Director of Public Prosecutions v Baea

[2018] VCC 1580

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00988

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIGARAGH BAEA

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 September 2018
CASE MAY BE CITED AS:	DPP v Baea
MEDIUM NEUTRAL CITATION:	[2018] VCC 1580

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin
For the Offender	Ms J. Clark

HER HONOUR:

1Sigaragh Baea, you have pleaded guilty on indictment to a charge of intentionally causing serious injury to Dennis Newall on 2 October 2017. 

2This charge carries a maximum penalty of 20 years imprisonment, reflective of how seriously parliament regards such an offence. 

3The circumstances of your offending are set out in a document entitled Prosecution Opening for Plea dated 27 July of 2018.  It is marked at Exhibit P1 and its contents are not contested by your counsel. 

4On 2 October 2017 you and the victim were housed in the Alexander wing at Port Phillip Prison.  I understand that the Alexander wing was a protection unit.  Shortly after 9 am you were standing in the common area near the correctional staff station.  CCTV footage reveals you to walk towards the flight of stairs in the direction of your cell which was located on the upper level.  As you did so you passed the victim, Dennis Newall, who came into the common area to the foot of the stairs.  He then stopped, looked around, turned and followed you closely, walking up to three steps at a time.

5When you reached the top of the stairs you turned around and saw Newall.  You then proceeded to punch Newall approximately four times to the face.  The last punch caused him to fall to the ground where he lay on his back and was apparently unconscious.  You then stood over him and punched him with both fists repeatedly, estimated to be some 13 to 15 times.  Newall did not put up any defence nor resist your assault upon him.  Prison officers attended and they separated you.  The unit, which housed some 48 prisoners, had to be put into lock down. 

6Mr Newall was taken to the Royal Melbourne Hospital and suffered:

-Cortical contusions bilateral frontal lobes, and left frontotemporal and parafalcine subdural blood which effectively refers to various types and locations of bleeding on the brain; 

-Multiple facial bone fractures, including LeFort III fractures.  LeFort III fractures refer to a situation where the facial skeleton is separated from the skull resulting from severe impact to the midface.  Both eye sockets were fractured; 

-Post traumatic amnesia; and

-Expressive dysphasia, giving him difficulty in speaking due to the damage to the area of the brain responsible for expressive speech. 

7Essentially Mr Newall suffered a sustained and severe head injury including multiple fractures and bleeding in and around the brain.  He was transferred to St Vincent's Hospital for ongoing rehabilitation. 

8An affidavit authored by Mr Brendan Money and dated 11 September 2018 was also tendered by the prosecution on your plea. I have had recourse to its contents and it details the housing and management of Dennis Newall post the injuries which you inflicted upon him.  He was not able to return to the general prison population until January of 2018 and required ongoing support from medical staff.  There is no victim impact statement.  I accept on the evidence before me that there are ongoing medical issues for Mr Newall but I have limited information as to how the physical aspects of your attack upon him are impacting on his day to day life within the prison system or into the future.

9In my view it is likely that there would be ongoing psychological consequence for him of being attacked within the prison system, which is one in which he and you each remain and will do so for some time. 

10When interviewed by police on 16 November 2017, as is your right, you chose to give no comment answers to the questions asked of you. 

11Through your counsel you have put context to your decision to assault Mr Newall.  You told your counsel that in the two weeks leading up to your offending there was several occasions when the victim stood over you, annoyed you and pushed you.

12On the day prior to the offence you told your counsel that the victim touched you fleetingly on the penis on the outside of your clothing.  The Crown do not seek to dispute these instructions.  On the day of the incident you instruct that you were walking up the stairs and realised the victim was walking behind you.  You could hear him laughing and were unsure of what he was going to do so turned around and started punching him.  I accept that your offending was spontaneous and without premeditation. 

13The ‘lead up’, which you have put through your instructions does little to explain the violence which you displayed and certainly could never excuse it.  You had the option of simply walking forward into your own cell, which was in close proximity to the location in which the assault on Mr Newall occurred.  What is particularly concerning is that your offending involved multiple blows.  Your initial punches had left him lying on the ground in an apparently unconscious state.  Your assault nevertheless persisted in what can only be described as a sustained and brutal fashion in circumstances where Mr Newall had no prospect of defending himself. 

14It has obviously resulted in severe injury.  I am of the view that this second stage of your assault, at which time your victim was prone, is an aggravating aspect to your offending and increases its objective gravity.  Other prisoners and prison officers were subjected to witnessing this violence.  I accept the submission that your offending was of relatively short duration and no weapon was used.  However, this short time was all the time you required to cause significant injury.  It would appear your fists were a powerful enough weapon in themselves.

15I consider this to be a serious example of a serious offence whilst also accepting that there are perhaps more serious examples of such offending.  The learned prosecutor has referred me to the decision of De Castres v The Queen and Kent v The Queen reported at [2011] VSCA 377.  Relevant from that decision to your case is the following passage from Ashley JA

"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.  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."

16As I have said I am of the view that these considerations have application to your case. 

17General deterrence is of considerable import so that others do not follow your example.  This, in turn, is of assistance to the general and safer management of our prison systems.  Prisoners, who largely rely on prison authorities to protect them from such violence, should be able to see the court as a form of protection against violence from their fellow prisoners in the sentences that are imposed. 

18I have taken into account matters personal to you, which can only be described as a difficult and troubling background.  I am told that you were born in Papua New Guinea and are now 24 years of age.  You have two younger sisters.  Your parents moved to Australia in 2003 when your father obtained work with the Royal Australian Air Force at the Laverton base in Victoria.  You commenced attending primary school in Australia.  Five years later you and your family returned to Papua New Guinea. 

19Soon after that event your parents separated.  Their relationship had been marred by infidelities, extended absences and violence, violence which you were unfortunate enough to witness.  Without warning, your mother returned to Australia and remarried.  She took her youngest child and left a note saying that she was leaving you and your nine year old sister behind.  Your father also left home.  At approximately 14 years of age you were left to raise your nine year old sister with your father occasionally visiting and sometimes providing money.

20In December of 2012 you returned to Australia for less than a month.  You asked your mother on numerous occasions to help you become an Australian resident.  She said she could not afford to sponsor you.  Accordingly you continued to be a resident of Papua New Guinea.  To your credit you completed Year 11 and 12 education in Papua New Guinea with excellent results.  You wanted to study medicine.  There was an opportunity to do so in Turkey.  Your father stated he would fund this if you obtained the necessary marks. 

21You did so, as well as learning Turkish, only to be later told by your father that he could not afford it.  You, therefore, remained in Papua New Guinea until December of 2015 when you re-entered Australia on a visitor's visa.  You stayed with your mother and your sister in Lara and were due to return to Papua New Guinea on 21 February 2016.  However, on 18 February of 2016 you committed a murder and were subsequently remanded into custody.  You murdered Prasad Somawansa, the mother of a childhood friend of yours, by stabbing her 38 times.  This offending is largely unexplained. 

22On 28 February 2017 you were sentenced for this crime to 22 years imprisonment with a non-parole period of 17 years.  Three hundred and seventy five days were taken into account as having already been served pursuant to that sentence.  Whilst not a matter for which you will be punished again, this prior matter is obviously also one of violence and also involved a sustained attack.  It is relevant to the assessment of the weight to be given to both specific deterrence and the need to protect the community from you.  Both of these factors are deserving of weight in the overall sentencing mix.

23A psychiatric report dated 11 November 2016 and authored by Dr Danny Sullivan, consultant psychiatrist, has also been filed on your behalf.  I have had recourse to the contents of that document.  I understand that it was prepared for your Supreme Court hearing in your plea on the murder charge.  Your counsel does not call into your aid the principles of the R v Verdins&Ors (2007) 16 VR 269. Dr Sullivan's report does set out your background. You do not appear to have any problems with either drugs or alcohol.

24Dr Sullivan refers to the fact that at the time of his report you had been assessed in custody at various stages by psychiatrists, psychologists, nursing staff and others.  At the time of his assessment you were not considered to have a psychotic illness.  Dr Sullivan notes that, "The impression has been of an adjustment disorder influenced by his religious beliefs, cultural background and childhood trauma." Dr Sullivan agreed with this impression and diagnosis and did not identify any mental disorder. 

25I have no updated psychiatric or psychological material.  There is, therefore, nothing before me of a psychological or psychiatric nature which would allow any moderation of your sentence or further explain your offending.  I do accept that incarceration has been an isolating experience for you, albeit partly of your own choice.  As a direct consequence of this offending you were placed in the Charlotte management unit and are now housed in a management unit at Barwon Prison.

26At this stage you have approximately one hour's exercise per day.  You are a separated prisoner at your own request.  I have no information before me to determine how long that is likely to be the case.  Your mother and sister reside in nearby Geelong.  You choose to have phone contact with your sister but have not allowed her to visit you.  I take all of these matters into account in your sentence. 

27I take into account your early plea of guilty, although note your offending was captured on CCTV and as such it was an extremely strong Crown case. Either way your plea still serves a purpose and has utilitarian value.  It has saved the court the time and expense of contested proceedings.  It has saved any witnesses having to relive a traumatic experience through the giving of evidence.  I am prepared to accept that your plea is an indicator of some remorse in the absence of any other evidence.  You were 23 years of age at the time of this offence.  You are still relatively young. 

28Your relative youth does remain a relevant sentencing factor, as does the fact that this is the second offence of considerable violence such that the sentencing objectives of deterrence, denunciation, just punishment and protection of the community do become, in my view, more prominent and reduce the weight that should attach and does attach to your youth.  It is difficult in light of your recent history and lack of supporting material to assess your prospects for rehabilitation.  I accept that any sentence imposed by me is one that should not lose sight of those prospects.

29The principle of totality is a matter of particular significance and any sentence imposed should not be crushing. 

30Indeed the basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim. 

31Obviously in this instance your culpability for your offending is high. I am required to balance the interests of the community in denouncing criminal conduct with the interests the community does have in seeking to ensure as far as is possible, that offenders are rehabilitated and are reintegrated into society. I have taken into account the relevant sentencing guidelines referred to in section 5 of the Sentencing Act where relevant to your case. Particularly section 5(2H) requires a court to impose a custodial sentence unless special reasons apply.

32It is not contended in your case that there are special reasons.  Both parties submit that a term of imprisonment is the only sentence which is available.  Both parties submit that the principles of totality, parsimony and proportionality all have relevance such that any term of imprisonment should involve some accumulation.  I accept those submissions. 

33Pursuant to section 6A of Sentencing Act you are to be sentenced as a serious violent offender.  You have previously been convicted of a serious violent offence for which you received a sentence of imprisonment.

34Section 6F requires that this status is to be noted on the record and I so order.  Every term of imprisonment imposed for a relevant offence must, unless otherwise be directed, be served cumulative on any sentence of imprisonment imposed, whether before or at the same time as that term.  I am required to regard the protection of the community from you as the principal purpose for which the sentence is imposed today.  In order to achieve this purpose I have the power to impose a sentence greater than that which is proportionate to your offence.

35I note that a disproportionate sentence is not sought and will not be imposed. 

36I have made the ancillary order as sought for disposal of certain items.  This application was not opposed by your counsel. 

37I do now turn to sentence, Mr Baea, and I would ask that you stand. 

38On the single charge of intentionally causing serious injury you are convicted and sentenced to five years and nine months imprisonment.  I order that two years of this sentence is cumulative on the sentence you are currently undergoing and fix a new non-parole period of 19 years.

39There is no pre-sentence detention to take into account. 

40Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charge.  If not for your plea of guilty I would have sentenced you to seven years and six months imprisonment.  Thank you.

41MR DEVLIN:  As Your Honour pleases.

42HER HONOUR:  Was there anything further?

43MS CLARK:  As Your Honour pleases, no.

44HER HONOUR:  Thank you.  If you could remove the prisoner.  Thank you, and I will stand down now until 10.30.  Thank you.

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