Sentence: Total effective sentence of 12 months imprisonment and a Community Corrections Order for a period of 18 months.
[2]
Toby Watts, you have pleaded guilty before me in Koori Court to two charges of intentionally cause injury.
The maximum penalty for causing injury intentionally is 10 years' imprisonment in each instance.
[3]
The circumstances of your offending were outlined in the Summary of Prosecution Opening for Plea dated 6 December 2024. I shall summarise those facts here.
At the time of the offending you were living in emergency accommodation in Shepparton, as was your co-accused Sean Kosterman.
On 12 December 2020, Kyle Renouf and his girlfriend visited his mother, Maria Renouf at her address in Yorkshire Crescent, Shepparton. They spent the afternoon having a BBQ and drinking and later in the afternoon, Maria invited her friend Troy Van Den Akker to the house.
You and Kosterman and a mutual friend Desiree Paraone were at a nearby address when an argument ensued between you, Kosterman and the occupants of the Yorkshire Crescent property.
Kyle Renouf approached your address and yelled at you all to 'shut the fuck up'. Mr Van Den Akker then pulled Mr Renouf away to deescalate the situation.
At 8:44 pm police attended the Yorkshire Crescent address. They spoke with the Renouf family who reported that a male had been yelling and screaming outside a nearby address. Police then spoke to you, and you reported that you had been doing your washing at that address and that you had permission to be there.
At a later stage, you, Kosterman and Paraone left the area for a period of time.
At 10:06 pm that same evening you called the Shepparton watchhouse and spoke with First Constable Puppa. You asked to be escorted back to the nearby address as you had left a bag there.
You said you required assistance as it was not your house, and you believed that people would come to the house and start a fight if you returned. First Constable Puppa advised that a van may be available at a later stage to assist you.
Later that evening, you, Kosterman and Paraone returned to Yorkshire Crescent.
Mr Van Den Akker and Kyle Renouf walked across the road. Mr Renouf had a baseball bat with him.
Van Den Akker said 'Will you just fuck off and never come back. You're causing nothing but problems.' When interviewed by police Van Den Akker said that his purpose in going to the nearby address was to 'intimidate' you and Kosterman so that you would 'shut the fuck up'.
Van Den Akker and Kyle Renouf then followed you and Kosterman as you walked along the street. You stopped and turned around.
There was a subsequent physical confrontation during which you lunged forward, Van Den Akker punched you and you stabbed him three times. You also stabbed Kyle Renouf. You were hit to the face and Kosterman was also hit.
You then fled the scene, and Van Den Akker and Kyle Renouf were helped by neighbours until police and paramedics arrived. They were then taken by air ambulance to the Alfred Hospital.
You and Kosterman were intercepted by police shortly after the incident. You were assessed by paramedics and taken to the Shepparton Hospital for treatment. Kosterman had minor head injuries but declined treatment by paramedics.
Mr Van Den Akker sustained the following injuries:
a 3-centimetre stab wound to the upper central abdomen tracking at least 5 centimetres;
a stab wound to the left lateral chest of 6 centimetres at least 5 centimetres deep; and
a 10-centimetre stab wound to the left flank.
A CT confirmed subcutaneous emphysema around the chest wall (being air within the tissues introduced by the stab injuries), a minimally displaced fracture of the posterior left eleventh rib, laceration of the spleen and a small volume of blood in the abdominal cavity.
Mr Van Den Akker required surgery to repair his diaphragm injury. He was later monitored in the Intensive Care Unit before being discharged from hospital on
[4]
17 December 2020. This forms the basis of Charge 1 - causing injury intentionally.
19. Kyle Renouf sustained abrasions to his chest and neck. He also sustained a sharp force trauma to the left lower abdomen/groin area. This was a large 15‑centimetre‑deep open wound.
20. A CT scan revealed the object penetrated the abdominal wall and that the intraabdominal fat was protruding/herniating through the defect. There was damage to several underlying muscles of the abdomen and thigh. The object transected a nerve in his thigh which may cause permanent numbness in the region. He required emergency exploratory surgery and repair of the wound and underlying structures. He was in hospital for four days. This forms the basis of Charge 2 - causing injury intentionally.
21. I note that you also suffered injuries in this altercation including fractures to your nose and left medial orbit and multiple bruises and grazes to your body.
22. You participated in a record of interview with police on 13 December 2020 at the Shepparton police station. During the interview you told police that you were hit with a weapon, a pole or baseball bat, that there was seven of them on you, that you were punched and kicked and that you did not stab or injure anyone and would not have a clue how other people were injured and only threw a couple of hits.
[5]
This was serious offending. You claim to have 'not been in the right head space' at the time of the offending, following a separation from your partner. While, as I earlier ruled, I cannot exclude that your actions were committed in self-defence, those actions were excessive and disproportionate and far outweighed any reasonable response to the threat posed.
It was conceded by the prosecution that Kyle Renouf was armed with a baseball bat. It was argued on your behalf that Van Den Akker was armed with a samurai sword, however I ruled that there was no evidence to support this contention.
I accept that you were confronted with a baseball bat and pursued along the street however your response was extreme. You were carrying a knife. You intended to cause injury, albeit not the serious injuries inflicted, and you sustained a number of injuries yourself. Your actions must be seen in the context of excessive
[6]
self-defence.
4. I did not receive a Victim Impact Statement from either of your victims, however it takes little to imagine the serious physical and psychological impacts your offending must have had.
[7]
You entered a plea of guilty post-committal which has significant utilitarian benefit. You have saved the Court and the community the time and expense of running a trial and spared the victims the ordeal of giving evidence at trial. In those circumstances, you have facilitated the administration of justice, and you are entitled to a benefit for that.
By your plea you have accepted responsibility for your offending and there is some demonstration of remorse, although I note you claim to have little recollection of the offending.
[8]
Personal circumstances and psychological report
[9]
I turn now to your personal circumstances.
You are a 43-year-old Gunditjmara man, born in February 1982. You are the eldest of three children and have a number of half siblings, one of whom died in 1998.
Your parents separated when you were aged about 18 and you have had no contact with your father since 2000. You mother is in poor health.
You were raised in Broadmeadows, where you attended primary school. You attended Hillcrest Secondary College but left at the end of Year 7 after multiple suspensions. You later completed Aboriginal Studies at Kangan TAFE.
You were abused by the local parish priest, Father Michael Glennan, as a child and you were exposed to alcoholism and domestic violence at home. You began to experiment with petrol sniffing and cannabis from the age of six and commenced heroin use at the age of 12. You ceased heroin use in 2015 and ceased methadone in 2020. You began using ice in 2024 and quickly developed an addiction.
You have three children, sons aged 21 and 18 and a 16-year-old daughter. You have contact with your sons who were present in court to support you.
You have a limited employment history and are in receipt of the NDIS but have recently been without a program coordinator.
While in custody you have suffered a severe leg infection that has required hospitalisation.
I received a psychological report from clinical psychologist, Carla Lechner. Testing indicated you are likely to be severely psychologically distressed and displayed symptoms of PTSD. Your recall of the offending is limited by your use of alcohol at the time.
Ms Lechner found that you present 'with a complex clinical picture that includes symptoms of complex PTSD, adult ADHD, poly-substance abuse, poor emotional and behavioural regulation and an acquired brain injury'.
I also received an ARBIAS report from Dr Matt Treeby which found you have a
[10]
full-scale IQ of 72. The report found that your 'experience of complex trauma and early onset of polysubstance use from a young age likely compromised [your] cognitive, emotional and brain development during childhood and adolescence'. Your drug use and head trauma history are likely to have resulted in some degree of acquired brain injury.
12. You are currently remanded at Ravenhall and residing in a lodge. You have participated in the Dardi Munwurro program and have recently sold your first painting through the Torch. You plan to live with your sons upon your release from custody.
[11]
You participated in a sentencing conversation with Uncle Walter Harrison and Uncle Len Harrison. One of your sons joined you at the table and your other son was present in support.
It is recognised that participation in a sentencing conversation is more difficult than a General List plea hearing. It is confronting. You are held accountable and you have to speak for yourself.
In a decision of Honeysett v The Queen[2018] VSCA 214, the Court of Appeal looked at the Koori Court plea process and said the following:
[12]
'In our view, in determining the weight to be attached to an offender's participation in a Koori Court sentencing conversation as a mitigating factor, a sentencing court should consider a range of factors including:
[13]
(1) The fact that participation in the process is a voluntary one, maybe confronting to the offender and will likely involve him or her being shamed. As noted in Morgan, participation in the process may of itself be rehabilitative;
[14]
(2) The fact that an offender is, rather than hiding behind counsel, taking the opportunity to personally,
[15]
(a) Demonstrate his or her remorse for the offending,
[16]
(b) Demonstrate insight into the reasons for and the seriousness and effect of the offending and
[17]
(c) Express any intention to reform and how that will be done, including by participating in available rehabilitation programs;
[18]
(3) The court's assessment of the genuineness of the offender's statements during the sentencing conversation.
[19]
That assessment should take into account all of the information before the court. Based on the court's assessment of the quality and genuineness of the statements made by the offender, it is a matter for the individual judge to assess weight in the circumstances of the particular case.
[20]
In fixing a sentence, it is a duty of the court to impose just punishment adapted to all the circumstances of the case by reference to the permissible sentencing purposes of general and specific deterrence, any means by which rehabilitation of the offender may be facilitated, denunciation of the offending and the need to protect the community.'
[21]
From your participation in the sentencing conversation I have observed that your desire to be a proper father and role model to your children is strong. You stated that you 'never knew what my sons meant until I was clean'.
You expressed sadness that your own father refuses to be a part of your life and hope that he will at the very least connect with your sons. Family is obviously an important factor in your life.
I found your participation in the sentencing conversation to be genuine and I take it into account.
[22]
Mr McCulloch, appearing on your behalf, submitted that the principles in Bugmy v The Queen [2013] 249 CLR 571 are applicable in a general sense in this case. I find that your exposure to alcohol and family violence, your early drug use and sexual abuse renders your moral culpability less than that of an offender whose formative years have not been so marred. I reduce the sentence accordingly.
It was also submitted that the principles in R v Verdins[2007] VSCA 62 apply to you. While moderated, general and specific deterrence still have some application in your case as do denunciation and just punishment. You and others minded to commit offences such as these must be made aware that serious punishment will follow. This type of offending is unacceptable.
Ms Lechner found that your symptoms are 'aggravated by the inherently threatening and conflictual prison environment'. I take this into account and apply limbs 5 and 6 of Verdins, that gaol will be harder for you than for someone without your conditions and that your condition may worsen in custody.
I note that the offending occurred in 2020 and has now been hanging over your head for some time. I take this delay into account.
You have an extensive criminal history including some dated but relevant injury offences. I consider community protection to have some relevance here.
Your prospects of rehabilitation are entirely contingent on you remaining drug free and engaging with the supports available to you.
I take totality into account, noting that you have spent the last five months on remand for matters not attributable to this offending.
I take parity into account to the extent that it is relevant. Police charged Van Den Akker with affray but declined to pursue the charges. Kosterman pleaded guilty to affray and other unrelated charges and was sentenced to an aggregate term of three months' imprisonment. Renouf completed Diversion and a charge of affray was subsequently discharged.
[23]
Mr O'Doherty, for the prosecution, submitted that given the seriousness of the offending, a head sentence and non-parole period should be imposed.
Mr McCulloch, for you, submitted that a Community Corrections Order should be imposed in all the circumstances of your case, noting in particular, the nature of the offending, the delay, the relevance of Bugmy and Verdins principles and the importance of your family in your rehabilitation.
I had you assessed for a Community Corrections Order. The assessment found you to be a high risk of further offending and recommended that you undergo drug and mental health programs.
I do not consider that a Community Corrections Order alone would adequately reflect the seriousness of the offending before me. While self-defence cannot be excluded, your actions were so excessive and disproportionate to the threat that I must also impose a period of immediate custody.
[24]
Would you please stand Mr Watts.
On Charge 1, intentionally cause injury, you are sentenced to nine months' imprisonment in combination with a community corrections order.
On Charge 2, intentionally cause injury, you are sentenced to nine months' imprisonment in combination with a community corrections order.
I direct that Charge 1 be the base sentence.
I direct that three months of the sentence on Charge 2 be served cumulatively on the sentence on Charge 1.
That makes a total effective sentence of 12 months' imprisonment, in combination with a community corrections order.
I direct that the community corrections order be with conviction and run for a period of 18 months.
You are to comply with the core conditions of the order, being that:
You must not commit another offence punishable by imprisonment during the period of the order.
You must comply with any obligation or requirement prescribed by the regulations.
You must report to, or receive visits from, the Secretary during the period of the order.
You must report to the Shepparton Community Corrections Centre within two working days from the completion of the term of imprisonment.
You must notify the Secretary of any change of address or employment within two clear working days after the change.
You must not leave Victoria except with the permission of the Secretary.
You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
In addition, you are to comply with the following special conditions:
You are to undergo assessment and treatment for drug use.
You are to undergo assessment and treatment for your mental health.
You are to be subject to supervision.
You are to undergo programs to reduce reoffending.
Do you consent to that order being made? Thank you.
I declare that pursuant to section 18 of the Sentencing Act1991 (Vic), you have served17 days by way of pre-sentence detention, excluding today.
I declare that, pursuant to section 6AAA of the Sentencing Act1991 (Vic), had you not pleaded guilty, the sentence I would have imposed would have been a head sentence of three years with a non-parole period of two years.
Would you please sign the community corrections order now. Mr Michaelson, you can assist. We will just have that order prepared.
OFFENDER: (Indistinct words.)
HER HONOUR: Almost. You can be seated, Mr Watts.
You can assist, Mr Michaelson.
Mr O'Doherty, is the pre-sentence detention correct?
MR O'DOHERTY: Yes, Your Honour.
HER HONOUR: Mr McCulloch, is it correct in your view?
MR McCULLOCH: Yes, that's my calculation.
HER HONOUR: Thank you. Is there anything further, Mr McCulloch?
MR McCULLOCH: No other matters, Your Honour.
HER HONOUR: Mr O'Doherty?
MR O'DOHERTY: No, Your Honour, thank you.
HER HONOUR: Thank you. You can take Mr Watts out, thank you.
MR McCULLOCH: Your Honour, just for Mr Watts' benefit, I have a conference with him tomorrow.