R v Derich [2009] VSC 160

Supreme Court of Victoria|2009-04-08|Before: OSBORN J

CRIMINAL LAW - sentencing - recklessly cause serious injury - breakdown of de facto relationship - sequence of violent acts - major depression - substance abuse - alcohol and benzodiazepines - offer to plead quickly to offence of which ultimately convicted - prospect of rehabilitation - total effective sentence 6 years, minimum non parole period of 3 years in respect of this and sentence on prior convictions

1 Shaun Nicholas Derich, you have been convicted by a jury of 12 of recklessly causing serious injury to Juneryt Gogan by stabbing him with a knife on 31 August 2007.

2 You were born on 31 March 1979 and at the time of the offence you were 28 years of age.

3 When you were 15 years old you commenced going out with Kerry Warren, who in due course became your de facto partner. The two of you have two children, Tanisha and Hayley, who were aged 7 and 9 years old at the time of the offence. The offence occurred in the aftermath of the breakdown of your relationship with Kerry Warren. She had left you some months previously. She initially took your daughters with her and then it seems at her request returned them to you. She resisted all attempts on your part however to get her to return to you.

4 On 19 July 2007 you were involved in an incident prior to the offence now in issue in which you smashed in the front bedroom window of a house occupied by other friends of Kerry Warren with whom she was then staying.

5 After smashing the window you climbed in and ran through the house until you found Warren and then assaulted her.

6 You then fled and drove off in your car. At the time you were unlicensed, having had a previous licence cancelled as a result of drink driving.

7 You initially denied what had occurred to police but subsequently pleaded guilty to one count of criminal damage, one count of aggravated burglary, one count of unlawful assault and one count of driving whilst disqualified.

8 His Honour Judge Pilgrim sentenced you in the County Court in respect of these offences on 31 October 2008. He was satisfied that the offences were committed when you had consumed a considerable quantity of alcohol together with Xanax medication. He further accepted that when you failed to get the opportunity to speak to Ms Warren at her friend's home you 'lost it'.

9 At the time of sentencing it was plain you had had a serious alcohol problem. You were sentenced to a total effective sentence of 20 months and 7 days imprisonment and his Honour fixed a minimum non-parole period of 4 months and 7 days. This sentence was fixed as his Honour put it 'to tailor further criminal matters that will be faced in another jurisdiction in the new year.' You had served 10 days pre-sentence detention.

10 I must now sentence you as a result of the jury's determination of the outcome of the further proceedings contemplated by the sentencing judge in the County Court.

11 The offence on 31 August 2007 can be seen to have occurred relatively shortly after the offences for which you have already been sentenced in the County Court. It also occurred in the aftermath of the breakdown of your relationship with Kerry Warren, at a time when you were drinking heavily and using Xanax in conjunction with such drinking.

12 On the day in question you pursued Kerry Warren by attending the home of one of her best friends, namely Kirsty Godden, who lived with Juneyrt Gogan. You first attended at about 1:30 pm in the afternoon. You parked your car outside their house and hurled threatening abuse towards it. At the time you knew Kerry Warren had stayed with Kirsty Godden and it seems believed she was still staying there.

13 The abuse hurled at the house was heard by Kirsty Godden. Later that day and as a result of this incident, there was an acrimonious exchange between Juneyrt Gogan and you on the telephone.

14 At about 7:00 pm you came back to the house and sought to force entry into it. A fight broke out and after the exchange of punches and blows took place between yourself and Juneyrt and Kirsty, you left the scene and drove off.

15 Shortly afterwards, Juneyrt pursued you in his motor car having retrieved among other things a small homemade wooden baseball bat from the house. When Juneyrt reached the vicinity of Brimbank Shopping Centre, he rang you on your mobile telephone trying to locate your whereabouts. You told him you were outside his house, having in fact returned to that location. It is possible that you believed Ms Warren was present in the house. Alternatively you simply wished to continue the confrontation with Gogan. Whichever is the case it was your return to the scene which rendered subsequent confrontation almost inevitable.

16 When Juneyrt returned to his house you confronted each other. He got out of his car and says you drove at him on the nature strip. I accept there may be some exaggeration in his account of this. It is common ground however that he then damaged your car by smashing a series of windows with the wooden bat. I accept you were in the car when he did so.

17 You then had a choice. You could simply have driven off, but did not do so. You got out of your car armed with a knife and ran at him. He sought to escape but you caught up with him and when he turned back to face you, you stabbed him in the chest. You inflicted a slash to the chest terminating in a wound which penetrated the chest cavity some two centimetres below the left nipple. The depth of the wound is uncertain, but it is apparent that it was at least one centimetre deep and pierced the mediastinum being the area adjacent to the heart. It also appears to have damaged the lung.

18 In turn the psychological impact of your actions was substantial for both Juneyrt and Kirsty.

19 Juneyrt has filed a victim impact statement. In summary he suffered damage to clothing; a wound requiring emergency care and hospitalisation; and severe emotional disturbance. I accept the evidence of Juneyrt and Kirsty given at the trial that both were terrified by the wound you inflicted. Whilst it is true that Juneyrt made a good physical recovery, it is apparent that both the initial symptoms and the initial treatment he suffered were traumatic experiences. Since suffering the injury he has moved back to live with his family after an extended period of independent living. He has also failed to resume work, despite having been in steady employment for some two years prior to the incident. I would add that it is plain from Kirsty's evidence at the trial that the incident had a very material effect on the relationship she had had with Juneyrt up until that time. Your Counsel expressly accepted on your plea that both Juneyrt and Kirsty had suffered ongoing psychological impact as a result of Juneyrt's stabbing.

20 These consequences were all of a type which were reasonably foreseeable as result of the type of assault you perpetrated. They underline the gravity of your offending.

21 I am satisfied that at the time you stabbed Juneyrt:

(1) You were materially affected by alcohol. The circumstantial description of the manner in which you first presented at the premises given by the witnesses is entirely convincing. You presented looking at the ground, swaying on your feet, and repeating questions. You became almost immediately aggressive and after a fight with Juneyrt and Kirsty you drove off with your headlights off. These circumstances corroborate your heavy drinking which was it seems at the time a continuing problem.

(2) The stabbing was motivated by anger having its roots in the breakdown of your relationship with Kerry Warren and resulting in a similar pattern of behaviour to that which you engaged in at the time of the offences in respect of which you have been previously sentenced.

(3) At the time you stabbed Juneyrt you were deliberately attacking him with force, because among other things he was armed with a wooden bat.

(4) The jury have found that at the time of the stabbing your state of mind was one of recklessness as to serious injury. This finding is entirely consistent with a state of mind affected by alcohol.

(5) The stabbing constituted a deliberate escalation in the level of confrontation which had occurred progressively over that day and evening. Your attack involved a deliberate choice made when you had the option to vacate the scene.

22 I make the above findings bearing in mind that I must be satisfied of matters adverse to you beyond reasonable doubt but may give you the benefit of circumstances in mitigation of penalty, of which I am satisfied on the balance of probabilities.

23 Mr Lewis also submitted that the jury's verdict is only consistent with the occurrence of a struggle at the time Juneyrt was injured. It is plain the jury were satisfied you did not act in self-defence, and in my view the verdict is entirely consistent with Juneyrt's general description of the manner of infliction of the ultimate injury which I have summarised above.

24 I do not accept that either the nature of Juneyrt's wounds or the location of the single holes in either his t-shirt or top compel a different conclusion. It is true that the wounds comprise a vertical slash and a horizontal stab between the ribs. But they are immediately adjacent to each other and entirely consistent with the progress of a blow which was not retracted but pursued through a slash and then with a turned blade pushed into the chest. The position of the holes in the clothing is equivocal given the manner in which Juneyrt describes twisting and seeking to avert the blow by raising his hand to grab your wrist. I might add that even if there were two blows, that given the jury were satisfied you did not act in self-defence (in circumstances where Juneyrt was armed with the wooden bat), the fact of two blows rather than one would, if it be what truly occurred, aggravates rather than mitigate your offending.

25 Mr Lewis highlighted the fact that the breakdown of your relationship with Kerry Warren echoed the circumstances of the breakdown of your mother's relationship with your father (to which I will return). It might also be said that the August offence echoed in material respects aspects of the July offences.

26 Mr Lewis also drew attention to the fact that you had offered, if other charges were dropped, to plead guilty at an early stage to the offence for which you were ultimately convicted. I accept that this must count in your favour and demonstrates some acceptance of responsibility for the stabbing, although of course you pleaded not guilty to all charges in this court, including that on which you were ultimately convicted.

27 Mr Brown emphasised that at the time of the August offence you had recently had the experience of the July offences. He submits that you must have known the dangers of mixing alcohol with Xanax before embarking on confrontational behaviour. I accept that the significance of your substance abuse must be assessed in the light of the evidence as a whole including the evidence as to the July offences.

28 I turn then to your personal circumstances. Evidence has been called on your plea from Mr Patrick Newton, an experienced forensic psychologist and from your father.

29 You are a 29 year old Aboriginal-Australian man who grew up in a relatively stable family situation until your mid-teens. At the age of 15 your mother left the family without explanation in order to live with a new partner. You found this very traumatic and it was at this time you commenced drinking heavily.

30 You left school after completing Year 9, when 15. You then trained as a panel beater and have worked in a range of semi-skilled positions since.

31 At 15 you were a very good footballer and you have now formed the desire to resume playing when you are released from custody. It may be that this will help you make a new way of life.

32 From 1994 until 2007 you lived in a relationship with Kerry Warren. When Ms Warren left you in 2007 you relapsed into significant depression and very heavy drinking. Her departure echoed that of your mother's, in that she left you for another man. You suffered additional stress because initially she took your children with her, and when you recovered their custody you were confronted with the need to care for them as a sole parent.

33 At this time you report drinking up to 30 or so standard drinks in a given episode. You were also using Xanax, an anti-anxiety drug, the effects of which were synergistic with alcohol.

34 You have prior convictions for drink-driving offences, which are entirely consistent with this history and point to a serious alcohol dependence problem.

35 In addition in 1995 after your mother's departure you were placed on a youth supervision order in respect of a charge for intentionally causing serious injury and other charges.

36 You thus come before this Court with a series of prior convictions for assault including most significantly of course the conviction arising out of the July 2007 incident in respect of which you have been sentenced in the County Court. In so saying I accept it must be recognised that each of these offences occurred at times of great stress in your life.

37 When Mr Newton saw you in February 2009, his view was that your mental state had deteriorated since his first assessment of you in October 2008. In his view you were suffering a range of depressive symptoms in the context of significant anxiety. You were being treated with an anti-depressant with some positive impact, but continued to suffer a range of residual symptoms. These included ongoing grief at separation from your family, anxiety and sleep disturbance.

38 In summary, Mr Newton's opinion was that you continue to suffer from the residual impacts of a major depressive disorder that you have suffered since your mid-teens. You are receiving good medical care in custody and have experienced a reduction in the intensity of symptoms as a result, but it is in his view clear that you nevertheless continue to experience significant depressive symptoms. Not only do these make your experience of incarceration more onerous than that of non-depressed prisoners, but they also point to the need for the maintenance of appropriate ongoing medical and/or psychological treatment.

39 In his further view the time you have spent in custody has enabled you to develop insight into your alcohol dependence. In addition you have profited from anger management training. Mr Newton summarised his opinion as follows:

Mr Shaun Derich is a 29-year-old Aboriginal-Australian man who participated in psychological assessment in connection with a forthcoming Court appearance. On the basis of a comprehensive evaluation of Mr Derich's current mental status, a review of his personal history and confirmatory psychological testing, the following conclusions were reached:
1. Mr Derich has suffered episodes of depressive symptoms since his parents separated in his mid teens and he continues to suffer residual depressive symptoms. Prior to his recent imprisonment he had participated in relatively scant treatment for his depression, and a misguided attempt to alleviate his distress appears to have been an important motivator for his previous abuse of alcohol and benzodiazepines. It is concerning that his mental state has deteriorated since I first assessed him so that, despite appropriate medical treatment, he continues to show residual symptoms of a major depressive condition. While such residual symptoms are not uncommon in those being treated with antidepressant medication, it would appear reasonable to suggest that they will be likely to make Mr Derich's experience of incarceration particularly onerous and that further professional assistance is required.
2. Mr Derich is currently in an extended period of enforced remission from a severe drinking problem. Based on his reports he has drunk at very heavy levels for most of the last 15 years and has occasionally consumed extreme amounts of alcohol. He has experienced a range of negative consequences from his alcohol misuse and has developed noteworthy tolerance to alcohol. I formed the view that his alcohol use was sufficiently severe to warrant the diagnosis of 'Alcohol Dependence, with Physiological Dependence, in Sustained Full Remission, in a Controlled Environment'.
3. Mr Derich's abuse of the benzodiazepine Xanax would have been sufficiently severe to warrant the diagnosis of 'Benzodiazepine Abuse'. Like his addiction to alcohol, this condition is also in sustained remission.
4. An evaluation of Mr Derich's anger-management skills suggests that he is not a hostile man by disposition. Several issues were identified, however, with regards to his capacity to manage his anger. He remains relatively rigid in his approach to relationships and lacks well-developed skills for managing conflict. Moreover, he tends to experience little anxiety in situations of conflict and his general capacity for behavioural control is comprised by his chronic alcohol abuse.
5. More positively, Mr Derich's participation in anger-management training since his arrest has provided him with insight into the physical and psychological processes of his anger which provides a foundation for the development of more effective conflict-management strategies on his part. At the time of assessment he was actively engaged in such treatment.
6. Mr Derich's thought processes are normal, he is not psychotic, and his capacity for moral reasoning and reality testing is not impaired. His intelligence is estimated to be normal.

... it is conceded that Mr Derich's recovery not only from a severe drinking problem but also from a range of other issues remains at an early stage and is still untested. I would strongly support his participation in the alcohol-specific education and counselling that he has recently initiated and would reiterate the importance of a strong focus on the development of skills in the area of relapse-prevention and stress-management techniques. Similar continued work in the area of anger management is also required both to consolidate the progress he has made to date and to ensure that the behavioural problems which have afflicted him since his teens, and especially since his separation in 2007, are addressed once and for all.
Notwithstanding the good progress which Mr Derich has made in his recovery during recent months, I remain of the view that he will nevertheless remain at significant risk of relapse to problematic drinking following his eventual release from custody. I would see a significant need for assistance with the transition to life in the community at large and believe that he would benefit from the provision of structured support and treatment during the initial months following his release from custody. With such matters in mind, I would respectfully suggest that there may be some benefit in considering a longer than usual period of parole in Mr Derich's case...

41 Evidence was also called from your father who is a retired sandblaster/painter. He confirmed the impact of your mother's departure upon you and the emotional stress caused by the departure of Kerry Warren.

42 He gave evidence that he has had the care of your daughters since you went into custody and that they are progressing well. They are also in nightly telephone contact with you and visit you each weekend. He described how he now moderates his own drinking. It is apparent that he is a potential force for good in your life, both holding your family together and operating as a role-model for progress towards more responsible behaviour with greater maturity.

43 Some seven certificates evidencing completion of courses directed to dealing with substance abuse and anger problems were also tendered to the Court.

44 You have also worked successfully as a kitchen billet whilst in prison. I accept that your behaviour there both in this regard and in seeking to take advantage of the programs available to you has been positive and steady.

(1) that you have suffered from underlying depression;

(2) that you have had a serious substance abuse problem;

(3) that your depression is sufficiently serious to mean that your incarceration (which of course involves separation from your daughters and father) is likely to be even more onerous than it ordinarily is;

(4) that your offending occurred when you were affected by the consumption of alcohol and in all probability Xanax;

(5) that your substance abuse has its roots in ongoing anxiety and depression;

(6) that these problems had been very materially aggravated by the breakdown of your relationship with Ms Warren;

(7) you were suffering from major depression and engaging in serious substance abuse at the date of your offence;

(8) you have demonstrated recurrent severe problems of anger management in situations of severe personal stress; and

(9) your father offers you both family support and a model for more mature behaviour.

46 Although some of these conclusions may be said to explain your behaviour at the time of offending at least in part, nevertheless they also confirm what your prior history suggests, namely:

(a) that you are a dangerously violent man when fuelled by alcohol, well capable of inflicting serious injury on others; and

(b) such behaviour is entirely consistent with your personality as it has developed and more particularly as it has been demonstrated since the breakdown of your relationship with Kerry Warren.

47 Your behaviour at the time of offending cannot be regarded as entirely aberrant from your normal personality. It seems rather to reflect an ongoing pattern of reaction to stress, namely consumption of alcohol and medication, followed by aggressively violent behaviour when frustrated by relationship breakdown.

48 Your offending grew out of your depression and substance abuse when your partner left you. Nevertheless your actions were engaged in after you had had the time to reflect on the July incident, and they further occurred at the end of an escalating night of confrontation, when you chose to attack your victim in circumstances in which you could simply have driven away.

49 The penalty I impose must be just in all the circumstances of your case. It must give due weight to the seriousness of the offence which you perpetrated (which is reflected in the maximum penalty applicable of 15 years' imprisonment).

50 I must also have regard to the seriousness of the particular assault in issue. This was a deliberate escalation of violence engaged in when you had the option to leave and involved the use of a dangerous weapon with the obvious capacity to inflict serious injury. It had serious consequences for your victim and for his partner.

51 The penalty must express the need to provide a general deterrent to such assaults and in particular assaults with knives. It must make clear that the breakdown of a personal relationship does not justify resort to violence. Your underlying depression and substance abuse do not materially reduce the weight of this factor in your case. Although I recognise, as the decision in R v Verdins[1] makes clear, that such matters are potentially relevant in respect of this consideration. The law must deter assaults by partners to a relationship who are depressed and drunk after its breakdown.

52 The penalty must also embody a specific deterrent directed to reinforcing in you an awareness of the need to transform your behaviour patterns. You have demonstrated little if any mature remorse for your actions and this need is reinforced by that fact.

53 On the other hand, the conditions identified by Mr Newton's evidence reduce your moral culpability (as distinct from legal responsibility) to some extent. Again, see the decision in Verdins.

54 They also point up the fact that imprisonment will be onerous for you and that the penalty which the Court imposes must encourage your rehabilitation both in your own and in the community's interest, including particularly perhaps the interests of your daughters. And again I refer to Verdins with respect to the fact that there is evidence that imprisonment will be particularly onerous for you.

55 Your offer to plead guilty to the offence of which you were ultimately convicted is also to be taken into account.

56 Further I accept you have some realistic prospects of rehabilitation having regard to Mr Newton's evidence (subject to satisfactory transition back into the community); your behaviour in custody; the support provided by your father; the motivation provided by your daughters; and your relatively young age.

57 In all the circumstances I sentence you to six years' imprisonment. I fix a minimum non-parole period of three years both in respect of this sentence and the balance of sentence outstanding pursuant to the orders of his Honour Judge Pilgrim in accordance with s 14(1) of the Sentencing Act 1991.

58 I declare that you have served 482 days of pre-sentence detention.

59 Mr Derich, when you get out of gaol you will have to take responsibility for your drinking. If you return to heavy drinking, it is in my view almost inevitable, firstly that you will not be able to stay free of trouble for three years while on parole, and indeed if you are unable to control your drinking, the overwhelming likelihood is that you will end up back in gaol. So that is the first problem if you do not control your drinking.

60 The second problem is that you will not be able to be much of a father to your daughters as they move towards and into their teenage years. And if you think about it, if one of them were to leave home when they are 15 or 16 as you did, you have not got long, as a window of opportunity, to be a father towards them. If you want to be a good father towards your daughters, you are going to have to control your drinking. It is all very well for your own father to say that you were a good father towards them whether you were sober or drunk, but that defies all human experience. You cannot be a good father to teenagers if you are a drunk. Being a father to teenagers is a very difficult task as most fathers of teenage daughters find out. You have got to be on the ball. So if you want to make something of that role, you are going to have to control your drinking.

61 The third thing is that whether or not you ever get back together with Ms Warren or not, the overwhelming likelihood is that you will want to form some new relationship. You are still a young man. If that relationship is going to be a good relationship, the reality is you are going to have to control your drinking. If you enter into a new relationship when you have gone back on to the grog and you are a heavy drinker, it is just going to be a recipe for disaster.

62 So you have got three very good reasons to control your drinking. The need to stay out of gaol, the need to look after your daughters, and the need to make a new life for yourself while you are still a young man. You are going to have to think about those things. You have already served a substantial part of the non-parole period I fixed, you can look ahead, you can think about where you are going and make something of your life if you want to. In the end, it is going to be up to you. No matter how much support of the kind Mr Newton suggests is provided for you, in the end it is going to be up to you. In the end you know when you get out, there will be times when you are provoked. There will be times when things go seriously wrong. And at those times, that is the times of heavy stress, you will be tested and the basic test you face is, can you handle that stress without returning to heavy drinking or can you not. It is up to you.

63 I have set a long period of potential parole, I have done it on the basis of the plea made by your counsel, Mr Lewis, and the evidence called from Mr Newton. I have done it deliberately. What it does is give you a big opportunity, but it is going to be up to you whether you take that opportunity or not.

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