Sentence: Convicted and sentenced to 6 years' imprisonment with a non-parole period of 4 years' imprisonment - Pre-sentence detention of 409 days - s.6AAA Sentencing Act1991 declaration - Ancillary orders - Forfeiture and Disposal orders
[2]
Carlo Rivera, you have pleaded guilty to one charge of intentionally causing injury, which has a maximum penalty of 10 years' imprisonment.
Further, you have pleaded guilty to the summary matter of committing an indictable offence whilst on bail, which has a maximum penalty of 3 months' imprisonment.
The maximum penalties reflect the seriousness with which Parliament regards each of the offences, and is one of the matters which I must take into account when sentencing you.
Your offending was opened as follows.
I was told that you and the complainant, Cory Stratton, were friends, and had known each other for a number of years.
At the time of the offending the complainant was in a relationship with a Krysten Gillings. He had been living at Ms Gillings' apartment in Drummond Street, Carlton, for a couple of months on an on-again, off-again basis. You had previously been in a relationship with Ms Gillings.
Prior to the offending you had been staying at the apartment for about five days, following your release from gaol.
On 11 February 2017 the complainant and Ms Gillings caught a train from Echuca to Melbourne. When they arrived back at Ms Gillings' apartment you were there and asked for some pills. You were given some. The three of you then walked to the TAB and bought some heroin in Carlton. You then returned to the apartment and used the heroin. The complainant fell asleep on the couch in the lounge room.
On 12 February 2017, shortly after midnight, the complainant woke up and saw you standing over him. You had your hand wrapped in something white and hit the complainant in his left eye. He said that the blow felt harder than a punch. The complainant believed that you had something in your hand.
You had two knives with you. You had the complainant's fishing knife and another implement which looked like a meat cleaver with a wooden handle with a long fat blade. You began slashing at the complainant's legs. You hit the complainant to the back of the head with an object. The object felt heavy; like a ball with something sharp on it. The object cut the complainant's ear, causing it to bleed. The complainant grabbed a silver tin plate from the table to protect himself. He said to you, "What's the go? What's this all over, the pills?" The pills were down the complainant's pants. When he stood up the pills fell out and you grabbed them, however the complainant snatched them back. You then ran from the premises. Ms Gillings was screaming. The complainant asked her to help put pressure on his leg, but she said she could not help as she did not like blood.
Police arrived at the premises shortly after this. The complainant was holding a towel to his arm, and to the right side of his head. He was bleeding heavily and covered in blood, and there was blood staining throughout the apartment. The complainant was missing part of his ear and his left eye was swollen and closed over. He had cuts to his head, arm and leg.
Paramedics arrived and treated the complainant's injuries. He was taken by ambulance to the Royal Melbourne Hospital, where the following injuries were noted:
(a) significant incisional injuries to the back of the head, including a 10 cm incision with an arterial bleed;
(b) significant right ear incision;
(c) blood collection on the back of the head;
(d) 3 cm straight deep incision of the right lower aspect of the thigh;
(e) multiple superficial abrasions including to the right forearm, left eye and right side;
(f) swelling and bruising around the left eye; and
(g) acute blood loss with identified diminished blood cell levels.
The bleeding was stopped and the injury cleaned and closed by plastic specialist surgery using sutures in the operating theatre. The complainant was given medications including potent painkillers.
In the opinion of a forensic physician an assault by hitting the face and slashing or cutting body parts with knives was probable. The injuries were assessed as moderate to severe. Blood loss from an artery may progress relatively quickly and can cause unconsciousness and death. To prevent a fatal outcome a transfusion was administered in hospital. Your conduct, and the resultant injuries, gives rise to Charge 1; causing injury intentionally.
Police obtained CCTV footage and still images from the building housing the apartment. They also examined the scene and found a bloodstained knife on the ground floor, directly below an open window with a torn flyscreen on Level 6.
On 12 February 2017, at about 5.30 am, you returned to the building and took a lift to Level 6. Police saw you as you were coming out of the lift and arrested you shortly thereafter. You were carrying two large bags, and in these police found clothes and shoes that you were wearing at the time of the alleged offending.
You were arrested and taken to the nearby police station. You were interviewed by police and said that you could not tell police anything about the previous day. You said that you and your girlfriend, Ms Gillings, had gotten back together, and that that was the last thing you remembered. You told police that you, Kryssie and Cory walked from The Tankerville to home, and that was all you remembered. You also told police that you were drinking and did not know what had happened after that. You said you had drunk enough to black out. You said that Ms Gillings got drunk and did not want Cory there, and that she wanted to be with you. You told police you had three capsules of Zyprexa in your bag. You denied punching Cory in the eye or striking him in the head with a weapon.
On 14 September 2016 you had signed an undertaking of bail with conditions including that you attend at Melbourne Magistrates' Court on 6 March 2017. This gives rise to the relevant summary offence of committing an indictable offence whilst on bail.
Mr Rivera, your offending is most serious and calls for a punishment which is just in all of the circumstances, and your conduct must be strongly denounced. You attacked the victim when he was in a most vulnerable state, being asleep on the couch, and the attack was entirely unprovoked. Further, the attack was of a prolonged and vicious nature. There is no impairment of mental function which would detract from your moral culpability, which I find is very high. I regard your offending for which I now sentence you as a most serious example of intentionally causing injury. It was no thanks to you that the complainant received help in a timely manner, and I note that the injuries sustained were of a potentially life-threatening nature. I have viewed photographs of the injuries, which are most confronting. There is no victim impact statement, however it is not hard to imagine that the complainant would have been terrified as to what you were doing at the hands of a person who was supposed to be his friend.
You have a most concerning and lengthy criminal history with a number of relevant prior matters.
Your criminal history commences in December 1995, and you have regularly appeared before the courts since that time. You have committed numerous offences of violence and drug offences including drug trafficking, and also numerous dishonesty offences including burglary. You have been given many opportunities to rehabilitate and to stay out of gaol, having been sentenced to community corrections orders and suspended sentences; but you have breached these in the past and you have continued to commit offences.
Your most recent prior court appearance was on 7 February 2017. You were convicted of recklessly causing injury, threat to inflict serious injury, unlawful assault, persistent contravention of a Family Violence Order and contravene a Family Violence Interim Intervention Order. You were sentenced to an aggregate term of 61 days' imprisonment in combination with a 12 month community corrections order with treatment and rehabilitation conditions, as well as judicial monitoring. Sixty-in days' imprisonment was reckoned as having already been served, so you were released on 7 February 2017 and you were then meant to commence the community corrections order. However only five days later you committed the offences for which I now sentence you.
Your lengthy and relevant criminal record gives me serious cause for concern in respect of your prospects of rehabilitation.
I was told by Mr Backwell that you were so affected by drugs that when you committed the offence for which I now sentence you that you have little memory of it. In my view this highlights the dangerousness of your actions, although I do not treat this aspect as an aggravating feature. However, I put you on notice - if you did not know already - that there is a definite link between your drug abuse and committing criminal offences. If you continue to take drugs and commit criminal offences then your decision to abuse drugs in the future may well be treated by a sentencing judge in the future as an aggravating feature of the offending.
It is evident from your criminal history that you have had substance abuse issues for many years, with your first drug related matter being dealt with in 1995. I was told that you have been a heroin addict for 20 years and a methamphetamine addict for the past 10. As Mr Backwell said, you are getting to the stage where your offending will see you spending ever increasing terms of imprisonment, if you survive long enough to do so. So you are at grave risk of dying early if you remain on the path of self-destruction that you have obviously been on for a good deal of your life.
You are now 40 years old and it is now well and truly time for you to properly attend to your drug abuse issues. The courts have bent over backwards in order to assist you, but time after time you have not taken advantage of dispositions which are aimed at this.
Ultimately you have accepted responsibility for the offending which is before me, but not before the complainant was subjected to cross-examination at a committal hearing. You are not to be punished for taking this course, as it is your right to conduct a contested committal hearing. However the discount that you will receive in sentencing will not be as great as otherwise, as your plea of guilty was entered at a stage when the matter had been listed for trial. However, again, ultimately you have saved the witnesses the time and trouble of giving evidence in a trial, and you have saved the community the time and expense of a trial. I accept that you have facilitated justice to a fairly solid extent in taking the course that you have in circumstances where the complainant had not nominated you as being the offender, although it seems to me that this could have been readily proven from other sources of evidence. In any event I allow for a discount in the sentence that you would otherwise receive, which is fairly substantial for entering a plea of guilty at the time that you did.
I was told at the plea hearing that you had some other matters which are outstanding. They were to be dealt with in the Latrobe Valley Magistrates' Court on 16 August 2018. I have been advised this morning - by Mr Thomas, on your behalf - that these matters have now been adjourned to 28 August 2018.
In sentencing you I have taken into account that you have been in custody for the past 12 months, although as I understand the situation not all pre-sentence detention is attributable to the matters before me, therefore I have factored in the principle of totality in your case.
I take into account the report of Ms Cidoni, psychologist, which indicates that you have an IQ of 79, and she says that you find it hard to make calm and rational decisions, and to think clearly. Your inabilities seem to largely stem from your long-term drug abuse. It was not put that there are any Verdins considerations which apply in your case.
In sentencing you I take into account your background, which is set out in the report of Ms Cidoni, and which Mr Backwell did not wish to overly rely on. However, I note that your mother was in court in support of you, and has been there to support you at all past court appearances. I note that she is here again today. You are most fortunate to have someone who is prepared to support you in this way, and it is well past the time where you ought do her and yourself proud by changing your ways.
Mr Plummer, before I proceed further I just wanted to check with you - it was something I meant to check at the outset - just in relation to the time in custody am I correct in saying that he has undergone other sentences, or is that incorrect? That is, what I said about that not all pre-sentence detention is attributable to the matters before me.
MR PLUMMER: Yes, that's correct, Your Honour. There was 31 days recognised on another sentence.
HER HONOUR: Yes, all right. I understood it, but I just had a note to check, and I should have checked at the outset.
MR PLUMMER: Yes, Your Honour.
HER HONOUR: I factor in that Ms Cidoni has assessed you, using a static assessment tool, as having a medium risk of violent reoffending. I have factored this in when assessing your prospects of rehabilitation. I must say however that in view of the matter before me, and your recent criminal history, I regard the assessment as somewhat benevolent.
Mr Backwell submitted that a sentence equal to time served would be appropriate in your case, or failing that, that a sentence which substantially accounted for the time you had already served was appropriate.
The prosecution submitted that a sentence of immediate imprisonment was warranted, and that this ought be one which involved a non-parole period.
As I have indicated, I have taken into account your background, as set out in the report of Ms Cidoni.
You were born in the Philippines and came to Australia with your family in 1980, when you were three years old. Your mother is a social worker and works at a radio station at Filipino programming. Your father, who is 67, is a carpenter.
You told Ms Cidoni that your parents were very strict. You have a brother who is 38 and a sister who is 44. Neither of your siblings have broken the law, and although you have been close your drug use has eroded your relationships with them, however both your parents are supportive.
You grew up in housing commission accommodation in various suburbs of Melbourne, and your parents later moved to the Werribee area.
You reported being sexually assaulted when a child but did not wish to talk about this.
Mr Rivera, any trauma as a child is something that can well lead to drug abuse, and it is important that you do deal with it by speaking with counsellors sooner rather than later. Also, ice use is absolutely no way to clear your head in any positive fashion. You must understand that drugs are your downfall and lead you to behave violently. I am concerned as to your lack of insight in relation to your drug use and the harm that it can have on you and others.
You attended school until Year 11, repeating that year. Unfortunately your attendance at school was poor; you preferring to be with friends outside the school environment. You then worked as a labourer and forklift driver. You last worked as a personal trainer in a gym in Footscray. You completed a Certificate III in Personal Training at Kangan TAFE, but you have mainly been unemployed.
You were in a relationship for six years, but separated in 2008. You have a son who was born on 27 May 2005. I take it that your son lives with his mother. I understand that in the past you have been with your former partner and your son from time to time.
You were in a relationship with Ms Gillings and lived in the Carlton commission flats with her from time to time. You met when you were a teenager and were in a relationship from 2013 until the offending. You were apart for a while whilst you were in prison, but then reunited. You told Ms Cidoni that you invited the victim to stay with you and Ms Gillings and now he was her partner. You said that you coped poorly with their union and wanted the victim to leave. You said that you felt that you wanted Ms Gillings to be with you.
You told Ms Cidoni that as an adult you had been in fights where you were knocked out on several occasions. You have used cannabis in secondary school and you were binge drinking at this time. You commenced using heroin when you were 20 and became quickly addicted. You used methamphetamine from when you were 30 until your time on remand. You have used ecstasy, Rohypnol, and prescription pills. You attended a rehabilitation program when aged 37.
You told Ms Cidoni that you have had multiple overdoses on heroin and prescription pills, and that you have been admitted to hospital on multiple occasions. You said that you are tempted with ice use because you believe it clears your thinking and that you are more alert. You reported no psychotic experiences while using drugs and denied feeling any paranoia. At one time you were prescribed anti-depressants, but you said that these did not work.
In all of the circumstances I regard your prospects of rehabilitation as being rather bleak, and I must give strong weight to specific deterrence and protection of the community. I also give strong weight to general deterrence in a bid to deter others from offending as you have.
I am of the view that - contrary to the submission of your counsel - a substantial term of imprisonment is warranted in your case in all the circumstances. I appreciate that there may well be a danger of you being institutionalised, however the weight which needs to attach to the relevant sentencing factors in your case is such that I can do no other than impose a sentence which properly reflects this. Would you please stand up.
You are convicted of the offence on the indictment and the summary offence.
In relation to the offence on the indictment you are sentenced to 5 years' 11 months imprisonment and 2 months' imprisonment in relation to the summary matter.
I direct that one month of the sentence on the summary matter be served cumulatively with the sentence on the matter on the indictment, producing a total effective sentence of six years' imprisonment, and I direct that you serve four years' imprisonment before becoming eligible for parole.
I declare that you have already served 409 days' imprisonment by way of pre-sentence detention.
If not for your pleas of guilty I would have sentenced you to a total effective sentence of 8 years' imprisonment with a non-parole period of 6 years' imprisonment. Just take a seat for a moment please, sir. Is there anything arising out of that, counsel?
COUNSEL: No, Your Honour.
HER HONOUR: Yes, thank you. Yes, you can remove Mr Rivera. Thank you.
MR PLUMMER: Just confirming the orders were made on the last occasion, Your Honour. Forfeiture and disposal.
HER HONOUR: I make those orders. I'll now adjourn.