DPP v White [2008] VSC 565

3 Following the verdict, the matter was stood down for presentation of a plea on your behalf. Because of time taken for the obtaining of a psychological report concerning you and some difficulty with counsel availability, the plea did not take place until 3 November 2008. As the medical condition of the victim Mr Dunstan was not clear, I sought a medical report as to his condition and a report dated 28 November 2008 has now been provided to the Court. Neither counsel wishes to make submissions as to that report. I shall refer to the psychological report concerning you and the neuropsychological report concerning Mr Dunstan shortly.

4 It is the Court's proper practice to hear pleas and to impose sentence in the regional court where the events and trial occurred. Because of listing pressures in December it is not possible to return to Wodonga to impose sentence. However these proceedings are being contemporaneously videocast to the Wodonga Supreme Court.

6 In January 2007 you were residing in Wodonga with your long-term partner, Kylie Williams and your two young children. Also residing in Wodonga were Mr Dunstan and his partner Sally Burnside, who was your half-sister, and their two young children. There was bad blood between you and Mr Dunstan. On Sunday 14 January 2007 your partner and children were at the residence of Mr Robert McCallum in Beechworth Road, Wodonga. Also there were Mr Dunstan, Ms Burnside and their children. Early that evening you were driven by an unknown person to a side street of Beechworth Road, Chenery Street, adjacent to the McCallum residence. The unknown driver parked the vehicle in the side street. You alighted, took a rod or iron bar from the vehicle and approached the McCallum residence along Beechworth Road. Mr Dunstan, who had been apprised of your impending arrival at the McCallum residence, went to the front of the driveway on Beechworth Road. He was intoxicated and was armed with a long-handled broom in order to prevent your ingress and to defend himself. Mr Dunstan to your knowledge had prior convictions for violence including by the use of a knife. However on 14 January 2007 he did nothing except act to prevent your ingress and in self-defence. You were the aggressor. You went there with an unknown accomplice and armed with a rod or iron bar. With absolutely no justification, you struck Mr Dunstan once severely to the head with the rod or iron bar. He collapsed where he was struck. You the left the scene after being confronted by your half-sister who was wielding two knives and returned to the waiting vehicle in Chenery Street. You placed the weapon in the boot of the vehicle and were driven away.

7 Upon being arrested and interviewed by police on 24 January 2007 you lied to them. You said you had walked to the scene and had no weapon. These untruths were presented before the jury in the videorecording of that interview. Your counsel loyally and properly acted on your instructions. Yet in your examination on 9 July 2008 by Mr I Joblin, psychologist, consequent upon the jury verdict on 18 June 2008 you stated to Mr Joblin that you had been driven to the scene and that you "retrieved a curtain rod"(unstated from where) which was the weapon used by you. You have no remorse for this offence.

8 Mr Dunstan was born on 6 June 1975. He was 31 years of age at the time of the assault and is now 33 years of age.

9 Your assault upon Mr Dunstan was a seriously harmful one. He sustained two fractures of the skull from the one blow with the bar or rod you wielded. There was an extensive linear fracture through the right frontal and parietal bones together with associated haemorrhages over the surface of the brain which caused damage to the brain. The fractures were not displaced or depressed. Mr Dunstan was removed to the Albury Base Hospital and then the Alfred Hospital, Melbourne. Ultimately he was discharged on 22 January 2007 to the Royal Talbot Hospital for rehabilitation but the next day he discharged himself from that hospital.

10 Because of my concern as to the lack of follow-up medical data, at the plea I sought a further medical report. The Court was provided a helpful and extensive neuropsychological report dated 28 November 2008 of Ms L Vernieux consequent upon examination on 21 November 2008. That report establishes that Mr Dunstan continues to suffer sequaelae from the assault including headaches, severe impairment of sense of smell and impairment of sense of taste, and that he has "a residual mild but permanent brain injury as a result of the assault on 14 January 2007." Ms Vernieux states that "Mr Dunstan's cognitive weaknesses of verbal memory, abstract reasoning and concentration are consistent with documented brain damage in the temporal and frontal areas of the brain." The prognosis is now stable. Ms Vernieux states that "Mr Dunstan's cognitive difficulties are unlikely to affect his ability to care for his children, but they are likely to impact upon his ability to work, specifically making it difficult to recall instructions and information unless it is repeated a number of times." I have examined the victim impact statement of Mr Dunstan which is dated 9 July 2008 and is exhibited before the Court. It is clear from that statement, and particularly paragraphs 4 and 5 thereof, that the assault upon and injury to Mr Dunstan have had significant and lasting consequences for him and for those around him.

11 Mr White, you were born on 15 December 1972. You were 34 years of age at the time of the offence and are now 36 years of age. You have 49 previous convictions sustained in ten court appearances from September 1990 to March 2006. Apart from one set of convictions, the convictions were all in Magistrates' Courts. They were primarily for drug and dishonesty offences. However, you have some convictions for violence. In the Melbourne County Court on 8 August 1997 you were convicted of aggravated burglary and of criminal damage. On the aggravated burglary conviction you were sentenced to be imprisoned for 3 months which sentence was wholly suspended for a period of two years. You were sentenced to a community based order on the criminal damage conviction which order you breached whereupon you were released upon an undertaking to be of good behaviour for two years. You were convicted of unlawful assault in the Wodonga Magistrates' Court on 6 February 1996 for which you were fined $650.00; then, a sentence of substance, for assaulting a police officer in the execution of his duty in the Wodonga Magistrates' Court on 10 April 2001 together with numerous drug convictions resulting in a total effective sentence of three years' imprisonment with a minimum term of 15 months' imprisonment; unlawful assault in the Wodonga Magistrates' Court on 15 November 2005 for which you were fined $500.00 together with two other charges; criminal damage in the Wodonga Magistrates' Court on 20 February 2006 for which you were fined $300.00; and resisting a police officer, using threatening words, criminal damage, and assaulting a police officer and other charges at the Wodonga Magistrates' Court on 21 March 2006 for which you were sentenced to four months' imprisonment and fined $800.00. Thus you have a record over sixteen years of criminal offences involving some generally low-level violence in a context of drug and dishonesty offences. Then in January 2007 you seriously assaulted Mr Dunstan and recklessly caused him serious injury.

12 Your counsel, Mr Desmond, on the plea has comprehensively put on your behalf every matter in your favour. Mr Ian Joblin, forensic psychologist, in a report dated 14 July 2008 following an examination of you on 9 July 2008 rehearsed your personal history and provided a psychological assessment. You were an only child. Your parents separated when you were in primary school. You completed year nine of secondary school and are literate. While in secondary school you experienced severe difficulties consequent upon the violent behaviour of your then stepfather. Upon leaving school you had various labouring jobs. You had a long term relationship with Kylie Williams by which there were two children now aged 14 and 13. Unfortunately it appears that that relationship is now ended. You did not have a history of alcohol abuse or cannabis use but did have a history of heroin use, which plainly underlay a number of your prior convictions. To your distinct credit, after your period of imprisonment in 2001 you no longer used heroin. Mr Joblin, a most experienced and able psychologist, in his report stated that you were a person of "reasonable intellect", that you are "certainly not psychotic" and that "there was little to indicate at the time of my interview with him any significant clinical diagnosis." The most that Mr Joblin was able to say was that "there is some evidence of symptoms of a personality disorder" but was not more specific than that. It is apparent that what lay behind your attack on Mr Dunstan were interpersonal matters.

13 This was a serious assault upon Mr Dunstan. You struck him forcefully once to the head with a rod or iron bar and were reckless as to the injury likely to have been caused thereby. You then left the victim on the footpath and decamped the scene. You have a number of prior convictions for limited violence and have served a substantial term of imprisonment (the 10 April 2001 convictions). The principles of general deterrence - deterring others from using violence, particularly to the head - and specific deterrence - deterring you from future violence - have especial application in your case. Reformation always is important, and is important in your case, Mr White. You also have suffered the loss of the relationship with Ms Williams and you suffer the disconnection of imprisonment from your children for whom you care as a father. Your two children now reside with your mother in Wodonga. You have qualified for a Housing Commission Authority house in Wodonga and propose to return there after sentence and to care for the children. That matter, and the fact that you successfully completed parole after your 2001 convictions, lead to your being given a longer period of parole in this sentence than otherwise I would have ordered.

14 You remained on bail until conviction and have served a total of 181 days in pre-sentence detention. Pursuant to s.18(4) Sentencing Act 1991, I declare that a period of 181 days pre-sentence detention served under the sentence I impose and so certify.

15 Mr White, for recklessly causing serious injury to Mr Dunstan I sentence you to seven years' imprisonment. I direct that you serve a period of four years' imprisonment before being eligible for parole.