive manner, will not be tolerated by the community.
42 Behaviour like yours threatens the very heart of safety of the community as we know it. You have pleaded guilty at the earliest opportunity and avoided the necessity of a committal hearing, and in particular, avoided the necessity for the witnesses to your crime from having to give evidence, in particular Mr McPherson.
43 I am satisfied that you have demonstrated remorse for your actions. It is, indeed, a case of serious lack of anger management.
44 In light of the submissions put on your behalf by your counsel, I can only conclude that you have limited prospects of rehabilitation. You do enjoy the benefit of a supportive family, and that is important. However, your history of anger management is troubling.
45 The psychiatric report disclosed no psychological illness, and no explanation for your serious difficulty in coping with anger management.
46 You are the beneficiary, as I have observed, of the support of your family, and you do indeed need their support in the times that lie ahead.
47 It is appropriate that as acknowledged by your counsel that you be the subject of a sentence for a term of imprisonment. I observe, as I was informed, that at this point in time you are held in protective custody. I was not informed as to whether that type of custody would be ongoing for the purposes of your disposition.
48 Experience dictates that once an individual is placed in protective custody often they remain in that location. However, I am unable to make any other observation beyond that. Weighing up all the circumstances, I am satisfied that it is appropriate that you be subjected to a term of imprisonment.
49 Mr Stewart, would you stand. I sentence you to a term of three years and six months' imprisonment. I fix a non parole period of two years. I declare a pre-sentence period of 211 days. I have made previous orders with respect to an intimate sample and the disposition of exhibits. You may be seated.
50 COUNSEL: If Your Honour pleases.
51 COUNSEL: May it please Your Honour.
52 HER HONOUR: The court will adjourn sine die. The prisoner may be removed.
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