R v Stone [2010] VSC 616 (8 December 2010)

Last Updated: 28 January 2011

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0025 of 2010

THE QUEEN
v
DEAN STEVEN STONE

---

JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 September 2010
DATE OF SENTENCE:	8 December 2010
CASE MAY BE CITED AS:	R v Stone
MEDIUM NEUTRAL CITATION:	[2010] VSC 616	Revised 28 January 2011

---

CRIMINAL LAW - Causing Serious Injury Intentionally – Guilty Plea – Circumstances of offending - Significant criminal history – History of drug and alcohol abuse – Absence of acquired brain injury – Limited prospects of rehabilitation – Principles of general and specific deterrence.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms C. Barbagallo	Office of Public Prosecutions
For the Accused	Mr D. Dann	Dooge & O’Brien

HIS HONOUR:

1 Dean Steven Stone. You have pleaded guilty to one count of intentionally causing serious injury to Scott Reynolds at Prahran on 8 June 2009.

2 On the evening of the offence, Reynolds had visited the house you shared with Bella Thompson in South Yarra. At the time, and it is not entirely clear whether you were aware, Thompson shared an intimate relationship with Reynolds. You were also in an intimate relationship with Ms Thompson, the nature of which, by the time of the offence, is equally as unclear. In any case, Reynolds had in the past slept on the couch at the South Yarra address while you and Ms Thompson slept in the bedroom, and the three of you had spent sufficient time in one another’s company to be familiar.

3 Reynolds arrived at the house on 8 June at about 9.30pm. You met him at the front door holding a long knife in your hand and appeared to Reynolds to be in a somewhat agitated frame of mind. When Mr Reynolds entered the house however, you appeared to calm down and placed your knife on the kitchen table.

4 Over the next 2 hours, the three of you stayed at the address drinking alcohol. At about 11:30pm, you, in company with Reynolds and Ms Thompson, left the premises in order to visit some flats in Prahran, an address of a person who owed you money. Upon speaking to someone at those premises, the three of you together left the flats and walked towards Malvern Road. It is fair to say that Ms Thompson was quite intoxicated.

5 On Reynolds version of events, he was attempting to talk her out of going along with whatever you were going to do. To better achieve that end, he was trying to calm Ms Thompson down. He described you, at this time, as appearing quite agitated yourself and said you spoke to him in an angry tone.

6 As Reynolds walked on the footpath, he suddenly felt a blow to the back of the neck, as though he had been punched. He crossed the road, and then realised he had a large amount of blood flowing from the back of his head. Upon turning, he noticed you were walking toward him, armed with a knife; the blade of which was about 30cm long. Reynolds claims you said words to the effect “You want more, I’ll give you more”, and accordingly, he fled. As you followed in pursuit, Reynolds attempted to gain assistance from the occupants of a nearby car and was unsuccessful. You then approached the same car and told the occupants that the person you were pursuing had tried to rape your girlfriend. In the meantime, Reynolds ran to the Prahran Police Station where he was attended by paramedics, who shortly conveyed him to the Alfred Hospital.

7 The medical records from the Alfred show that upon his admission to the Emergency department, Reynolds had sustained 6 stab wounds. One to the left occipital region of the scalp, one to the left side of the back of his upper neck, one to the left side of the posterior lower chest wall, one behind his left ear, one to his right forearm and one to the left side of his chin. The first wound, to the left occipital region, had penetrated his skull resulting in a penetrating intracranial injury. The medical evidence is that considerable force is required to penetrate the occipital region of the skull in such a position, and that it is most likely that such an injury would have been inflicted from behind.

8 On the following day, you, in company with Ms Thompson visited Reynolds in hospital. There you spoke with Reynolds and told him you were sorry. When Reynolds asked why you had stabbed him, you told him that you did so because he had been arguing with Ms Thompson. On your further plea before me, your counsel confirmed that you felt, in your mind at least, that you were defending her.

9 Later that same morning, you were arrested by police at your residence in South Yarra. On the same day, you participated in a recorded interview, during the course of which you told police you were acting in self defence. You maintained Reynolds had started the altercation; that he had produced a knife which he swung at you. You claimed to have sustained a number of injuries as a consequence of Reynold’s action. You told the police you managed to get the knife from Reynolds, which you then used to “stab him a few times”.

10 It is clear, however, that the account which you gave to police was not a truthful version of the events of that evening.

11 On your plea, when it commenced before Kaye J, a report by Ms Rachael Freeland, a drug and alcohol clinician, was tendered on your behalf. During Ms Freeland’s assessment of you, conducted on 15 June 2010, you told her that on the night of the offence you had been drinking heavily and were taking Xanax. You said further that Ms Thompson and Reynolds had been arguing, and Ms Thompson appeared to you to be in considerable distress. You maintained to Ms Freeland that you stabbed Reynolds in defence of Ms Thompson, and that you had done so because you “just snapped” and “lost it”.

12 The night of the offence is not an isolated instance of violence between yourself and Reynolds. Three days prior on 5 June, whilst walking through a park in Prahran, again in company with Reynolds and Ms Thompson, you suddenly and for no apparent reason, punched Reynolds in the jaw. Reynolds described the punch as “pretty hard”, he stumbled, but did not fall to the ground. You apparently said to Reynolds “You’re the first person whose ever been able to stand up to that”. You do not, of course, fall to be punished for the incident on 5 June. I note it only because it may be indicative of some animosity towards Reynolds leading up to the day of the incident for which you are to be sentenced, and is further indicative of the uncertain nature of the relationship which existed between yourself, Reynolds and Ms Thompson at the time.

13 You were originally charged with attempting to murder Scott Reynolds. You were committed for trial on 9 February 2010, and after an initial directions hearing, your trial was listed for 3 May 2010. In the meantime, on 23 April 2010, you agreed to plead guilty to the charge of intentionally causing serious injury to Reynolds. At the final directions hearing before Kaye J on 27 April, your counsel confirmed your intention to plead guilty to that offence. On 21 June, an indictment containing one count of causing serious injury intentionally was filed, you were arraigned and pleaded guilty to that charge. The matter was then adjourned by Kaye J in order to obtain further material with regard to your psychological state, and came back before me for the plea on 29 September 2010. I adopted everything which had occurred before Kaye J.

14 I turn now to your background

15 You are now 32 years of age. The early years of your life were spent in Frankston. Your mother suffered from skin cancer and died at an early age when you were around three years old. You remained in the care of your father. Your father later became involved in a new relationship with a lady named Carol Aldridge, who had two daughters from a previous relationship, both older than you. Your father and Ms Aldridge came to have a child together, Ryan, who is now around 20 years old.

16 On your own account, the family dynamic was disruptive. You did not get on with your foster mother. You describe a lack of unity within the blended family unit, which lead to a period of dislocation for you, being sent to stay for periods of time with your maternal grandmother in Broadmeadows. These periods progressed to the stage where you were enrolled in primary school in Broadmeadows so that you could continue to live with your grandmother. The transience of the situation eventually lead to your being made a ward of the state at age 10.

17 Your history then shows a progression from foster families, secure welfare, boys' homes, Baltara, to Turana Youth Training Centre. In your early to mid teens you were living on the streets or at train stations. Your young life tells of sad and difficult circumstances. In total it appears there were 54 placements. You felt that you “did not fit in” the places you were asked to go, and lost contact with your father.

18 You left Ballam Park Secondary College without completing year 7, and have since had limited employment.

19 At around 11 or 12 years old, you began using illicit substances, including amphetamine, heroin and Rohypnol, and abusing alcohol. I note you attempted to stop drinking between the ages of 19 and 29, however your substance abuse continued. When you were 19, you spent about a year in prison. It was after another release from prison that you relapsed into the use of alcohol. On page 4 of her report, Ms Freeland noted: “Prior to his arrest, Mr Stone had returned to drinking, approximately three 150 mL bottles of bourbon daily, six to 12 premix cans and he would take Xanax here and there, and was injecting 0.5 gram of heroin daily.” You have completed a number of detoxification programmes, but with no success, however according to Ms Freeland, you now accept that you now “needed all the help he could get”.

20 Your longest continuous period of employment was at the age of 18 or 19, when you joined Pit Stop Motors as a car detailer and worked at various venues in Moorabbin, Malvern and Balaclava. That continued for a period of approximately 12 months, and since that time, employment has been rare.

21 Your physical health has also been an issue at stages in your past, particularly injuries arising from a very serious car accident. You were a passenger in the vehicle and were not wearing a seatbelt when a tyre blew out, resulting in an extended period of hospitalisation. You have suffered a number of other injuries to the head from fights. You have had at least one drug overdose and exposed yourself to risk by unsupervised withdrawal from alcohol. You have difficulties with memory, which may be indicative of an acquired brain injury.

22 You have also had a number of mental health issues over the years. You have been diagnosed variously with bipolar disorder and depression, as well as antisocial personality disorder. You have experienced at least one bout of drug induced psychosis as a result of amphetamine use. You have a history of self harm in your youth.

23 You have a significant criminal history, commencing when you were 14 years old. You have 41 prior court appearances involving 219 offences with respect to which there have been findings of guilt. Two sets offending for which you were dealt with in Frankston and Melbourne Magistrates’ Court respectively are not actually prior convictions, but they do relate to conduct which occurred before this offence.

24 The predominant type of offending featured in your criminal history involves dishonesty and drug use, consistent with your abuse of illicit substances. You do have a priors in possession of controlled weapons, aggravated burglary and armed robbery. In relation to the two armed robberies for which you were convicted, the weapons were a meat cleaver and a knife.

25 In your interview with Ms Freeland, you did express remorse, and I accept that you regret what you have done and regret the injuries caused Mr Reynolds. I accept that your actions were as a result of some loyalty you thought you owed to Ms Thompson, but I regard your claim to self-defence as no more than a rationalisation of your unjustifiable behaviour. I am also satisfied that you regarded Mr Reynolds as a rival, whether you knew of the sexual relationship between he and Ms Thompson or not.

26 Ms Freeland was inclined to the diagnosis that you had an acquired brain injury (ABI) and recommended neuropsychological assessment.

27 The neuropsychological assessment was carried out by Izabella Walters, a Clinical Neuropsychologist who worked in the same practice as Ms Freeland. I received a report from Ms Walters dated 2 August 2010. Under the heading “Opinion”, she observed:

“35. Despite several reasons for cognitive impairment, including a significant head injury in a motor vehicle accident, multiple blows to the head, long-term alcohol and drug abuse, and a serious overdose, Mr Stone’s cognitive status is surprisingly good. On this assessment, he performed well, scoring in the Average to Low Average range on most tests, and in the High Average range on tests examining his ability to change his behaviour in response to feedback. The only difficulties he showed were on tests of speed of processing, on which he performed in the Borderline Impaired range, and on some memory tasks. His performance on tests of memory was inconsistent, ranging from Average to Borderline Impaired and Impaired, without any clear pattern. I believe that his memory problems are due to lapses in encoding, possibly related to attentional lapses. Some attentional lapses were also noted on a test of changing behaviour in response to feedback.

36. I note that attentional performance is best in a quiet one-on-one setting without distractions, and suspect that Mr Stone’s everyday functioning is somewhat less efficient than his performance at the assessment, especially in busy settings.

37. Mr Stone’s cognitive function at the present time, twelve months since he ceased using alcohol and drugs, cannot be assumed to be the same as at the time when he committed the offences. Drugs and alcohol do impair mental function, and recovery from at least some aspects of cognitive dysfunction is well documented in prolonged abstinence from alcohol. It is fairly likely that Mr Stone’s cognitive function was worse at the time of committing the offences than it is now. However, it is impossible to retrospectively estimate his mental function at that time.

38. Mr Stone’s demeanour during the assessment, complaints of significant sleep difficulties and admission of at least low level of depression, in conjunction with his psychiatric history, suggest a strong need for psychiatric review.

39. Considering Mr Stone’s past history, it is fairly likely that he will resume abusing alcohol and drugs on his release from prison. The intervention that has the greatest chance of success would involve not only a personalised weekly drug and alcohol counselling session, but also the provision of anxiety-reducing strategies ad possibly medication and ongoing support in the community after release.”

28 Those findings were less pessimistic than Ms Freeland had anticipated, but nonetheless indicate that you do suffer some defects. A psychological examination of you had been carried out by Mr Ian Joblin and his report of 19 July 2010 was tendered.

29 Mr Joblin was also concerned about the effect drugs and head injuries might have had upon your behaviour. He did not have the benefit of Ms Walters’ report, as it was prepared after his assessment.

30 He did report as follows:

“However, Mr Stone has a history of head injuries. He can recall being assaulted to the point where he was rendered unconscious, even as a child under the care of CSV. He has been involved in numerous fights which have resulted in physical injuries. He reported that he experiences headaches, dizzy spells and disorientation at times. He indicated that sometimes he cannot remember where he was going or the reason he went out.

His history of alcohol and drug use may have affected his brain. He reported serious memory difficulties and the dates given above with regard to his periods of imprisonment have not come from his report. He indicated cognitive difficulties when I spoke with him.

I am aware that there is discussion in the report of the 16th of June 2010 about his having an acquired brain injury. I note further there is discussion about a neuropsychological evaluation. Mr Stone indicated at the time of my interview with him that he did not believe that had occurred.

He reported, however, that when he was on the CISP program through the Melbourne Magistrates’ Court an assessment was arranged and he attended the first part of that assessment. He indicated that the second part was to be arranged but he was placed into custody before that could take place.

He reported that he cannot recall having an MRI or CT scan. He believes, therefore, that he has had not neurological assessment.

At this point it is extremely difficult to be definitive about the presence of an acquired brain injury. The psychological symptoms suggest it as does his history. It is my experience that to make a precise determination a neurologist would need to be involved.

However, I am not of the opinion that any acquired brain injury would be directly relevant to these offences because Mr Stone has good recall for what happened. There is no suggestion of automatism and in my opinion no suggestion of impairment.

The major presenting problem in relation to these offences is his personality disorder. That is quite apparent. Further, in the context of his personality disorder, at the time of the stabbing Mr Stone reported that he had been drinking excessively and abusing prescriptive drugs, namely Xanax.

Mr Stone reported that when he was stopped by the police on the 8th of June he had a bottle of Jagermeister that he attempted to drink prior to being arrested.

As indicated there is no doubt in my opinion that Mr Stone has a serious personality disorder. While he may well have an acquired brain injury, the relevance of that to the offending is less in my opinion than that of the personality disorder.

It is also apparent that at some point Mr Stone has been diagnosed with a bi-polar disorder. I am not of the opinion from a psychological assessment that he has a bi-polar disorder.

There is no doubt however, that he is psychological depressed. He was very flat in effect. He reported that in the jail he works in the kitchen and tried to work long hours. He reported that when he is not working he goes to the gym to train.

Mr Stone reported that over the years he has found that to get through a sentence of imprisonment he should continue to be occupied. He has decided that it is important to work and train. This seems to be his method of surviving a prison sentence and does not represent a manic phase of bi-polar disorder.

Mr Stone reported that if he stops and begins thinking about his history and his situation in custody he becomes depressed. He indicated that when he was younger, he self-mutilated and the scars on his arms were quite apparent. I did not at the time of my interview with him consider that he was a suicide risk on the 14th of July 2010. I discussed that at length with him given the history of self-harm and self-mutilation he has had.

As indicated, Mr Stone’s primary difficulty is his personality disorder of an antisocial nature. The relevance of that to the offending is direct. The personality disorder in my opinion does not make him mentally ill.

If he had an appropriate neurological assessment and that indicated the presence of an organic brain syndrome, treatment for symptoms of that syndrome should be available. In the meantime, given his history, treatment for his personality disorder and the symptoms of that is very difficult.

Under these conditions it is difficult to place Mr Stone and the offence into the context of Verdins.

It is a very difficult situation for Mr Stone. He realises that his future is in the hands of the criminal justice system for some time. as indicated above, in my opinion the basis of the offences lies in his somewhat misconceived relationship with Ms Thompson and his perception that Mr Reynolds was distressing her. In response he confronted him verbally and then physically.

The pattern, therefore, of his response to such a stressor was confrontational and that was a symptom of his personality disorder.”

31 You have been in a number of relationships over the years, none of which became permanent. You have tenanted at a large number of addresses. Your history immediately prior to the offending revolved around your relationship with Ms Thompson. You had been released from custody, probably in the middle of 2008 (Mr Joblin thought it was early 2009). At that time, you still had to face charges at Frankston Magistrates’ Court for offending which had occurred in November 2007. You were later charged with offences which occurred in October 2008, January, February and March 2009. Out of that constellation of charges you were admitted to the Court Integrated Services Programme (CISP) at Melbourne Magistrates’ Court. You were involved in that programme at the time of these events. With your background, you were a suitable candidate for involvement in that programme. You reported to Ms Freeland that you thought that you were doing well in the programme. Mr Joblin reported that some arrangements appeared to have been made for neuropsychological testing. Your continued abuse of alcohol and other illicit substances would tend to suggest that your view of your success on the programme was somewhat exaggerated.

32 After your release from prison, you went to live with Ms Thompson and her mother in Frankston. You left Frankston in an attempt to avoid temptation and went to South Yarra, where you were joined by Ms Thompson. During that time, you returned to the abuse of alcohol and drugs. Your relationship with Ms Thompson was not easy and she would at times return to her mother’s house. Eventually, she brought Mr Reynolds to the flat in South Yarra. You have said to the professional people who have examined you that you had no appreciation of the depth of the relationship between Ms Thompson and Reynolds, and you regarded your relationship with her as continuing. As I have already observed, you regarded Reynolds’ presence with Ms Thompson as undesirable and, to from your perspective, unacceptable.

33 You have attempted to do your best whilst on remand. I received a number of certificates relating to courses which you have successfully completed in custody. I received material demonstrating that the results of drug tests have been negative. You pleaded guilty, and although not at a particularly early stage, the Crown accept that your plea is of value. It is likely that a trial largely dependant upon the evidence of Mr Reynolds and Ms Thompson would have been a difficult one.

34 I accept that you have been in custody since June 2009 and I have regard to that fact. You will receive credit for pre sentence detention of 236 days.

35 Although you have a long and in part serious criminal history with some features of violence, you do not appear to have engaged in violence at this level in your past. Your offending seems to spring from your alcohol and drug fuelled personality defects. This is a brutal attack which occurred for either no reason or no good reason. It involved a large knife and it was persistent. Although the injuries do seem to have been permanent, it is a serious example of this offence for which the maximum penalty is twenty years.

36 I must have regard to just punishment and to both general and specific deterrence. In fixing the non parole period I am obliged to have regard to all the purposes otherwise required of a sentence. It has recently been observed by the Court of Appeal that non parole periods which are arithmetically greater than 75% of the head sentence are to be regarded as, at least, undesirable.

37 I do want you to have the opportunity of parole and I want you to have the assistance of the Adult Parole Board on your release. Those are matters which are in your hands and the hands of others. I do not wish, however, to fix a non parole period which upon your release, might doom you to failure.

38 It is for that reason I have fixed a non parole period which will leave a 2 year gap between the head sentence and non parole period. I believe that a 2 year period is both just and realistic.

39 This is, nonetheless, a very serious example of a serious offence, namely the infliction of 6 distinct injuries, some of them inflicted from behind. It does not appear that the injuries have had long lasting effects, yet the ordeal must have been a difficult and terrifying one for your victim, as it must have been for Ms Thompson. The fact that the results were not more serious for Mr Reynolds is entirely fortuitous. There was no Victim Impact Statement provided to the Court.

40 It follows from the material tendered and referred to that your prospects of rehabilitation are quite limited. I have observed, and it seems to follow from Ms Walters’ report, that your continued abstinence from alcohol and drugs will help you. It seems fair to say that if you return to the use of drugs and alcohol, you will almost certainly re-offend.

41 You are still a young man. You have had a very difficult life from a young age. When one looks at your criminal history, you have been given many chances in the past but have not taken them. You told Ms Freeland that you want to do so now and I hope that is true and that it can be achieved. I hope that you do, at a more mature age, that which you could not achieve when young.

42 There is no remarkable defect, nor identifiable mental illness from which you suffer, that would gain for you any special consideration in relation to amelioration of sentence. That seems to follow quite clearly from Mr Joblin’s report.

43 You are sentenced to be imprisoned for a period of eight years and I fix a non parole period of six years before you are eligible for parole.

44 I state that had it not been for your plea of guilty, I would have imposed a sentence of 10 years with a non parole period of eight years.

45 I declare that a period of 236 days are to be taken as having already been served under this sentence, and order that the above statement and this declaration be entered in the records of the Court.