R v Wordie [2002] VSC 202

Supreme Court of Victoria|2002-05-28|Before: Bongiorno J

Criminal law - Sentencing - Intentionally cause serious injury - Aggravating factor: conduct after plea hearing - Summary offence s 359AA Crimes Act 1958

Robert John Wordie, on 20 November 2001 you pleaded guilty in this Court to one count of intentionally causing serious injury, one count of attempted aggravated burglary and a charge of harassment of a witness contrary to s 52A . You having consented to my dealing with the last of these charges, despite its being a summary offence, it is now my duty to sentence you in respect of these three matters according to law. The first two of these offences each carries a maximum sentence of 20 years imprisonment; the third a fine of $1,200 or imprisonment for 12 months.

For some months prior to 22 November 2000 you had been involved in a relationship with the victim of these offences, Sandra Lee Harrison. The relationship was marked by violence by you towards Ms Harrison, almost always when you were affected by alcohol. This behaviour was not surprisingly a cause of conflict in the relationship causing separations between you on a number of occasions. These separations were generally ended by your apologising for your behaviour. This pattern is a well known and recognisable feature of domestic violence. Many murders are committed in exactly these circumstances.

Some time prior to 22 November 2000 Ms Harrison told you that if your behaviour towards her continued in the way that it had, the relationship would be broken off permanently. She suggested that you go away for a while, as a result of which suggestion you planned a trip to Warrnambool. This trip was one of the topics of conversation between you on the morning of 22 November when you went to her home in Collingwood.

At about 11.00 am on that morning you and Ms Harrison commenced to drink beer at her home, which drinking session continued through out the rest of that day. At some time fairly late in the day Ms Harrison became aware that there was a hunting knife in the pocket of your jacket. She asked you what you were going to do with it and you answered with words to the effect "I'm going to kill some bastard". When she asked you who you intended to kill you said: "never mind, I don't know".

At about 5.30 pm you and Ms Harrison left her home and went to the home of a friend of hers, one Judy Williams, in Clifton Hill where you continued to drink for another couple of hours. You became argumentative with Ms Williams and subsequently said that you wanted to go home. Ms Harrison agreed to leave with you. By this time it was about 8.30 in the evening. You and Ms Harrison then left in her motor vehicle which, amazingly she was able to drive. At that time you were wearing the jacket to which reference has already been made and in which there was still, presumably, the knife which Ms Harrison had seen earlier in the day.

At about 8.45 pm whilst the two of you were driving in a southerly direction along Brunswick Street North Fitzroy near the former Brunswick Street oval you said to Ms Harrison: "Say you love me, say you are going to wait for me or I'll do something stupid". She replied: "Gee, you're tough!" You then said to her "I will show you how tough I am" shortly after which Ms Harrison felt a very hard blow to her right breast. She thought you had punched her. You then yelled at her a number of times: "I'm going to kill you". At this point Ms Harrison still believed that she had been punched, not stabbed. She said to you "What did you do that for?" To which you replied: "I'm going to kill you and then I'm going to kill myself, Sandra".

Ms Harrison then realised that you were holding the knife that she had seen earlier that day and began to feel an intense pain in her chest, accompanied by difficulty in breathing. She maintains that you then stabbed her again in the same place. Although she had only one stab wound there, the nature of that wound was such that her assertion in this regard may well be correct; the knife having entered at about the same place on each occasion. Subsequently you stabbed Ms Harrison again inflicting a number of less serious injuries; the last of which left the knife embedded in her forearm.

As these events were happening Ms Harrison was able to pull the vehicle to the left side of the road near the intersection of Brunswick Street and Freeman Street. She managed to undo her seatbelt and was heard to say to a number of people who had gathered, "I'm going to die". An off duty police officer who was passing went to Ms Harrison's assistance and subsequently arrested you for the assault. Although, at the time of these events you were considerably affected by alcohol you retained sufficient presence of mind to attempt to dispose of the weapon with which you stabbed Ms Harrison by throwing it into the garden of a nearby house.

The injuries suffered by Ms Harrison consisted of a substantial wound to the right breast which penetrated her lung as well as the other less serious lacerations to which I have already referred. Had she not received timely medical assistance she would almost certainly have died.

At the time this offence occurred you and Ms Harrison had been drinking consistently for something over 9 hours. She said in her evidence at your committal proceeding that each of you were about equally drunk so far as she could ascertain. However, she was apparently able to drive a motor vehicle from Clifton Hill to the point at which you committed this assault and you were able to commit the assault and attempt to dispose of the weapon.

An examination of the events surrounding this assault does not enable me to do other than speculate as to any motive you might have had for harming Ms Harrison. Whilst it obviously arose out of the relationship between you, whether it was your reaction to her suggestion that you leave her alone for a while or not I am unable to say with any degree of certainty.

The day after the stabbing you were bailed at the Melbourne Magistrates' Court with conditions which included a condition that you were not to contact prosecution witnesses. Notwithstanding this condition, on Saturday 16 December 2000 you telephoned Ms Harrison. During the course of this telephone conversation she asked you why you had stabbed her. You said that it wasn't meant for her but that she must have said something to upset you. Upon her reacting angrily to this explanation you said that if she was going to be mean to you, you would "put her under". You denied that you were threatening to kill her but conceded that the stabbing should never have happened. It is highly likely that you were drunk at the time you made that phone call. It is this event which gives rise to the summary offence of harassment of a witness in respect of which you are before this Court today.

Following the phone call of December 16 you were taken into custody until you were committed for trial in respect of the principal assault on 27 April 2001. You were again remanded in custody and not bailed until 6 June 2001 when you were again released on strict conditions which included a condition that you reside in Ballarat with your daughter and observe a curfew. Those conditions also required you to refrain from the consumption of alcohol and not contact prosecution witnesses.

At about 3.30 am on Friday 7 July 2001, whilst subject to the bail conditions to which I have referred, you went to Ms Harrison's home, and in an attempt to gain access, smashed a window. You were eventually repulsed by a friend of Ms Harrison's who hit you with a stick and told you to go away. Once again, it appears, you were substantially affected by alcohol at the time this event occurred. It is this event which gives rise to the second count on the presentment of attempted aggravated burglary to which you have pleaded guilty.

On 12 November 2001 this matter was listed before Teague J for the purpose of your formally pleading to the presentment filed against you and the summary offence to which I have referred. This short procedure was to take place in Court 1 in this building. Ms Harrison was present and as you were led towards the dock in that Court you walked behind her. As you did so you struck her on the back of the head and pulled her hair. This event occurred before Teague J had entered the court room.

This further assault on Ms Harrison was not the subject of any charge but was referred to by her in a psychologist's report annexed to a subsequent victim impact statement which she filed following your original plea hearing before me on 22 November. Upon receiving this report the Crown requested that you not be sentenced until the matter was further mentioned. The vacation and other Court business meant that that mention could not occur until 8 February 2002 on which occasion your counsel raised no objection to a second victim impact statement being filed by Ms Harrison, annexing the psychologist's report. Accordingly that statement was filed and you were further remanded in custody for sentence.

Shortly after 8 February 2002 my associate was contacted by the Crown with a request that your sentencing be once again deferred to enable further material to be put before the Court relating to an incident which occurred between you and Ms Harrison immediately after the mention on 8 February in or in the vicinity of the court room in this building in which that mention was conducted.

Last month the Crown provided the Court and your solicitors with a further six statements of people who had been present at the mention on 8 February which deposed to your having used threatening words towards Ms Harrison on that date in the court room after I had left the bench. Thus, the matter was listed again on 24 May 2002 for consideration of this further evidence, on which date your counsel informed the Court that he could get no meaningful instructions from you in respect of those statements and that he had no submission to put in respect of them.

It appears that on 8 February after the Court adjourned you were being led from the Court when you shouted towards Ms Harrison words to the effect: "Don't break down Sandra, don't break down, don't break down love 'cause you will be dead". As would be expected the witnesses who depose to this event vary somewhat as to what they say you said but it is clear that no matter what words you used you were uttering some kind of threat towards Ms Harrison. She became distressed and began to cry.

I set out the details of these two incidents not because they are themselves the subject of any charges before the Court but to explain the inordinate delay in your being sentenced and to record them as evidence which renders somewhat hollow the submission made on your behalf that you have exhibited real remorse in respect of this vicious attack that you perpetrated on Ms Harrison some 18 months ago.

I entertain considerable doubt as to whether your mental condition would permit you to experience remorse as that term is usually understood. Whether you are able to experience true remorse or not, having regard to your conduct since November 2000 no protestations of remorse can have any ameliorating effect on the sentence I must impose in this case.

You were born on 29 May 1954 at Yallourn, the son of a Scottish father and an Aboriginal mother. You were largely brought up by a foster family, the Lowes, in the Framlingham district of Western Victoria near Warrnambool. You have a number of half siblings. You were educated in Warrnambool to Year 9 following which you went to Melbourne where you worked in various unskilled occupations.

You married at the age of 21 and had three children. This marriage lasted about eight years. Your daughter, Mrs Jodie Ryan, who gave evidence before me, does not remember violence as being part of your relationship with her mother, your first wife, although during the period of that marriage you acquired a number of prior convictions for offences involving violence including one of assault causing grievous bodily harm. After this marriage failed you apparently began to drink even more heavily, which activity over many years has left you with a number of serious health problems including liver disease and diabetes.

You married again at the age of 36 which marriage also ended in separation. It was during this time that you acquired most of the prior convictions which you have admitted. These include a number for offences of violence, and two counts of arson in respect of your former wife's home.

A number of medical reports were tendered upon your plea. They attest to a variety of physical illnesses and disabilities almost all of which can be directly attributed to alcohol abuse over a very long period. As at June 2001 you were taking some nine different medications ranging from anti-depressants to anti-inflammatory drugs for joint pain. At different times you have been diagnosed with tuberculosis and meningitis, as well as a variety of other ailments of lesser import.

You were assessed by Mr James Drury, a clinical neuro-psychologist, on 28 September 2001. He notes your sorry alcohol history as having involved the equivalent of about 20 pots of beer per day for 30 years. He noted your medical history and the diseases you have contracted over the years as well as the injuries you have suffered, largely in altercations with the police. He assessed your general intelligence as being "borderline"; about 95% of your age group would perform better on most tasks.

Mr Drury's summary of your psychological status is depressing, although he does note that despite the enormous quantity of alcohol you have consumed you do not appear to have sustained marked brain damage. He thought that impulsive and inappropriate outbursts, such as occurred during the court hearings to which I have referred, could be attributed to frontal lobe disinhibition caused by alcohol abuse.

You were also assessed by Dr Robert Hjorth on 18 October 2001. Dr Hjorth is a neurologist. He thought that you were suffering from severe peripheral neuropathy which accounted for your unsteadiness in walking. He thought you had only a marginal understanding or grip on the world and your relationship with it. He thought you were bewildered and lacked understanding of many of the questions he asked. He noted particularly the impoverished nature of your life, having lost your parents at an early age, having had an inadequate education and having suffered from an absence of job skills.

Mr Bernard Healey, another psychologist, also assessed you on 27 and 28 October 2001. His detailed report repeats much of what has been said by the other assessors to whom I have already referred. Overall his opinion does not alter the picture presented although he does note that you would not have been in a position to form a clear intent at the time of the offending on 22 November 2000 - doubtless one of the reasons the Crown accepted your plea of guilty to intentionally causing serious injury rather than attempting to prove a charge of attempted murder.

I have read the victim impact statements filed by Ms Harrison in this case and the psychological report of Ms Johanne Hall dated 30 November 2001 accompanying the second of those documents. It is clear that your actions have had a profound and permanent effect on Ms Harrison. She will carry both the physical and psychological scars of your assault for the rest of her life. Further, that assault, together with your conduct both in Court on the two occasions I have mentioned and on the occasions of the offences with which I am concerned, have instilled in Ms Harrison a fear that you will, at some time in the future, seek to do her further harm. Your behaviour since November 2000 lends considerable credence to this belief.

You present an extremely difficult sentencing problem. The offences for which you must be sentenced are serious indeed and your sentence must reflect that seriousness. On the other hand it is not difficult to characterise your life as being one of extreme sadness, robbed at an early age of meaning, ambition or realistic hope. This is due partly to an early introduction to alcohol and its subsequent long term abuse, and partly to the immense social deprivation of being a virtual orphan in a community in which so many indigenous people like you suffer a completely dislocated and dysfunctional existence for reasons which have been much examined but which are far too complex to go into in these sentencing remarks. Suffice to say, they are undoubtedly a product of unjust and immoral social alienation to which indigenous people have been subjected in this country for far too long. Until these issues are seriously addressed there will be many more offenders like you who will have to be sentenced to long prison terms because this society generally neither knows nor cares how to do any better. Such sentences as I am about to impose on you are no help in seriously tackling the problem of which your offending is only a small part. As a judge, however, I am able to do nothing else but obey the law's commands. The remedy, if there is one, lies elsewhere.

If there is any glimmer of hope in your future it is going to lie in your realisation that your daughter, Mrs Ryan and, I am prepared to assume, your other children, still have affection for you. She gave evidence before me with which I was extremely impressed not only because of her obvious achievements, but because she was so concerned for your welfare. If she is prepared to continue to give you the support she has given you in the past it is possible that upon your release from prison you may be able to reverse, even partly, the self destruction which has been at work within you for so long.

The principal sentencing considerations in your case are deterrence, both general and specific, the denunciation by the community of the shocking crime you committed and the need to protect the public from your committing such crime again. If you are to achieve rehabilitation, that will only come with a realistic insight into your current problems. Whether any period of imprisonment will be likely to provide that insight I am unable to say, frankly I doubt it. It is also appropriate that I note the significant aggravating factor in this case that the second and third of the offences I must deal with were committed whilst you were on bail for the first offence. This consideration must be given due weight.

On the count of intentionally causing serious injury you will be sentenced to 8 years imprisonment. On the count of attempted aggravated burglary you will be sentenced to 3 years imprisonment, 2 years of which you will serve concurrently with the 8 years imposed in respect of count 1. With respect to the summary offence of harassing a witness you will be sentenced to 3 months imprisonment cumulative upon the sentences imposed in respect of the other two offences, thus making a total effective sentence of 9 years and 3 months. It is further ordered that you serve a minimum of 5 years and 9 months imprisonment before being eligible for parole. This somewhat longer than usual parole period is fixed so as to enable you to serve about one third of your sentence, subject to supervision, in the community.

I declare the period of 500 days as being the period of pre-sentence detention served in respect of these sentences and I order that this declaration and its effect be entered in the records of the Court.

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