Dimech v Brooks
[2020] VMC 28
•27 October 2020
IN THE MAGISTRATES’ COURT OF VICTORIA
AT BENDIGO
MAGISTRATES COURT
Case No. 202008639
| LEADING SENIOR CONSTABLE BRANDON DIMECH | Prosecution |
| v | |
| CODY BROOKS | Accused |
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MAGISTRATE: | J GRAINGER |
WHERE HELD: | Bendigo Magistrates Court |
DATE OF HEARING: | 3 September 2020 |
DATE OF DECISION: | 27 October 2020 |
CASE MAY BE CITED AS: | Dimech v Brooks |
MEDIUM NEUTRAL CITATION: | [2020] VMC 028 |
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CATCHWORDS – Criminal law - Sentencing remarks - Whether s16(3) of the Sentencing Act 1991 applies - Whether offences ‘prison offences’ -
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APPEARANCES: | Counsel | |
| For the Prosecution | Leading Senior Constable Michael Arnott | Central Victoria Prosecutions Unit |
| For the Accused | Mr Nicholas Rolfe | Rolfe Criminal Law |
HER HONOUR:
SUMMARY OF OFFENDING
Mr Brooks, you have pleaded guilty to intentionally causing injury under s18 of the Crimes Act 1958 (Crimes Act) and being armed with a controlled weapon whilst having criminal intent under s31B of the Crimes Act.
The victim is a prisoner who is serving a sentence of imprisonment at the same correctional facility where you were being held on remand.
Specifically, on 3 June 2019, you grabbed the victim from behind using your left arm over the victim’s left shoulder. You then attempted to stab the victim with a metal butter knife to the right side of the victim’s throat and when the victim turned his head towards you, the knife grazed along his forehead. You continued to raise your right arm and make repeated contact with the victim’s back in a stabbing motion until prison officers called out to you to stop. This display of violence was captured on CCTV and lasted approximately two minutes.
The victim made a statement of no complaint despite being treated in hospital for a 1cm x 1cm stab wound to his back.
Forty prisoners and three prison officers observed the attack and your actions caused fear and concern amongst the other inmates and prison staff.
You made full admissions. In particular, you admitted to having the butter knife for approximately one month, sharpening it at the metal shop, and planning to confront and assault the victim with the knife.
You also pleaded guilty to the theft of two pairs of tracksuit pants and two jackets worth a total of $339.96 from Rebel Sport in Bendigo on 25 February 2019 and intentionally damaging a porcelain toilet and cell observation window at the Metropolitan Remand Centre on 9 December 2019, which cost $2549.23 to repair.
THE SERIOUSNESS OF THE OFFENCES
The offence of intentionally causing injury is a very serious and violent offence. The maximum penalty for intentionally causing injury is 10 years’ imprisonment.
This offence is also more serious because it was committed whilst you were on remand. As Vincent JA observed in R v Devries:
It hardly needs to be said that our prisons must not become jungles with their own subculture in which predators can enforce their will in the confidence that those who are subject to it will be too fearful to do anything about it or in which the only practical response is to take equally violent retaliatory measures. I note that this concern was appreciated by the sentencing judge. Neither can it be accepted that there is a separate gaol culture that somehow mitigates the employment of force as a method of settling disputes.
Obviously the courts must play their part in endeavouring to ensure that no such situation develops and through the sentences that are handed down discourage the use of force in this way. In other words, it must be crystal clear to all concerned that the conduct of the kind in which the applicant engaged will not be tolerated and will almost certainly attract the imposition of condign punishment.[1]
[1] [2005] VSCA 95, [22].
The Court of Appeal also observed that ‘deterrence assumes particular importance as a sentencing principle where the offending takes place in a custodial or prison setting’ and that the custodial or prison setting of an offence may be regarded as an aggravating feature’.[2]
[2] [2011] VSCA 337, [36].
11. Being armed with a controlled weapon whilst having criminal intent is also a serious charge with a maximum penalty of five years imprisonment and the offending, which is described above, is a reasonably serious example of the offence given that it happened whilst you were on remand and you used the sharpened knife to stab another prison.
12. Whilst intentionally damaging property and theft are also serious charges with maximum penalties of ten years imprisonment, the circumstances of your offending in relation to these charges are not particularly serious examples of these offences.
YOUR BACKGROUND AND PERSONAL CIRCUMSTANCES
13. You were 22 years old when you committed the theft offence and 23 years old when you committed the offences of intentionally causing injury, being armed with a controlled weapon whilst having criminal intent and intentionally damaging property. You are now 24 years old.
14. On 4 August 2020, Her Honour Judge Fox sentenced you to four years and two months imprisonment for six offences, namely aggravated carjacking, handling stolen goods, two charges of being a prohibited person in possession of a firearm, theft and dangerous driving whilst being pursued by police.
15. Your background and personal circumstances are set out in detail in Judge Fox’s reasons for her sentence,[3] which your lawyer tendered on your behalf. Your lawyer also tendered a psychiatric report of Dr Nina Zimmerman, Consultant Forensic Psychiatrist, dated 21 July 2020.
[3] [2020] VCC 1185, [25] – [31] (Judge Fox’s reasons).
16. Judge Fox refers Dr Zimmerman’s report in her reasons, together with a psychological report from Gina Cidoni dated 3 March 2020. Your lawyer did not provide me with a copy of Ms Cidoni’s report, but Dr Zimmerman’s report refers to it in detail.
17. Whilst there is no need for me to repeat everything that Judge Fox referred to in her reasons for sentence in relation to your background and circumstances, I will refer to some of the most pertinent matters.
18. Judge Fox summarised your background as being ‘fairly described as one of considerable trauma and disadvantage’ as you ‘were exposed to severe domestic violence, drug use and physical abuse’.[4]
[4] Judge Fox’s reasons, [25].
19. According Dr Zimmerman, you have a history of childhood abuse, homelessness, substance misuse and offending.[5] In particular, Dr Zimmerman refers to Ms Cidoni’s report where she states that you told her that you were an only child who was physically abused by your parents and that you were removed from their care at the age of twelve. You reported living with kind foster parents for twelve months, but you were then returned to your parents where you continued to be physically abused and frequently relocated between Melbourne and Queensland. You reported attending about ten different primary schools. You left home at fourteen and were homeless until you were eighteen.
[5] At [6].
20. You also told Ms Cidoni that you met your girlfriend Shelley in a nightclub where you worked in Bendigo in 2018. This is your only history of employment. Shelley also used drugs and had mental health difficulties and left you in September 2018. You stated you returned to using drugs and couch surfing at this time, were in prison from November 2018 until 8 January 2019 and were again homeless from this time.
YOUR MENTAL HEALTH AND OTHER DISABILITIES
21. According to Dr Zimmerman, Ms Cidoni’s report also states that you reported being diagnosed with Attention Deficit and Hyperactivity Disorder (ADHD) as a youth. You described to Ms Cidoni anxiety, nightmares and panic attacks as a result of having been physical abused as a child, you cut yourself during your teenage years and you attempted to hang yourself when you were fifteen years old.
22. You also described symptoms of post-traumatic stress disorder following being knocked unconscious in February 2019 after you were hit in the head with a shot gun.
23. Ms Cidoni assessed you as having a borderline IQ of 72 and borderline memory functioning. Ms Cidoni noted that findings on testing may have been influenced by your high level of distress at the time you were assessed but found depressive symptoms, also describing you as showing evidence of anxiety, mania, hypervigilance, impulsivity and having problems with planning and judgment. You reported ongoing nightmares and intrusive thoughts and persecutory concerns that others are out to harm you. Ms Cidoni noted no hallucinations but referred to you having experienced ‘paranoid psychosis’ in the past.
24. Ms Zimmerman concludes that you have a personality characterised by a disturbed self-identity, affective instability and impulsivity related to your developmental experiences. She notes that by definition, personality traits are enduring but that they can be modified with long-term counselling.
25. She believes that much of your psychological presentation is directly linked to the traumatic upbringing you have reported. She also believes you meet the criteria for polydrug abuse and dependence, currently in remission in the context of incarceration and treatment with methadone.
26. In Ms Zimmerman’s opinion, a custodial sentence will impact more heavily on you as a result of your personality style and you are likely to be vulnerable in the custodial environment due to your age, your difficulties with managing your emotions and your tendency to act impulsively. Ms Zimmerman notes that ‘this has already resulted in at least one assault on you and another where you were the aggressor’, which your lawyer submitted was a reference to your offending that took place on 3 June 2019.
YOUR HISTORY OF DRUG USE
27. According to Dr Zimmerman, you reported to Ms Cidoni that you were allowed to use cannabis and Ice with your parents from the age of twelve. You reported smoking Ice at twelve, injecting from your late teens and using cannabis and alcohol from the age of twelve. You described taking tablets of benzodiazepines and MDMA (Ecstasy) in September 2018 and ending up in hospital from an overdose. You stated that you have often tried to stop using drugs, but you have never been to drug rehabilitation.[6]
[6] At [36].
28. Dr Zimmerman notes that you have a long history of abuse and dependence on diverse illicit substances, with significant impacts on your ability to function in society. You reported abusing numerous drugs including methamphetamines at the time of the offending. In her opinion, your intoxication with Ice is likely to have enhanced your characterological impulsivity and intense affect states and as such, is likely to have been causally related to your offending in 2019 before you were arrested and remanded in custody on around 29 March 2019.[7]
[7] At [74](b).
YOUR CRIMINAL HISTORY
You have several prior convictions, mostly from South Australia. There were five appearances in the Children’s Court when you were aged between about 15 and 17, all dealt with by way of bonds or fines. On 7 November 2014, you received four months detention in the Adelaide Children’s Court for the aggravated offence of committing theft using force. You were 18 years old at the time.
30. On 31 March 2015, you were sentenced in the District Court of South Australia to two years and one month imprisonment for aggravated attempted theft using force and also sentenced for aggravated assault and failing to comply with bail. On 18 August 2016, you were imprisoned for four months for assault.
You have two prior convictions in Victoria. On 6 December 2018, you were sentenced to 42 days imprisonment, followed by a nine month Community Correction Order for trafficking drugs and dealing with property suspected to be the proceeds of crime. As stated above, on 4 August 2020, Judge Fox sentenced you to four years and two months imprisonment and you are presently eligible for parole on 28 March 2022.
YOUR REHABILITATION
32. According to Ms Zimmerman, you have had very little psychological counselling in the past although you told her that you found the sessions you had with a counsellor in South Australia to be of some benefit. In her opinion, you need to be engaged with long-term counselling with a psychologist who has experience in working with people with backgrounds of trauma.
33. Ms Zimmerman also noted that you appear not to have engaged successfully with alcohol and drug counselling in the community and that this will be central to reducing the risk of you further offending, together with engaging with a housing service to assist you to find suitable stable accommodation.
THE PROSECUTION’S SUBMISSIONS
34. The prosecution submitted that a term of imprisonment is warranted in relation to the charge of intentionally causing injury and that the court should direct that your sentence be served cumulatively with your unserved sentence in accordance with s16(3) of the Sentencing Act 1991 (Sentencing Act).
35. The prosecution relied on the Supreme Court’s decision in R v Devries in relation to whether an offence committed in a prison environment is a ‘prison offence’ for the purposes of s16(3) of the Sentencing Act. The prosecution drew the court’s attention to paragraph 8 of that decision where Vincent JA said:
During the plea both counsel drew the judge's attention to s.16(3) of the Sentencing Act 1991 which provides that ‑
"Every term of imprisonment imposed on a prisoner by a court in respect of a prison offence or an escape offence must unless otherwise directed by the court because of the existence of exceptional circumstances be served cumulatively on any uncompleted sentence or sentences of imprisonment or detention in a youth training centre or youth residential centre."
It was not in dispute that the applicant was being sentenced for a prison offence and it was not argued by his counsel that any exceptional circumstances existed.
36. The prosecution submitted that I am bound to follow this decision and that I must direct that any term of imprisonment to be served by you is served cumulatively with your unserved sentence, that is, the sentence must be added on to the sentence of imprisonment you are currently serving.
37. The prosecution submitted that the Supreme Court has accepted a broader definition of the term ‘prison offence’ than that contained in the Sentencing Act and that violent crimes such as the one you committed should be viewed as ‘prison offences’. In addition, the prosecution pointed out that clause 65(1)(a) of the Corrections Regulations 2019 provides that a prisoner must not assault or threaten any person. The prosecution asked why would s16(3) be in the Sentencing Act if assaulting a prisoner did not come within the definition of a ‘prison offence’?
38. The prosecution also contended that your offending was very similar to the offending of the accused in R v Devries.
39. In addition, the prosecution submitted that the decisions of R v Devries and De Castres v R[8] require general deterrence to be the paramount sentencing consideration in cases of this nature because prisons must not become jungles with their own subculture and courts must play their part by handing down sentences to discourage such offending.[9]
[8] [2011] VSCA 377 (De Castres).
[9]R v Devries, [22].
40. For these reasons, together with the seriousness of the offending, the prosecution submitted that a lengthy term of imprisonment is necessary to satisfy the sentencing purposes of general and specific deterrence and protection of the community, and that the term of imprisonment should be cumulative on the sentence you are currently serving even if the court is not satisfied that s16(3) of the Sentencing Act applies.
YOUR LAWYER’S SUBMISSIONS
41. Your lawyer acknowledged that the fact that your offending took place in a prison is an aggravating factor and the fact that it was pre-meditated increases your moral culpability.
42. However, he also submitted that it is relevant that you have told him that you attacked the victim because he had threatened to rape you and had threatened to kill you if you did not allow that to happen.
43. Your lawyer also acknowledged that you have an anger management problem and a drug problem, but you have told him that you are now on methadone, which is working to stop you using drugs.
44. Your lawyer submitted that as a result of your poor mental health, a sentence of imprisonment will weigh on you more heavily than the sentence would on a person in normal health.[10]
[10] R v Verdins (2007) 16 VR 269.
45. Your lawyer conceded that you should be sentenced to a term of imprisonment but he also submitted that I should direct that some or all of your term of imprisonment be served concurrently with your uncompleted sentence in light of your history of childhood trauma and deprivation.
46. He also submitted that it may be hard for you to be granted parole because you have no family support in Victoria.
47. Your lawyer disputed that the offence of intentionally causing injury where the offence is committed against another prisoner in a prison is a ‘prison offence’ for the purposes of s16(3) of the Sentencing Act. This is because s3 of the Sentencing Act says that a ‘prison offence’ has the same meaning as in Part 7 of the Corrections Act 1986, and s48 of the Corrections Act, which is found in Part 7 of the Act defines ‘prison offence’ as a contravention of the Corrections Act or regulations.
48. Accordingly, you lawyer submitted that s16(3) of the Sentencing Act has no application because you have pleaded guilty to offences under the Crimes Act, not offences under the Corrections Act or the Corrections Regulations.
49. Your lawyer relied on the recent County Court decision of Gaynor J in DPP v Teuira.[11] In that case, the two accused stabbed another prisoner at Barwon Prison and were charged with intentionally causing serious injury in circumstances of gross violence and recklessly causing injury. Your lawyer contended that there is no reference in Gaynor J’s reasons for sentence to the offending being a ‘prison offence’ or to s16(3) of the Sentencing Act and the sentences imposed by Her Honour were not wholly cumulative on the two accused’s unserved sentences in circumstances where the offending and injuries were much more serious than in this case.[12]
[11] [2020] VCC 737 (Teuira).
[12]Teuira, [64]-[69].
50. In relation to the decisions relied on by the prosecution, your lawyer submitted that in R v Devries, the defence conceded that the offending constituted a ‘prison offence’, which meant that Vincent JA did not consider what constitutes a ‘prison offence’ and that this decision should be distinguished because in your case, there is no concession by you that the offending constitutes a ‘prison offence’. Your lawyer also submitted that in the decision of De Castres v R, there is no reference to the offending in that matter being a ‘prison offence’ or to s16(3) of the Sentencing Act. You lawyer submitted that the decision in that case relates to the general sentencing principles of specific and general deterrence where the offending takes place in prison.
51. In addition, your lawyer submitted that if s16(3) of the Sentencing Act does apply, you can show that exceptional circumstances exist as a result of the material before the court that engages the principles in Bugmy v R (Bugmy).[13]
DISCUSSION
[13][2013] HCA 37.
Section 16(3)(b) of the Sentencing Act 1991
52. Section 16(3) of the Sentencing Act provides that:
Every term of imprisonment imposed on a prisoner by a court in respect of a prison offence or an escape offence must, unless otherwise directed by the court because of the existence of exceptional circumstances, be served cumulatively on any uncompleted sentence or sentences of imprisonment or detention in a youth justice centre or youth residential centre imposed on that prisoner, whether before or at the same time as that term.
53. A ‘prison offence’ is defined in s3 of the Sentencing Act as having has the same meaning as in Part 7 of the Corrections Act 1986. Section 48 of the Corrections Act, which is found in Part 7, defines ‘prison offence’ as a contravention of the Corrections Act or regulations.
54. As contended by the prosecution, it is correct that in the decision of R v Devries, Vincent JA proceeded on the basis that s16(3) of the Sentencing Act applied to the applicant’s sentence. However, in that case, neither party disputed that the applicant was being sentenced for a prison offence.
55. However, in your case, your lawyer has disputed that you are being sentenced for a ‘prison offence’, relying on the definition of prison offence in s3 of the Sentencing Act.
56. In addition, I am unable to discern any legal basis for extending the definition of ‘prison offence’ beyond its definition in s3 of the Sentencing Act despite the prosecution’s submission that it would be illogical and contrary to public policy considerations not do so.
57. I also note that whilst clause 65(1)(a) of the Corrections Regulations 2019 provides that a prisoner must not assault or threaten any person, you have not been charged with this offence.
58. In these circumstances, I consider that I ought to distinguish the Supreme Court’s decision in R v Devries and hold that the offence of intentionally causing injury where the offence takes place in a prison is not a ‘prison offence’ for the purposes of s16(3) of the Sentencing Act and that I am not required to direct that any term of imprisonment I sentence you to must be served cumulatively on your uncompleted sentence unless you can show that exceptional circumstances exist.
59. However, it is clearly an aggravating factor and relevant to your sentence.
OTHER RELEVANT SENTENCING CONSIDERATIONS
Your age and rehabilitation prospects
60. Whilst you are not a ‘young person’ as defined by section 3 of the Sentencing Act, you are only 24 years old and I consider that your relatively young age is a significant factor in the determination of an appropriate sentence. I am of this view because it is ultimately in not only your own and your family's best interests, but the community's best interests, that you be rehabilitated.[14]
[14] DPP v Smith [2018] VCC 1794, [76].
61. As Redlich J’s observed in R v PSJ:[15]
…in the case of a young offender there can hardly ever be any conflict between the public interest and that of the offender. The public can have no greater interest than that you should become a good citizen. The difficult task for the court is to determine what treatment gives you the best chance of realising that objective. Rehabilitation is the dominant consideration.
[15] [2004] VSC 502, [34].
62. However, taking into account the objective seriousness of your offending and your reasonably significant criminal history, I consider that the weight to be attached to your youth ought to be reduced to ensure your sentence discourages you from reoffending. I also need to impose a sentence that punishes you fairly, takes into account the need to protect the community, including members of the community who are on remand or serving a sentence of imprisonment, and publicly declares your actions to be wrong. As the Court of Appeal said in Azzopardi v R:[16]
The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.
[16] Azzopardi v R; Baltatzis v R; Gabriel v R [2011] VSCA 372; (2011) 35 VR 43, [44] (Azzopardi v R).
63. I also agree with and adopt Judge Fox’s findings that unfortunately, your prospects of rehabilitation are somewhat poor, given your circumstances and history,[17] although you understand that you need stable accommodation, employment and to remain drug-free in the community. As identified by Judge Fox and Dr Zimmerman, you are going to require considerable assistance in the community once you are released and you will need to engage with all the services offered to you if you are not to reoffend.
[17] Judge Fox’s reasons, [41].
Your mental health
64. I am also required to take into account the principals set out in R v Verdins[18] in light of your low IQ and your mental health diagnoses. I accept that a sentence of imprisonment will weigh on you more heavily than the sentence would on a person in normal health.[19]
[18] (2007) 16 VR 269.
[19] Judge Fox’s reasons, [37], [38].
Your disadvantaged background
65. I agree with and adopt Judge Fox’s findings that the reasons for your offending when you were not on remand appear to be your drug abuse, homelessness, lack of family support and the impact of having recently broken up with your girlfriend and having been robbed and knocked unconscious in February 2019, after being hit in the head with a shotgun.[20]
[20] Judge Fox’s reasons, [34].
66. In addition, I agree with and adopt Judge Fox’s findings in relation to you having grown up in a ‘terribly disadvantaged environment characterised by domestic violence, criminal behaviour and drug use and that the principles in Bugmy are engaged in your case’.[21] As Judge Fox observed:
Your disadvantaged background is relevant when sentencing you, and it is understood by the courts that the impact of disadvantage does not diminish over time. In any event, you are still a young man and very much the product of your upbringing.
…[Y]our disadvantaged background does impact your moral culpability. Your offending and subjective culpability cannot be realistically equated with a 22 year old who committed the same offences, but had all the advantages of a stable home life, good education and supportive parents. I also accept that general deterrence, whilst relevant, should be somewhat moderated in your case given your background. You have endured significant childhood trauma and abuse, and a person who has had such a disadvantaged upbringing is not the most suitable vehicle for sending a message to others.[22]
[21] Judge Fox’s reasons, [39].
[22] Judge Fox’s reasons, [40] and [41].
67. Whilst Judge Fox was not sentencing you for offences committed in prison and the authorities make it clear that general deterrence is the paramount sentencing consideration when someone has committed an act of violence against a prisoner in a prison, I consider that Judge Fox’s finding that you are not the most suitable vehicle for sending a message to others due to your background of disadvantage is still relevant to this offending. Accordingly, whilst one of the purposes of your sentence is to discourage other people in the community from committing similar offences, particularly people on remand or serving a sentence of imprisonment, the importance of this sentencing purpose is not as great in your case as it would be for other people without your background of childhood trauma. Your background of childhood trauma also reduces your moral culpability.
68. I also note that there was no suggestion that the principles in Bugmy were engaged in R v Devries or De Castres v R nor did the Supreme Court or the Court of Appeal hold that matters going in mitigation were irrelevant where an accused has committed a violent offence against a prisoner. As Ashely JA said in De Castres v R:
The fact that an offence of violence is committed in a custodial setting renders general deterrence of paramount importance as a sentencing consideration. In part, that is because the victim has no choice but to be where he or she is, and has at least a reduced ability to take prudent measures for his or her own safety. In part, it is because the courts cannot permit the law of the jungle to take hold in prisons.
Particularly if the offender has a past history of violence, commission of an act of violence in a custodial setting will underline the importance of specific deterrence as a sentencing consideration.
In the presence of the two circumstances described, matters going in mitigation of sentence will be of lesser weight in the sentencing synthesis. The question in the particular case will be the extent to which the circumstances tending towards a heavier sentence operate. It is not a question, however, of there being a tariff for the particular offence if committed whilst in custody which is different and unrelated to the pattern of sentences generally for that offence.[23]
[23]De Castres, [1] – [3].
Your drug abuse
69. Ms Zimmerman states that your offending is likely linked directly to your substance misuse at the time which is in turn linked to your dependence that developed in the context of your unstable and abusive childhood.[24]
[24] At [74](c).
Your guilty plea
70. You have pleaded guilty at the earliest reasonable opportunity, which entitles you to a significant sentencing discount.
71. This is because your plea of guilty has practical or utilitarian value, in that it has spared the victim and witnesses from having to give evidence about what happened, and it has also saved the court and community the time and expense of a criminal trial. It also shows you accept responsibility for your crimes.
Your remorse
72. I also accept your plea of guilty is evidence of some remorse.
73. You also told Ms Zimmerman that you believe that your behaviour was stupid and that you feel remorseful about what you did, which I infer includes your offending on 3 July 2019 that I am sentencing you for as you told her about that offending during your interview with her.[25]
[25] At [74](c).
Conditions in custody
74. There are currently many covid-19 related restrictions in place such as lockdown and isolation and I accept that this has made your time in prison more difficult for the same reasons set out by Judge Fox in her reasons for sentence.[26] The Court of Appeal acknowledged in Ashbury v The Queen (No.2)[27] that overall, these hardships justify a sentencing benefit.
[26] Judge Fox’s reasons, [42].
[27] [2020] VSCA 158.
DECISION
75. In reaching my decision, I have also taken into account the principle of totality, because whilst I consider it appropriate to impose an additional sentence to the term you are now serving, I must also ensure the combination of sentences properly reflects the overall criminality displayed by you without imposing a crushing sentence. Some cumulation is required, but this should be moderated to ensure a just sentence that reflects your overall criminality together with the matters in mitigation and to ensure that the date you will be able to apply for parole, which will assist your rehabilitation, is not unduly delayed.
76. Taking into account all the factors I have outlined above, I therefore sentence you as follows.
77. I sentence you to an aggregate term of six months in prison for the offences of intentionally causing injury and being armed with a controlled weapon whilst having criminal intent and I direct that four months be served concurrently with your unserved sentence.
78. In relation to the theft and criminal damage offences, I sentence you to an aggregate term of two months in prison and I direct that this sentence be served concurrently with your unserved sentence and your sentence in relation to intentionally causing injury and being armed with a controlled weapon whilst having criminal intent. This means that your total effective sentence is six months imprisonment and you must serve two months of this sentence before you are able to apply for parole in relation to the sentence you are currently serving.
79. Under S6AAA of the Sentencing Act I declare that had you not pleaded guilty, I would have sentenced you to a total effective sentence of nine months’ imprisonment and ordered cumulation of three months to the sentence you are currently undergoing.
Application for compensation
80. The prosecution made an application for an order that you pay Corrections Victoria compensation of $2549.23 in relation to the property you damaged.[28] The prosecution provided the court with an invoice from Cushman & Wakefield dated 27 August 2020 in support of this application.
[28]The application was made under ss86(1A)(a) and 86(5) of the Sentencing Act.
81. I may make any order for compensation that I think fit, and if I decide to make the order, when I decide the amount and method of payment of the compensation, I may take into account your financial circumstances and the nature of the burden that the payment will impose on you.[29]
[29] Sections 86(1) and (2) of the Sentencing Act.
82. Your lawyer submitted that I should not order to you pay Corrections Victoria any compensation because you will be unable to pay it.
83. Whilst I accept that you will not have a lot of money to pay the compensation, I consider it appropriate to order you to pay Corrections Victoria compensation of $2549.23 and to stay this order for one month.
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