DPP v Tape [2025] VCC 1167

1. The offence of intentionally causing serious injury in circumstances of gross violence is a 'category 1 offence'[1] which means that the court must impose a custodial order, which cannot be a combination sentence.[2]

1. Further, s10(1) of the Sentencing Act 1991 (Vic) (the Act) provides that a court must impose a term of imprisonment on a person convicted of the offence of causing serious injury intentionally in circumstances of gross violence and must fix a non-parole period of not less than four years' imprisonment unless the court finds under s10A(2) of the Act that a 'special reason' exists not to fix a mandatory

non-parole period. Your counsel did not submit that any special reasons exist in your case that would be an exception to fixing a mandatory non-parole period.

1. The agreed facts are set out in the Prosecution Opening (Exhibit A). I will not repeat the entirety of the facts, but in summary:
2. At the time of the offending in the early hours of 16 April 2024 you were residing alone at premises in Little O'Grady Street, Albert Park. The victim Peter Dracos ('Dracos'), who was aged 70, lived alone in premises located opposite you. Mr Dracos' residence was in poor condition and cluttered. Mr Dracos owned three cars which he parked on Little O'Grady Street and in surrounding streets. Depending on whether he woke up, throughout the night Mr Dracos would go in and out of his home on numerous occasions to check on his vehicles as they had previously been tampered with.
3. Although you and Mr Dracos were initially on friendly terms, your relationship deteriorated, and you had several verbal disputes in the two years preceding the offending with both of you at times being responsible for instigating the disagreements. As an example, on one occasion on 22 January 2024, a resident of Little O'Grady Street called Triple 0 and reported a fight between you both during which Mr Dracos was seen holding a spade. When police arrived, Mr Dracos alleged that you had a history of harassing him and damaging his vehicles and he had the spade to defend himself.

1. You told police that Mr Dracos had started a verbal dispute with you in the street earlier that morning and then came to your front door with the spade to continue the argument just before the call was made to Triple 0.

1. In terms of the present offence, on 16 April at around 3.30 am, you were lying awake in your bed, having been awoken earlier in the evening by Mr Dracos. You decided to go and confront Mr Dracos, and you got dressed, and placed a large blue tarpaulin on the inside of your front door. You then put two kitchen knives and a screwdriver in your pockets, left your house and walked across the road and entered the front courtyard of Mr Dracos' residence where you stood at his front door, waiting for him to come out.

1. About 10 minutes later, at 3.50 am, Mr Dracos heard a noise out the front of his house and walked out of his house to check the street. He opened his front door to walk out and was immediately attacked by you in the front courtyard area. You stabbed Mr Dracos multiple times in the face with a knife and screwdriver. Mr Dracos ended up on the ground and his arm and hands were also cut during the incident. Whilst on the ground, Mr Dracos recalled you saying, 'Hold on, I have to grab something' and you then retrieved another knife from a pocket and stabbed Mr Dracos further. You both wrestled on the ground before Mr Dracos recalled you said 'enough's enough' and returned to your house.

1. The confrontation woke nearby residents who could hear loud noises and screaming and who also observed you both on the ground fighting or wrestling in the front yard of Mr Dracos' residence. One neighbour estimated that the fighting went for about 15 minutes and heard Mr Dracos state: 'he is trying to kill me'. Numerous calls were made to the emergency services on Triple 0. At around 4.08 am, police arrived, and you approached them and stated: 'I've gone a bit stupid. I'm sorry... I'm not going to cause trouble. I know I have done it'. Mr Dracos was seated in his front courtyard with blood covering the entirety of his face. A black-handled kitchen knife with a blade measuring 10-15 centimetres was located on the ground near the gate, along with a second black handled kitchen knife located behind Mr Dracos. Mr Dracos told police that his neighbour from opposite had attacked him with a knife when he had opened the door and 'he tried to kill me'.

1. You were arrested by police and when asked whether you were carrying any weapons, you confirmed that you had a screwdriver in your back pocket. Police located two pieces of cardboard that were wrapped in tape and resembled makeshift sheaths on your person and you confirmed these were for your knives. A yellow glove, covered in what appeared to be blood, was seized from your left hand. You told police you had stabbed Mr Dracos, and that you and he had been fighting because Mr Dracos wakes you up multiple times per night and it had gone on for two years. You said your intention was to 'go over there and scare him'. You received a deep cut to your right hand which required surgery, and you were discharged from hospital two days later.

1. During a search of Mr Dracos' residence, police seized the following items from the front courtyard:

1 x bloodstained black handled kitchen knife with a broken tip

1. Areas of bloodstaining were observed on the road outside your house, on the letterbox and on the veranda and during a search of your home police seized:

• 1 x blue tarpaulin spread out on the floor of the hallway approximately one metre from the front door
• 1 x cardboard box containing two sets of three, 150 litre garden bags, another blue plastic drop sheet, two sets of disposable hooded coveralls, two sets of rubber gloves and mattress protectors

1. On 18 April 2024, you participated in a record of interview during which you stated:

• You went over there with two knives and a screwdriver, and you assaulted Peter [Dracos] and had a physical fight rolling around on the ground during which you jabbed him with the knife and screwdriver. At one stage, Peter had the knife, and you grabbed it off him by the blade. You then told him 'Nuh, nuh. Enough's enough' and tried to get up and he [Dracos] was hanging onto you
• You said you had lived at your house for about two and half years and had fallen out of favour with him [Dracos] and he [Dracos] would wake you up every night rattling your gate and sometimes knocking on the door
• You said lately, over the past four to five weeks Mr Dracos had been waking you up around 4 am with a pattern of knocking of about half an hour until about 6.30 am
• You said you had seen Mr Dracos over the course of some nights wandering around the front of your house and going backwards and forwards to his white van and looking at whatever is in there
• On the night of the incident, Mr Dracos had woken you up at around 8.30 to 9.30 pm. You had only been asleep for an hour and were then awake for a while and then dozed off again. About an hour later he was woken again. You said you were awake right through to about 3.30 am and then decided to go and see Mr Dracos. It had just got more and more and more so that is why you went across. You got dressed and put on a black beanie to keep your head warm. You put the blue tarp down because you thought with the knives, you would probably make a mess when you came back into your house and would put footprints on your white floor. You also had on a pair of gloves because you expected to have blood on your shoes and didn't want any on your [hands]
• You took over two kitchen knives and a screwdriver in your pockets. You had the two knives in a cardboard cover which you had done four or five months earlier and kept by the kitchen door in case Mr Dracos came in
• The screwdriver had a point at the end that you had filed down, and kept in the same place as the knives
• When you went over there you were sure you were determined to do some damage, but you were not trying to attempt to murder him. You just wanted him to stop the sleep deprivation thing
• You stood next to Dracos' front door and waited for him until he came out. You stood next to his front door so that Mr Dracos would not see you until he was right at the door
• You just wanted it to stop. There was never going to be any fight to the death. It was just to injure him.
• Your intention was to slash him around the face and eyes as they were 'I don't know. Probably just easy target... [it was] just to injure him, you know, get him to stop what he was doing.' and 'To cut him, I suppose.'
• You said it was not as if you were going to try and take his eyes out or anything. You had no intention of killing him. You said, 'I just - especially after this 4 o'clock thing, I just... lost my wits or whatever.'
• After viewing the photographs of the injured Mr Dracos, you stated: '...it's terrible, terrible. It's terrible, stupid, stupid thing to do. Just been driven to do that... Poor Peter...'
• You said the items located in the brown cardboard box next to the tarp were because you were going to do some painting.

1. As a result of the incident, Mr Dracos suffered the following injuries:

(1) Extensive craniofacial fractures involving the nasal bones and a sutural facture of the cheekbone.

(2) A penetrating injury to his left eye, including left posterior globe rupture, left upper lid thickness laceration and right lateral brow laceration.

(3) Right upper and lower eyelid lacerations, a right temple laceration and a left cheek laceration with damage to the buccal nerve.

(4) Extensive lacerations to his right hand, including his right thumb which sustained muscular and nerve damage and lacerations to his left fingertips.

1. The injuries sustained by Mr Dracos required surgery and hospital admission for several weeks, as well as inpatient rehabilitation for some months. In July 2024, the overall visual prognosis for his left eye was poor with vision limited to hand motion. He was receiving ongoing rehabilitation, continued to experience pain and swelling in his right hand with ongoing function limitation and was undergoing hand therapy.

1. In reaching a sentence that is appropriate in all the circumstances, I have had regard to the relevant and admissible portions of the Victim Impact Statement prepared by Mr Dracos, which was read to the court by his granddaughter. Your offending has had a devastating psychological, emotional, physical and financial impact on Mr Dracos. He reported that he continues to be haunted by your words and has regular nightmares where he wakes crying and in fear which leads to extreme pain in his right eye. He lives in constant and severe pain. Mr Dracos said he lives in constant fear of being attacked by you and memories of the attack come back to him daily. He has lived in his house for 30 years and police told him he should move out when you are released for his safety which causes him considerable distress and heartache as he is 71 years old and lived in the area for over 60 years and feels he should not have to move as he has done nothing wrong.
2. Mr Dracos stated that he has no immediate family, but a very good friend Catherine and her granddaughter and son have helped him navigate the medical and legal systems and get home and the offence has impacted them emotionally and physically as well. Catherine has travelled to Melbourne to assist him many times at great expense. Mr Dracos said the physical impact of your offending will be with him for life. He endured a nine-hour operation to sew up deep gashes in his face, hands and left eye and has scars. His left eye drips continuously and is acutely painful. He has been told he is permanently blind in his left eye and may require an operation to have it removed. His hand is rolled up like a claw and he is in severe pain due to nerve damage. He will not be able to drive again and is depressed as he will not be able to enjoy hobbies such as photography and reading. He cannot fly interstate anymore due to cabin pressure and the need to be close to his doctors and facilities. He has lost his independence as he cannot cut up food to cook or do mundane things like cutting his nails.
3. Mr Dracos stated that he formerly took pride in his appearance, but his face is now disfigured, and he disguises it behind a beard and dark sunglasses. He is usually outgoing and gregarious but stays inside most days now as he has poor vision, cannot shake hands, has social anxiety and is embarrassed by his appearance. The financial impact of your offending has also been great. Mr Dracos could not pay bills whilst in hospital and the medical bills from the crime will be with him for the rest of his life. He can no longer work.

1. You are now aged 73 and were 72 at the time of the offending. I accept that your more advanced age and the fact that you are a first-time offender at such an age will make imprisonment harder for you. However, in determining the weight to be given to your age, you are not the oldest person to be sentenced for violent offending by any means. It is also not the case that more advanced age is determinative of the length of sentence to be imposed. Sentencing principles such as just punishment and general deterrence remain very important sentencing considerations and an unacceptably inappropriate sentence cannot be justified simply because you are now in your early-70s.[3] Having said that, I do take your age into account in mitigation of sentence, including the fact that you will be heading towards 80 by the time that you are released which means the time spent in custody now may represent a fair proportion of your remaining years.
2. You are in generally good physical health, noting you have had age-related issues with your hernia, and you have arthritis. There is presently no evidence before me that there is a serious risk of imprisonment having a gravely adverse effect on your physical health.[4] You have no life-threatening illnesses, or any conditions that cannot be managed in a prison environment. Indeed, your counsel accepted that your health is being well-managed in custody. I do accept to a degree your counsel's submission that because you will be spending years in custody your health will inevitably deteriorate which will make custody more onerous on you than a younger man, but at this point your health conditions are not unusual for a person of your age and there is no evidence that custody is presently more onerous because of your health.
3. You have no prior convictions, and no subsequent or outstanding matters which is notable given your age. I have had regard to the contents of four character references provided on your behalf (Exhibit 2). Your oldest son Matthew said you have always supported him and his siblings with offers of financial or other support. You are very attentive to your grandchildren, and he was shocked, at the violence shown in your offending. He says you have expressed remorse for your offending and believes that you are a person of good character, and he intends to continue to support you. You daughter Sally said you have supported her throughout her whole life providing her with the best education, accommodation when she was unemployed and financial assistance to enable her to buy her own home. She says she will be there to support you into the future.
4. Your former wife Margaret Reilly, said that you have always had a very strong work ethic, often working two jobs in the early years of your marriage and taking night classes to enhance your job prospects. She says she has known you for a very long time, and she knows that you understand the gravity of your actions and believes you are very remorseful for the pain you have caused. Shirley, your older sister, describes you as someone who has always been a great support for her and your wider family. You offered her financial assistance and ongoing support during her marriage breakdown. She said you have not tried to excuse your offending. Your sister Margery wrote that she has watched you suffer with depression and anxiety in your adult life, and she will continue to support you.
5. You were raised in Melbourne and have five full siblings - three sisters and two brothers who are all still alive and you are close to them, especially your

71-year-old sister. Both your parents have passed away and you were reasonably close to them. You have six half-siblings from your father's previous marriage and all apart from one are deceased. You described your childhood as happy albeit financially strained. You have never been sexually abused or physically assaulted. You have never had a problem with drugs, alcohol or gambling. 6. You enjoyed school and attended South Melbourne Technical School until

Form 5. When you left school at aged 17 you worked for a bank and remained there for some 25 years reaching a junior management role. During your employment at the bank, you undertook part-time study and completed a Diploma in Banking and Finance and then a two-year postgraduate accounting qualification from Monash University. After leaving the bank at around 40 you started a new career working as a warehouse supervisor and then in the forklift industry for around 16 years. After this, you were employed relocating cars from the docks for around eight years before retiring when COVID began. You are now on an Aged Pension. In your later and more recent years you have been an active swimmer and a very passionate reader. 7. You married when you were 19 and you had four children with your wife Margaret. You separated around 20 years ago. Your children are now in their 50s and you remain close to three of them. They are all employed and have lived law-abiding lives. You are a grandfather. You were supported in court by your siblings, your son and niece and your friends. You have been in regular contact with your family whilst you have been in custody. 8. I have considered the contents of the psychological report from Mr Cummins (Exhibit 1) who opined that you were not suffering from any mental disorder at the time of the offending, nor are you at the time of sentencing. Your offending was clearly premeditated and not a result of a psychotic episode. You do not present with a history of any learning disability, or delusional or personality disorders and you have never been in a psychiatric hospital but have experienced occasional periods of depression. 9. Accordingly, as your counsel conceded, the principles espoused in Verdins[5] (limbs 1 to 4) have no applicability to your case. I note Mr Cummins opinion that there was evidence of deterioration in your long term and short-term verbal memory, although you told him that a recent assessment revealed that you were not presently suffering from symptoms of early onset dementia. You are however on a waiting list to see if you are experiencing any cognitive decline such as early onset dementia. At present however there is no evidence before me that you do have this or a like condition or that it will worsen over time. 10. You have spent your time in custody productively having completed many courses (see Exhibit 3). You get along very well with both staff and prisoners and have adapted well to prison. You suffer some moderate depression that is mainly reactive to your present predicament. Your counsel did not rely on limbs 5 or 6 of Verdins. 11. You pleaded guilty to the charge at the earliest opportunity. Your plea warrants a clear reduction in the sentence to be imposed to reflect its utilitarian value in saving the community the time and expense of a trial and witnesses, especially the victim, from having to give evidence, and a reduction to reflect its demonstration of acceptance of responsibility, and willingness to facilitate the course of justice. 12. Your plea by itself also demonstrates a degree of remorse. I am also satisfied you have expressed significant remorse in addition to your plea. You expressed your guilt, regret and remorse to Mr Cummins and said you would apologise to Mr Dracos in person if you could. You indicated that you will not return to live in the home you own if Mr Dracos is still residing opposite. You expressed remorse to your family and made full admissions to police when interviewed. 13. Mr Cummins indicated that he considers you to be a low risk of reoffending in the same way given you have no prior convictions, no history of violence and no previous issues with anger management. I accept you are a low risk of reoffending for those reasons and because of your more advanced age, your strong family support, and the fact that you have developed some insight into why you did what you did. I pause however to add a caveat - your risk of reoffending is not negligible, and I refer in this regard to Mr Cummins opinion that it is imperative that you seek immediate mental health assistance if you ever experience a heightened level of frustration towards another person again.

1. In sentencing you, I have had regard to the purposes for which a court may impose sentence set out in s5 of the Sentencing Act 1991 (Vic) and to the matters outlined in s5(2), which include the maximum penalty, the nature and gravity of the offences, the offender's culpability and degree of responsibility for the offence, the impact of the offending on any victim, an offender's prior character and the presence of any aggravating or mitigating factors or other relevant circumstances.
2. I have also considered the factors outlined in the case of Nash v The Queen[6] which are relevant in assessing the objective gravity of your offending. These include your proven intent; the seriousness of the injuries caused (that is immediate and long-term consequences as well); the victim's vulnerability; the duration of the attack; whether a weapon was used and whether an offender acted alone or in company.

1. In my view, your offending is a serious example of what has been described as an offence that is 'extraordinarily serious' given:[7]

a) By your plea you admit you planned to attack Mr Dracos, and at the time of the planning you intended that your conduct would cause serious injury to him. You accepted that you planned to have an offensive weapon with you, and you in fact used that weapon to cause the serious injury.

b) Your intention was clearly to deliberately inflict serious injury on Mr Dracos. You armed yourself with multiple weapons - two knives and a screwdriver - you left your house after placing the tarpaulin on the ground to prevent blood being spilled onto your floor when you returned, put on gloves and walked directly to Mr Dracos' house where you used the knives to repeatedly slash at his eyes and face inflicting multiple wounds. There is absolutely no doubt that you were determined to do serious damage to Mr Dracos. Where there was a level of planning and the injuries suffered by Mr Dracos were severe, your moral culpability must be assessed as high.

c) The injuries suffered by Mr Dracos were horrific. He required surgery, rehabilitation and has limited functionality in his right hand and the health of his left eye is dire. His Victim Impact Statement clearly reveals the emotional, physical, and financial effects of your offending and these consequences are not transient but ongoing.

d) The maximum penalty for the offence is 20 years' imprisonment. The offence seriousness is also reflected by the fact that it carries a mandatory non-parole period of at least four years.

e) Your victim was unarmed, alone, not presenting an imminent threat to you, and you were the aggressor. He was in a vulnerable position as he was surprised by your presence in the middle of the night and your immediate attack was entirely unexpected. There was nothing he could do at that point.

f) Your actions had no lawful justification whatsoever. There was no basis for your perception that you needed to protect others in the neighbourhood based on the evidence before me and again you were not in imminent danger from Mr Dracos.

1. Your counsel accepted that Mr Dracos suffered serious life changing injury. It was not disputed that you planned the attack, you gathered weapons, placed the tarpaulin on the floor, and put the gloves on before leaving your house and that you then used those weapons. In sentencing you I accept that planning is an element of the offence not a circumstance of aggravation. I also accept that your slashing of Mr Dracos' face area only is consistent with your stated intention being that you did not intend to kill Mr Dracos but to injure him. I accept your offending was not attended by aggravating factors such as it taking place in company and the duration of your attack was relatively brief albeit intense and involving multiple knife wounds.
2. Whilst Mr Marsh did not submit that your offending was in any way justified, he noted that the attack occurred against a background of you and Mr Dracos engaging in previous arguments and disputes where you were both the aggressor at various times. He also submitted that you were very sleep deprived at the time of the attack and you had a concern for your own safety and that of elderly neighbours.
3. The prosecution argued that even in situations where there is a grievance, a person cannot take the law into their own hands and mete out their own version of punishment. Further, sleep deprivation and anger in the context of the past relationship between you and Mr Dracos cannot justify the disproportionate and extreme response you took.
4. The reasons for your offending are perplexing. Even accepting a history of bad blood between you and Mr Dracos and a perception by you that you were also protecting your neighbours, yours was a savage, planned attack without warning in the middle of the night which was completely disproportionate to any harm you perceived Mr Dracos to have caused or any threat he represented. You were not at risk of imminent attack from Mr Dracos.
5. I accept your counsel's submission that yours is a somewhat inexplicable case. Doing the best I can to make sense of the events, I have had regard to what Mr Cummins proffered as a possible explanation for your offending. That is, whilst your offending was planned - you admitted that you planned to assault Mr Dracos and took two knives and a sharpened screwdriver with you to do this - it was situational having occurred primarily in the context of you being sleep deprived and against a background of your perceived harassment at the hands of Mr Dracos and your perception that you needed to protect other elderly neighbours. In my view, it is open to me to find that whilst you planned your attack, you did not spend days dispassionately doing this. Rather, your decision to attack Mr Dracos occurred in more sudden or explosive circumstances where you experienced a surge of intense rage, fuelled by sleep deprivation, and without the benefit of anger management skills and you decided at that point to gather weapons and attack Mr Dracos. Of course, I accept the Crown submission that this does not justify your actions in any way whatsoever, but it does at least offer some explanation as to the events.
6. General deterrence is a very important sentencing principle in offending of the type you committed.[8] Where general deterrence is primary, personal mitigatory factors such as prior good character, age, prospects of rehabilitation et cetera must therefore be given less weight in sentencing than might otherwise be given.[9] Denunciation is another very important sentencing principle in your case. I must denounce your offending on behalf of the community both in words and by imposing an appropriate sentence. I must also impose a sentence that represents just punishment.
7. Turning to your prospects of rehabilitation, I am of the view that these are very good given your more advanced age, lack of prior convictions and subsequent or pending matters, your low risk of offending, your solid community and family support, your plea of guilty, acceptance of responsibility, display of remorse for your actions and your admissions. Whilst I do not accept, based on the evidence that was available to prove the offence, that your admissions were such as to enliven a Doran discount, I do accept that you made very candid and fulsome admissions to police and admitted pretty much everything you could.
8. I accept that specific deterrence has little role to play in sentencing you and I do not consider great weight needs to be given to protection of the community. There is little chance in my view that you will reoffend given the matters articulated above in my assessment of your prospects of rehabilitation.

1. I was provided four cases by the prosecution said to represent comparable sentences that may be of assistance in sentencing. I have had regard to these cases, most notably for the sentencing principles they set out, but each case must be determined on its own facts and the cases presented - as is often the case - have relevant differences to your offending.

1. I have anxiously considered your counsel's submission that I can meet the needs of general and specific deterrence, denunciation, just punishment and protection of the community and reflect the harm to the victim with the imposition of a sentence with a non-parole period that does not exceed the mandatory four-year term.
2. At the end of the day however, the imposition of the mandatory minimum would not in my opinion give due weight to the principles of general deterrence, denunciation and just punishment. Again, you clearly intended to inflict serious injury or 'do serious damage' to Mr Dracos. You knew exactly what you were going to do in that moment as you armed yourself with weapons, placed a tarpaulin on the ground before you left your house to prevent blood being spilled onto your floor when you returned. You effectively surprised your victim in the very early hours of the morning and repeatedly slashed at his eyes and face inflicting multiple wounds. He suffered very serious psychological and physical injuries.
3. I am persuaded though that your age, lack of prior convictions over such a long period, extensive admissions, plea of guilty and remorse, strong work history, low risk of re‑offending, family support and very good prospects of rehabilitation should be reflected in a meaningful way in the sentence I impose.
4. On Charge 1, you are convicted and sentenced to seven and a half years' imprisonment. I direct this sentence commences today**.**
5. I order that you serve a period of four and a half years' imprisonment before being eligible for release on parole.
6. I direct pursuant to s18E of the Sentencing Act 1991 (Vic) that 486 days' imprisonment be declared as having been served by way of pre-sentence detention.
7. Pursuant to s6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty, I would have imposed a sentence of nine years' imprisonment with a non-parole period of six years.

1. I make the disposal order as sought by the Prosecution.
2. HER HONOUR: Thank you. Thank you both very much for your assistance. Mr Dracos, I wish you the very best of luck.

[1] s3(1)(c) Sentencing Act 1991 (Vic)

[2] s 5(2G) and s 5(2GA) Sentencing Act 1991 (Vic)

[3] R v RLP [2009] VSCA 271; 213 A Crim R 46, [39], citing R v Bazley (1993) 65 A Crim R 154 at 158; R v Smith (1987) 44 SASR 587

[4] Van Boxtel [2005] VSCA 175; (2005) 11 VR 258, 267 [29] (Callaway JA); [2005] VSCA 175.

[5] R v Verdins (2007) VSCA 62; 16 VR 269; 171 A Crim R 227 ('Verdins')

[6] [2013] VSCA 172; (2013) 40 VR 134, 137, [10]; [2013] VSCA 172.

[7] DPP v Hudgson [2016] VSCA 254, [85].

[8] Weatherburn v The King [2023] VSCA 90 [60].

[9] Heathcote (a pseudonym) v The Queen [2014] VSCA 35 [at 35]; DPP (Cth) v Thomas [2016] VSCA 237 at [193]; Gajjar v R [2008] VSCA 268; (2008) 192 A Crim R 76 at [27-28.]