R v Bennett [2010] VSC 276

2 A plea was conducted on 6 May 2010. A Victim Impact Statement from William Meinhardt was tendered on the plea.

3 Your sustained attack on him was fierce and persistent; it is entirely fortuitous that the physical injuries he sustained were not more severe and long lasting. The psychological effects on him have been very substantial, not the least because he had taken you into his house as a friend.

4 Here, the victim has expressed great concern that you have been allowed to plead guilty to this offence, rather than being tried for attempted murder. In many ways, that is a side issue, but I think it is appropriate that I make some general remarks about it.

5 Juries have, for generations, been loathe to convict persons charged with attempted murder. That offence requires the prosecution to prove specifically, the intent to kill. In an attempt, the survival of the victim is implicit and they are usually in Court to give evidence. In many cases, acquittals have followed, even in circumstances where the conduct forming the basis of the charge has been accompanied by threats to kill.

6 The crime of attempted murder carries a maximum penalty of 25 years and that of causing serious injury intentionally, 20 years. The fact that the Director of Public Prosecutions accepts such a plea is not surprising, since it would always be considered necessary to include that offence as an alternative to attempted murder on a presentment or indictment. I would encourage the Director to again take such course as was taken in this instance by reason of the experience explained above.

7 I accept that Mr Meinhardt was prepared to give evidence a second time; his initial experience at the Magistrates' Court appeared to be unpleasant. I believe that it would have been equally as unpleasant for him here. Taking this course does save all the witnesses being cross-examined and the community the cost of a trial. I do understand Mr Meinhardt's concern about the matter, but I accept that this is an appropriate resolution when all the factors are taken into account. It is an unfortunate and unintended consequence that he is aggrieved by the decision of the Director.

8 When contacted in late March 2009, you informed Mr Meinhardt that you were currently in Adelaide. He agreed you could come to Melbourne and stay at his house in East Malvern. You moved into the house on 8 April 2009. The relationship between yourself and Mr Meinhardt slowly deteriorated. He expressed that he was unhappy with the way you were sitting around the house every day. You were unemployed at this time and not paying any board.

9 On 29 April 2009, you got out of bed at around 12.30pm. You argued with Mr Meinhardt after you began smoking inside the house, which had been a source of annoyance to him in the past. You had a shower and left the house, saying you were going for a walk.

10 You returned to the house at about 3.00pm with four cans of Wild Turkey bourbon and Cola, the remnants of a slab you had apparently been drinking in the park alone that afternoon. Mr Meinhardt told you that he did not want you drinking in the house. You ignored this request and sat down in the music room and lit a cigarette. He explained that he was about to start vacuuming and requested you go outside. You refused and a verbal argument ensued.

11 On the opening, it was said the following exchange took place:

Mr Meinhardt said: "Do you want me to call the Police?"

You replied: "I was at the Prahran police station today and everyone thinks you are a pest."

The argument escalated.

You said: "Well why don't you hit me?"

Mr Meinhardt replied: "I don't want to hit you."

You said: "Well I think you are going to have to hit me."

Mr Meinhard replied: "Can you get out of this house please?"

You refused to leave the house and the victim again threatened to ring the police.

You asked: "What are the police going to do?"

12 At 4.37pm you sent a text message to Hamilton Kings which read: "Yes I'm about to kill Will." At 4.40pm Mr Meinhardt phoned 000 from his mobile phone. He claims you told him: "You're calling the Police. I'm going to have to kill you." He told D24 his address and that someone would not leave his house. From this point the fight escalated.

13 Mr Meinhardt provided police with a full account of what occurred. He tells of how you then rolled up both your sleeves. You said: "You killed my sugar daddy, now it's time to kill you." At this point he describes you as becoming enraged.

14 You said: "I'm gonna kill your dog after this. I'm gonna kill him really fuckin' slow. I'm gonna break his back legs so that he dies really fuckin' slowly. He's gonna be in real fuckin' pain." You then started throwing punches at him, punching him to the stomach and rib area. He walked backwards out the back door. You continued coming at him, and together you ended up wrestling each other on the ground.

15 You were on top of him as he was lying on his back. You picked up a large ceramic pot and brought the pot down trying to hit his head. He managed to move, the pot only grazing him. You raised the pot again and attempted to hit him to the head. He again moved and the pot cracked on the ground. Mr Meinhardt then apparently managed to flip you off him and you both stood up.

16 Another wrestle ensued and he found himself in the same position as before, lying on his back with you on top of him. You said: "You're gonna fuckin' die now. I'm gonna put you to fuckin' sleep."

17 You tried to strangle him with both hands around his throat. He could not breathe. You bashed his head into the concrete several times by grabbing the his head with both hands and bashing it into the ground.

18 Mr Meinhardt was on his back lying next to a concrete Buddha statue. You tipped the statue in his direction. At some stage the head of the statue broke off from its body. You then continually hit him to the head with the head of the statue. Mr Meinhardt stated he thought that "this was it" and that he was going to die.

19 He stated you jumped on his stomach whilst he was lying on the ground. He remembers you doing this three or four times before passing out, and remembers nothing after this until waking up later in the hospital.

20 During an examination of the crime scene, a bloodstained dumb bell and a piece of wood were located in the lounge room of the house.

21 At 5.20pm police arrived at the address and tried to raise someone inside the house. At 5.23pm you phoned Hamilton Kings. You said, "I think I killed Will." At 5.29pm police left the address believing that no one was home. At 5.29pm You phoned 000 from your mobile and reported that your flat mate had just tried to commit suicide with a knife and there was blood everywhere. At 5.30pm you phoned Hamilton Kings, who told you to keep away from Mr Meinhardt and wait until the police arrived.

22 At 5.32pm police re-attended at the premises. Mr Meinhardt climbed a wooden fence on the right side of the property from his backyard into Taylor Court. He then walked to the front of his house where he met police. He was conveyed to the Alfred Hospital by ambulance. A police officer kicked open the locked side gate to gain access to the backyard. You were arrested and conveyed to the Prahran police station where you made a "no comment" record of interview.

23 Mr Meinhardt sustained the following injuries: a small sub-arachnoid haemorrhage, a closed head injury, a laceration to his left ear requiring debridement and repair by plastic surgery, laceration to his left hand requiring a mallet finger splint for about six months, and there will be a residual permanent disability. Scalp lacerations which required being sutured and stapled, left eye contusions, loss of consciousness. There appear to be no injuries to his neck. Post-traumatic amnesia lasting approximately four days, although Mr Meinhardt did communicate with the attending police in a meaningful way at the time of their arrival. Mr Meinhardt appears to have lost any opportunity he had to join the Police Force. As I have already observed, he reports suffering from ongoing psychological and psychiatric difficulties which is hardly surprising given the nature of his ordeal.

24 You met Mr Meinhardt whilst he was a student at Melbourne Grammar School. He met you through Hamilton Kings, who was also a student at the school a few years ahead of him. At the time, you were living with the Kings family.

25 In August 2007, William Meinhardt reported to police that he had been sexually abused by Dr David Kings, the father of Hamilton Kings, and an investigation was commenced. On 19 January 2009, you made a similar complaint. On 20 January 2009, Dr David Kings took his own life. This offence occurred on 29 April 2009.

(1) Report of Dr Lester Walton, psychiatrist, dated 19 January 2010

(2) Report of Dr Simon Kennedy, psychologist, dated 13 April 2010

(3) Supplementary report of Dr Simon Kennedy, dated 3 May 2010

27 Your personal background is somewhat complicated. You were born in Adelaide on 13 March 1979 and are now 31 years of age. Your parents, both of whom suffered depression, separated when you were 11. Your father was an alcoholic. You lived with both parents at various times and began to abuse alcohol and cannabis at an early age.

28 When you were 15, there was an attempt at detoxification undertaken by the Salvation Army. As a result of your attendance there, and due in part to the inability of your parents to control you, you were taken into the Kings family and remained there for about three years. You reported to both the Medical Board and the police that you were sexually abused by Dr Kings regularly over an extended period of time. You have not undergone any form of counselling in relation to such abuse and personally regard it as preventing you from being 'able to get on with [your] life', as you put it to Dr Walton. You also regard such events as having contributed to your use and abuse of alcohol.

29 Although you had returned to Adelaide briefly at the time of your father's death when you were 19, you came again to Melbourne. You had attended the John Gardner Secondary College from Years 10 to 12, but you left in Year 12 without completing that year. You worked for Dr Kings until you were about 22. You told Dr Kennedy that the sexual abuse stopped at that stage and Dr Kings apologised to you. You worked for Coles Myer until you were made redundant when you were 26 years old.

30 At that stage, you returned to Adelaide. Between about 2005 and 2009, you were in a relationship with a woman some 18 years your senior, who was a qualified nurse. She suspected and later encouraged you to reveal details of your complaint of abuse by Dr Kings to her. She, in turn, reported the matter to the Medical Board and you made a statement to the Board in 2007. Throughout that time, your alcohol consumption had been increasing.

31 At some stage afterward, you returned to Melbourne, where you commenced or recommenced a relationship with Dianne Collins and lived with her at her house in Pascoe Vale. After a time however, you again returned to Adelaide before you came back to stay with Mr Meinhardt. Ms Collins has been to visit you in prison and you have her support.

32 Dr Walton said this about you under the heading 'Opinion':

1. I admit to some uncertainties about Mr Bennett's precise diagnosis but, as best I can judge, in a context of alcohol-dependency he has suffered from alcohol-related hallucinosis on a recurring basis but seemingly for relatively brief periods of time only. I can find no evidence of an enduring psychotic illness such as schizophrenia. As is not uncommonly found, in parallel with the alcohol abuse, there is chronic anxiety and depression, very likely of diagnosable proportions.

Whether or not Mr Bennett ever suffered from Attention Deficit Hyperactivity Disorder is now of academic interest only as there is no current evidence of that condition and it is quite common for boys to grow out of it. Mr Bennett is of normal intelligence with no evidence of intellectual compromise.

Mr Bennett is a sexual abuse victim.

1. Clearly the situation was one of feeling of ambivalence towards the victim but precisely what motivated Mr Bennett to become involved in seemingly largely out-of-character aggressive behaviour remains obscure. There was a pattern of escalating alcohol abuse exhibited by Mr Bennett (and according to him by the victim as well) in the months leading up to the incident and Mr Bennett also reported increasingly frequent arguments between them, the basis of which also remains obscure. I suppose in many respects the final outcome can be seen as the culmination of this build-up.

While Mr Bennett does speak of recurring bouts of auditory hallucinations in the months preceding the incident, as best he could remember that phenomenon was not occurring at the time of the incident and, in any event, I could not state that Mr Bennett was actually suffering from a disease of the mind as defined legally.

That said, clearly Mr Bennett was far from being in a state of mental equilibrium at the time. His behaviour generally was deteriorating in the context of the mounting alcohol abuse and he was prone to at least intermittent psychotic episodes. Thus while I could not state that he has a formal defence of mental impairment available to him, it does seem that his capacity to exercise proper social judgment likely was eroded.

...

1. Mr Bennett remains in a state of considerable anxiety and depression at present and I am concerned that he is not receiving active psychiatric treatment. Simply by virtue of being incarcerated he has completed acute detoxification but he requires further rehabilitation.
2. Despite his feelings of ambivalence towards the victim on a long-term basis, Mr Bennett can express appropriate remorse.
3. As indicated above, my view is that Mr Bennett does not have a sense of mental impairment but given the much more inclusive process surrounding Verdins considerations, I believe that course would be open to the sentencer if it were deemed appropriate. In my opinion Mr Bennett's mental disturbance did make some contribution to his misconduct and there are ongoing issues to be addressed at present. He remains in a state of suicidal despair and thus I believe he is properly described as experiencing more than usual onerousness associated with being incarcerated. Mr Bennett is not an unintelligent man and he ought to be able to apply himself to treatment and rehabilitation with benefit. It is reassuring that despite Mr Bennett's lengthy history of recurring alcohol-induced intoxication, he has not been especially prone to violent behaviour even when drunk. Especially if he should manage to sustain sobriety in the future then the likelihood of aggressive behaviour emerging again would seem to be quite low.

33 Dr Kennedy, in his supplementary report, said, under the heading 'Conclusions':

A supplementary evaluation was undertaken with Mr Simon Bennett. To formulate the nature of his difficulties, he has grown up under problematic circumstances with his parents' separation, domestic violence, alcohol abuse, and experiences of neglect. By his mid teens he had problems with his own behaviour and substance abuse.

Mr Bennett was taken in by Dr David Kings and his wife in a form of rehabilitation. Nevertheless, Mr Bennett was sexually abused by Dr Kings and was exposed to substantial emotional manipulation. The sexual abuse has led to personality problems over time, with associated alcohol abuse and dependency and some drug use. There is evidence of disrupted mental state in his late 20s with some suicidality and paranoia.

The sexual abuse is clearly the primary trigger for Mr Bennett's personality disorder with borderline features. As with many individuals with such a disorder, his behavioural disturbance related to the current offending appears to be directly caused by his personality functioning and exacerbated by situational factors, especially the reporting of Dr Kings to the medical board and Dr Kings' subsequent suicide. Mr Bennett's mental state deteriorated in this context, and his substance abuse.

It is inevitable, in my opinion, that the sexual and emotional abuse experienced by Mr Bennett has led, by way of his disturbed personality functioning and substance abuse, to the current offending. Since incarceration, it is clear that Mr Bennett has had time to be able to gain greater insight into his own difficulties. He has sound employment possibilities with having worked previously in various areas in the past, as well as having his real estate licence. He is a man of average intelligence, however, he requires significant treatment to deal with both the issues of his past and his ongoing personality functioning. He requires intensive psychological treatment following a cognitive behavioural and dialectical behaviour therapy model with an experienced clinical psychologist with expertise in the area of treatment of personality disorders. He is unlikely to be able to receive such treatment in incarceration, but the treatment would be available on his release. I am able to suggest treatment providers.

Clearly, Mr Bennett's prognosis without substance abuse has markedly improved. He appears to have insight into the importance of him remaining substance free, and this is a positive feature and reflects on his ability to use his intelligence to work his way through what are very difficult problems.

Mr Bennett is a man with borderline rather than antisocial personality features, and a person for whom his mental health functioning is central to the stability of his behaviour.

34 You have a number of prior convictions dating from July 2000 to March 2009. They involve assault, causing injury recklessly, assaulting and resisting a police officer, affray and various street offences. Your conviction for wilful and obscene exposure was put to me as being unrelated to anything sexual and there was no submission to the contrary. On the whole, the convictions appear to me to be largely alcohol or anger related, or probably more accurately, both. You were given a number of opportunities in the form of release on Community Based Orders. You breached two of the three orders, but without apparent consequence.

35 In the context of the psychological and psychiatric material, I was urged to give weight to the principles set out in R v Verdins.[1] If these principles were to operate, they would do so to reduce your moral culpability, lessen the need for you to be a vehicle for both general and specific deterrence, and I would be obliged to have regard to what Dr Walton has said about the effect of imprisonment upon you.

36 Your life has been a difficult one, but I am not satisfied that the material before me would justify significant weight being accorded to your mental state when framing this sentence, but I do accord it some weight. The evidence is, at best, inconclusive, and your mental state cannot be separated from your abuse of alcohol.

37 Your criminal history, which I have detailed above, clearly demonstrates your knowledge of the effects of alcohol upon you and which led to abhorrent and angry behaviour. I would not go so far as to say your abuse of alcohol is an aggravating factor in the present case.[2]

38 I accept that your time in prison has been made more difficult as a result of some press reports in relation to this matter. It may have caused you to lose one job you had in the prison, although you have gained another.

39 When viewed objectively, the injuries in this matter are not at the higher end of the range, although as I have already observed, that was largely fortuitous. Why you turned on Mr Meinhardt in the way you did remains largely unexplained, born largely out of alcohol-induced anger. You have credit for pleading guilty. You have shown some remorse.

40 I regard both the question of your remorse and your prospects of rehabilitation as being matters to be treated with caution.

41 You said to Dr Walton: "I feel terrible. I'm normally sober, gentle and nice. I repulse me. I definitely won't be drinking again. To beat another human being is pretty unforgivable". At least the first part of that statement is inaccurate, but you do now appear to have some insight into the difficulties your drinking causes you.

42 This was a sustained and fierce attack that remains largely unexplained. Mr Meinhardt suffers from the ongoing consequences of your actions.

43 You are sentenced to be imprisoned for a period of 6 years.

44 I fix a period of 4 years before becoming eligible for parole.

45 I am obliged to state the sentence I would have imposed had you not pleaded guilty. In this case you did have the advantage of not facing the charge of attempted murder and there are some other aspects of the case which would not have been applied to your benefit in the absence of your guilty plea. Attempting to isolate your plea, I would have sentenced you to be imprisoned for 7 ½ years with a non-parole period of 6 years. It will almost always be the case that there will have been a more substantial reduction in the non-parole period.

46 I declare that you have served 414 days pre-sentence detention, and direction that this declaration and its details be entered into the records of the Court.

[1] [2007] VSCA 102; (2007) 16 VR 269.

[2] See R v Shafik-Eid [2009] VSCA 217, per Lasry AJA [27]-[30].