//
[2022] VCC 1440
General information, not legal advice.
County Court of Victoria
2022-08-30
Original judgment source is linked above.
10 June 2019. 4. The offence of intentionally causing serious injury in circumstances of gross violence is an inherently serious offence with a maximum penalty of 20 years' imprisonment. 5. Additionally, it is one of those offences where Parliament has enacted some provisions which are designed to make not just prison, but a sizeable prison term, very difficult to avoid. There are very few exceptions provided for. Unless a special reason exists under those provisions, there is a mandatory minimum non-parole period of no less than four years' imprisonment. It is also what is described as a category 1 offence. I will say more about these provisions later in my reasons as your counsel argued that two special reasons applied here.
10 June 2019, you fell into step with a woman named Piper Weatherman and a man named Gavin Evertsen. This was in the Dandenong area. You began to walk towards the Salvation Army and it was there that you approached your hapless victim, which Mr Zelko Danilovic. He was slightly older than you, I gleaned from the medical material, born in 1972. He had walked around the corner away from the Salvation Army donation bins and you followed him. You walked closely behind him and grabbed his belongings. You punched, slapped and kicked him and threw one of his bags at his head. He tried to walk away from you. 5. He showed no signs of aggression. He just wanted to get away from you but you would have none of that. You followed him and pushed him from behind. He tumbled to the ground. He never got up from that point. You then unleashed a serious assault upon him. Punching and grabbing and pushing and generally monstering him. You slammed his head into the concrete multiple times. There was no resistance or movement away from you. You kicked him to the face and he was rendered unconscious. 6. Over a sustained period, you continued to brutally assault him. Kicks, punches, body crunches, strikes with an object and stompings. This full array of violent behaviour was on display including powerful kicks to the head. He was helpless and had been quickly reduced to that incapacitated state and remarkably, the attack continued. It was at no stage a fight. It was a prolonged and barbaric assault upon someone who was incapacitated. Someone who from the very outset was obviously trying to avoid any confrontation. 7. The assault involved you taking breaks from time to time and then resuming your attack. At one point when it appeared your victim had regained consciousness and was trying to lift his head off the ground, you stepped in and kicked him to the head, again seemingly causing him to lose consciousness. 8. Ms Weatherman, the female who had been with you at one point, walked around the corner from the Salvation Army, and observed you deliver running kicks to the head of the bleeding victim who was on the ground. She told you to stop. You told her to walk away. She called out to her friend and again, you told them to leave. 9. The assault spanned the period of 18 minutes from 5.41 am to 5.58 am or thereabouts. 10. I have viewed the footage. It is disturbing to think that anyone would or could treat another human in the way that you did, and yet you did. 11. You continued this assault even after the protests by Ms Weatherman. You then stopped and left the scene and caught up with Ms Weatherman and Mr Evertsen and said 'I've fucking killed him'. In fact you had not, but that was a matter of pure luck. 12. You walked off leaving your seriously unwell victim lying on the ground in what was a dark car park. As the footage discloses, he was alone in that state, lying pretty much motionless on the ground for the next 25 minutes. 13. You told your offsiders that you had done what you had done as the victim was a paedophile. I hasten to add there is not one jot of evidence of that fact at all. 14. It is obvious from the footage that you were affected by either drugs or alcohol. Your counsel seemed to argue that this could not be established from the footage whilst at the same time conceding that you were indeed significantly affected by drugs and alcohol at the time of the acts. Well the footage is very clear on this point as you wobble and stagger at certain points. The impact of drug and alcohol use is not mitigatory. 15. Luckily Ms Weatherman, the female who had challenged you about your conduct spoke discreetly to a stranger that she came upon in the street, this was Mr Bruce, and asked him to ring emergency services and come to the aid of the person who had been assaulted around the corner. As a matter of luck that is what he did, having walked to the location identified by Ms Weatherman and at which point he found the victim. 16. Paramedics arrived at 6.46 am, so this is over three-quarters of an hour after you had just walked off and left your victim motionless on the ground. He was in that same state when they arrived. 17. The summary sets out some of the injuries and the treatment required. I do not see any need to set this all out in my reasons. He was initially at the Alfred Hospital with seven days in the intensive care unit and then 21 days in an induced coma. There were brain bleeds in various locations and multiple fractures and soft tissue injuries. The various injuries including the brain injuries were treated conservatively without invasive surgical intervention. 18. This crime took place, as I say, on 10 June 2019. 19. There was a transfer to the Caulfield Hospital on 18 July but then a readmission about a month later following a fall out at Caulfield. 20. Now your victim had sustained an acquired brain injury from an incident in 2017 and also from a later one, it would seem in mid-August of 2019, so there was evidently difficulty pointing to any long term exacerbation arising from the injuries that you caused. He was admitted to the Caulfield Hospital acquired brain injury unit for eight months and since his discharge, he has remained in 24-hour care in a variety of units. 21. So, long term cognitive impacts and residual issues connected to brain injury are not relied upon here. They cannot be sheeted home to you and I must not sentence you for causing them. See paragraph 29 of the opening. 22. The various injuries caused in this attack though are relied upon in combination as endangering his life. This they certainly did. The startling feature here is the extent to which you continued to attack a completely defenceless man. He was incapacitated and obviously so from very early on and yet you continued the brutal attack. That is the feature of gross violence relied upon, namely continuing to injure him after he was incapacitated. 23. It was a matter of good fortune for your victim and hence for you, that your victim survived this attack. Luckily he did survive and so I am dealing with you for the serious offence of intentionally causing serious injury in circumstances of gross violence. 24. You were arrested later on the day of the crime and made a no comment interview with the police. That is not in any way a matter in aggravation. It was your right to adopt that stance. 25. The case against you was an overwhelming one with the footage, the eye witness accounts, the admissions and the DNA evidence. 26. So much then for what is merely my short summary of the summary. I sentence pursuant to the more detailed agreed written statement dated 27 July which is marked as Exhibit A. Also of course, the footage. The agreed summary also has a chronology attached. There were some corrections to that chronology made in the running. The 19 December 2019 entry related to an adjournment of the committal not the actual committal. 27. I raised some issues myself as to the chronology and the stage of the plea and an earlier rejected plea offer, as well as the matters raised in the defence response which had been filed on your behalf. I did that so that your counsel could address me on those matters. This in a setting where there were submissions being made to the court as to the stage of the plea, the presence of remorse and the mitigatory effect of delay in this case. 28. There were some photographs within the depositions showing your victim's state in hospital. No one saw the need for them to be marked as exhibits as they were part of the deposition material.
**• Your relatively early guilty plea in the midst of the global pandemic;
• The presence of some remorse to be implied from your guilty plea and the other written materials before me;
• The application of some of the principles from the case of Verdins[1] (limbs 1, 2, 3 and 5);
• The impacts of COVID-19 upon your custodial experience to date and into the future.**
two special reasons came into play here being impaired functioning causally linked to the offence which substantially reduced your culpability. That is the special reason set out in s10A(1)(c)(i). You have the burden of bringing yourself within that exception. Alternatively, he argued that the delay and impact of delay should be treated as a substantial and compelling circumstance that was exceptional and rare. That is the special reason set out in s10A(2)(e). 2. Your counsel was correctly conceding the inevitability of a prison sentence and one with a non-parole period. He was however arguing that a non-parole period less than the minimum four-year period set out in s10 might be achieved courtesy of one or other of these special reasons. It was a very ambitious submission.
Ms Mynard. I see no need to rehash that background in my reasons. I accept that background. 2. Briefly stated, you were born in Adelaide in October 1975. You are now
46 years of age. You were the second eldest of four children. You have no memories of your biological father. You lived with your mother and stepfather in a variety of locations around Australia and also in Malaysia, I infer owing to your father's employment within the air force. I was told that the relationship with your stepfather was strained. I must say it does not strike me that you have had the worst background by any stretch of the imagination. 3. You were not strong academically and you left school in Year 11. You have worked as a cook in your 20s and 30s and also in the hospitality industry more generally and as a storeman. You have had a pretty patchy employment record it would seem. 4. You have had significant and longstanding issues with a number of drugs. You are a father of two children, one son born back in 1995 and a far younger son who is about three years of age. 5. You had a long-term relationship with Ms Kylie Haskett and she had serious health issues. You were her carer from 2013 to the time of her death from liver failure in late August of 2018. 6. From that point you stepped up your abuse of drugs and alcohol. See
paragraph 24 of Ms Mynard's report. You used as much ice as you could get your hands on. You began injecting it. You were using at least half a gram a day. You felt lost. Homelessness was an issue. 7. You have been assaulted a couple of times, once quite seriously. Those events were 20 odd years ago. 8. At one point in the early 2000s you did some inpatient drug rehabilitation at Odyssey House. That was for a very decent period it would seem. 9. You have a lengthy enough criminal history though plainly not for offending as serious as this offence. There are also some gaps in that history. There is only a single appearance for violence. Most of the offending is for dishonesty offending. I see no need to conduct an audit of that criminal history in these my reasons. You have been given a number of opportunities by the courts over the years and you have generally not taken them. 10. You have been sent to prison on a number of occasions most often as a result of breaching orders which had been designed to avoid that very outcome. So breaching community corrections orders or suspended sentences. You have received one sentence where a non-parole period was fixed. Being imprisoned has evidently not deterred you. Nor have suspended sentences or community corrections orders. 11. This offence obviously represents a very serious escalation in offending. 12. Now, you do not fall to be sentenced a second time for any of that past offending, nor does it aggravate this offence. But I do have to make judgements as to the need to deter you and to protect the community from you. I have to make judgements as to your future prospects of rehabilitation and plainly your history before the courts is relevant in that regard. 13. You have done some useful courses and programs in custody and you have returned clean drug screens. You have worked in custody as well and those who know you are encouraged by what they see. The letters of your parents and
Ms Smyth are encouraging. So too your own letter. 14. I turn then to consider the other matters raised by Mr Hooper.
Ms Smyth and references to how you felt about your actions in the expert report. Your discussion of the offending and your victim and the reasons for the assault as recorded by Ms Mynard are hardly fulsome expressions of remorse. Far from it actually. 2. There is very little if any remorse on display in that document. In fact you focus quite unduly on what you believed about the victim: see paragraphs 41, 50 and 61. I am certainly not satisfied on the balance of probabilities that there is fulsome remorse in this case. However, I do have your recent letter and also the older letters of your parents and Ms Smyth. I have your early enough guilty plea. I am prepared to find, as your counsel suggests I should, the presence of some remorse in this case and I take that into account in your favour.
Arthars[3] as standing for the principle that delay solely attributable to the fact of an offender exercising their right to contest criminal charges, will never be considered the 'fault' of the offender for the purposes of considering the effect of the delay on them and the extent to which delay is mitigatory. That it was of no moment that the delay was in part caused by your electing to contest the charges. See the plea submissions paragraph 22. That submission reproduced what was the last line of paragraph 27 in that decision of Arthars. 4. Paragraphs 28-30 of that same decision then clarified and explained that proposition and the extent to which the weight given to the unfairness limb of delay might be affected by the extent to which an accused had control over the length of the delay. I must look at the facts here. Was the delay inordinate or unreasonable? I note it does not have to be to engage these principles but of course the unfairness limb is far more directly engaged in a setting where there had been a delay outside the control of the accused. For instance in a setting where there has been an unduly leisurely approach adopted by the police or by the prosecution agency. 5. The delay in this case exists in large part as a result of you or your past counsel's decision to conduct the proceedings in the way that they have been conducted. You were very promptly charged. I note there was a plea offer made in August of 2019 which was rejected by the prosecution who argued that the principal charge was made out. Well, here you are years later affirming that view by your guilty plea. There was a contested committal in October and December of 2020. You were committed to this court and there were many procedural hearings conducted. 6. A defence response dated 28 April 2021 was filed on your behalf denying that you had committed the offence. Denying causing serious injury, intention to do so and denying acting in circumstances of gross violence. I understand from your counsel that at one point by way of instructions, you were taking issue with any loss of consciousness being sustained by the victim. Frankly, that was quite bizarre given the footage. 7. At one point there was a lengthy period leading into a sentence indication hearing, I mentioned that earlier in these reasons. It is hard to understand what could ever have been achieved in any sentence indication hearing given the provisions mandating prison and the inability at that time on a sentence indication to provide anything other than the binary response which existed prior to the amendments that had been made to the Criminal Procedure Act 2009. 8. The matter resolved in April 2022. It could have resolved in 2019 or early 2020 or in 2021. The delay here is not inordinate or undue and is explained by the way the case has been conducted on your behalf. That is just the fact. There were some periods of delay no doubt arising from the pandemic and as I have mentioned, some live issues being pursued and explored as to the residual injuries and whether supervening events or earlier events might have contributed to them. 9. I have set out this level of detail as this is not the sort of delay calling for some censure by the court, nor was your counsel suggesting that it was. The delay is perfectly explicable. That is not to say that it has been easy to have the matter over your head. Of course, it has not. Your counsel speaks of the 'profound stress' of having the matter over your head. There is no evidence in support of that proposition at all, none in the expert report which is so heavily relied upon in other areas. 10. You have continued to behave yourself in custody. You have worked and you have done appropriate courses and you have stayed out of trouble. In fact the materials before me, suggest that you have been doing pretty well in custody. 11. You get the benefits arising from your efforts in the course of this delay. I say benefits, and by that I mean the advantage of the present day judgement I can make as to improved rehabilitative prospects that can be gleaned from your attitude and efforts over the lengthy period of the delay. Delay is not the powerful factor that it sometimes is but I still take it into account. You have put your best foot forward and I do not doubt that it has been hard to have the matter over your head. I just do not accept that there has been profound stress here. 12. This is not a setting of you establishing some form of life in the community and waiting for the blow to fall and having no control over when it will. Given the nature of the offence, upon proof of the offence, it was always likely to end in a sizeable prison term. I do not ignore the delay or the mitigatory effect of it. I give each limb some weight, it is just that I do not rate it nearly as highly as your counsel appears to. I am not satisfied on the balance of probabilities that it is a powerful factor in this case.
Moral culpability may be reduced if, at the time of the offence, the impairment reduced an offender's ability to exercise appropriate judgement, make calm and rational choices, think clearly, or appreciate the wrongfulness of their conduct or if it made them disinhibited or even obscured the intent to commit the offence or contributed causally to the commission of the offence. Disinhibition or inappropriate or deficient judgment arising from drug use is all too common but is rarely mitigatory. It is not relied upon in a mitigatory fashion in this case at all and your counsel was explicit in that regard. 4. The effect of an impairment on moral culpability will always be a matter of degree. What a court is expected to do is to assess the gravity of the offending and examine the offender's conduct before, during, and after the offending in order to determine the extent of the impairment's contribution, if any, to the offending. 5. No causal connection is required but there must be some realistic connection. It is worth noting that if the offence is serious, an offender's culpability may only be reduced to a minor extent even where the impairment is significant. The court is meant to engage in a rigorous examination of the evidence and that will not be limited purely to the evidence set out in an expert's report. There is the summary, there is the footage, there is the conduct, what you have said at the scene, what you have said to Ms Mynard and her expressed opinions. 6. I suspect that I could spend the next hour quoting from the report of Ms Mynard and the submissions made by your counsel. I choose not to. My reasons will be long enough as is. I will turn to her opinions in one moment but a pretty simple alternative view of the facts exists in this case. Maybe it would even be the way you might have described, it though nothing particular hangs on that. Your conduct has been analysed and picked apart by Ms Mynard with theories or opinions expressed as to why you so acted. Is there not a much simpler view of it? 7. You had felt lost and helpless after the sad death of Kylie, your partner of 10 years. You went off the rails and used drugs and alcohol and engaged in risk taking behaviour. You were angry with the world. You were homeless. You had no support. You had a dislike if not a hatred of paedophiles. You came upon a man you believe, for whatever reason, to be a paedophile. You challenged him. He denied the accusation and you attacked him and went overboard. You were significantly affected and disinhibited by ice and alcohol. 8. You would not be the first person labouring under such a belief about another person to attack another, or the first person involved in a physical attack to go overboard whilst disinhibited by ice. It is a terrible drug. As Ms Mynard confirms, it heightens aggression. See paragraph 59. 9. Ms Mynard has seen you on two occasions and of course she relies on your
self-report. She has not viewed the footage which I must say, strikes me as very odd. 10. She details the sad decline of Kylie and your helplessness in response to her death at paragraph 18 and 19. Your counsel cites that report and by use of some pretty extravagant and emotional language in his submissions, converts it to the following, 'having invested himself fully he was forced to watch the tide go out on Kylie's life while he stood on the shore.' Ms Mynard's report is cited but of course no such direct statement exists within it. But onto the next paragraph in your counsel's submissions: 'Feeling hopeless, unable to see the meaning in life and without any concrete vision of the future he sought oblivion.' Again this is an emotive summary of what is in the report. I'm not greatly assisted by that style of submission or advocacy. 11. Ms Mynard diagnosed a good number of conditions. Six of them. They were: * Complex post-traumatic stress disorder. * Complex bereavement disorder (resolving). * Generalised anxiety disorder. * Social anxiety disorder. * Stimulant use disorder; and * Alcohol use disorder. 12. I note she received from you an account of escalating drug use including injecting ice and using as much as you could, with at least half a gram used each day. 13. I do not want to downplay the impact of the sad death of your partner. You had been together for many years and it seems that the last few were very sad as you adopted the role of being her carer. I am prepared to accept that you were devastated by the loss and had a sense of feeling quite lost in the world. 14. The diagnosis of complex post-traumatic stress disorder seems to relate principally to two incidents which occurred when you were 19 and in your early 20s and also to aspects of what is said to be the unsatisfactory relationship with your stepfather as a child. 15. In any event Ms Mynard reports that in the aftermath of Kylie's death you were devastated and abusing alcohol and drugs, without supports and angry.
She died in August 2018. She reports that you were angry at Kylie, angry at others, angry at the world. You tried to hide the emotions by as Ms Mynard describes it 'self-medicating'. See paragraph 37. 16. Well, let us call it what it was. You were abusing ice and alcohol and unsurprisingly, you report that you became explosive in anger. You would not be the first or the last person to be affected in such a way by ice or ice combined with alcohol. You reported to Ms Mynard 'hearing stories' about the victim. You said you were already like a volcano erupting, that you came across your victim when you were drunk, ice affected and sleep deprived and accused him. He denied the accusations. 17. You said that 'you knew different' and you assaulted him. You told Ms Mynard that you knew you were out of control and knew you were going to get into trouble. You told the author that you felt compelled to do something about what the victim had done. See paragraph 49. 18. The opinions offered by Ms Mynard are as extravagant as any I have ever seen in a report such as this. She says that you had displaced your anger towards the victim for years of emotional pain and trauma of your own, and Kylie's pain, and your new partner Lil's pain. You had anger towards sex offenders in general and targeted the victim who happened to be in front of you. He was almost a representative entity of those who had caused so much pain to others over the years and who had got away with it. See paragraph 55. 19. So anger at losing Kylie, anger at her for not living, anger towards her abusers and those who abused your new partner Lil and this all, it is said, was channelled into the attack upon the victim who had no role in any of that conduct. That the rational part of your brain, Ms Mynard says was shut down. Your underlying vulnerabilities resulted in anger which you took out on the victim. Paragraph 56. 20. That the complex post-traumatic stress disorder and complex grief significantly impaired your thought processes, reducing your capacity for basic executive functioning, impairing your reasoning skills and ability to exercise clear judgement. She is of the opinion that you were consumed with your own vulnerabilities and helplessness, identifying with the 'children' you believed had been victimised by your victim. 21. She says you were enraged and believed you needed to do something about it. You are reported as saying that you became out of control. In her opinion attacking the victim enabled you to physically fight and be the aggressor and 'win' which was in stark contrast to the many times in life that you were the victim and could not defend yourself. 22. As I say, these are extravagant and startling opinions. 23. Your counsel in his submission summed it up thus_: 'the cumulative weight of his experiences left Mr Weatherburn in a position where at the time of the offending on 10 June 2019, he was heavily drug affected, intoxicated, deprived of sleep, labouring under the weight of multiple and complex mental health conditions and in a highly vulnerable state as a consequence of the complex grief he was experiencing.'_ See paragraph 10. 24. Referring to Ms Mynard, your counsel went on to say of the post-traumatic stress disorder: 'This (the post-traumatic stress disorder) produced in Mr Weatherburn significant difficulties related to emotional dysregulation and significant interpersonal difficulties.' She also opines that complex grief further impeded his ability to control his emotions, consider the prudence and consequences of his actions and to make reasoned decisions. That in Ms Mynard's view,
Mr Weatherburn in his highly unstable state externalised his grief and anger making the victim a depersonalised effigy for his unresolved trauma. By attacking the victim Mr Weatherburn felt he could strike at what had hitherto been a largely nameless threat and that in her opinion, his ability to make rational decisions was severely impaired and his executive functioning, reasoning skills and consequential thinking were reduced.' See paragraph 12 of the submissions. 25. Well, these were startling opinions and this was a startling submission to be made to a court. 26. Courts are meant to strongly discourage and suppress acts of vigilantism. These opinions and the submissions made are virtually a vigilante's charter. Your victim did not exist to play some role in your therapy or to make you feel better about the world by you inflicting damage to this 'representative entity', as it is referred to by your counsel. You see, he was not a 'representative entity'. He was a human being and a mighty vulnerable one at that, as you well knew.
At the time of the offending, his methylamphetamine intoxication, use of alcohol and sleep deprivation also impacted his actions significantly, in terms of high impulsivity, lack of reasoning and consequential thinking and increased aggression and risk taking.
non-parole period are very frequently rewarded with sentences far in excess of the
non-parole period of four years specified for this crime. So much is clear from the examination of current sentencing practice and a number of past sentences that I have looked at. 3. Let me turn then to the provisions. I will not set out the provisions in full. 4. In the absence of a special reason, I must send you to prison with a non-parole period of no less than four years. That is the effect of s10 of the Sentencing Act.
Mental Health Act 2014. That definition section in s10(A) would include the conditions referred to in the expert report placed before me. I do not have any doubt about that at all.
10A(2)(c)(i) - Causally connected mental impairment
four years. See s10(1). 2. I must pay attention to the actual words used in the sub-section. They are not there by accident. I must also apply the other provisions of the
Sentencing Act, which give guidance as to the way those words are to be interpreted. I must firstly though consider the actual words used in the provision. The bar is raised very high here, by the words actually employed in the legislation. Not just substantial and compelling, that was a very high bar indeed, as cases interpreting that older provision made clear. See for instance the case of Hudgson[8]. 3. This is a very strict provision with a very high threshold. It is and is designed to be a stringent test. See the case of Farmer[9]. I cannot just ignore those additional words, 'exceptional and rare'. They have been added in to make it even harder to establish. The recent case of Buckley sets out how high this test is. So too Bowen from last year. At paragraph 44 of the decision of Buckley, the Court of Appeal said:
'As we have said, the legislative intention could not be clearer, by adding the words that are 'exceptional and rare', that Parliament intended to make the test almost impossible to satisfy.'
four years. It is equally clear to me that a sentence at that level would be hopelessly inadequate given the seriousness of this crime. 5. I have looked at a range of cases that look at forms of mandatory minimum periods and the sentencing task in such cases. See for instance, Mammoliti[10], Johns[11] and Esmaili.[12].
18 minutes. As I said earlier, you stepped away from time to time and then you stepped back in and continued the attack. It was really quite extraordinary. You had ample opportunity to pause for thought and to consider the gravity of your conduct, then to desist, but of course you chose not to. You continued on with an extremely violent attack. 5. There are a variety of circumstances which can be specified as the circumstance of gross violence under s15A. One matter is specified here and it was your continuing to injure an incapacitated victim. That plainly does not foreclose the courts consideration of the actual circumstances of the offence. What it does do is satisfy the element of intentionally causing serious injury with gross violence as one circumstance under s15A(2) is enough. 6. There was obviously some planning here. Now I am not talking about some plan to cause him serious injury as might be captured or specified under s15A (2)(a)(i), (ii) or (iii). Plainly it was a chance meeting, so I am not talking of any long term thought processes in play. But it was hardly completely spontaneous given the length of the attack and the fact that it was broken from time to time. 7. Your victim was not up for any confrontation. You approached him, assaulted him, followed him, pushed him to the ground. He was quickly rendered helpless and the attack continued. It was a sustained and quite brutal attack. Spanning 18 minutes with violence inflicted upon a person who was helpless almost from the outset, with kicks and punches delivered to vital areas. You had ample time to reflect on what you were doing and to desist and you chose not to. 8. The injuries were life threatening. He could have died. 9. You just walked off and left him to his fate. He was alone on his back in a dark car park for over 25 minutes. Meanwhile you said to a person you were with that you thought you had killed him. This was a callous and brutal attack with a callous departure leaving him to his fate. 10. Serious injury is defined as 'injury including the cumulative effect of more than one injury that endangers life or is substantial and protracted'. The first limb is relied upon here. The injuries you inflicted endangered his life. Your victim spent a sizeable period in an intensive care unit and a longer period in an induced coma and then further time in hospital leading into the transfer to Caulfield. 11. I have mentioned already the discussion in the case law as to the large variants of conduct that can make up an instance of intentionally causing serious injury. Those statements from cases including that of Nash clearly have application here. Some serious injuries whether under this provision or under s16 intentionally causing serious injury can be caused by a single punch or blow. Sometimes there might be a case with injuries which just barely meet the definition, or where there is some disconnect between the mechanism and the extent of injury such as when for instance a person is punched and falls and strikes their head. 12. That is not what I am dealing with here. This really was a brutal and quite merciless attack. You did not need a weapon, though from time to time you used an object as a weapon, it would seem a phone, to strike your victim. Your fists and boots were very effective weapons when connecting into a helpless victim on the ground. Many of your blows were delivered to his head. The footage shows the movement of his body from the impact when forceful blows were delivered to it. Priest JA mentioned in that case of Nash this concept of 'protracted savagery'. That term very aptly describes your conduct, I can tell you. 13. As I said at the outset, it is hard to imagine why anyone would or could engage in conduct as brutal as yours. Yet you did and you fall now to be sentenced for it. 14. In the circumstances, I am satisfied beyond reasonable doubt that you intended to cause your victim really serious injuries. 15. Judges in this court regrettably see injuries that are more catastrophic than these in terms of their ultimate physical residual impact. So injuries, if you like, with a greater lasting impact. We, as judges see some victims who are reduced to a highly compromised or dependent state, as a result of for instance, a brain injury. Well your victim plainly has significant ongoing issues but they can not be sheeted home to your criminal acts. As sad as his ultimate fate is, I am not able to conclude that you are responsible for that sad fate. See paragraph 29 of the opening. 16. We see some unfortunate victims who have sustained other forms of catastrophic injury, for instance a spinal injury and they might be wheelchair bound for life with all of the adjustments that need to be made for a different life which stretches out ahead of them. 17. As a result of the way this case has settled, I am not dealing with those sorts of catastrophic long term residual impacts. 18. But the serious injuries which I am dealing with were of a very high level in that they could have proved fatal and of course they led to a long enough stay in hospital, as we know. 19. The violence and the mechanism of the serious injury was simply extreme. It was savage. It was brutal. 20. There are many features of aggravation in this case. 21. One can I suppose, always imagine or hypothesize a more serious example of a given crime. There can almost always be a more serious outcome. There can almost always be a more a serious mechanism. That is not the best way to judge the seriousness of the actual crime that is before the court. 22. What I have got to do is look at this crime and how it was committed to assess the seriousness of this instance of intentionally causing serious injury in circumstances of gross violence. Viewed objectively, this crime is, in my judgement, a serious example of what is an inherently serious crime. It represents in my view quite grave offending. The extravagance of the violence is disturbing. 23. The Court of Appeal in a case of Terrick[17] made clear that the aggravating features common to many of those cases with the high-level sentences imposed for intentionally causing serious injury or even recklessly causing serious injury were; * One, where the attack was unprovoked; * Two, that it continued after the victim had become unconscious; * Three, that the victim sustained very severe injuries. 24. Very fortunately for you and for your victim, as dangerous as his injuries were on the day and the days beyond it has not reached that highest level of injury represented by those catastrophic residual impacts that I have mentioned such as brain injury or paraplegia. 25. It is only for that reason that you avoid the imposition of a sentence well into double figures and that is because there are many other features of aggravation that exist in this case. I want to make it plain that had his ultimate residual position that we know about, been sheeted home to your acts, to your crime, this crime would have been elevated up towards the worst category of offending. Of course that is not the position here. 26. Clearly there is the inevitability of a sizable term of imprisonment. The legislation sets a minimum non-parole period. That is what it is. 27. There has be a gap of at least six months between a head sentence and a non-parole period. It follows that for anyone committing this crime and who does not fall under the exceptions in the legislation, the lowest theoretical sentence would be four and a half years. I am not passing a theoretical sentence. What I have to do is pass an appropriate one. Your culpability was high here. There is only some modest reduction. The objective seriousness is high. 28. A crime such as yours demands a sentence well above that figure of four and a half years and a non-parole period well in excess of the mandatory minimum period, which is set at four years. 29. At the same time of course, I must strive to avoid a crushing outcome upon you. 30. Given the dimensions of the sentence that I will impose, of course I must fix a
non-parole period. I must not speculate as to whether or not you will be released on parole. That decision will be made by the Adult Parole Board. 31. Whether you are so released is a matter for the Adult Parole Board. It has got nothing to do with me.
Section 18 PSD
[1] R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 ("Verdins")
[2] Worboyes v The Queen [2021] VSCA 169
[3] Arthars v The Queen [2013] VSCA 258; 39 VR 613
[4] Buckley, Beau v The Queen [2022] VSCA 138
[5] Director of Public Prosecutions v Bowen [2021] VSCA 355; 65 VR 385
[6] Fariah v The Queen [2021] VSCA 213
[7] Director of Public Prosecutions v Haberfield [2019] VCC 2082
[8] DPP v Hudgson [2016] VSCA 254
[9] Farmer v The Queen [2020] VSCA 140
[10] Mammoliti v The Queen [2020] VSCA 52
[11] Johns v The Queen [2020] VSCA 135
[12] Esmaili v The Queen [2020] VSCA 63
[13] Nash v The Queen [2013] VSCA 172 ("Nash")
[14] Lukudu v The Queen [2019] VSCA 248
[15] Director of Public Prosecutions v Matthew John Evans [2019] VSCA 239
[16] Nash v The Queen [2013] VSCA 172 at [55]
[17] DPP v Terrick [2009] VSCA 220 ("Terrick")
DPP
Weatherburn [2022] VCC 1440