DPP v Cummins [2022] VCC 237 (9 March 2022)

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

NIKOLAS CUMMINS

JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2021
DATE OF SENTENCE:	9 March 2022
CASE MAY BE CITED AS:	DPP v Cummins
MEDIUM NEUTRAL CITATION:	[2022] VCC 237

Catchwords: Guilty plea – low range offending – criminal record for violent offending – cognitive impairment linked to offending – need for drug and alcohol rehabilitation
Legislation Cited:
Cases Cited: Worboyes [2021] VSCA 169; Brown v The Queen [2020] VSCA 60

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Baxter	Office of Public Prosecutions

For the Accused	Mr J. Saunders	Valos Black

1 Nikolas Cummins, you have pleaded guilty to one charge of affray and one charge of common assault.

2 You have also pleaded guilty to the related summary offence of committing an indictable offence, affray and common assault, while on bail.

3 The circumstances of your offending are set out in the summary of the prosecution opening.^[1] They are agreed facts.

4 Around midday on 19 March 2019 you went to the Moonee Valley Legends licensed venue. There, you joined two other patrons, Anthony Foy and Kristin Athorn, for a drink. You were drinking with them there and left with them and went to Athorn's flat where you continued drinking until around 7 pm when you passed out on a couch.

5 While you were asleep you wet your pants. Ms Athorn removed them and your underwear and put them in the wash. She put a spare pair of underwear on you and covered you with a blanket.

6 Around 10 pm you woke up and started behaving aggressively towards Mr Foy. You pushed him from the lounge room into the kitchen. When Ms Athorn stepped in you settles down and went back to the couch.

7 However, soon after, you became aggressive again. Ms Athorn told you to leave and pushed you out the front door onto the stairwell. Mr Foy followed the two of you. You and Foy started punching on. During the altercation, he fell down the stairs. A neighbour heard yelling and loud bumping through her walls. She was startled and called Triple 0.

8 When Ms Athorn hit you, you punched her to the nose. She tried to hit you several more times before you struck her to the forehead which left her dazed. She retreated to her flat, locked the door and phoned Triple 0 herself.

9 After a few minutes, she walked out of the flat and saw Mr Foy, covered in blood, lying at the bottom of the stairs.

10 Police and ambulance arrived about five minutes later. Mr Foy was admitted to The Alfred Hospital. On 22 March 2019, against medical advice, he discharged himself.

11 He told police he remembered being at the Legends venue and the three of you going back to Ms Athorn's flat. He said he could not remember what happened at the flat or why he ended up in hospital.

12 Police found you, lying on the nature strip, wearing only underwear, a short distance from Ms Athorn’s flat.

13 They arrested you, put you in the rear of the divisional van and took you to Moonee Ponds Police Station. On the way, you kicked the rear of the van and were verbally abusive. You exposed your genitals and urinated in the van.

16 On 25 February 2019, you were admitted to bail. On 23 July 2021, you consented to revocation of your bail. On 3 August 2021, this proceeding resolved and your plea hearing was listed for 18 November 2021.

17 While no victim impact statements were filed, I was told Mr Foy suffered a fractured right eye socket and intra-abdominal bleeding, consistent with blunt trauma to his back and abdomen. He also had bruising and swelling to his right jaw, lacerations to his lower lip and head, bruising and abrasions to his upper forearms and a painful right wrist and right knee. He had a suspected fractured hand consistent with a punch thrown by him.

18 By your guilty plea to affray, you admit your fight with Mr Foy was such as to cause any person of reasonable firmness who might be a witness to it, to be terrified. By your guilty plea to common assault, you admit you intentionally punched Ms Athorn to her nose and forehead to put her in fear.

20 On 21 December 2010, at Broadmeadows Magistrates' Court you were convicted of threat to inflict serious injury, unlawful assault and resist police and fined $1200.

21 On 8 February 2012, in the Supreme Court at Melbourne, you were convicted of manslaughter and sentenced to seven years imprisonment with a non-parole period of four years.

23 In November 2010, you were 19 years old and living in Darwin, and returned to Melbourne to answer the charges brought against you at Broadmeadows Magistrates' Court.

24 While you were here, after a drinking binge, your friend attacked a 61-year-old stranger. When the older man produced a knife, you punched him to the head and kicked him to the ribs and stomach. You did not inflict the injuries which killed him.

25 You returned to Darwin. When your friend was arrested and police spoke to your mother, you voluntarily flew back to Melbourne where you participated in a record of interview.

26 Following the index offending, on 6 November 2020, at Broadmeadows Magistrates' Court, for possession of methamphetamine, you were sentenced to 20 days imprisonment..

27 On 30 November 2020, at Broadmeadows Magistrates' Court, you were sentenced to seven days imprisonment for intentionally damaging property, contravening a family violence intervention order, which I was told related to a former girlfriend, and committing an indictable offence on bail.

28 On 26 February 2021, at Melbourne Magistrates' Court, for driving offences, you were released on a 12-month community correction order.

29 On 22 January 2021, at Broadmeadows Magistrates' Court, for trafficking methamphetamine, driving offences and contravening the February 21 community correction order, you were released on a 12-month community correction order.

30 On 14 July 2021, at Melbourne Magistrates' Court, you were fined $500 for unlawful assault.

31 On 10 November 2021, at Broadmeadows Magistrates' Court, you were fined $900 for wilfully damaging property and unlawful assault.

32 Also on 10 November 2021, for your breach of the community correction order, imposed on 22 June 2021, you were re-sentenced to a 20-month community correction order which will commence after you have served the sentence I will impose today.

35 Your father was a publican and, when you were young, he lived and worked in Vanuatu for long periods. Your mother has needed to devote much of her time to the special needs of your sister, who suffers from mild Down's Syndrome.

37 In 2004, when you were 13, you were hit by a motor car and suffered serious injuries, including brain damage affecting the left frontal lobe and left temporal lobe, resulting in poor short-term memory.^[3]

38 In addition, according to your mother, your personality changed and you lost motivation at school. In January 2012, a neuropsychologist, Ian Stewart, diagnosed you with a mild traumatic brain injury.

39 A forensic psychologist, Jeffrey Cummins,^[4] assessed your IQ at 76, which puts you in the middle of the borderline range of intelligence. In his opinion, you are a slow learner, immature and naïve.

40 On 10 June 2021, another neuropsychologist, Dr Jennifer McDowell assessed you to have a profound cognitive disability.^[5] Your mother reported to her that you had struggled academically from a young age and were diagnosed with ADHD following classroom difficulties.

43 Between February 2018 and July 2020, you were seeing a general practitioner, Dr Brian Hsu, for alcohol, nicotine and methamphetamine abuse.^[6] He prescribed you medication for your substance abuse as well as depression and anxiety.

44 On 4 June 2020, when you admitted yourself to Brunswick Private Hospital for detoxification, you were diagnosed with drug-induced psychosis in the context of abuse of alcohol and methamphetamine.

45 You came under the care of a psychiatric, Dr Cheryl Hanna,^[7] who noted you were then receiving a disability support pension and helping to look after your vulnerable sister.^[8] Your mother told Dr Hanna you became angry when intoxicated with substances.

46 On 9 February 2021, at the request of a Magistrate, you were assessed for your suitability for a community corrections order. You were then living at home with your mother and sister. You had a history of attendances on 10 August 2009 at Inner West Adult Area Mental Health Service, and on 4 November 2018, at North-Western Mental Health. A senior mental health clinician, Louise Williams, recommended mental health treatment as part of any community correction order.^[9]

47 A drug counsellor at Millswyn Clinic, Amanda Brown,^[10] assessed you on 17 June 2021. You were then in remand custody. She noted, with enforced detoxification, you had gained a greater clarity of mind and desire to engage in treatment.

48 She identified a strong nexus between your substance abuse and your propensity to engage in disinhibited and poorly considered behaviour. She proposed you should engage in weekly counselling sessions to help you with relapse prevention.

50 A Victorian Institute of Forensic Mental Health psychiatrist, Dr Eleanor Bhattacharya assessed you on 18 January 2022. You told her you had found prison lockdowns, which have meant no activities or work and 23-hour daily confinement in your cell, very difficult. You are prescribed Olanzapine for low mood.

51 In Dr Bhattacharya's opinion, based on her assessment of you and her review of the reports I have referred to, your cognitive impairment and significant substance abuse have been contributing factors to your offending.

52 In her opinion, drug and alcohol treatment is likely to be the most important factor in attempting to reduce your risk of recidivism and prison will likely be more of a burden on you than other prisoners, without your cognitive impairment and depression.

53 Mr Saunders, who appeared on your behalf, acknowledged your offending is serious and requires the imposition of a term of imprisonment.

54 He submitted the violence of your offending, punching on with Mr Foy, was reckless rather than intentional conduct.

56 He conceded your prospects of rehabilitation are guarded. He submitted your reformation depends on you engaging with mental health professionals, complying with prescribed medication and remaining drug abstinent.

57 Ms Baxter, who appeared for the Director of Public Prosecutions submitted general deterrence, community protection and just punishment are the primary sentencing considerations.^[12] She also submitted, because of your criminal record, specific deterrence is a relevant factor.

58 In relation to the objective gravity of your offending, she submitted you are to be sentenced for the harm you caused Ms Athorn, that is, putting her in fear when you punched her, and the violence you caused to Mr Foy, that is, the punch you threw at him on the stairwell.

59 She submitted, in sentencing you, I am to disregard the injuries Mr Foy suffered when he fell down the stairs. In her submission, they provide only context to the fracas.

60 However, in her submission, there were aggravating features to your offending, namely your offending was unprovoked, you became argumentative, which woke Ms Athorn's young son, who came into the lounge room crying, and you started fighting after you were asked to leave.

61 She acknowledged your guilty plea, while not early, came in the face of triable issues in respect of charges which are no longer on the indictment. She also acknowledged the additional utilitarian value of your plea and the increased difficulty of prison during the public health pandemic.

62 She accepted, because of your cognitive disability, the need for general deterrence and specific deterrence is reduced, and your moral culpability is moderated to an extent.

63 She submitted considering your serious prior manslaughter conviction and subsequent convictions, which also involve alcohol and violence, and considering your failed attempts to address your alcohol and drug issues, your prospects of rehabilitation are poor.

64 In all the circumstances of your case, she submitted a term of imprisonment with a non-parole period is the only available sentencing option.

66 Common law assault also carries a maximum penalty of five years' imprisonment.

67 The seriousness of the crimes can vary significantly from case to case, and, most commonly, these charges are dealt with in the summary jurisdiction.

68 Ms Athorn and Mr Foy were entitled to feel safe in Ms Athorn's flat. You punched Mr Foy on the stairwell and, when she tried to intervene, you punched Ms Athorn to her nose and forehead.

69 Your offending involved some serious features. You were the aggressor. You disturbed and upset Ms Athorn's young son when you became angry. You became violent only after you were asked to leave and your attack was unprovoked.

70 However, your offending was brief and spontaneous and in the affray, you caused no physical injuries.

71 I accept the prosecution's submission this offending falls towards the lower end of objective gravity.

72 It was nevertheless serious offending and general deterrence, denunciation and just punishment are important sentencing considerations. Considering your criminal record, specific deterrence is also relevant. A term of imprisonment must be imposed.

73 There are mitigating factors which I will take into account to moderate your sentence.

74 Firstly, your guilty plea, while not early, has high utilitarian value especially during the public health pandemic because it alleviates the current strain on the justice system.^[13]

75 Secondly, because of lockdowns and disruptions to programs, work and visits, gaol is hard for prisoners during the pandemic^[14]

77 Fourthly, I accept your cognitive deficit is causally linked to your offending and, accordingly, moderates your moral culpability and reduces the need for general and specific deterrence to a modest degree.

78 Fifthly, your cognitive disability combined with your depression, will make prison additionally harder for you.

79 While your prospects of rehabilitation are guarded, I recognise engaging in drug and alcohol treatment is imperative for you and will likely be the most important factor in attempting to reduce your risk of recidivism.

80 Accordingly, I will impose a sentence which encourages you to remain drug abstinent and allows you the opportunity to soon do so under supervision in the community.

81 Mr Cummins, by the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.

82 Considering the circumstances of your offending, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:

83 The sentence I have imposed on the affray charge is your base sentence. Having regard to the totality principle, I direct three months of the sentence imposed for the common law assault be served cumulatively on your base sentence.

84 The sentence of one month for committing an indictable offence while on bail is to be served concurrently with the other sentences I have imposed.

85 Your total effective sentence is 15 months' imprisonment. I direct you serve a minimum period of nine months before you are eligible for release on parole.

86 I declare you have already served 236 days of your sentence by way of pre-sentence detention.

87 While there is some artificiality in the process, I declare, but your plea of guilty, I would have sentenced you to two years' imprisonment and fixed a minimum non-parole period of one year and three months.

^[1] Exhibit A - Summary of Prosecution Open on Plea dated 23 August 2021.
^[2] Exhibit C - Sentencing Remarks of Her Honour Judge Curtain dated 8 February 2012.
^[3] Exhibit 4 - Report of Dr Daniel Garola, Pediatrician dated 21 March 2005; Exhibit 7 - Triage Summary of Dr Daniel Garoit dated 21 March 2005.
^[4] Exhibit 2 - Psychological Reports of Jeffrey Cummins dated 2 December 2010, 16 March 2011 and 30 January 2012.
^[5] Exhibit 9 - Report of Jennifer McDowall, Neuropsychologist dated 10 June 2021.
^[6] Exhibit 5 - Letter from Dr Brian Hsu, Medical One Moonee Ponds dated 28 October 2020.
^[7] Exhibit 3 - Medical Report of Dr Sherol Hanna, Acumen Psychiatry dated 26 October 2020.
^[8] Exhibit 11 - Report of Mr Patrick Lo dated 3 February 2022.
^[9] Exhibit 6 - Forensicare Report of Louise Williams dated 9 February 2021 and Forensicare Mental Health Summary of Ankit Vedehra dated 14 March 2021.
^[10] Exhibit 8 - Letter from Amanda Brown, Lamberti & Associates dated 18 June 2021.
^[11] Exhibit E - Psychiatric Court Report dated 9 February 2022.
^[12] Exhibit A - Summary of Prosecution Open on Plea dated 23 August 2021; Exhibit D - Prosecution Outline of Sentencing Submissions dated 1 March 2022.
^[13] Worboyes [2021] VSCA 169, [35] and [39].
^[14] Brown v The Queen [2020] VSCA 60, [48].

County Court of Victoria

DPP v Cummins [2022] VCC 237 (9 March 2022)