R v Vance
[2008] VSC 468
•7 November 2008
| ing | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1642 of 2008
| THE QUEEN |
| v |
| KYLIE MARGARET VANCE |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 October 2008 | |
DATE OF SENTENCE: | 7 November 2008 | |
CASE MAY BE CITED AS: | R v Vance | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 468 | |
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Criminal Law – Plea - One count of recklessly causing serious injury – Originally charged with attempted murder - Prisoner stabbed partner once in the back in their home - Prisoner intoxicated at time of offence and taking Zoloft – Prisoner called ambulance – No prior convictions – Prisoner attempting to manage alcoholism and depression - Regret and remorse shown almost immediately after commission of the offence – Sentenced to two and a half years imprisonment, wholly suspended for two and a half years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Elston SC | Office of Public Prosecutions |
| For the Accused | Ms F. Todd | Robert Stary & Associates |
HIS HONOUR:
Kylie Margaret Vance, on 8 October 2008 you pleaded guilty before me to one count of recklessly causing serious injury. You had originally been charged with attempted murder. Through your solicitor you had suggested settlement of the matter in February of this year and made an offer to plead guilty to this count by letter dated 12 June 2008.
In my view the agreement between the parties that your plea of guilty to recklessly causing serious injury would resolve the matter was entirely appropriate. Although your trial would not have been a complicated one, more than a week of court time has been saved by your plea.
The matter was adjourned until 27 October 2008 for the plea. I heard the plea from your counsel, Ms P.R. Riddell, on that day. The case was opened in detail by the prosecutor, Senior Crown prosecutor, Mr C.G. Hillman SC.
The events which bring you here took place on Thursday 7 June 2007. As at that date you and Robert Toms, the victim of your attack, were living together at your home at 18 Hick Street, Spotswood. You had been in a relationship with Mr Toms for about two and a half years and living together for about a year. The two of you had met originally at the Spottiswoode Hotel.
On 7 June 2007, you spent some time together at the hotel. Mr Toms had arrived first. He left but returned later. You drank together then as you had earlier. He was drinking beer and you were apparently drinking beer, tequila and other spirits.
When you returned home you were playing music CDs very loudly and that led to an argument. Mr Toms pulled the CD off its stand and went to the bedroom. As he was preparing for bed, you stabbed him in the left back with a large kitchen knife. Mr Toms turned to face you and apparently on seeing the knife said, "what the fuck?" You slashed at him with the knife and cut his left wrist, causing about a 3cm cut. The knife wound to the back was a serious one; the intercostal artery was cut, causing major blood loss. Mr Toms said, "I don't want to die." You replied, "What have I done?" You then got a towel to help stem the bleeding.
You then went to a neighbouring house and rang triple 0, asking for an ambulance. That call was made at 9.27 pm and during that call you made it clear that you had stabbed Mr Toms. Police and ambulance quickly arrived at your house and Mr Toms was taken to the Alfred Hospital. He there underwent emergency surgery to drain blood from his chest and repair damage to his chest and intercostal artery. By then he had suffered a collapsed lung.
You were taken to Altona North Police Station. An interview with you was deferred because of your state of sobriety. You had a blood alcohol reading of 0.126 per cent at 11.40 pm. By then you had not had a drink for a number of hours.
When you were interviewed on Friday 8 June 2007, you said that you could not remember stabbing Mr Toms, but that you accepted that you must have. You indicated that by the time you got home the previous night you were, "pretty much intoxicated." You told the police you had taken Zoloft the previous night. In relation to Mr Toms, you said, "I just knew I was pissed off with him for some reason." Your memory of the events was at best patchy.
Mr Hillman tendered a victim impact statement from Mr Toms, and I have taken that into account in framing the sentence that is about to be imposed.
Mr Toms remained in the Intensive Care Unit of the Alfred Hospital for six days and took a further three months to fully recover.
The crime you have committed is a serious one, which carries a maximum penalty of 15 years imprisonment. The use of knives in the community is to be abhorred. It is in these circumstances that injuries more serious than those actually intended occur, particularly when alcohol is involved. There are many cases similar to yours which have led to fatal consequences.
On the plea I received a number of exhibits. I received a report from your psychiatrist, Dr Lester Walton, a report from your psychologist, Dianne McNamara, and a report from Liz Cooper, your forensic counsellor at DASWest. I also received five written references, including one from your 13 year old daughter, Harlee and your mother. You have that support and the support of others in the community.
It is important to note that you have no prior convictions. That is no mean achievement because of your involvement with alcohol and drugs in the past.
You are now 39 years of age. Your early life appears to be unremarkable. You left Hadfield High School partway through Year 11 at age 16. Your parents separated when you were about 3, but you kept in contact with your father until his death in 2003. His death appears to have had a substantial effect upon you.
Your work has tended to be casual and infrequent. You have often been on single parent benefits. You are a mother of two daughters aged 16 and 13. You married in 1995, and your husband died from a heroin overdose in 1999. He was the father of your younger daughter. You have kept in contact with your daughters, who are cared for by your mother. Your mother came to court to give you her support.
You have used various drugs including cannabis, heroin and amphetamines. You were addicted to heroin for about an eight month period during your marriage and addicted to amphetamines for about a year after you managed to get off heroin. You then started to use alcohol and have for a number of years been an alcoholic.
After the death of your father you were usually intoxicated every day. You have been attempting to manage your alcohol addiction since these events with at least some degree of success.
You have had some psychiatric treatment in the past, particularly relating to your drug issues and some issues in relation to depression. You have been receiving psychological support since the offence. You were on Zoloft at the time of offending and continue taking it. You are of normal intelligence and do not seem to have suffered brain damage from your excessive use of alcohol, although you have suffered blackouts.
Mr Toms has admitted behaving violently towards you and having destroyed or damaged your property. I would not regard his conduct on this night as being provocative in the legal sense, but it does place your offending in a context which helps explain why you acted in the way that you did. There are some events in your childhood described by Dr Walton which might well have heightened the effect of Mr Tom’s conduct.
Dr Walton expressed the opinion that the combination of Zoloft and alcohol might have left you in a state where you were, "more intoxicated than she might have otherwise anticipated." He also noted that this is an isolated episode of violence, and again that seems to fit in with his earlier conclusion. In the somewhat unusual circumstances, I will treat the combination of Zoloft and alcohol as a matter in mitigation.
You have taken the issue of rehabilitation seriously. You had arranged to see a psychologist, Dianne McNamara, before this offending because of your concerns relating to domestic violence. It was in that context that you were prescribed Zoloft. You saw Ms McNamara on 11 occasions between June and November 2007. The sessions were mainly related to assertiveness training as an alternative to violent response and to help you manage your relationships better.
You have also attended 13 counselling sessions at DASWest. You have limited your use of alcohol as a result and appear to understand the dangers of your binge drinking.
Although alcohol was involved in a relatively recent domestic violence incident with a different partner, your counsellor is satisfied that you did not further resort to alcohol as a result, which was a great improvement on your previous situation. I believe that you well understand that your control of alcohol abuse is something in your own hands. It is not easy, but it is possible. I regard your prospects of rehabilitation as good.
You showed regret and remorse for what you did almost immediately from the time it happened, certainly from the time that the seriousness of it became apparent to you.
Although your plea is to a lesser charge than that which you were first charged, it appropriately reflects your offending and does have with it, a further element of remorse.
You now have immediate access to support and the support of people who have taken a genuine interest in you. It was conceded by the prosecution that a fully suspended sentence would be in the range of sentences open to me. This offence is not technically a "serious" offence, within the meaning of the Sentencing Act 1991.
It is important that you understand that a suspended sentence is a term of imprisonment. I do regard a custodial sentence as appropriate in your case, but I will give you the opportunity to serve the sentence in the community. So even though you are now to be sentenced to a term of imprisonment, that sentence will be fully suspended. Although you are at large in the community, you are still serving a term of imprisonment. It is vital that you understand that if you offend by committing an offence punishable by imprisonment in the next two years, you will be brought back before me, and I will have almost no alternative but to order that you serve the sentence in prison.
The range of offences punishable by imprisonment is vast. Matters including some traffic offences and simple thefts are all punishable by imprisonment, so it effectively means you must not get into trouble at all. Your solicitor will explain to you in more detail what is involved in the question of a suspended sentence.
I am obliged, pursuant to the provisions of the Sentencing Act, to indicate what sentence I would have imposed upon you had you not pleaded guilty to this offence. Without being able to deal with the matter with total precision, had you not pleaded guilty, it is quite unlikely that I would have imposed a suspended sentence, so that is an important feature of what happened in the plea. I almost certainly would have imposed a sentence of somewhere between 3 ½ - 4 years as the head sentence, with a non-parole period in the vicinity of three.
Kylie Margaret Vance, on the count of recklessly causing serious injury, I initially sentenced you to be imprisoned for 2½ years and I directed that the whole of that sentence be suspended for 2 years.
After handing down my sentence, the Prosecutor queried whether the term of suspension was valid. I have since looked at the provisions of s 27(2A) of the Sentencing Act 1991 and in accordance with that section, amend my sentence so that Ms Vance is sentenced to be imprisoned for 2½ years and I direct that the whole of that sentence be suspended for 2½ years.
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