IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT Melbourne
CRIMINAL DIVISION
CR-22-01192

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
SAMANTHA McCUMBER		

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JUDGE:	HIS HONOUR JUDGE LAURITSEN	
WHERE HELD:	Melbourne	
DATE OF HEARING:	15 August 2022 	
DATE OF SENTENCE:	11 November 2022	
CASE MAY BE CITED AS:	DPP v McCumber	
MEDIUM NEUTRAL CITATION:	[2022] VCC 1978		

REASONS FOR SENTENCE

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Subject:		CRIMINAL LAW
Catchwords: 	One charge of causing serious injury recklessly – one charge of assaulting a custodial officer – one charge of commit indictable offence on bail – charges arose out of an unprovoked stabbing on a tram – life threatening injuries sustained by the victim – protection of the community important sentencing factor – gravity for charge causing serious injury recklessly is high – causal connection between intellectual disability and other disorders accused has and the offending – modest reduction of moral culpability – sentences ordered to be concurrent despite s16(3C) of the Sentencing Act 
Legislation Cited:		Sentencing Act 1991 
Cases Cited:		Worboyes v R [2021] VSCA 169; R v Verdins (2007) 16 VR 269
Sentence:	Total effective sentence of 24 months imprisonment and a non-parole period of 14 months’ imprisonment 

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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr F. Cameron (Plea)
Mr Z. Menon (Further Plea and Sentence) 	Office of Public Prosecutions 	
			
For the Accused	Mr D. Risstrom	Greg Thomas Lawyers and Barristers	

HIS HONOUR:

1	Samantha McCumber, you have pleaded guilty to charges of causing serious injury recklessly, assaulting a custodial officer and committing an indictable offence while on bail. 
2	The maximum penalties for these offences are: 
(a)	Causing serious injury recklessly – 15 years' imprisonment;
(b)	Assaulting a custodial officer – five years' imprisonment; and, 
(c)	Committing an indictable offence while on bail – a fine of 30 penalty units or three months' imprisonment.  
Circumstances 
3	The circumstances underlying these charges are contained in the document entitled ‘Summary of prosecution opening on plea’, which is Exhibit A. 
4	On 23 December 2021 at 5.45 pm, you rang 000 and said you intended to stab someone and asked for the police.  You gave your name and date of birth and said you were wearing a pink dress.  
5	At 6.37 pm police members and protective services officers spoke to you.  You denied saying to 000 you would stab someone.  You rang to see if there was a warrant for your arrest. 
6	At 7.05 pm, you boarded a tram with a shopping cart.  Within three minutes of boarding, you stabbed a complete stranger twice with a knife.  The attack was unprovoked.  It is shown on CCTV footage, which I have now viewed several times.  Although you stabbed twice, only one blow penetrated the victim's skin. 
7	The victim was taken to hospital by ambulance.  The wound was 2 centimetres long and 30 millimetres deep.  The stab caused a deviated trachea, a partial collapse of a lung and pericardial effusion.  The wound was repaired by stitches and the victim was discharged from hospital four days later. The ‘serious injury’ ingredient of the first charge, is satisfied by realising that without early medical help, the victim's condition would have worsened with the possibility of respiratory compromise, cardiovascular collapse, and even death.  These circumstances constitute the charge of causing serious injury recklessly. 
8	After another three minutes, you had left the tram, gone to a phone, rang 000 and advised that you had stabbed someone.  At 7.32 pm police members found you in a McDonald's restaurant in Bourke Street.  You were arrested after saying you had stabbed someone.  
9	You were taken to a police station and put in a holding cell.  You asked for a mattress and blanket.  These items were brought to you. As the police members were leaving, you spat at one of them, with your saliva striking his thigh.  This constitutes the charge of assaulting a custodial officer on duty.  
10	The victim himself does not want to make an impact statement and none has been made.  It appears he does not even want to know what happens to you.  He does not want to re-live the incident. 
Pre-Sentence Detention 
11	You have remained in custody since your arrest on 23 December 2021.  Excluding today, you have spent 290 days in detention. 
Criminal History 
12	Between 29 September 2015 and 21 May 2021, you have appeared in a criminal court on 20 occasions and have been found guilty or convicted of 
77 charges.  You have been sentenced to imprisonment or detention on eight occasions.  Your longest custodial sentence of six months' detention was imposed on 24 February 2017.  
13	I have read the sentencing remarks of Her Honour Judge Cohen for three sets of proceedings before her. 
Personal Circumstances 
14	You are now 25.  You are indigenous.  
15	The material does not set out the significant aspects of your life.  I daresay that is due to your reluctance to talk about your earlier life. The psychiatrist, Dr Sullivan, summarised your earlier life in these terms: 
‘Ms McCumber is a 24 year-old single woman of indigenous background marked by adverse childhood experiences, including placement in foster care and residential units.’  
16	Both your parents are dead.  Your father died in 2014 and your mother in 2017.  
17	For your secondary education, you attended a special school due to your intellectual disability.  You successfully completed all sections of the school, culminating at the senior school. 
18	You have never engaged in paid employment.  You receive a disability support pension due to your intellectual disability.  Your moneys are managed by State Trustees.  
19	As to your family or friends, there is Auntie Fiona and her son, Troy, to whom you are close. 
20	You told Dr Sullivan of your use of cannabis, synthetic cannabis, methamphetamine and inhaling aerosol deodorants.  The level of your use was such that he, diagnosed you as suffering from a recognised disorder, a substance use disorder. 
Psychiatrist 
21	Turning then to Dr Sullivan.  He is a consultant psychiatrist.  At the request of your solicitor, he interviewed you on 30 April 2022.  He had previously interviewed you in 2016. 
22	Accepting the views of others, Dr Sullivan says you have a mild intellectual disability.  This impairs your judgment, moral reasoning and consequential thinking.  You also have difficulty expressing yourself and understanding what is said to you.  These difficulties are sufficiently severe for Dr Sullivan to describe them as disorders. 
23	Dr Sullivan diagnoses you as suffering from a significant mixed personality disorder with antisocial and borderline features.  For you, this disorder means you are markedly impulsive.  Your ability to control your emotions is poor.  You have difficulty in relating to other persons. You have a limited sense of responsibility.  You are unable to understand and share the feelings of others.  He even raised the possibility that from time to time you perceive things wrongly because of the stress you are then experiencing. 
24	Dr Sullivan also diagnosed you as suffering from a severe substance use disorder, the substances being cannabis, methamphetamine, and volatile solvents. 
25	As to the stabbing, Dr Sullivan sees at least a modest link between your personality disorder and intellectual disability and the offence, in that they lower your ability to tolerate frustration, your capacity to solve problems and your ability to think through the consequences of your actions.  Your ability to clearly and make calm and rational decisions is impaired. 
26	Dr Sullivan noted two things:  first, what he described as a concerning pattern of the use of weapons; and, second, the limited indication that therapeutic interventions have been effective.  Overall, he considered you at a markedly elevated risk of committing violence. 
27	Dr Sullivan doubted the fact of case management agency support or accommodation has significantly increased your capacity to cope in the community.  
28	He made recommendations for your future treatment:  
(a)	a sustained and highly intensive violence intervention; 
(b)	longer term substance use treatment; 
(c)	monitoring for the entire duration of the community element of any sentence;
(d)	efforts to reduce your contact with antisocial peers.  
Other reports 
29	I have received other reports in the course of this proceeding: 
(a)	a disability overview report dated 7 November 2022; 
(b)	a justice plan; 
(c)	an extended pre-sentence assessment – outcome report; 
(d)	Alex Davie, occupational therapist; 
(e)	Danijela Hodges of ermha365; 
(f)	Suzanne Bull from the Office of the Public Advocate, and
(g)	Kristen Pietsch, a report dated 10 November 2022.  
Discussion 
30	The pre-sentence assessment which I described in paragraph C is highly detailed.  It examines the arguments for and against recommending you as suitable for a community correction order.  In the end, the author recommended you as unsuitable for such an order.  Without going through the arguments, I agree with the conclusion, notwithstanding any matter put to me this morning by Mr Risstrom in relation to that report. I would not place you on a community correction order with appropriate conditions because I could not be satisfied that you would, first, generally comply with its conditions, even with the enormous help you would receive, and secondly, that you would not seriously reoffend if subject to the order. 
31	Looking at the purposes of sentencing, one purpose stands out very clearly – the need to protect the community from you.  As I said, I have viewed the video recording of the incident underlying the charge of causing serious injury recklessly.  It contrasts with your description of the event given to the author of the pre-sentence assessment report. I note the opinions of Dr Sullivan of the apparent ineffectiveness of the assistance given to you in the community in relation to offending and your markedly elevated risk of committing further violent offences. 
32	In sentencing you, I am conscious of the timing of the entry of your pleas of guilty and the effect of your pleas of guilty, especially in light of the case of Worboyes v R, and in that regard I would refer to paragraph 35 of the decision in Worboyes' case without reading it out.  I consider your pleas of guilty were indicated and then entered at an early opportunity. 
33	The gravity of the offence in Charge 1 is high.  It arose out of an unprovoked attack upon a stranger using a knife and inflicting a serious injury. 
34	As to the application of some of the propositions in the case of Verdins v R, Dr Sullivan lends what he calls at least a modest causal connection between the effects of your personality disorder, intellectual disability, and the offending in Charge 1.  I have already set out what he considers are the effects upon your offending.  Those effects do reduce your moral culpability for that charge and the other charges, and the impact of the sentencing considerations of general and specific deterrence.  However, the reductions are modest.  
35	I am also conscious of the effect of s16(3C) of the Sentencing Act 1991 and I have heard submissions from both counsel this morning in that regard. The offences in Charges 1 and 2 were committed while you were on bail for other charges.  Unless I order otherwise, the sentences of imprisonment on those charges should be served cumulatively.  
36	In this case bearing in mind that imprisonment is a sanction of last resort, bearing in mind the principle of parsimony and bearing in mind the totality principle, I will order that the sentences be served concurrently. 
Sentences 
37	On Charge 1, a charge of causing serious injury recklessly, I sentence you to 24 months' imprisonment.  
38	On Charge 2, a charge of assaulting a custodial officer on duty, I sentence you to 14 days' imprisonment.  
39	On summary charge 6, a charge of committing an indictable offence while on bail, I sentence you to 14 days' imprisonment.  
40	The sentences on each of those charges will be served concurrently. The total effective sentence is two years’ imprisonment. I will set a non-parole period of 14 months' imprisonment. 
41	Excluding today the amount of time you have spent in custody due to these charges is 290 days.  I declare the period of 290 days as time served under my sentences today. 
s6AAA Declaration 
42	If you had not pleaded guilty to these charges but had been found guilty of them after a trial, I would have sentenced you to three years' imprisonment and set a non-parole period of 20 months imprisonment. 
Disposal Order 
43	I will make the disposal order as sought by the prosecution in the terms outlined in the draft order. 
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