DPP v Packard

1. Micah Packard,[1] you have pleaded guilty to one charge of intentionally causing serious injury (charge 1), for which the maximum penalty is a term of imprisonment of 20 years.
2. Tendered on the plea as exhibit 1 was a 'Summary of Prosecution Opening'.
3. In brief, the circumstances of your offending were as follows.
4. Your offending occurred on 17 January 2020. The victim of your offending was Isobel Clough,[2] who was your wife and who was then in her thirties. You had been married 9 years and had two young children, both under eight years old.
5. You and your wife had separated, having had marital difficulties during the previous year. Your disagreements concerned your gambling problems and your use of cocaine.
6. You had also become suspicious that your wife was having an affair and you were resentful of your wife's close relationship with her sister. As you now recognise, it was your cocaine use which was making you paranoid and suspicious.
7. Notwithstanding that you and your wife were experiencing significant conflict in your marriage, there were no incidents of violence, and indeed there was no history of violence by you towards your wife, nor towards anyone else for that matter.
8. Three days prior to the offending, you moved out of the family home, and into a hotel. You visited the home each day to see your children.
9. Two days prior to the incident, you received a payment of $3,000. Ms Clough asked you where the money was, believing you had gambled it. You told her you had used it to pay your staff and to purchase products for your company. Ms Clough did not believe you.
10. Ms Clough was also concerned about what she regarded as your excessive use of the shisha - a smoking pipe - and on 16 January 2020 she threw your shisha in the bin.
11. On the day of the offending, 17 January 2020, you arrived at the family home shortly before 2pm. You came to the home to spend some time with your children.
12. You went into the garage and saw that your shisha had been thrown in the bin, which made you angry. You came back inside, confronted Ms Clough, and a verbal argument ensued.
13. You then smashed a glass vase near the front door in the living room and threw a water bottle at Ms Clough. The bottle of water hit the wall, leaving a 55 mm dent. Ms Clough grabbed her phone to call the police, because she was scared of how angry you had become.
14. You then grabbed her by her hair, and she started screaming. You told her to 'shush', but Ms Clough was not quiet. You dragged her by her hair from the living room into the laundry, closed the door, and put her on the ground, where you held her down with your hands on both her arms. She told you to stop.
15. You then took a paring knife which was in a kitchen block in the laundry and stabbed Ms Clough four times into her abdomen and once into the buttock, causing her pain. At first, Ms Clough was unaware you had a knife in your hand, and thought you were just punching her. She then saw blood on her hands and saw you holding the knife.
16. You called the '000' service and requested the attendance of an ambulance. You told the operator, 'I just stabbed my wife ... I stabbed my wife with a knife ... I fucking knifed my wife ... I stabbed my wife with a knife'.
17. You also called your sister to come and collect your children, who were in the house.
18. Both your children heard their mother screaming during the incident. Both came into the room at some stage after the incident and saw their mother injured and bloodied on the floor. You told them to go upstairs, which they did with their three cousins, who were also present at the house.
19. Following the directions of the '000' operator, you gave Ms Clough some towels to put on her wounds.
20. While you were waiting for the ambulance, you put the blame on Ms Clough for your actions, saying to her, 'Why you choose to - to lie to me? Like, you push me to do this like, you know? ... See what happened when you listen to your sister?'. You even took the opportunity to call Ms Clough's sister overseas and to tell her she was to blame for the problems you were having with your wife.
21. Ms Clough was attended by paramedics at the scene and transported by ambulance to the Royal Melbourne Hospital. As a result of the assault, she suffered the following injuries:

1. 15 mm laceration to the left upper quadrant of the abdomen; 2. 10 mm laceration to the right upper quadrant of the abdomen;

1. two smaller lacerations below the 10 mm laceration;

1. 10 mm laceration (full thickness) to the stomach; 2. 10 mm laceration to the right lobe of the liver; 3. 25 mm incised wound to the right buttock; and 4. laceration to the left index finger.
2. Bruising was visible around the incisions, consistent with a combination of sharp and blunt force trauma.
3. The following was provided by way of hospital management of the injuries:
   1. a 'diagnostic laparoscopy' (exploratory examination of the abdominal cavity with an operative camera, via ports in the abdominal wall), which was converted to a 'trauma laparotomy' (injury repair within the abdominal cavity under direct vision via a full length incision of the abdominal wall) for repair of the diaphragm, liver and stomach, and extensive washout of the abdominal cavity, under general anaesthesia by the General Surgery Team on 17 January 2020; and
   2. a washout and closure of the wounds to her left finger and right buttock under general anaesthesia by the Plastic and Reconstructive Surgery Team on 17 January 2020, which was conducted immediately after the operation described above.
4. Ms Clough was admitted under the General Surgery Team at the Royal Melbourne Hospital from 17-24 January 2020.
5. Senior Forensic Medical Officer Dr Raymun Ghumman has said of Ms Clough's injuries:

The incised wounds were associated with multiple intraabdominal injuries to vital organs and structures, notably the liver, stomach and diaphragm with local leakage of gastric contents and caused the pathological accumulation of air and blood within the peritoneal cavity. Medically, these injuries are potentially life threatening and as such, are serious.

In the absence of intervention, these injuries may have resulted in ongoing haemorrhage and the development of infection, either of which may have caused long term disability from associated organ or muscle dysfunction or, even death. However, given that [Isobel Clough] received timely and appropriate surgical care and did not require partial or complete organ resection, it is unlikely that these injuries will lead to long term impairment or loss of bodily function.

1. When police arrived at the scene, you identified yourself to them and admitted that you had stabbed your wife.
2. You were arrested and transported to the police station where you were interviewed. You made full admissions to stabbing your wife. You continued however to blame Ms Clough and her sister for your marital problems. You told police you had used cocaine for the last 12 months but that you had given it up, although you admitted you had used it two days prior to the offending. You also told police that during your attack upon your wife, she was provoking you, saying, 'Come on hit me, hit me'. In fact, no such thing occurred.
3. You told police that when you first saw the knife you only intended to scare Ms Clough, but that you had lost control and you stabbed her.
4. You pleaded guilty at a committal mention on 7 April 2020. This is a plea at the earliest opportunity. Your plea has utilitarian value, as it has saved the victim, witnesses and the community the trauma and cost of a trial, and its utilitarian benefit is of heightened value in the present situation of extreme stress upon the administration of criminal justice in this State caused by the COVID-19 pandemic. I also accept that it is indicative of remorse on your part.
5. Ms Clough has made a victim impact statement in which she says she was extremely disappointed and emotionally hurt by your actions. She says her injuries have healed and that she now forgives you. She says your offending was out of character and is explained by your drug taking. She says she has been assured by her father and your brother that you are remorseful, and that you will undertake drug counselling upon your release from custody. She says your children miss you and that the family is suffering financially.
6. Courts have for some time now recognised that forgiveness on the part of a victim of family violence is often attributable to a pattern of behaviour on the part of perpetrators of family violence, who express penitence and persuade their victim to forgive and often to reconcile. Ms Clough's statement, in which she refers to having been persuaded by male family members to forgive you, suggests that this may have been what has occurred here. Evidence of forgiveness of the victim of family violence should be treated by courts with extreme caution. However, the authorities also recognise that the forgiveness of the victim may bode well for an offender's rehabilitation and, in your case, I am prepared to accept that Ms Clough's forgiveness will motivate you to rehabilitate in order to have a better relationship with her and, in particular, with your children.
7. I turn now to your personal circumstances and in doing so I refer to the report of Associate Professor Andrew Carroll, consultant forensic psychiatrist, with whom you met and with whom you spoke on 4 June 2020, and also to the submissions of your counsel, Mr Crisp.
8. You were born in 1976. At the time of the offending you were aged 43 and you are now aged 44.
9. You were born in Northern Iraq into a minority religious community. You are one of a large siblingship. You were very close to your mother until her death some 2½ years ago. Your father died from a heart attack when you were in your early teens.
10. Your minority religious community in Iraq was subject to persecution. You fled Iraq with one of your brothers when you were only in your early teens. You lived in a refugee camp in Turkey for eight months. You returned to Iraq and then returned to Turkey, where you lived for two years. You then lived in Greece before you finally settled in Australia, having obtained refugee status.
11. In Australia, you worked in a number of jobs until you opened your own business in 2004. This has been a successful business.
12. You married your wife, who is also from Iraq, in 2011. You and your wife own your own home, and your mother, who came to Australia from Iraq, lived with you until her death.
13. A number of other family members have also settled in Australia, and you describe your family as very close.
14. You have one minor criminal conviction, which I regard as irrelevant for the purpose of sentencing you. In the main, you have been a productive and decent member of society.
15. You enjoy strong family support and the wider support of the religious community. A number of letters were tendered upon your plea from family and community members expressing profound shock at your offending.
16. Rose Garza,[3] a leader in your religious community, says you are an active member of the community and a reliable and respectable person.
17. Family members, including your brother, describe you as a hardworking man who put your family first, and all say your offending is entirely out of character. Your brother says your family is ashamed of your behaviour, but that you have their continued support.
18. References were also tendered from two friends, who again describe how they cannot reconcile your offending with the person they know.
19. What explains, to some extent, your offending is your cocaine use. You told Associate Professor Carroll that you began using cocaine two years ago and that you enjoyed its effects. Your use escalated to the point where you were using most days and spending around $1500 a week on cocaine. When your wife discovered that you were using, this understandably caused problems in your marriage.
20. You told Associate Professor Carroll that you went on a cocaine binge two days before you stabbed your wife. You spent $3000 on cocaine and alcohol - the money you told your wife you had used to pay bills for your business - and you used with your friend at the hotel where you were living. You estimated that on the night before the offence you had ingested about 2 g of cocaine. You told Associate Professor Carroll that you 'lost it' with your wife and that your loss of control, and also your suspicions about your wife's infidelity, were all likely attributable to your cocaine use. When Associate Professor Carroll asked you about the provocative comments that you told police your wife had made, you now said you were unsure whether or not she had actually said those things.
21. Associate Professor Carroll gave the opinion that you were likely suffering from a cocaine-induced psychotic disorder at the time you stabbed your wife. Associate Professor Carroll states:

At the time of the offending itself, he was probably also in a state of intoxication with subsequently severe levels of disinhibition and aggressiveness. He appears to have been precipitated into a state of frank rage when he discovered that his wife had thrown his pipe away: this is reflective of pathological levels of irritability and aggressiveness, as commonly seen in the context of cocaine intoxication.

1. As your counsel Mr Crisp properly recognised, there can be no application of Verdins principles to reduce your moral culpability in a case of self-induced intoxication.[4]
2. Mr Crisp did however submit that Verdins principle six was engaged, in that there was a serious risk of imprisonment having an adverse effect on your mental health. He relied upon the opinion of Associate Professor Carroll that you were presently suffering anxiety and a depressed mood, but, as the prosecutor Ms Goding pointed out, Associate Professor Carroll goes on to say that the prison environment does not appear to be having any serious adverse effect on your mental state. Given that, I find no application of Verdins principle six in your case.
3. I do however take into account, in sentencing you, that in the context of the current COVID-19 pandemic, conditions of imprisonment are more onerous. I also take into account that this is your first time in custody, and the anguish that your separation from your family and most especially from your children will cause you, particularly in the present conditions of lockdown when there are no visits allowed.
4. You have used your time in custody productively. You have worked and have undertaken drug and alcohol counselling, and urine sample tests conducted on 26 February 2020 did not detect drugs or alcohol. You have also applied to participate in a variety of programs on offer in custody.
5. You wrote a letter to the Court in which you say, 'I regret causing injury to my wife and causing trauma and pain to her'. You say, 'I do not wish to minimise my involvement or actions but to take full accountability for my crimes and to rectify my offending behaviour'.
6. I turn now to an assessment of the gravity of your offending and your moral culpability.
7. Your offending was not premeditated. You went to the family home only with the intention of spending time with your children. You were however drug affected and the situation with your wife was tense. A minor matter - finding your shisha in the bin - triggered an outburst of rage which was a grossly disproportionate response to what had occurred. You attacked your wife. You threw things at her. You took her to the ground and you stabbed her, causing her serious injury to multiple vital organs.
8. I accept the submission of your counsel, that you came upon and used the knife opportunistically, and indeed the prosecution did not dispute this. However, once you armed yourself, you stabbed Ms Clough repeatedly. You did not just stab her once and then resile from what you had done. You kept going.
9. I regard your offending as a serious example of the offence of causing serious injury and your moral culpability as high.
10. Ms Clough was entitled to feel safe and secure in her own home, and your offending is aggravated by having occurred when children were present in the house. Your children heard their mother screaming and saw the blood in the laundry. This must have traumatised them and distressed them.
11. In sentencing you, I must have regard to a range of different factors. I must give effect to the principles of both general and specific deterrence. That is, I must deter others from behaving as you did, and I must deter you from repeating such behaviour. I must express the community's denunciation of your conduct and I must also promote, if possible, your rehabilitation.
12. I must take into account the effect your crime has had upon your victim and I must have regard to current sentencing practices and to maximum penalties. In short, I must try to balance your personal circumstances with the circumstances of your offending. I am required to impose no longer sentence than is necessary in all of the circumstances of the case.
13. Mr Crisp submitted that there are powerful mitigating factors in your case. He relied upon your deep and genuine remorse, and I accept that to be the case, notwithstanding that in the immediate aftermath you did attempt to shift blame onto your wife and her sister. You have strong family support and were hitherto a person of good character and had a good work ethic, despite your gambling and drug problems. You do not have a relevant criminal history and you have no other matters before the Court. In all the circumstances, I regard your prospects of rehabilitation as excellent and I do not regard you as a risk of reoffending. I do not regard community protection as an applicable sentencing consideration in your case, nor do I find that specific deterrence is an applicable sentencing consideration.
14. However, general deterrence, denunciation and just punishment loom large.
15. It is with alarming regularity that the Court of Appeal is called upon to decry the shocking prevalence of male violence against women in our community. During the week or thereabouts that you pleaded in this Court, the Court of Appeal dealt with two cases involving the death of a woman at the hands of her male partner. The Court took the opportunity to speak more broadly and to denounce male violence. In the recent case of Freeburn v The Queen [No 2], the Court cited the other recent case of Smith v The Queen, in which it was stated by the Court:

Male violence against women is a scourge of our society. The rate of death and serious injury suffered by women at the hands of their partners or former partners is deeply shocking. Those who engage, or contemplate engaging, in such violence - in whatever context - should be in no doubt that offending of this kind will attract very heavy sentences. By this means, sentencing courts express on behalf of the community the strongest denunciation of such abhorrent conduct.[5]

1. I was referred by both counsel to numerous authorities, both as comparator cases and as authorities for various sentencing principles. I have read and have had regard to those cases.
2. Intentionally causing serious injury is a category 2 offence under the Sentencing Act 1991 (Vic) and accordingly, pursuant to s 5(2H) of the Sentencing Act 1991 (Vic), the Court must impose a sentence of imprisonment, other than a combined sentence of imprisonment and a community correction order, unless a special reason as set out in the Act exists. It was not argued by your counsel that any exception to the mandatory application of s 5(2H) applied in your case and, in any event, your offending is of such seriousness that I regard a sentence of imprisonment consisting of a head sentence and the setting of a non-parole period as the only appropriate sentence.
3. On charge 1, intentionally causing serious injury, you are convicted and sentenced to a term of imprisonment of seven years.
4. I am directing that you must serve a non-parole period of four years and six months before you are eligible for parole.
5. Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of 10 years, with a non-parole period of eight years.
6. Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 188 days of the sentence imposed by me, not including today, and I direct that that be entered into the records of the Court.

[4] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[5] Smith v The Queen [2020] VSCA 159, [7], quoted in Freeburn v The Queen [No 2] [2020] VSCA 176, [47].