R v Wood
[2003] VSC 280
•25 July 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1491 of 2002
| THE QUEEN |
| v |
| RICHARD EDWIN WOOD |
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JUDGE: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 APRIL 2003 | |
DATE OF SENTENCE: | 25 JULY 2003 | |
CASE MAY BE CITED AS: | R v WOOD | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 280 | |
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Sentence – Intentionally cause serious injury (s.16 Crimes Act 1958) – Offender affected by alcohol and drugs – Erroneous belief victim had broken into home – Holding of knives to victims throat causing incised wounds – Need for general deterrence – Youthful offender – Self-reformation since offence – Good prospects of rehabilitation – Sentenced to 3 years' imprisonment with a minimum of 1 year.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Williams | Solicitor for Public Prosecutions |
| For the Accused | Mr R. Marron | Victoria Legal Aid |
HIS HONOUR:
Richard Edwin Wood, you have been found guilty by a jury at Geelong of intentionally causing serious injury and I must now sentence you.
The victim of this offence, which occurred at Stonehaven on 14 November 2001, was Brent Kee, who had been a friend of yours since you attended Geelong High School together. From about July 2001 your family had provided board for Mr Kee, who was in need of accommodation, at your premises in Panorama Road, Herne Hill. At this time he was part of the circle of friends in which you moved. That group would frequently indulge in binge drinking and smoking marijuana.
On Tuesday 13 November, you and your friends Adrian Wise, Gareth Barton, Hayley Saunders and Brent Kee gathered at the house of a Daniel Lowe, where alcohol and marijuana were imbibed. The preponderance of evidence indicates that you were intoxicated when you left Mr Lowe's premises in the early hours of Wednesday 14 November.
About a week before this date, you had been hospitalised as the victim of an assault (the second of two such incidents) in which your jaw was broken. You were discharged on 6 November, and at the time of this offence you were taking Valium, which had been prescribed for you. It is trite to say that Valium, being a benzodiazepine, should not be mixed with alcohol.
There is a suggestion in the evidence of Ms Saunders that you were upset that Brent Kee had not come to your assistance at the time of that assault. Certainly, you were expressing hostility towards him on this evening. On leaving the Lowe premises, Mr Kee had been helping your companion, Adrian Wise, pump up a tyre on his car. You glared at him and he was sufficiently discomforted to walk off. You called after him: "Run, you girl, run." In fact, Brent Kee went and waited at the house of Gareth Barton at Manifold Heights. He intended to ask him whether he could stay the night, being disinclined to return to your home because of your angry attitude.
Subsequently, Adrian Wise drove you to your own home dropping Gareth Barton off on route. Hayley Saunders was also a passenger in the vehicle.
At your home you observed an open window and torn curtain and, according to the version of events you gave to the investigating police, you assumed that Brent Kee had entered the house potentially frightening your father and younger sister, who was slightly intellectually disabled. In fact, you told police that Mr Kee had moved out of the premises on the previous Friday. Whether this is so is unclear but, in any event, there is no evidence to support your assumption that Mr Kee had broken into the premises. There is no doubt, however, that this was a factor motivating your inebriated mind on this early morning and you passed your concerns on to Mr Wise. Consequently, you determined to "have a few words" with Mr Kee.
You returned to Gareth Barton's house in Adrian Wise's vehicle and Brent Kee was persuaded to join you for what is known as a "carey". This activity apparently involved driving to several venues for the serial smoking of marijuana. Gareth Barton was also invited and he obtained a bowl and scissors for chopping up the marijuana. Hayley Saunders declined to come and was taken to her home.
The group of you then drove to Stonehaven, a journey of about 20 to 25 minutes. Whilst this is a relatively remote location, I accept that you had gone there for a "carey" on previous occasions. Mr Kee told the court that although he knew you were angry, he decided to come because he wanted to see what the problem was and sort it out. He stated that you had been a good friend and he was not fearful of you.
Although the evidence revealed that you travelled to Stonehaven armed with two knives, and Adrian Wise also had a knife, I do not believe that you intended, at this stage, to inflict any serious injury upon Brent Kee. The carrying of knives on such ventures as a form of protection was apparently commonplace. You were also carrying a knife as a result of the previous assaults upon you. Further, the taking of Gareth Barton to Stonehaven and the invitation to Hayley Saunders to accompany you are both inconsistent with any intention to cause such injury. So is your conduct upon arrival at Stonehaven. Here, the engine of Mr Wise's car cut out after running through a puddle on the track to the riverbank, which was your ultimate destination. You were evidently frustrated by this and set off on foot, followed by Mr Kee. You had the opportunity to harm him at this stage but, after walking some distance, you sent him back to get the others.
At the river, knives were used by both you and Adrian Wise to cut grass for a fire. However, the dampness of the potential fuel defeated your attempts to ignite it.
On your account to the police, you consumed some more beer during this period. Explaining your subsequent actions, you said that the alcohol must have gone to your head and you lost your temper and "just went off". As to why you went off, you told police: "I was just probably ... sitting there thinkin' about it for too long ... ".
I am satisfied that your subsequent actions were the spontaneous result of your intoxicated brooding over the events that I have described. Those actions commenced with your coming up behind Brent Kee and placing a knife against the right side of his throat. At that stage he was on one knee attempting to light the fire. To his question: "What's the problem, Richard?", you responded: "You know what the problem is. You have been fucking my family around." Brent Kee told you he did not have a clue what was going on and as he struggled to get to his feet, you placed a second knife to the left side of his throat. He grabbed your wrists and he was pushed back onto his knees. About this time your compatriot, Adrian Wise, who was also affected by alcohol and drugs, put a knife to Mr Kee's chest and slid it lightly downwards on the outside of his clothing. He then commenced to walk in circles around Mr Kee. There was something said by you about Chinese torture and Mr Kee felt the knives slide across his throat. He broke free and ran off into some long grass. You and Adrian Wise searched for him unsuccessfully while yelling abuse.
Ultimately, Mr Kee made his way up the hillside adjacent to the river and to a nearby property. He informed the occupant that he had had his throat cut and an ambulance and police were called.
The injuries received by Brent Kee were a 7 cm horizontal wound to the left side of the neck about the level of the Adam's apple and a similar 5 cm wound to the right side. However, neither wound penetrated the platysma muscle, being the superficial muscle within the neck. Lying beneath that muscle is the sternocleidomastoid muscle, which protects the major neck structures including the carotid arteries and nerves. Both wounds were stitched and Mr Keys was hospitalised for some days. Whilst he has not submitted a victim impact statement, the evidence reveals that he experienced flashbacks and was provided with some psychiatric counselling. It cannot be doubted that this was a very frightening and traumatic experience for him.
Although you admitted to police that you had put the knives to Brent Kee's throat, you described your intention as being to scare him and the sustaining of the injuries as accidental. Indeed, you pleaded guilty before the jury to recklessly causing serious injury. However, the jury, by their verdict, have found that the serious injuries you caused Mr Kee were intentionally inflicted, and I must sentence you on that basis. Whilst I accept your professed motivation for this crime and that it was a spontaneous incident fuelled by the effect upon you of the alcohol, drugs and possibly the medication, it nonetheless constitutes a serious offence requiring a custodial sentence. Although you effectively have no history of violence, specific deterrence needs to be accorded some weight. Moreover, such sentence must contain an element of general deterrence aimed at those who might regard the use of a knife as a problem-solving technique.
However, there are a considerable number of matters personal to you which are relevant to the fashioning of the sentence to be imposed.
You are 21 years of age having been born in Geelong on 1 January 1982. It follows that you were 19 years of age at the time of this offence. There are three sisters and a brother in your family and your parents separated when you were aged 11.
At the time of this offence you were living with your father and your slightly disabled youngest sister. I accept that you are very protective of her. You retain a good relationship with your mother, who is a sales consultant, and your father, who is a bus driver. Both are supportive of you.
Your primary education was undertaken at Oberon, Bannockburn and Blair primary schools and at secondary level, at Western Heights High School, Catholic Regional College and Geelong High School. The number of schools reflects behavioural problems which you experienced. Eventually, in 1995, you were tentatively diagnosed by a paediatrician, Dr Anthony Dinning, as having Attention Deficit Disorder. You were treated with such medications as Dexamphetamine and Clonidine, but you were not always compliant with the treatment. It was Dr Dinning's view that you had the intellectual capacity to succeed at school, and eventually you passed Year 10 at Geelong High School. One of the attractions of your later years at school was the Cadet Corps, where you attained the position of Lance Corporal. It was your ambition to join the Army but you could not do so until you reached the age of 17. In the meantime, you attended courses at the Puckapunyal Army Barracks. In your later years at school you were also given the role of a peer mediator, which involved you in counselling students who had problems.
On leaving school you were involved in employment with P & P Demolitions in Geelong as a demolition hand and with Permark Pty Ltd as a cabinetmaker.
You were a keen footballer and commenced playing with the Bannockburn Football Club under-13 team. Unfortunately, later in your football career you sustained a severe injury to your left knee. This kept you out of football for two years and, I am informed, effectively destroyed your chances of an army career.
At the age of 16 you had also joined the CFA, becoming a member of the Geelong West Volunteer Fire Brigade. In December 1998, you were called upon to fight the Linton Bushfires. As fate would have it, you were replaced on the crew of the Geelong West fire truck by a slightly more experienced colleague and placed on a relief team. Tragically, the original crew became victims of that fire.
It was the opinion of Mr Jeffery Cummins, a forensic psychologist, who prepared a report on your behalf, that you have developed post-traumatic stress disorder as a response to the deaths of your colleagues. Nonetheless, you continued in the fire brigade and, now desiring to make a career as a firefighter, you attended Gordon Institute to obtain your VCE. However, upon returning to football, you broke your right femur - an injury requiring the insertion of a plate in your leg and which prevented you from walking properly for 19 weeks. The effect of this injury was to frustrate your educational activities and, together with your earlier knee injury, effectively thwart your ability to obtain permanent employment as a fireman.
Your future ambitions having been destroyed for a second time, you gave up the pursuit of a career. You began drinking excessively and experimenting with drugs, including heroin. Although you ceased to use heroin after undergoing ten day's residential detoxification at Western General Hospital, you continued to consume excessive quantities of alcohol and to smoke excessive amounts of marijuana. It was during this directionless period that you lived the lifestyle which led up to the November 2001 offence. Indeed, you had earlier been placed on a 12-month community-based order in January 2001 for burglary and theft. This offence also occurred when you were intoxicated and you broke into a golf club to steal alcohol. You failed to comply with that court order and following your arrest on the present charge, you served three months' imprisonment for that offence. This was your first experience of incarceration.
You were subsequently granted bail for this offence in May 2002. It was then you resumed your relationship with Sarah Winter, a childhood friend you are now engaged to marry. You describe her as having turned your life around. Among other things, she convinced you to stop drinking, to complete your VCE, and to see your future in a positive light. Your mother described her to the court as the best thing that had ever happened to you.
It is also apparent that you have sought to use your time in prison in a constructive manner. You have undertaken TAFE certificate courses in General Education for Adults pursuing such subjects as writing and mathematics. Your teachers have been particularly impressed by your writing skills. You have also participated in drug education programs. This morning I was handed further certificates by Mr Marron on your behalf, which indicated yet further courses you have undertaken including courses in Consequential Thinking, Anger Management and Alcoholics Anonymous.
In the course of your plea a number of character references from relatives and friends were tendered. The terms they used to describe you include cheerful, pleasant, honest, generous, and non-aggressive. A reference is also made to your remorse at the emotional trauma and injury that you caused Mr Kee.
This theme is taken up by Mr Cummins who was impressed by the insight you have displayed into your offending behaviour. Mr Cummins also expressed the opinion that you are not psychotic and have no personality disorder. He is also of the view that you should receive ongoing psychiatric or psychological treatment for your post-traumatic stress disorder.
The court was also provided with letters written by you and your fiance, Ms Winter. These were intelligent and articulate documents frankly detailing your past history as well as setting out your future aspirations.
The matters to which I have referred indicate that in the past you have sought to pursue a career in organisations to serve the community. Unfortunately, your physical injuries prevented the fulfilment of those aspirations.
Until this episode in your life, you had not perpetrated any act of violence. You are remorseful for what has occurred and have insight as to why it occurred. You have no sociopathic or psychopathic problems and you are reasonably intelligent. Further, you have the ongoing support not only of Ms Winter and your parents, but also relatives and friends. There is a considerable body of evidence to indicate that in the last 18 months you have set out to turn your life around.
All these are factors which make your prospects of rehabilitation excellent. Moreover, given your age at the time of this offence, rehabilitation should be a primary sentencing consideration. It was conceded by the Crown that this was a case where, whilst a fairly significant head sentence was warranted to fulfil the requirements of general deterrence, a longer period of supervision on parole may be desirable. In all the circumstances, I agree with that concession. However, I should make it clear that if it were not for the mitigatory circumstances that I have enunciated, your sentence would be considerably longer than the one that I intend to impose.
I have concluded that the appropriate sentence in your case is that you be imprisoned for a period of three years. I fix a lower than normal minimum period to be served before eligibility for parole as one year. Further, I declare the period to be reckoned as already served under this sentence is 248 days inclusive of today's date. I direct that there be noted in the records of the court the fact that this declaration is made and its details.
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