Director of Public Prosecutions v Akol
[2024] VCC 25
•30 January 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02037
CR-23-00174
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AKOK AKOL |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 January 2024 | |
DATE OF SENTENCE: | 30 January 2024 | |
CASE MAY BE CITED AS: | DPP v Akol | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 25 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Attempted Theft of a Motor Vehicle; Aggravated Carjacking; Unlicenced Driving; Causing Injury Intentionally; Assaulting an Emergency Worker on Duty
Legislation Cited: Sentencing Act 1991
Cases Cited:Cheung v The Queen (2001) 209 CLR 1; Hope & Pua v The Queen [2018] VSCA 230; Bugmy v R (2013) 249 CLR 571; Worboyes v R [2021] VSCA 169
Sentence: 6 Years Imprisonment with a 4 Year 6 Month Non-Parole Period; Licence Cancellation
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Toni Stokes | Office of Public Prosecutions |
| For the Accused | Mr Andrew Jackson | Theo Magazis and Associates |
HIS HONOUR:
Introduction
1Akok Akol, you fall to be sentenced in relation to two indictments – Indictment No.N11015681.1 (hereafter referred to as the 'trial indictment') and Indictment No.N12168795 (hereafter referred to as the 'plea indictment').
2In relation to the trial indictment, you pleaded guilty before a jury at the commencement of your trial on 29 August 2023 to one charge of attempted theft of a motor vehicle, which carries a maximum penalty of five years' imprisonment. At that trial, after a plea of not guilty, you were subsequently found guilty by a jury on 1 September 2023 of one charge of aggravated carjacking, which carries a maximum penalty of 25 years' imprisonment. Pursuant to s3 (1) of the Sentencing Act 1991, the offence of aggravated carjacking is a Category 1 offence, requiring a sentence of imprisonment to be imposed in certain circumstances. Pursuant to s10AD of the Sentencing Act 1991, in sentencing an offender for this offence, a court must impose a term of imprisonment and fix a non-parole period of not less than three years unless the court finds under s10A that a special reason exists. No special reason was relied upon on your behalf. Also, in relation to the trial indictment, on 21 September 2023 you pleaded guilty to the related Summary Offence of unlicenced driving, an offence which carries a maximum penalty of six months' imprisonment.
3Also on 21 September 2023, in relation to the plea indictment, you pleaded guilty to one charge of causing injury intentionally which carries a maximum penalty of 10 years' imprisonment, and one charge of assaulting an emergency worker on duty which carries a maximum penalty of five years' imprisonment. In relation to the offence of intentionally causing injury, pursuant to s3 (1) of the Sentencing Act 1991, this is a Category 1 offence, requiring the court to impose a term of imprisonment unless a special reason exists. Furthermore, pursuant to s10AA (4) of the Sentencing Act 1991, in relation to this offence, as the offence was committed against a custodial officer on duty, the court must impose a term of imprisonment of not less than six months unless the court finds that a special reason exists. No special reason was relied upon on your behalf in relation to this offence.
Circumstances of offending, nature and gravity of your offending, and your level of culpability for it
Trial indictment
4As I have indicated, two of the charges referable to the trial indictment, attempted theft of motor vehicle and unlicenced driving, were the subject of pleas of guilty by you. The details of these offences were set out in the Summary of Prosecution Opening dated 24 July 2023, amplified in evidence at your trial. In relation to the most serious charge referable to the trial indictment, aggravated carjacking, you exercised your right to plead not guilty and took this matter to trial. By virtue of the jury's verdict on 1 September 2023, you fall to be sentenced on the basis that the jury were satisfied beyond reasonable doubt that on 19 May 2022, you stole a motor vehicle belonging to Adrian Rooks and at the time of doing so and in order to do so, you put Mr Rooks in fear that he would then and there be subject to force, and at the time you had with you an offensive weapon, namely a knife. In conducting an assessment regarding the details of your offending referable to the aggravated carjacking, any findings made by me must be consistent with the jury's verdict, and any findings of fact made against you must be arrived at beyond reasonable doubt.[1]
[1]Cheung v The Queen (2001) 209 CLR 1
5At the time of your offending referable to the trial indictment, 19 May 2022, you were 31 years old, unemployed, and following your release from prison earlier that day, with the assistance of Jesuit Social Services, you had been booked into the City Edge Serviced Apartments located at 179 Powlett Street, in East Melbourne. This took place at approximately 11.30 am. Some hours later, at approximately 7.30 pm, you exited the City Edge Serviced Apartments on foot via the front doors onto Albert Street. At that same time, a red Mazda 3 driven by Adrian Rooks came to a stop in the eastbound lane of Albert Street at the Powlett Street intersection in East Melbourne, due to a red traffic light. A white Audi A1, driven by the victim of the attempted theft of motor vehicle offence, Tiarna Clarke, came to a stop directly behind Mr Rooks. CCTV footage showing at least portions of what then occurred, was played at your trial. Both Ms Clarke and Mr Rooks also gave evidence at your trial in relation to the events that followed. Upon you exiting the apartments onto Albert Street, without hesitation you crossed Albert Street and approached the Audi driven by Ms Clarke whilst she was stationary at the lights behind Mr Rooks. Ms Clarke looked out her driver's window and saw you trying to open her door. She yelled out 'wrong car mate' and she then saw you run to the car in front. According to Mr Rooks, whilst he was sitting stationary at the red light, he saw movement in his driver's side mirror. He then realised that the driver's side door was opened and you reached in, grabbing Mr Rooks by the right shoulder and telling him to get out. As the lights changed to green, Mr Rooks accelerated off the line and tried to push you out of the car. This did not work, with you grabbing at the steering wheel area with your right hand, and with one foot in the car. According to Mr Rooks the car travelled up to 25 metres across the intersection. Mr Rooks then realised that you had a knife in your right hand and he basically put up his hands saying 'okay, I'll get out'. He brought the car to a stop and took off his seatbelt and got out of the car, at which point you got into the car and drove away. You did not have a licence to drive a motor vehicle at this time.
6After your departure from the scene, Ms Clarke approached Mr Rooks, informed him that she had seen what had occurred, and ultimately assisted Mr Rooks in reporting the matter at the Richmond Police Station.
7Whilst neither Ms Clarke nor Mr Rooks exercised their rights to make Victim Impact Statements in relation to this matter, it can reasonably be assumed, particularly in relation to Mr Rooks, that this would have been a frightening incident which adversely impacted him. In evidence at your trial, Ms Clarke described her observations of Mr Rooks when he first got into her car, in the immediate aftermath of the incident. According to Ms Clarke, Mr Rooks was physically shaken, he was really shook up, he stuttered and could not speak, and it was a sight to see.[2]
[2]Transcript page 73, line 18.
8The Sentencing Act 1991 requires me to have regard to the nature and gravity of your offending and your level of culpability for it, when formulating an appropriate sentence. Overall, as conceded by your counsel, your offending referable to the trial indictment must be seen as representing midlevel seriousness with regards to these types of offences. Your offending in my view was extremely brazen. You had only been released from prison a matter of hours earlier, and your extensive criminal history is littered with multiple prior convictions for matters of dishonesty, driving, and violence. That you could only desist from serious criminal offending for a matter of hours after your release from prison in these circumstances is highly concerning. It is apparent from the circumstances of your offending that your conduct occurred with little to no hesitation. In those circumstances I am satisfied that you engaged in this serious criminality simply because you wanted a means of transport after exiting the apartment complex. The attempted theft of motor vehicle is a serious example of this particular crime, not committed in a passive sense, but whilst the victim was then seated in the vehicle at a set of traffic lights.
9In relation to the offence of aggravated carjacking, the seriousness of this particular type of offence is reflected in the statutory maximum penalty, and the requirement of a non-parole period of at least three years in the absence of any special reason. These matters clearly reflect Parliament's intention with regards to the seriousness of this particular offence. In my view, your conduct in relation to the aggravated carjacking represents a midlevel example of this particular crime. You committed this offence on your own. Other than the details that I have articulated, there were no aspects of extraneous violence associated with this offence. Your conduct appears to have been relatively short-lived and was fairly unsophisticated in its execution. However, as I have already indicated, your apparent lack of hesitation before crossing the road and engaging in this conduct makes your offending all the more chilling. It was extremely brazen. The aggravated carjacking occurred immediately after your failed attempt to steal the Audi then driven by Ms Clarke, revealing your determination to dishonestly acquire a motor vehicle at the time. The offensive weapon that you had with you at the time of the aggravated carjacking was a bladed weapon, a knife, and although you do not appear to have used the knife in a menacing manner towards Mr Rooks, your production of it in the course of the aggravated carjacking is self-evidently dangerous.
10In terms of your level of culpability, there was no suggestion by your counsel that your culpability was reduced in any way due to any mental impairment. The fact that you committed such serious offending so soon after your release from prison very much constitutes an aggravating factor, and in combination with your extensive and concerning criminal history, highlights or amplifies your level of culpability. As I have indicated, the swiftness with which you engaged in this criminality virtually precludes any contextual finding which would otherwise reduce your culpability. I find your level of responsibility for this offending to be high.
Plea indictment
11In relation to the plea indictment, the details of your offending were set out in the prosecution opening on plea dated 10 November 2023. As confirmed by your counsel at your plea hearing on 11 December 2023, that document contains an agreed factual outline of your offending.
12Your offending can now be briefly summarised. On 24 September 2022, you were on remand with regards to the trial indictment, and located at the Metropolitan Remand Centre, or MRC, in Ravenhall. Your victims in relation to the offending, Mr Manu Ruke, and Ms Lyndel McGlone were then working as prison officers at MRC.
13At the time, you were housed in the Burnside Unit at MRC, which is a management unit for separated prisoners. Separated prisoners are in their cells for 23 hours per day, with one hour out each day for phone calls, to exercise, and for cell cleans.
14At about 4.14 pm on Saturday 24 September 2022, Ms McGlone and Mr Ruke attended at your cell to advise you that on this day you would have reduced time out of your cell due to the number of separated prisoners at the time. You agreed to this and stated that you would quickly go to the toilet and to close the cell door. Ms McGlone and Mr Ruke accordingly waited at the bottom of the stairs for you. A few minutes later you met them at the bottom of the stairs. Then, suddenly, and without warning, you did a small jump off the bottom step towards Mr Ruke hitting him to the face with your hand. Unbeknown to Mr Ruke, at this time you were holding a pencil, and as a result of this conduct you essentially stabbed him in the cheek with the pencil. Ms McGlone stepped forward to assist Mr Ruke, however at this point you punched her to the left side of her face and attempted to punch her again, however she managed to deflect your hand away, pushing her duress alarm.
15You then returned your attention to Mr Ruke, throwing punches in a swiping motion at his face, narrowly missing. It was at this point that Mr Ruke observed a pencil sticking out of your hand, and he touched his cheek, and felt blood, realising that he had been stabbed. You continued swinging punches at both officers.
16While staff were attempting to move you to the back right corner of the unit, you did a running spinning jump kick in the air towards Mr Ruke's face, missing thankfully, however you continued to kick at Mr Ruke, one of these kicks connecting with his finger which caused swelling and bruising.
17Eventually emergency response staff arrived on the scene, with you then yelling at Mr Ruke and pointing at him, saying 'I know you! When I get out I'm going to fucking kill you' and 'you have done this to me four fucking times!' When Mr Ruke attempted to reason with you, you yelled back 'too late, you are going to fucking die!'
18Observing you to be still throwing punches towards staff, emergency response group members unsuccessfully directed you to get on the ground, before finally resolving the situation through the deployment of OC spray to your face, causing you to retreat into a cell.
19Your conduct in relation to Mr Ruke forms the basis of the charge of causing injury intentionally. The day after your attack on Mr Ruke, he attended a medical clinic in Werribee where he was diagnosed with a puncture wound and skin ulcer on the left side of his face and swelling and bruising to his left fourth finger. He was prescribed antibiotics and tested for several diseases including HIV and Hepatitis. He reattended at the clinic three days later, where it was discovered that the bacteria in Mr Ruke's cheek was deteriorating the cheek muscle, causing it to die. The doctor needed to cut away dying flesh and increase the dose of antibiotics. Mr Ruke required further treatment for his wound on five separate occasions throughout September and October. He experienced worry and a few sleepless nights as a result of this incident and found himself being hypervigilant when walking out in public and the incident made him question his safety within the prison. At your plea hearing on 11 December 2023, Ms Stokes who appeared on behalf of the prosecution confirmed thankfully that Mr Ruke's injuries have healed and there are no ongoing issues.
20Your conduct in relation to Ms McGlone forms the basis of the charge of assault emergency worker on duty. As a result of your conduct, Ms McGlone attended a medical centre on 25 September 2022, where she was diagnosed with bruising, swelling and soreness to her left cheek and upper eyelid area. She returned to work on that day, but could not concentrate and was unable to function properly. She subsequently reattended at the Westgate Medical Centre on 5 October 2022 where she was diagnosed with acute stress, anxiety and depression as a result of the assault on 24 September 2022, leading to a successful WorkCover claim.
21Whilst formal Victim Impact Statements were not completed by either of your victims, the details contained within the prosecution opening on plea with regards to their injuries highlights the adverse impacts upon Mr Ruke and Ms McGlone of your serious criminality. In formulating an appropriate sentence in your case, I have taken into consideration the impact of your offending on your victims.
22The nature and gravity of the offending referable to the plea indictment is reflected in a general sense in the relevant statutory maximum penalties, and the mandatory minimum sentence of six months' imprisonment in relation to the intentionally cause injury charge, in the absence of any special reason. Clearly, Parliament views this type of conduct as very serious. At the time of your conduct, both of your victims were simply going about their jobs, working as prison officers, no doubt in a challenging and stressful environment. They were entitled to feel safe in their workplace. As has been made clear in previous sentencing decisions in this State, it is an aggravating circumstance of your criminal conduct that these offences were committed while you were in custody and against prison officers who were merely performing their usual duties in an entirely appropriate manner.[3]
[3]Hope & Pua v The Queen 2018 VSCA 230, 73.
23An inmate of a prison who intentionally injures a prison officer can ordinarily expect a sentence of imprisonment. Denunciation and general deterrence will usually be paramount considerations in the sentencing of offenders who commit these crimes against prison officers.[4] In your case, I find your conduct to have been particularly concerning. The fact that you left your cell in possession of the pencil reveals a degree of premeditation in my view, given the use you made of the pencil in the subsequent assault. Both of your victims were simply executing their duties in an appropriate manner, and in that sense your conduct was entirely unprovoked. In relation to the intentionally cause injury offence, you used an implement to intentionally injure your victim, and the method through which you caused the injury, the location of the injury, and the consequences for your victim are particularly concerning. In relation to your assault on the female custodial officer Ms McGlone, that occurred immediately after you had stabbed Mr Ruke in the face with the pencil, highlighting your level of aggression, and complete disregard for authority. As I indicated at your plea hearing on 1 December 2023, the CCTV stills, which show you literally in mid-flight whilst you attempted to kick out at your victims graphically highlights the danger you then posed to the prison officers. As conceded by your counsel at your plea hearing, your conduct referable to the plea indictment represents a serious example of serious offences.
[4]Ibid, 74.
24Likewise, there is nothing in the material presented to me which would warrant any reduction in your moral culpability for this serious criminality. In relation to your extensive criminal history, the two most recent prior convictions relate to you causing injury to others. That you would continue to engage in this type of criminality amplifies in my view your level of culpability for this conduct.
Personal background and circumstances
25You are now 33 years of age. You were born in Egypt, to refugee parents from South Sudan. Your personal history was set out in some detail in the psychological report from consultant psychologist, Ian Mackinnon dated 7 December 2023, Exhibit B at your plea hearing on 11 December 2023. Your parents had apparently fled conflict in Sudan, and eventually secured basic accommodation in Egypt where they resided for several years. Your family apparently settled in a poor and rough area which was plagued by street violence, and you were apparently exposed to many distressing experiences including assaults and seeing the deceased bodies of other refugees.
26Your family migrated to Australia in 1998 when you were eight years of age, and since this time the family has resided in the western suburbs of Melbourne, in Maidstone and Footscray West, and eventually in Sunshine.
27You have five siblings, four sisters and one brother, ranging in age from 22 to 39. In contrast to you, your siblings have all settled in Australia fairly well, with your siblings embarking upon a range of pro-social activities including solid employment. Your father had pursued higher learning in the areas of accounting and science, and was employed for a period by Metro Trains. Your mother has been closely involved in the parenting of the six children at home.
28After your family moved to Melbourne you struggled to assimilate, and apparently became a challenging and unsettled child. At the age of 11 you were removed from the family's care and placed in foster care for some five years, alternating between foster care and your family home.
29When you were 16 years of age, your father left your mother and the family and returned to Sudan where he re-partnered and had a child with his new partner. When you were 28 years of age you learned that your father had passed away.
30Your mother continues to reside in her Sunshine home where she maintains regular contact with your siblings. As I indicated earlier, I note that your mother and one of your siblings are presently in court for the sentencing hearing.
31Whilst you managed to obtain a Year 11 pass in terms of your education, you have attributed your problematic behaviour to the period spent in foster care from the age of 11. You started drinking alcohol at the age of 14. You started smoking cannabis during your early teens. Sadly, this has led to many years of you being a poly-substance user, with regards to ice, heroin, GHB, amphetamines, cocaine, pills, MDMA and LSD. According to psychologist Mr Mackinnon, during your period within foster care, on a background of disturbing events and circumstances whilst you were a young boy in Egypt where you were apparently involved in street violence, saw dead bodies, and were sexually abused, you 'started engaging in poly-substance use, and eventually became involved in criminal activities and established a significant criminal record'.[5]
[5]Psychological report by Ian Mackinnon dated7 December 2023, paragraph 85.
32Having regard to your disadvantaged and deprived background, which has included your exposure to significant trauma it seems, I accept that your moral culpability for the offending is reduced in a general sense, pursuant to the Bugmy[6] principles, due to the understandable impacts of your background of deprivation upon your moral development as you have grown into adulthood.
[6] Bugmy v R (2013) 249 CLR 571
33Your progress as an adult has clearly been problematic. Since leaving school, you have had only limited employment, as a labourer with a demolition company and at a warehouse, having last been employed in this role some five years ago. You have battled poly-substance abuse for an extended period of time, and according to psychologist Mr Mackinnon you suffer with symptoms which meet a diagnosis of complex post-traumatic stress disorder.[7]
[7]Psychological report by Ian Mackinnon dated7 December 2023, paragraph 48.
34According to Mr Mackinnon, further complicating your complex post-traumatic stress disorder, in Australia you have been involved in street gangs and mixed in anti-social and criminal milieus, which have exposed you to additional violent incidents both as a perpetrator and as a victim.[8] Your battles with substance use have warranted diagnosis of substance abuse disorder in the opinion of Mr Mackinnon.
[8]Ibid, paragraph 64.
35As I have already indicated, your criminal history is both extensive and concerning. Dating back to 2009 in the adult jurisdiction, you have previously been found guilty of a myriad of dishonesty offences such as theft of motor vehicle, behavioural offences such as make threat to kill, assault, threat to inflict serious injury and assault police, and concerningly since 2010 you have been dealt with for assault and causing injury offences which have resulted in sentences of imprisonment. Indeed, from 2010, a significant proportion of your prior convictions have resulted in sentences of imprisonment, which have clearly not deterred you from reoffending. On 29 June 2018 in the Melbourne County Court, for offences which included common law assault, possession of an imitation firearm and resisting an emergency worker on duty, you received a total effective sentence of three years' imprisonment with a non-parole period of two years. In October 2019 you received a short sentence of imprisonment for offences which included unlawful assault. On 12 November 2020 you received an aggregate sentence of 12 months' imprisonment with a non-parole period of six months for the offences of make threat to kill and recklessly cause injury. On 26 November 2021 you received a sentence of 12 months' imprisonment for the offence of intentionally causing injury. Your extensive and concerning criminal history highlights the need for any penalty I now impose to reflect the important sentencing purpose of specific deterrence. Your history also is relevant with regards to any assessment as to the prospects of your rehabilitation, and the need for any sentence to protect the community from you.
36In the opinion of Mr Mackinnon, your criminal history indicates that you have entrenched some anti-social and criminal traits, with a propensity for violence, and these traits are more likely to be manifested when you are mixing in a criminal milieu, emotionally distressed and/or engaging in illicit substance abuse.[9]
[9]Ibid, paragraph 69.
37In my view, notwithstanding that your complex post-traumatic stress disorder and substance use disorder are both susceptible to management and treatment, your prospects for rehabilitation must be seen as guarded, as conceded by your counsel in both written and oral submissions.
Other relevant sentencing factors
38The Sentencing Act 1991 requires me to have regard to various factors when formulating an appropriate sentence in your case. I have already referred to the maximum penalties for your offences, the nature and gravity of your offending and your level of culpability for it, and the impact of your personal background.
39I turn now to a consideration of your pleas of guilty. In relation to the trial indictment, you pleaded guilty to the charge of attempted theft of motor vehicle when you were arraigned before the jury. I accept that this course had been indicated in the defence response which was filed prior to your trial. You also have pleaded guilty to the related Summary Offence of unlicenced driving. With regards to the aggravated carjacking charge, I accept that you pleaded guilty before the jury to the alternative charge of carjacking, which had also been foreshadowed in the earlier defence response. Accordingly, the issue at trial was narrowly confined, and related to the aspect of aggravation, namely the possession and use of the knife. You are of course not to be punished for running a trial, and I accept that the parameters of the trial were fairly narrow, and your victims were cross‑examined essentially with regards to the issue of the knife rather than broader issues such as identity. Notwithstanding your plea of not guilty with regards to the charge of aggravated carjacking, overall, for the reasons I have just described, a discount is warranted on utilitarian grounds, due to your pleas of guilty on some charges, and the confined issues of the trial and its impacts upon the facilitation of justice through an expedited hearing. In relation to the plea indictment, I accept that this was a matter where a plea of guilty was always going to be entered, no committal hearing proceeded, and this matter resolved at the earliest opportunity, warranting a significant discount due to the utilitarian value of your plea of guilty. Furthermore, when this plea was indicated, this Court was still suffering the adverse impacts of COVID-19 on the listing of criminal trials, such that an increased sentencing discount due to the enhanced utilitarian value of your plea of guilty pursuant to the decision of Worboyes[10] is warranted.
[10] Worboyes v R [2021] VSCA 169.
40You were arrested and remanded in custody on 23 May 2022, and have remained in custody since, a period of 617 days. A significant portion therefore of your time in custody has coincided with the COVID-19 pandemic and its now well-known adverse impacts upon the custodial setting. Whilst thankfully the situation seems to have significantly abated, a further mitigatory allowance is warranted due to the additional hardships within the custodial setting as a result of the COVID-19 pandemic, which include restrictions with regard to freedom of movement, access to therapeutic activities and courses, access to personal visits, the additional occurrence of lockdowns, and the anxiety associated with the consequences of COVID-19 entering the custodial setting with its compromised demographic.
41On a related issue, I have little doubt that due to your psychological fragility, in particular your complex post-traumatic stress disorder, your time in custody has been onerous for you, warranting a moderate mitigatory allowance pursuant to Verdins principle 5. At the time of the prison assault you were in a management unit at the Metropolitan Remand Centre. As a result of that assault you were moved to Barwon Prison, a maximum security prison. I understand that the custodial arrangements with regards to you have been further constrained following your conduct during the trial. For the record, I have not taken into consideration any behaviour on your part during the trial, given that there are proceedings still on foot as I understand it. Nevertheless, in sentencing you I am acutely aware of the difficult prison environment for you, particularly given your psychological fragility.
42In formulating an appropriate sentence in your case, I have had regard to current sentencing practices for the offences for which you now fall to be sentenced, noting that each case is necessarily fact specific and current sentencing practices form just one of the many relevant sentencing factors in any case.
43In relation to the offence of aggravated carjacking, in addition to considering the sentencing statistics provided by the Sentencing Advisory Council, I have considered various sentencing decisions of this Court and the Court of Appeal with regards to this particular offence. I have also considered the decision of Mammoliti v The Queen[11] with regards to general sentencing considerations for the offence of aggravated carjacking, having regard in particular to the minimum non-parole period set out in s10AD (1) of the Sentencing Act 1991. Clearly, in relation to this offence, the sentencing purposes of denunciation, just punishment, general and specific deterrence, and protection of the community are extremely important.[12] It is also clear that sentences of imprisonment of some length are common place with regards to this serious offence. In relation to the offences contained on the plea indictment with regards to the prison assault, both your counsel Mr Jackson and Ms Stokes representing the prosecution, at my request, filed written submissions with regards to the applicable sentencing factors and purposes, and current sentencing practices. I have read and considered those helpful submissions carefully, together with the various authorities relied upon. As indicated in the decision of Hope and Pua v The Queen VSCA [2018] 230, denunciation and general deterrence will usually be paramount considerations in the sentencing of offenders who commit such crimes against prison officers.[13] Such conduct must be denounced. Particularly given your concerning criminal history, you must be specifically deterred from engaging again in such serious criminality.
[11] Mammoliti v The Queen [2020] VSCA 52.
[12]Ibid, paragraph 19.
[13]Ibid, paragraph 74.
44Having regard to the distinct criminality associated with your offences, there is a need in my view to impose a degree of cumulation, subject as always to the overarching principle of totality and the need to avoid the imposition of a crushing sentence. Your offending committed whilst in prison is of course wholly distinct from your offending committed on 19 May 2022. Furthermore, there is a need in my view to distinguish between your offending with regards to each prison officer, to reflect the separate and distinct impacts upon each of those individuals.
45In addition to the matters to which I have referred, there is a need to impose a sentence which, to the extent appropriate, facilitates your rehabilitation. It is my view that you will require specialist interventions and assistance with regard to your eventual reintegration into the community, and in that regard I have made an allowance with regards to a parole eligibility component which will hopefully facilitate that process.
46In light of your serious offending, your counsel conceded that a significant sentence of imprisonment was warranted. Consistent with the parsimony principle, I have concluded that nothing short of a custodial term of some length is warranted in your case.
Sentence to be imposed
47In relation to the charges to which you have either pleaded guilty or been found guilty, you are sentenced as follows. In relation to the trial indictment, on Charge 1, attempted theft of motor vehicle, you are convicted and sentenced to nine months' imprisonment.
48On Charge 2, aggravated carjacking, you are convicted and sentenced to four years and six months' imprisonment. This is the base sentence.
49On the related Summary Offence of unlicenced driving, you are convicted and sentenced to one month imprisonment.
50On the Plea Indictment, on Charge 1, intentionally causing injury, you are convicted and sentenced to two years' imprisonment.
51On Charge 2, assaulting an emergency worker on duty, you are convicted and sentenced to 10 months' imprisonment.
52I order that one month of the sentence imposed on the charge of attempted theft of motor vehicle, 12 months on the charge of intentionally causing injury, and five months on the charge of assaulting an emergency worker be served cumulatively upon each other, and upon the base sentence of four years and six months' imposed on the aggravated carjacking offence, making a total effective sentence across both Indictments of six years' imprisonment. I order that you serve a period of four years and six months' imprisonment before becoming eligible for parole.
53Pursuant to s18(4) of the Sentencing Act 1991, on the Trial Indictment I declare a period of 617 days has been served by way of presentence detention, and I order that this be administratively deducted from your sentence.
54Pursuant to s89(4) of the Sentencing Act 1991, in relation to the charge of attempted theft of motor vehicle, any drivers licence held by you is cancelled, and you are disqualified from obtaining another licence for 12 months.
55Pursuant to s6AAA of the Sentencing Act 1991, in relation to the offences for which you pleaded guilty, I declare that had you pleaded not guilty to those charges but been found guilty at trial, I would have imposed an overall total effective sentence, including the sentence imposed with regards to the aggravated carjacking, of seven years' imprisonment with a non-parole period of five years and six months.
56That completes my sentencing remarks.
57Mr Jackson, any issues or ambiguities with regards to the sentence?
58MR JACKSON: No, Your Honour.
59HIS HONOUR: Ms Stokes?
60MS STOKES: No, Your Honour.
61HIS HONOUR: Thank you, adjourn the court.
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