Director of Public Prosecutions v Austerberry
[2018] VCC 1770
•30 October 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-18-01390
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PHILLIP AUSTERBERRY |
JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 23 October 2018 | |
DATE OF SENTENCE: | 30 October 2018 | |
CASE MAY BE CITED AS: | DPP v Austerberry | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1770 | |
REASONS FOR SENTENCE
---
Catchwords: CRIMINAL LAW - Sentence – very early plea to intentionally causing injury and cultivate narcotic plant – offender had a limited and aged but nonetheless relevant criminal record - offender stabbed 55 year old male victim at his workplace because of the disrespectful manner in which he believed the victim had acted towards the offender’s wife in their workplace – offender verbally confronted victim in the car park area on his arrival for work – offender only decided to use the pocket knife he habitually kept in a pouch on his belt after the victim first punched him – offender stabbed victim four times and made an unsuccessful attempt to stab him twice more – victim suffered stab wounds to the neck, back and arm which required surgery– offending had significant emotional and psychological impact on the victim – offender’s level of moral culpability for the offending assessed to be relatively significant – cultivation offence related to two cannabis plants that police found growing in the offender’s shed on the day of his arrest – offender sentenced on the basis that he was growing the cannabis plants for his own personal use - offender aged 55 at time of offending and 56 at time of sentencing – offender’s prospects of rehabilitation considered to be very good.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Confiscation Act 1997.
Cases Cited: Vella v The Queen [2018] VSCA 30; DPP v Zang [2016] VCC 1400; DPP v Rahimzadeh [2018] VCC 946; DPP v Dalgleish (a pseudonym) [2017] HCA 41; (2017) 349 ALR 37; Boulton v The Queen (2014) 46 VR 308.
Sentence: For intentionally causing injury offence, sentenced to 2 ½ years’ imprisonment with a non-parole period of 18 months. For cultivation offence, convicted and fined $750.00.
Pre-sentence detention of 7 days declared; s.6AAA indication of 4 years with non-parole period of 2 ½ years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms K Farrell (plea) Ms K Hamill (further plea) Ms V Toong (sentence) | Office of Public Prosecutions |
| For the Accused | Ms B Franjic (plea) | Dribbin and Brown Criminal Lawyers |
HIS HONOUR:
Introduction
1 Phillip Austerberry, you have pleaded guilty to an indictment containing two charges.
2 Charge 1 alleges an offence of causing injury intentionally and carries a maximum penalty of 10 years’ imprisonment.
3 Charge 2 alleges an offence of cultivate a narcotic plant, namely cannabis L. The applicable maximum penalty is 1 year imprisonment or 20 penalty units or both, as I am satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking.
4 The circumstances in which you came to commit those offences are set out in the amended prosecution opening dated 15 October 2018, a copy of which was tendered as exhibit A on the plea hearing. I have had regard to that opening when determining the appropriate sentence in this case.
5 You are now aged 56, having been born on 15 June 1962. At the time you committed these offences you were 55. You and the 55 year old male victim, Stephen Bell, had known each other since your school days. At the relevant time, he worked at the NRP Group factory in Hastings, as did your wife Michelle Slipais and her father, Uldis (‘Augie’) Slipais. In the lead up to the date of this incident, there had been tension and arguments between Mr Bell and your partner and her father about the use of the company forklift.
Circumstances of the Offending
6 At about 7.00am on 15 February 2018, you drove to the factory, parked your vehicle and then told one of the employees that you were waiting for a man who had been saying rude things about your wife. You then called your wife and asked if Mr Bell was at work. She then described his vehicle and told you where he usually parked it.
7 Between 7.20 and 7.25am, Mr Bell arrived and parked his vehicle. At that point, you approached and began arguing with him about your wife. In a threatening tone, you said to him ‘you’ve been having a go at my wife’. In response, he said it had nothing to do with you and you should step away.
8 At that point, you removed a fold-up pocket knife from your belt and opened it. It would seem that he did not observe you do that at the time as he then punched you approximately three times.
9 You then stabbed him four times, once in his neck, once in his left arm and twice in his back.
10 Mr Bell then punched you once more and you attempted to stab him twice more before moving away.
11 The offending was captured on CCTV footage.[1]
[1] A DVD containing the relevant footage was tendered as exhibit B and played to the Court during the prosecution opening.
12 Two workmates of Mr Bell happened to be nearby and witness the incident. One of them yelled out to the victim that he had been stabbed.
13 You then walked back to your vehicle while still holding the knife.
14 At that point, Mr Bell noticed that he had blood on him. He then placed his hand over the stab wound on his neck and walked towards the factory. There, he asked his two work colleagues for help and they called the police and ambulance service.
15 The victim was taken to Frankston Hospital and then airlifted to the Alfred Hospital where he underwent surgery to clean, staple and stitch the four knife wounds that he had sustained during the incident, each of which measured approximately three centimetres. One of the stab wounds to his chest wall caused a fracture to a rib.
16 When you were arrested at your home later that morning, you admitted having used the knife as a knuckle duster to hit Mr Bell. You also told police that you did not know where the knife was and that you might have dropped it.
17 After arriving at your home, the police suspected that you were growing cannabis in a shed at the rear of the property on account of the strong cannabis odour and the noise of fans. You agreed to provide them with the keys to the shed. On searching it, the police located and seized two mature cannabis plants.
Arrest and Interview
18 Following your arrest, you were interviewed at the Somerville Police Complex.
19 In that interview, you told police the following:
· You admitted to confronting Mr Bell who then punched you;
· You then grabbed your knife and hit him with it a couple of times. You claimed to have been unaware that the knife’s blade was extended and to have been unaware that Mr Bell had been stabbed until police told you;
· You agreed that the knife was in your fist;
· You said that you could not recall unfolding the knife but acknowledged that it was not capable of opening accidently;
· You described the knife as being a pocket knife with a fold out blade, approximately four inches in length when folded and about eight inches when unfolded;
· You kept the knife in a leather pouch on your belt and wore it almost every day;
· In relation to a similar but larger knife that police found when searching your bedroom cupboard, you explained that it was the larger of two matching knives that your brother had given you thirty years ago;
· You said you were ‘gutted’ about what had happened and regretted going to the factory;
· In relation to the cultivation offence, you told police that you had set up the shed with pots, lights and air filters a couple of years ago. You had grown the current plants from seeds. They were approximately four months old; and
· You denied any intention to sell the cannabis, explaining that you used cannabis every few days to relax.
Chronology of Proceedings
20 After being interviewed and charged on 15 February 2018, you were released on bail. A filing hearing took place on 21 February. The committal mention hearing on 16 May was adjourned. The matter then resolved on 13 June.
21 At the further committal case conference held on 15 June, the case was listed for a summary jurisdiction application on 3 July. That application was opposed by the prosecution and ultimately refused by the presiding Magistrate. In light of your pleas of guilty, the case then proceeded by way of straight hand-up-brief procedure and you were committed to this Court for a plea hearing which proceeded as listed, on 19 October. I note that at the conclusion of the further plea hearing held on 23 October, you were remanded in custody.
22 In light of the fact that you pleaded guilty at the earliest reasonable opportunity, you are entitled to a significant discount in your sentence, the extent of which I will make clear later in these sentencing reasons.
Victim Impact Material
23 The victim impact statement which Mr Bell made on 27 June 2018 provides an illuminating and powerful description of the physical, psychological and financial impact that this offending has caused him.
24 In short, this incident has changed his life. At the time, he thought he was going to die. Afterwards, he has experienced feelings of anxiety, fear, and depression. He was unable to work for two months while he recovered from his physical injuries. When he was able to resume work, it was a huge emotional challenge just to be able to return to the location where he was stabbed, so much so that he required psychological counselling in order to be able to do so.
25 He lost some money for the time that he was off work recovering as the overtime hours he would normally have done were not covered by WorkSafe. He incurred additional expense by having to install a security system at his home to try and alleviate the concerns that he and his family shared.
26 He has also experienced feelings of anger, frustration and even shame. He is angry that someone could attack him in the supposed safety of his workplace and frustrated that his bosses and work colleagues now treat him differently. The feelings of shame come from a genuine but unjustified sense of personal responsibility for the concern that others close to him now feel about him; people such as other members of his family and some work colleagues.
27 The psychological impacts of this crime continue to deeply affect the victim. He no longer feels able to attend Hastings except to work. It is an area that he and before him, his father, have always lived. He can no longer attend there because, being such a small township, he is fearful and anxious about bumping into his attacker or his wife or one of his friends. Since being attacked, he sleeps poorly; he is now hyper-vigilant whenever he hears noises and he experiences vivid and terrifying nightmares.
Criminal Record
28 As is clear from the criminal record filed with this Court, Mr Austerberry, you have a relevant albeit somewhat limited and aged prior criminal history.[2] As the result of two court appearances between 1988 and 1992, you have been sentenced for four offences.
[2] That criminal record is dated 18 September 2018.
29 On 8 April 1988, you were fined for one charge of recklessly causing injury. The circumstances of that offending bear some similarity to the current injury charge, albeit not involving any weapon. As your counsel explained it, that earlier matter involved you attacking another driver in a ‘road rage’ type of incident. After you believed that another driver cut you off, you got out of your vehicle and asked him what his problem was. That led to a verbal exchange, after which you punched or pushed him in the face.
30 Then, on 25 June 1992, you were found guilty of and placed on a 12 month Good Behaviour Bond for cultivate, possess and use cannabis.
Explanation for the offending
31 Defence counsel in this matter sought to emphasise the particular context in which the offending against Mr Bell occurred.
32 First, Mr Austerberry was informed over some period of the alleged bullying and harassing behaviour that Mr Bell had been engaging in towards Mr Austerberry’s wife, which had come to a head the week before and then, on the day preceding this incident, had led her to becoming upset and leaving work early.[3] In Mr Austerberry’s view, the unfolding problems concerning his wife had not been appropriately dealt with by her employer
[3] There was the additional allegation that Mr Bell had also behaved inappropriately towards Mr Austerberry’s father-in-law, Mr Slipais.
33 Second, Mr Austerberry’s decision to resort to the knife in his possession was only formed when Mr Bell commenced to punch him. Up until that time, Mr Austerberry’s intention had only been to ‘confront’ the victim, not to physically assault him and certainly not to stab him.
34 I am prepared to accept that submission and to impose sentence accordingly. There is, however, a limit to the amount of weight that can be given to the contextual circumstances of this offence as, after all, it was Mr Austerberry himself that created the volatile situation that arose and Mr Bell can be forgiven, if not condoned, for adopting the ‘punch or be punched’ mentality that he displayed when initially faced with the intimidating and aggressive stance of Mr Austerberry. So, while the matters to which the defence point may go some way towards explaining and contextualising the offending, it provides absolutely no excuse or justification for it. It is well to keep in mind that what took place was a vicious attack on a defenceless man in the place where he worked and was entitled to feel safe.
Personal Circumstances
35 I will now outline your personal circumstances, Mr Austerberry.
36 You were born in Sea Lake and are one of four children in your family. You had a very disrupted upbringing, having lived in 13 different houses by the time you were 13 years old.
37 You remain close and devoted to your elderly parents who are now in relatively poor health. You do not see your two sisters very often as they both live in Western Australia. You have had no contact with your brother since the two of you had a ‘falling out’ approximately 12 months ago.
38 You struggled with the academic requirements of secondary school and finished your education part-way through Year 10. You left home at the age of 17.
39 You have an excellent work history since leaving school. Your first job consisted of working for your father, laboring on a building site. After 12 months, you gained employment with John Lysart’s (now Blue Scope Steel), as a trades assistant. You worked in that capacity for the first 2-3 years before your employer put you through a four year adult fitter and turner apprenticeship. Later still, you completed a welding certificate. You left Blue Scope Steel in 1990 after the breakdown of your first marriage. In the same year, you met your current wife, Michelle.
40 In the following years, you worked in various capacities, including as a contractor and then manager for a friend’s company that supplied labour to Blue Scope. After being made redundant in 2011, you worked in various jobs on the Mornington Peninsula, including as a Maintenance Manager at a school. More recently, you have been working part-time on a local farm, and then, for the past six months or so, doing part-time contractual work with a local equipment hire business. Your ability to continue working there after you are released from custody is unclear as it may well depend on the length of your sentence.
41 Over the years, you have added to your qualifications by obtaining various licenses to operate various heavy duty vehicles and equipment.
42 You enjoy a close relationship with the two children from your first marriage, a son and a daughter now aged in their early 30s.
43 When you met your current wife in 1990, she had a 3 year old son from a previous relationship. You have played a significant part in his upbringing and the two of you are close.
44 You have led a settled life in the Crib Point/Hastings area, living in the same home for 22 years. You have contributed to the local community, including by coaching one of the local junior football teams.
45 At age 50, you were diagnosed with cirrhosis of the liver. Whilst you have stopped taking your medication for that condition due to its side effects, you are still subject to regular reviews by a specialist. The only medication you are currently taking is 300mg of Allopurinol daily for gout.
46 You have been an occasional smoker of cannabis and were intending to use the cannabis you were growing in your shed for your own use.
47 Your interests include camping and fishing. You have been a recreational shooter and the member of a sporting shooter’s club. However, you have lost your gun license on account of being charged with the current matter.
48 The tendered character references[4] speak of your generous nature and strong work ethic. The authors consider this offence of violence to be out of character and have noted your remorse for it.
[4] They were tendered as a bundle; exhibit 4.
49 I note that you were assessed by the forensic psychologist, Pamela Matthews on 21 June this year. I have had regard to the contents of her two reports which are dated 25 June and 2 October, respectively.[5]
[5] The reports were tendered as exhibits 2 and 3, respectively.
50 After noting the history that you provided her concerning the context in which this offending occurred, Ms Matthews indicates that you present as very ashamed of your behaviour and concerned about the impact it has had on a number of your wife’s former work colleagues. In her opinion, you acted in an uncharacteristic fashion out of sympathetic distress to your partner’s plight and while emotionally vulnerable due to your own health concerns. You have also displayed some insight in regards to your offending.
51 Ms Matthews considers that your risk of re-offending in a similar manner is very low. The significant gap in time between your prior act of violence and the current matter leads her to conclude that the recent violence in which you engaged is atypical not typical
52 Her recommendations are that you be referred under a Medicare Mental Health plan for psychological skill development with a focus on the regulation of sympathetic emotions in emotionally charged situations.
53 Ms Matthews is of the view that you are likely to psychologically manage a period of imprisonment. She is also of the opinion that, for a number of reasons, you have already undergone a measure of personal deterrence as a result of the negative impact that your offending has had on your life and on others; for example the loss of your own job and the resignations of your partner and her father, the negative emotional impacts on the victim and your partner’s former work colleagues and the personal stress of being charged and prosecuted while also facing a number of health issues.
54 Ms Matthews does not consider your previous levels of cannabis use to be problematic in terms of your future prognosis
Other matters in mitigation
55 Your counsel was able to rely on a number of other matters in mitigation on your behalf, Mr Austerberry.
56 You co-operated with the investigating police and made admissions when interviewed.
57 You have pleaded guilty to these offences at the earliest reasonable opportunity. As a result, the community has been saved the cost and time of a trial and, importantly, the victim and the eye witnesses have been spared the ordeal of giving evidence. You are therefore entitled to and will receive a commensurate discount in your sentence.
58 I am prepared to accept that you are remorseful for what you did based on your early plea and the observations of Ms Mathews and the character referees.
59 You have an excellent work history and an ability to obtain and maintain employment in the future.
60 You remain in a stable, long term and loving relationship.
61 You continue to enjoy strong support from your family and others within the community.
62 You have also given of your time on a voluntary basis to worthwhile community organisations, in particular your son’s junior football club.
63 You are in reasonable overall health, although your health is declining. You have recently been diagnosed with a serious liver condition and have stopped consuming alcohol. I also note that your arrest on this occasion has led you to cease using cannabis.
64 You have been assessed as being of sound mental health.
65 Like Ms Matthews, I have concluded that you have good prospects of rehabilitation and are unlikely to re-offend in this or any similar manner in the future.
66 Through the loss of your former employment and the cancellation of your firearms license, you have already been punished to some extent for what you did.
67 Whilst I accept that your offending against the victim was out of character and contextual, and whilst I accept that your decision to resort to the use of a knife to stab him was not planned or pre-meditated, your offending still has some very troubling aspects to it. You had other options available to you than to confront the victim. Even once you chose to confront him and create the volatile situation that you did, you could and should have walked away when he punched you. In opting to ultimately act as violently as you did, you made a very serious error of judgement for which you must now be justly punished.
Gravity of the offending
68 Of course, matters personal to you are not the only considerations for this Court, Mr Austerberry. Regard must also be had to the objective gravity of your offending.
69 As a type of offence, intentionally causing injury is inherently serious. That is amply demonstrated by the fact that Parliament has fixed the relatively high maximum penalty that it has, 10 years’ imprisonment.
70 In my view, this was a serious instance of this type of offence, for the following reasons:
· It involved the use of a weapon, namely a knife;
· The victim was stabbed multiple times;
· Given the fact that one of those blows was directed at the victim’s neck and another two at his back, it is very fortunate indeed that the victim was not more seriously injured than he was;
· In light of the number and type of blows delivered with the knife, and the unsuccessful attempt to deliver two further blows, I am satisfied that Mr Austerberry must have intended to cause an injury at or towards the upper end of the range of injuries that can be encompassed by this type of charge;
· The attack occurred at the victim’s workplace;
· The attack was witnessed by two of the victim’s work colleagues;
· The victim suffered physical injuries that required surgery and that must have resulted in scarring, at the very least; and
· The impact of this offending on the victim has been very significant; he was psychologically traumatised at the time, believing he was going to die, and he has been substantially impacted on an emotional and psychological level in the period since.
71 I have been astute to sentence Mr Austerberry only for the offence with which he is charged. As is clear from the elements of that charge, he is not to be sentenced on the basis that he had an intention or reckless state of mind in relation to the causing of a serious injury. Rather, he is to be sentenced on the basis that he acted as he did with the intention to cause the victim an injury and his actions had that effect.
72 In concluding, I must finally observe that this was serious and troubling offending on Mr Austerberry’s part, for which he must bear a relatively significant level of moral culpability.
73 By way of contrast, the offence of cultivation is to be properly viewed as falling towards the lower end of the range for this type of offence. So much is implicitly acknowledged by the prosecutor’s concession at the plea hearing, that it would be open to this Court to impose a monetary penalty in all the circumstances. In light of the small number of plants and Mr Austerberry’s intention to use any harvested product for his own use, I consider that concession to have been appropriately made.
Current Sentencing Practices
74 As required by s.5(2)(b) of the Sentencing Act 1991, I must have regard to current sentencing practices for these types of offences. But, as the High Court recently observed in DPP v Dalgleish (a pseudonym)[6], it is but one of a number of relevant considerations, including the applicable maximum penalty, and is not determinative.
[6] [2017] HCA 41; (2017) 349 ALR 37.
75 The very recent sentencing statistics published by the Sentencing Advisory Council provide some assistance. But, as with any sentencing statistics, there is a lack of important detail regarding such matters as the circumstances of the offence and of the offender, including any aggravating and mitigating features and the nature of the plea entered. When considering this material, I have borne in mind the repeated cautions which the Court of Appeal have sounded about such material.
76 As the sentencing snapshot for intentionally causing injury published in June this year makes clear, from 2012-13 to 2016-17, 380 people were sentenced in the higher courts for a principal offence of intentionally causing injury. Of the 179 people who received a principal sentence of imprisonment, 125 received a non-aggregate term of imprisonment. The length of those terms ranged from 1 month to 5 years, while the median length of imprisonment was 1 year and 5 months.[7]
[7] Sentencing Snapshot No. 215.
77 During the course of the plea hearing in this matter, I was referred to a very small number of cases which involved an offender being sentenced for an offence of intentionally causing injury by the use of a knife; two by the prosecution and another by the defence.
78 In the former category were those of Vella v The Queen[8] and DPP v Zang.[9] The first of those was a decision of the Court of Appeal constituted by Priest and Beach JJA in which the Court concluded that the sentence imposed at first instance was open and, if anything moderate, while the second was a sentence imposed by Judge Lawson of this Court.
[8] [2018] VSCA 30.
[9] [2016] VSCA 1400.
79 In the latter category was a sentence I imposed in the case of DPP v Rahimzadeh.[10]
[10] [2018] VCC 946
80 I have read and had regard to those cases.
81 But, as is always the case, there are obvious points of difference between other cases and the one at hand, both as to the circumstances of the offending and the offender. Those differences can cut both ways and can sometimes be significant. That is certainly the case here.
82 Again, as the Court of Appeal have frequently noted, consideration of other cases is of limited assistance. No two cases are ever identical or on all fours. And, the sentence imposed in another case should not be assumed to be the only available sentence that was open to the sentencing Court. Almost always, it is but one of a number of sentences that were open to impose when regard is had to the available range.
83 In the end, this Court must deliver individualised justice by having regard to the particular circumstances of this offending, the personal circumstances of Mr Austerberry, and the relevant sentencing principles that arise for consideration. And, that is what I propose to do in this case.
Relevant Sentencing Principles
84 For obvious reasons, general deterrence and denunciation assume considerable importance in this case.
85 For understandable reasons, the community has justifiable concerns about people with grievances, real or perceived, taking the law into their own hands by confronting the person they believe is responsible for the wrongdoing. Of even more concern, is any resort to a dangerous weapon during the volatile situation that the offender has, through their own poor judgement, created. Such conduct causes considerable community disquiet, and understandably so. It has the capacity to cause very serious injury and undermine the sense of personal security of the victim and other members of the community. As such, the community has a justifiable expectation that when offenders who commit such offences are caught, they will be dealt with appropriately by the Courts who sentence them, not just in order to vindicate the values of that community, but also to act as a deterrent to other would-be offenders who may be contemplating offences of the same or a similar character.
86 In my view, specific deterrence is another relevant sentencing consideration and has a role to play in this sentencing exercise. That is so because of the serious and disturbing nature of this offending by Mr Austerberry and because of the previous occasion on which he confronted and then assaulted a person against whom he had a grievance. Whilst regard must be had to the significant period that elapsed between those two incidents, the latest instance was a serious relapse on Mr Austerberry’s part and represents an obvious escalation in the degree of seriousness of his offending.
87 For similar reasons, I consider that there is a need to give some weight to the protection of the community from Mr Austerberry, particularly as he is yet to undertake the necessary psychological counselling that Ms Matthews has recommended.
88 This court must punish Mr Austerberry in a manner and to an extent that is just in all the circumstances. Given the nature and gravity of this offending, any such punishment needs to be relatively substantial.
89 This Court must also have regard to Mr Austerberry’s age and prospects of rehabilitation. The latter is, as his counsel advocated at the plea hearing, an important consideration in this sentencing task. Mr Austerberry is now a man of relatively mature years and does not have an entrenched criminal disposition. He has an excellent employment history. He is in a stable relationship and has strong support within the community. In the end, doing the best that I can with the material available, I consider those prospects to be very good.
Sentencing submissions
90 In her sentencing submissions, Ms Franjic acknowledged the seriousness of this offending but submitted that a combination sentence was both open and appropriate in the particular circumstances of this case. Such a disposition would, she submitted, be able to recognise and accord adequate weight to all of the relevant sentencing considerations in this case, one of which is to foster Mr Austerberry’s rehabilitation.
91 At the conclusion of the plea hearing on 17 October, I ordered that Mr Austerberry be assessed for suitability for a community correction order as at that stage I had not formed a concluded view as to whether a combination sentence was open in the particular circumstances of this case. The author of that assessment suitability report found him suitable for a community correction order.[11]
[11] The assessment interview took place on 17 October and the report was prepared on the same date.
92 For their part, the prosecution pointed out a number of the serious aspects of this offending and addressed the relevant sentencing principles to which this Court must have regard. Ultimately, Ms Farrell, counsel who appeared on behalf of the Director, submitted that nothing short of a wholly custodial sentence comprising a head sentence with a non-parole period was appropriate in the particular circumstances of this case.
Analysis
93 Whilst I am mindful of everything that the Court of Appeal stated in Boulton v The Queen[12], and in a number of other cases regarding the parsimony principle as it relates to consideration of a community correction order, whether stand alone or in combination with a term of immediate imprisonment, I am unable to accede to the primary sentencing submission made by the defence, in the particular circumstances of this case.
[12] [2014] VSCA 342; (2014) 46 VR 308.
94 In my view, nothing short of a relatively substantial sentence of imprisonment is warranted in this case and one that comprises a head sentence with a non-parole period. To do otherwise, would surely fail to accord the necessary weight to a number of important sentencing principles, in particular, general deterrence and denunciation, and would not represent a just and adequate punishment for the serious criminality in which Mr Austerberry engaged on this occasion.
95 However, and in accordance with the alternative submission made by the defence, I intend to fix a relatively disparate non-parole period as compared to the head sentence in order to foster and maximise the already good prospects that Mr Austerberry has. But, there is a limit to what this Court can do in terms of fixing the point at which he can be considered for supervised release from custody. That period should not be so short, or so disparate with the head sentence, that it undermines the necessary deterrent, denunciatory and punitive aspects of the sentence.
Sentence
96 Having carefully considered, balanced and weighed the various, and in some respects competing sentencing considerations raised by this case, I have decided to convict Mr Austerberry on each charge and sentence him as follows.
97 On Charge 1, intentionally causing injury, he will be sentenced to a term of 2 ½ years’ imprisonment.
98 In respect of that sentence, I fix a non-parole period of 18 months.
99 On Charge 2, cultivation of a narcotic plant, he will be fined the sum of $750.00.
Pre-sentence detention
100 As Mr Austerberry was first remanded in custody on this matter on 23 October 2018, I declare that he has already served a period of 7 days pre-sentence detention in respect of this sentence and I order that such declaration and its details be entered in the records of the Court.
Section 6AAA declaration
101 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that had Mr Austerberry pleaded not guilty to the charge of intentionally causing injury and been convicted of that offence at trial, he would have been sentenced for that offence to a term of 4 years’ imprisonment with a non-parole period of 2 ½ years.
Forensic Sample Order
102 In all of the circumstances of this case, I am prepared to exercise my discretion in favour of granting the prosecution’s application for an order authorising the taking of a forensic sample from Mr Austerberry pursuant to s.464ZF(2) of the Crimes Act 1958. I have made that decision having regard to the seriousness of the circumstances of the offending, the fact that the making of the order was not opposed and the fact that the granting of the order is in the public interest.
103 Accordingly, I order that Mr Austerberry undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with Subdivision 30A of Part 3 of the Act until a sufficient sample is obtained for placement on the database.
104 Mr Austerberry, I am required to inform you that if at the time of request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Austerberry?
105 OFFENDER: Yes, your Honour.
106 HIS HONOUR: Thank you.
Disposal Order
107 I am also prepared to grant the prosecution’s application for a disposal order in the terms sought, which I note was not opposed by the defence. Accordingly, pursuant to s. 78(1) of the Confiscation Act 1997, I order that the items listed in the attached schedule to the draft order be forfeited to the State in accordance with the terms of the order that I have signed today.
Other Matters
108 Counsel, are there any matters that either of you wish to raise in respect of either the sentence or reasons for sentence at this stage?
109 MS TOONG: No, your Honour.
110 MR SHER: No, your Honour.
111 HIS HONOUR: Very well. Adjourn the Court until 10.00 am tomorrow, please Mr Hammill.
- - -
0
7
0