R v Rees [2011] VSC 523

2 At the time of the offence, you and Mr Wauchope were friends. You had known each other for 2 or 3 years, through your mutual love of music. You often met at his home for band practice and to smoke cannabis together. At the time of the offence, Mr Wauchope was 39 years old and living in his own home, sharing custody of his children. You were 23 and still living at home with your parents.

3 Over the 2009/2010 New Year period, you and some friends attended the Falls Music Festival at Lorne, where you drank alcohol and consumed large quantities of several illegal drugs. You slept very little during the festival.

4 On 2 January, after you returned to Melbourne, you attended a party at Mr Wauchope's home. At the party, you, Mr Wauchope and your girlfriend, Aimee Osborn, all used a small quantity of LSD. You started "tripping out" - suffering hallucinations in which you believed you were on fire, and making rambling and incoherent remarks. Mr Wauchope and others at the party thought you were in your own world and not hurting anybody, so were not particularly concerned about your strange behaviour.

5 On the morning of the 3rd, you and Ms Osborn packed up your tent and left Mr Wauchope's place. That afternoon, you smoked cannabis and drank alcohol with friends.

6 Around 8 pm that evening, you returned to Mr Wauchope's home, where the two of you smoked 2 or 3 cones of cannabis in the laundry. You started behaving strangely after you went into the lounge room. You telephoned Ms Osborn and your mother, telling them that you were scared, were losing it mentally and "tripping out". When you spoke to your mother, you told her your father had been killed; she tried to reassure you that your father was still alive and in hospital. You sounded fearful, and were ranting and acting strangely during these calls.

7 Mr Wauchope started to become concerned by your behaviour, particularly when he saw you looking over at him while holding a meat cleaver. He was concerned enough to tell his children to go to the bedroom, which they did. The eldest child, Madeline, then aged 11, very sensibly locked the door and kept her younger brothers and sister out of harm's way during the events that followed.

8 Mr Wauchope tried to calm you down. You struck him to the neck with the meat cleaver, as he ran from the house. You then threw the cleaver at him, hitting him in the back. He ran into the front yard, where you hit him with the cleaver to his neck, face and back. You then strangled Mr Wauchope, causing him to black out. During this attack, you were saying "die, die, fucking die." Then you suddenly stopped your attack and walked back inside.

9 Mr Wauchope went to his neighbours' front door, seeking help. You came outside and grabbed him by the throat and tried to strangle him again. You finally stopped when Mr Wauchope told you he was dying.

10 Mr Wauchope's children could hear yelling and screaming, as you attacked their father. At one stage during your attack, you approached the bedroom where the children were hiding and tried to smash your way into the room, punching your fist through the door and swearing and screaming at the terrified children.

11 When the police arrived, you were in the lounge at Mr Wauchope's home. You ran at the police with a knife in your hand. It took OC capsicum foam and several police officers to subdue you.

12 You were deemed unfit for interview immediately after your arrest. Some time later, you were interviewed and gave an account of your movements prior to the attack, including your drug taking. You recalled taking LSD the day before, and described hallucinating and snapping in and out of reality. You had partial recollection of the incident.

13 Dr Danny Sullivan, a forensic psychiatrist, has diagnosed you as suffering from a drug-induced psychosis at the time of offending; this was manifest in hallucinations, disorganised thoughts, bizarre delusional beliefs and emotional lability. Due to your psychotic state, Dr Sullivan says that you were confused as to what was happening, and that your ability to form the requisite intent to kill or seriously injure someone was markedly affected by your mental state. Dr Sullivan believes that your psychosis commenced one or two days before the offending, and settled within one or two weeks of abstinence from drugs and after taking antipsychotic medication. The psychologist, Mr Jeffrey Cummins, essentially agrees with Dr Sullivan's opinions in this regard.

14 Mr Wauchope was seriously injured in the attack. He was initially placed in an induced coma to assist with healing. He suffered multiple, deep, substantial lacerations to his face, neck and trunk areas, and needed significant blood transfusions. He subsequently required orthopaedic and plastic surgery. He was in severe pain in hospital and has continued to suffer pain since his discharge. Neurological findings were consistent with incomplete C4 quadriplegia of the central cord syndrome type; it seems there was some question, at first, as to whether he would ever walk again.

15 Thankfully, Mr Wauchope is now able to walk, albeit with some difficulties. His neurological recovery has slowly continued over time, with great effort and some frustration on his part. He still has particular problems moving his left arm and leg properly, and controlling all his bodily functions. The evidence before the court is not such as to allow me to be satisfied that Mr Wauchope's injuries will be permanent, although they are clearly ongoing at the present time.

16 Your actions have had terrible effects on Mr Wauchope and his family.

17 Due to his physical injuries, Mr Wauchope can no longer carry on his landscaping business and is limited in his ability to teach percussion. He has lost his financial security, has had to sell his house, and now survives on a disability pension and help from his family and friends. Even the things that used to bring him so much pleasure - playing with his children and playing music - are very difficult for him to do or enjoy now. Your actions have also had an enormous psychological impact on Mr Wauchope; he suffers from depression and nightmares, and is struggling to make sense of his life.

18 Mr Wauchope's four young children - now aged from 5 to 13 - have also suffered in various ways. They were very frightened - both during and after the attack - that they were going to lose their father. They suffer from nightmares and have lost their sense of safety. They also miss the fun things they used to do with their father, which he can no longer do.

19 Helping the children deal with what happened has placed a considerable emotional and financial burden on their mother, Brigid Wauchope, Mr Wauchope's former wife. Your actions have also caused Mr Wauchope's mother, Joy Wauchope, to suffer from sadness, anxiety and trouble sleeping.

20 You were born in Melbourne in December 1986. You are the oldest of three children, and come from a stable, loving, family background. You appear to have had no particular educational or social problems at school. You attribute your poor VCE results to your use of cannabis and playing in bands.

21 After completing year 12, you worked in various casual jobs for the next two years. During that time, you attended university for about 18 months, studying event management; however, you dropped out of your course because you were unable to cope with both study and work.

22 In 2007, you started working with your current employer, a company which organises events. You work as an events technician and are a reliable, hard worker. You have been promoted to a position with some managerial responsibility.

23 You started abusing alcohol and drugs in your late teenage years. Much of this was tied in with very heavy partying. You were a frequent binge drinker. You started smoking cannabis at 16 or 17, and within a year or two were regularly using ecstasy and amphetamines. By 19 or 20, you were experimenting with LSD and cocaine. You have also tried ketamine, amyl nitrate, "ice", benzodiazepines and magic mushrooms. At the time of the offending, you were typically smoking cannabis on a daily basis, and using amphetamines and ecstasy most weekends. For about one month before the offence, you were using more cannabis, ecstasy and amphetamines than usual, and during the week before the offence you resumed using LSD.

24 Dr Sullivan describes you as having developed clear problems with polysubstance abuse, manifest in heavy alcohol and cannabis use and regular binges of hallucinogens and stimulants.

25 You were initially charged with attempted murder. At your committal, you pleaded not guilty to the charge of attempted murder, but offered to plead guilty to the current charge.

26 I accept that you offered to plead guilty to intentionally causing serious injury at a relatively early stage. You are entitled to a discount on the sentence to be imposed upon you in recognition of your plea. The community has, by your plea, been spared the time and cost of a trial. Furthermore and significantly, Mr Wauchope and his family have been relieved of the trauma of a criminal trial.

27 You have expressed considerable remorse and shame for what occurred. I accept that your remorse is genuine, and have also taken that into account in sentencing you.

28 You are within the normal range of intelligence, and have no apparent mental disorder or cognitive impairment. Dr Sullivan reported that you had shown some features of adjustment disorder with depressed mood, as you reflected on your current legal predicament, but said there was no need for medical intervention. There is no suggestion that imprisonment will be any more burdensome for you than for other offenders.

29 According to the psychological evidence, you are gregarious and outgoing, have a high need for stimulation and a low boredom threshold, and can be impulsive. No doubt having such a personality helps explain your past fondness for hard partying. When you are released from prison, you are going to have to find other ways to enjoy yourself, which do not involve abusing alcohol or drugs, if you wish to avoid further involvement with the criminal justice system.

30 You are fortunate to have a supportive family and friends, many of whom have written very positive character references for you. You and Ms Osborn became engaged in April of this year, and she has also stopped using illegal drugs since the offence.

31 You are also fortunate to have the ongoing support of your employer, who is prepared to offer you further employment when you complete your sentence.

32 Notwithstanding your long-standing drug usage, you have no prior convictions. Apart from this offence, you have been of good character.

33 Mr Wauchope was your friend and musical mentor. There was no animosity between the two of you, and nothing took place that night which might have provoked you to attack him. I accept that your actions on the night of 3 January 2010 were wholly attributable to your drug-induced psychotic state.

34 In some circumstances, intoxication (whether by drugs or alcohol) may mitigate the offence, because the offender has by reason of the intoxication acted out of character; in other circumstances, intoxication may aggravate the offence, because of the recklessness with which the offender became intoxicated. Where an offender knows of the effect on themselves of alcohol or drugs, the voluntary ingestion of such substances is an aggravating factor. The critical factor in determining the significance of a drug-induced psychosis for sentencing purposes is the degree of foreknowledge on the part of the offender.

35 You have no history of mental health problems or violence. Although a regular and heavy user, you were usually placid and easygoing when under the influence of drugs and alcohol. You had not previously experienced any psychotic symptoms, or shown any propensity towards violence, as a result of using drugs or alcohol. Your actions on the night of 3 January 2010 were completely out of character for you. In the circumstances, the prosecution concedes that it is appropriate to treat your drug-induced psychosis as a mitigating factor. I accept that your moral culpability is reduced by reason of your mental state at the time of offending.

36 Unfortunately, like many drug users who appear before the courts, you were naïve and foolish enough to think that you could use illegal drugs without any harmful consequences. Whilst the need for general deterrence may be somewhat reduced in this case, it is not removed altogether given the voluntary nature of your illegal drug consumption.

37 Your age is also a relevant consideration in sentencing you. You were 23 at the time of the offence. You are now almost 25 years old. Whilst not a young offender, you are nevertheless a relatively youthful one. In the case of youthful, first-time offenders such as yourself, the courts have held that rehabilitation is usually far more important than general deterrence; rehabilitation benefits the community as well as the offender. A shorter period of imprisonment may be justified than would ordinarily be the case.

38 You were remanded in custody from 3 January 2010 until 17 March 2010, at which time you were released on bail. Strict bail conditions were imposed, including fortnightly drug screens, no alcohol, daily reporting, night-time curfews, and participation in the Court Integrated Services Program. Over the past 20 months, you have fully complied with all bail requirements, including regularly attending a psychologist, Ms Catherine Lally, and drug and alcohol counselling run by Anglicare. You have returned negative results on all your drug screens, and made considerable progress with your counselling.

39 You are generally not a violent person. I accept that you are genuinely shocked by what you are capable of doing under the influence of drugs and alcohol, and that these events have been something of a "wake up call" for you. Your rehabilitation efforts whilst on bail are commendable and encouraging. In the circumstances, the need for specific deterrence is reduced to a considerable degree.

40 The maximum penalty for the offence of intentionally causing serious injury is 20 years' imprisonment.

41 The prosecution suggested that a total sentence in the range of four to five years' imprisonment would be appropriate, in the circumstances. The prosecution also conceded that a shorter than usual non-parole period was justified in your case, so as to promote your rehabilitation.[1]

42 Sentencing you is not an easy task. On the one hand, this was a serious example of the offence of intentionally causing serious injury, involving, as it did, a sustained, unprovoked attack with a dangerous weapon, in the presence of young children. Your attack caused serious injuries to Mr Wauchope, and continues to have ongoing effects for Mr Wauchope and his family.

43 On the other hand, your actions that night were completely out of character, caused by an unforeseen psychotic reaction to the illegal drugs you had taken. Apart from offering to plead guilty at a relatively early stage, you are genuinely remorseful and have taken positive steps to address your substance abuse issues. Your previous good character, intelligence, education, employment history, and supportive family and friends, all suggest that you have good prospects for rehabilitation. Given all these matters, and your relatively youthful age at the time of this your first offence, I am satisfied that both you and the community will benefit from a sentence which promotes your rehabilitation, whilst not ignoring the seriousness of what occurred.

44 Provided you are able to continue to stay away from drugs and alcohol, I believe you have good prospects of becoming a worthwhile contributor to the community, upon your release from prison. However, given your past history of substance abuse, and your personality style, I believe that your long-term rehabilitation can best be achieved under the supervision of the Adult Parole Board. Accordingly, I agree with the prosecution and defence that a shorter than usual non-parole period is justified in this case.

45 Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, I have concluded that you should be sentenced to a period of imprisonment of 5 years. I fix a period of 2 years as the period you must serve before becoming eligible for parole.

46 I declare, pursuant to s 6AAA of the Sentencing Act that, but for your plea of guilty, I would have sentenced you to a total effective sentence of 7 years' imprisonment, with a minimum non-parole period of 4 years.

47 Further, I declare that the period to be reckoned as already served under this sentence is 74 days, inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.

48 I will make a disposal order, and an order for the retention of a forensic sample - both of which are consented to - in terms of the draft orders which have previously been provided to me.

[1] Although, at times, in the course of discussion, reference was made to a "longer than usual non-parole period", that was clearly a slip of the tongue. I am satisfied that both prosecution and defence were in agreement that you warranted a longer period on parole - ie a shorter non-parole period - than might otherwise be the case.