Director of Public Prosecutions v Baker
[2023] VCC 1397
•15 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02311, CR-22-02258
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Shayden BAKER |
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JUDGE: | Her Honour Judge Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 July 2023 | |
DATE OF SENTENCE: | 15 August 2023 | |
CASE MAY BE CITED AS: | DPP v Baker | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1397 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Damaging Property (1 charge), Aggravated Burglary (1 charge), Causing Injury Intentionally (1 charge), Causing Serious Injury Intentionally (1 charge)
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:Bugmy v R [2013] HCA 37; Cameron v The Queen (2002) 209 CLR 339; Hoskins v R [2021] NSWCCA; Le v DPP [2019] VSCA 299; R v Fuller-Cust (2002) 6 VR 496; Worboyes v R [2021] VSCA 169.
Sentence: Total effective sentence of 3 years and 7 months’ imprisonment with a non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M Zammit | Director of Public Prosecutions |
| For the Accused | Mr D McGlone | Marshall Jovanovska Ralph |
HER HONOUR:
1Shayden Baker, you have pleaded guilty to five charges under two indictments under the Crimes Act 1958 (Vic) (“the Act”). On the first or earlier of the two indictments, No: K13195332, which relates to offending committed on 20 November 2019, you pleaded guilty to one charge of Damaging Property, one charge of Aggravated Burglary, and one charge of Causing Injury Intentionally. On the second indictment, No: N11005709, which relates to offending committed on 20 May 2022, you pleaded guilty to one charge of Intentionally Causing Serious Injury and to a summary charge of Committing Indictable Offence Whilst on Bail. You consented to having your plea heard before the Koori Court.
2The maximum penalties for each of the offences of Damaging Property and Intentionally Causing Injury is 10 years’ imprisonment. The maximum penalty for Aggravated Burglary is 25 years’ imprisonment. The maximum penalty for Intentionally Causing Serious Injury is 20 years’ imprisonment.
Details of Offending
3The details of your offending were set out in the two Summaries of Prosecution Opening on the Plea, and I sentence you on the basis of the facts contained in those documents. I summarise the offending briefly.
4In relation to the first indictment, you were 21 years old at the time of offending. Your co-accused was Mark Ramsden. The victim in the matter was Leigh Devlin. You had never met him. As at 20 November 2019, he was living at 54 Roslyn Park Drive in Melton West. Since about nine years earlier, he had been a neighbour of Mr Ramsden, and there had been numerous incidents between them since 2015, with police having been called to their addresses on a number of occasions.
5On 20 November 2019, there was an altercation between Ramsden and the victim at the victim’s house before you arrived. During that altercation, Ramsden punched the victim and then, in the company of another person, tried to force his way into the victim’s home. The victim called police. You then arrived and, in the company of Ramsden and another male, forced your way into his home, pushing Ramsden into the corner behind the door. This conduct is the subject of charge 2, aggravated burglary.
6The victim grabbed a pocket knife and held it in his hand. Ramsden punched him to the head. You punched the victim to the head and hit him on the head with a bottle, which smashed, causing a cut to the victim’s hand. Your other co-offender also hit the victim on the head with a bottle, which smashed and injured the victim’s nose. This conduct is the subject of charge 3, intentionally cause injury.
7You and your two co-offenders then damaged the victim’s CCTV cameras before leaving the property. This is the subject of charge 1, criminal damage.
8As a result of the injuries he sustained, the victim spent two days in hospital and had a combined 20 stitches in his head, nose and hand. The victim declined the opportunity to make a victim impact statement in relation to your offending.
9Your co-accused Mark Ramsden, who was then 52 years of age, was sentenced to time served (78 days) and a 3-year CCO, in respect of one charge of aggravated burglary, one charge of making threat to kill, one charge of intentionally cause injury and one charge of making threat to destroy property. In his sentencing remarks, Judge Chettle noted that you, Ramsden and an unknown third man forced your way into the victim’s house, that Ramsden punched the victim repeatedly in the head, that you hit him with a bottle that smashed and cut his hand, and that the unknown man smashed another bottle on the victim’s head, cutting his nose. Mr Ramsden was found not to have intended the injuries caused by the bottles but to have intended to bruise and hit the victim. He had dated but relevant prior convictions for unlawful assault (in 1994 and 2007), intentionally or recklessly cause injury (in 1997, for which he received a three-month intensive correction order), recklessly causing injury and intentionally cause injury (in 2007, for which he received a suspended term of imprisonment), and criminal damage (in 1994 and 2007).
10In relation to the second indictment, the co-accused is your younger brother, Nathan Baker, who was 21 years old at the time of offending. His matter is still before the Courts. You were 23 years old at the time and were on bail in relation to the matters contained in the first indictment. The victim in the matter is Andrew Bourne, who was known to you as an associate of your mother. In the early hours of 20 May 2022, he was about to leave the Coles Express Service Station in Melton on his bicycle. A significant portion of your offending was recorded on CCTV footage.
11You and your brother were driving past on a motorcycle and stopped at that service station. The two of you approached the victim, punching him to the head from behind. You picked up the victim’s bicycle and threw it at him. He produced a baton and you, he and Nathan began punching each other. You and your brother pushed him to the ground and dragged him, punching him to the back of the head, back and ribs repeatedly and kicking him in the head whilst he was on the ground. Shortly after this, your brother repeatedly drove the motorcycle towards the victim, followed by hitting and punching him. Before leaving, you returned to the victim and punched him in the head before your brother took over the assault. At some stage during the assault, the victim’s left ear was cut with a Stanley knife by you or your brother. The victim woke up in hospital and did not recall the offending. He sustained a fractured right eye socket in two places, a broken nose, bruising around both eyes, fractures to two ribs, as well as a large left scalp haematoma. He required emergency treatment to his right eye to prevent blindness as well as partial amputation of his left ear. His doctor opined that his injuries were likely to cause significant pain. The victim made a statement of no complaint.
Guilty Plea
12You pleaded guilty to charges 1 to 3 on the first indictment on 27 October 2022 (the first day of trial), and to charge 1 on the second indictment on 7 March 2023.
13You were remanded in custody in respect of the first indictment on 11 December 2019 and were in prison between 11 December 2019 and 23 April 2020 (134 days). You were remanded in custody in respect of the second indictment on 20 May 2022 and have remained there since. As at today’s date, the global pre-sentence detention is that of 585 days.
Criminal record
14At the time of your offending in 2019, you had a limited criminal history of one conviction for unrelated offending for which you were fined $150.
15At the time of your offending in May 2022, you had a relevant conviction for unlawful assault: on 7 June 2021 you were placed on an 18-month CCO with conditions of supervision, as well as assessment and treatment of mental health and drug issues, and offending behaviour programs. You were also on bail at the time of your offending on 20 May 2022 in relation to the 2019 offending.
Your Personal Circumstances
16
Your personal circumstances were set out in the psychological reports of Dr
Aaron Cunningham (dated 2 March 2023, in respect of the charges in the first indictment only) and Dr Caitlin Robertson (dated 16 June 2023, in respect of the charges in both indictments).
17You are a 24 year old Bunurong and Yorta Yorta man. You are related to a number of distinguished elders. You were born on 21 October 1998 and were 21 years old the time of the initial offending, and 23 years old at the time of the more recent offending. You are one of four children, the others being your sister Jayd (30), and your brothers, Ashley (deceased) and Nathan (22).
18Your older sister Jayd told Dr Robertson that both of your parents were alcohol dependent and had mental health concerns, and that there were frequent episodes of violence in the home by your father against your mother and you and your siblings, but also in the context of your mother’s friends’ visits to your home during late night parties where alcohol was consumed.
19Your parents separated around the time you were 7 years old. You went to live with your father together with your two brothers and remained there until you were 15, when your father was hospitalised with a psychiatric condition.
20During the time that you lived with your father, while your schooling was poor and you changing schools a number of times, you were heavily involved in sport to an advanced level, especially football and boxing. Your practice regime entailed training every night of the week.
21Following your father’s hospitalisation, you were placed in foster care with parents of a friend. During this time, you commenced smoking cannabis, and dropped out of school during year 10. You would frequently run away from your foster home to live with your mother in Melton, but she had a problem with alcohol.
22You suffered a broken pelvis after falling from a school roof leaving you wheelchair bound for 7 months. While recovering from the fall, your brother Nathan became your principal carer. During visits to your mother, when you would go to the station to travel back to your foster home, Nathan would take the wheelchair and wheel you back to your mother’s home instead. You ultimately came to live with your mother and the rest of the family in Melton on a permanent basis.
23During the time that you lived with your mother, your cannabis use deteriorated considerably and you commenced abusing alcohol. After leaving school, you worked with your father as a stonemason and did some plastering work. Your substance abuse worsened when you were 19, following the death of your brother Ashley in a motorcycle accident, but you mainly abused alcohol. You suffered episodes of unconsciousness after several motor cycle accidents but did not attend hospital.
24Dr Cunningham noted that you reported instability in childhood with regard to exposure to alcohol, parental separation, placement into foster care and maternal alcohol abuse. He considered that your abuse of alcohol has compromised your ability to maintain stable employment and pro-social relationships. He considered that your abuse of drugs and alcohol contributed to your offending by increasing your disinhibition. He assessed you as having some impairment in verbal as opposed to non-verbal reasoning but did not consider that you suffer from an intellectual disability nor any mental illness. He assessed you as presenting with a moderate risk of future violent offending. He noted that you have improved physically and psychologically since ceasing abuse of alcohol and recommended a disposition focused on rehabilitation.
25You told Dr Robertson that you had close relations with your siblings but that Jayd is your most significant support. You told her you did well at school until Year 8 when you moved to foster care and started mixing with the wrong crowd. You left school in Year 9 and had limited work after that. You spent your Centrelink payments within a day or two and then were broke. Your social network largely centred on mutual alcohol and drug use and offending behaviour. You went to Queensland with your father in 2017 to stay with family to get away from your poor lifestyle, but came back after your brother died. You felt that you went downhill after his death and that your personality changed. You abused alcohol, cannabis and methamphetamine in an attempt to suppress your emotional pain. You have a young daughter from a brief relationship but have no contact with her. You reported some trouble with memory after your motorcycle accidents.
26You reported prior diagnoses for anxiety and depression, which you experienced most of your adult life, with thoughts of hopelessness, difficulties in managing stress and loss. For the past two years you have been taking medication (first Seroquel, then Avanza) and found it helped your depressed mood and tendency to overthink things. You also told her that painting has helped your mood by keeping you occupied and giving you a way of expression your emotions.
27You told her that you stayed off drugs and alcohol for six weeks after obtaining bail but relapsed due to concerns about your legal matters. You again stopped using alcohol for several months when you first were put on a CCO in 2021, but went back to drinking daily until you were remanded. Since then, you have not used drugs or alcohol.
28You reported longstanding animosity towards police, who regularly accosted you when you were riding motorbikes with your brothers.
29In relation to the charges the subject of the first indictment, you told her that you were not very drunk but got involved in Mr Ramsden’s longstanding feud with the victim. She noted that you showed a limited appreciation of the impact of the offences on the victim and denied a pattern of getting involved in the problems of others.
30In relation to the charges the subject of the second indictment, you told her you were very drunk at the time of offending and did not recall the details although you thought there was an issue between the victim and your brother and that the victim pulled out a knife during the offending.
31You told her that while on remand you have been working in the laundry, been painting and re-connecting with your community through programs, and maintaining regular contact with your mother and sister. You hoped to be transferred to a lower security facility upon sentence and would participate in any recommended treatment programs there. After your release, you plan to live with your mother, who no longer drinks and plans to set up an art studio for you in the home. Your sister Jayd lives close by and will support you. You told her that you planned to get your driver’s licence and a job in construction, and would avoid your antisocial peers. You told her that you had learned your lesson in prison and now had the “right mindset about what to do”.
32Using the HCR-20 scale, Dr Robertson assessed you as being at moderate risk in the community of causing serious harm in company when attempting to address interpersonal conflict. She noted your minimization and justification of your violent offending, your dislike of police, as well as the trauma you experienced in childhood and adolescence and your abuse of drugs and alcohol. She considered that you needed to: improve your insight into your risk for violence and need for treatment; to address possible cognitive factors impacting on your behaviour; to attend the mental health reviews in prison; and to be willing to participate in substance abuse programs.
Sentencing Conversation
33You were supported at the sentencing conversation by your mother, your younger brother Nathan, who is your co-accused in relation to the charges the subject of the second indictment, your sister Jayd, your aunt and uncle, Dennis and Sonia Hopper, and five friends, Drew Major, Craig Jones, Nathan Bower, Memmet Hussein and Kayla Marshall. You participated fully in the conversation with Aunty Yvonne Luke and Uncle Rodney Jackson. You expressed remorse for your offending and stated that whilst on remand you have realised that alcohol abuse led to your offending. You said that Nathan started the offending against your victim and that you became involved, but you were very drunk at the time. Upon release you plan to remain abstinent, and to work in construction. You take an interest in your daughter’s progress.
34Your sister Jayd stated that your mother’s house used to be a mess but that your mother no longer abuses alcohol, and the house has been renovated to a good standard. There is room for an art studio for you and your brother Nathan, who also paints.
35In addition to the two psychological reports referred to above, your counsel tendered a number of documents on your behalf. There was letter from Victorian Aboriginal Health Service Co-operative Ltd dated 20 September 2022 indicating that you have had contact with the service in 2010, 2014, 2015, 2019, and 2020, in relation to mental health and alcohol issues. You had some alcohol counselling in 2019 and in 2020 were working with a counsellor until your remand. You have requested referrals for drug and alcohol counselling and expressed interest in residential and cultural options. The authors opined that you are “a young man with significant mental health difficulties and trauma, who has little understanding of the service system, and does not exhibit help-seeking behaviour…is likely to ask for help once, and then, if it is not forthcoming, not to ask again”.
36There was a letter from Bonnie Dukakis of Koori Youth Council, dated 29 November 2022, who met you while supporting your brother Nathan during that year. You requested and obtained her support in investigating culturally specific residential rehabilitation options to address your substance abuse, and to permit your healing and connection to culture.
37There was a letter (undated) from Mr Jason McDonald, State Manager of the Balanced Choice Program, to the effect that you have been participating enthusiastically in ‘The Anchor’ program at Port Phillip prison. The program focuses on future self-development. You have made thoughtful contributions in the program and shown your passion for your culture. Mr McDonald stated that he would be pleased to provide you with a reference for future employers.
38There were letters (undated) from your mother, Belinda Martin, and your older sister, Jayd Cook. Your mother, who is disabled, stated that you are always helping her around the house, buying food and picking up her medication. Your sister stated that you are a bright, helpful, loving and caring young man, always keen to help her with gardening, cleaning, shopping, looking after her four children, and attending outings with them. The children idolise you; you teach them how to draw, ride and fix bikes. She noted that your offending has occurred when you consumed alcohol, and that, sadly, you grew up amongst alcoholics and “were not taught the right tools to live a fulfilled life on the right path”. She indicated that you would benefit from alcohol rehabilitation and building skills so that you can “deal with his traumas gently and learn a new outlet to life that is not alcohol”. She stated that before being remanded, you stayed at home and avoided past associates. You obtained your learner’s permit and were driving her around to get experience. You were keen to use your licence in future to get a car and a good job.
39I also note that there was a negative drug screen dated 30 March 2023.
40In addition, there was a bundle of 6 certificates you have obtained whilst on remand for completing: the Marumali Program; a Certificate 1 in Cultural Arts; a Construction Induction Card; a Certificate II in Skills for Work and Vocational Pathways; a Certificate II in Kitchen Operations; and a Certificate III in Civil Construction.
41Finally, there were copies of 14 paintings you have completed in prison, some of which have been sold through ‘The Torch’ program. The culturally based artwork was of an exceptional, professional standard, and demonstrates your artistic talent and potential.
Prosecution Submissions
42In relation to the first indictment, it was conceded that you did not know the victim and that you engaged in the offending to assist the co-accused, Mark Ramsden. It was also conceded that you played a lesser role than Mr Ramsden in the aggravated burglary.
43However, in the written submissions filed, the prosecution submitted that the offending is a serious confrontational aggravated burglary because it involved: the use of force to enter the victim’s home; entry in company with Mr Ramsden, who was feared by the victim; while being armed with a bottle with the intention to assault the victim; the victim suffering injury, in his own home, at night.
44It was submitted that the offence of Intentionally Causing Injury was aggravated by the use of a weapon (the beer bottle) and the bump inflicted on the victim’s right forehead and superficial hand wound requiring stitches. In addition, it was submitted that you are also responsible on a complicity basis for the other injuries sustained by the victim during the assault, being the gashes and cut to his nose, which required stitches, glue and a referral to a plastic surgeon.
45Although you removed your white t-shirt in an attempt to avoid identification and apprehension, it was conceded by the prosecution that you tried to calm Mr Ramsden down in the presence of police.
46The prosecution accepted that the following mitigating factors are present in this case: minimal criminal history; plea of guilty; delay in the matter being finalised; your disadvantaged background (but not so far as to enliven Bugmy[1] principles); and Worboyes[2] considerations. Notwithstanding your young age, it was submitted that your
subsequent2021 conviction is relevant to your prospects of rehabilitation.[1] v R [2013] HCA 37.
[2] v R [2021] VSCA 169.
47It was submitted that the principles of general deterrence, denunciation and protection of the community are of particular importance in a matter such as this. In addition, given that you later re-offended while on bail, the principle of specific deterrence is also of relevance.
48Finally, notwithstanding your young age at the time of the offences, your limited criminal history, and your personal circumstances, it was submitted that the only appropriate sentence in this matter is one that involves a total effective sentence and a non-parole period.
49No submissions were made on the issue of parity with the sentence imposed on Mr Ramsden.
50In relation to the second indictment, the prosecution noted a number of aggravating features of your offending. The offending occurred in public view, at night, in company with your brother Nathan (who threw the first punch) and was unprovoked, serious, protracted, and brutal. You walked away from the victim a number of times but then returned to further assault him, kicking and punching him when he lay on the ground, defenceless. You only stopped the attack when you realised that police had been called, and you managed to evade police at that time. In addition, the offending occurred while you were on bail for the matters the subject of the first indictment, as well as subject to an 18-month CCO imposed by the Magistrates’ Court on 7 June 2021. The prosecution conceded that the victim’s injuries were at the lower level of serious injuries.
51The prosecution also conceded the following mitigating factors: your early plea of guilty; Worboyes considerations; the impact that the victim’s statement of no complaint had on the prosecution case; and your participation in the sentencing conversation.
52The prosecution also agreed that you are a youthful offender for whom rehabilitation is a significant sentencing consideration. However, it was submitted that on the authorities,[3] less weight is to be given to this factor the more serious the nature of the offending.
[3] Le v DPP [2019] VSCA 299 [28].
53The prosecution also conceded that you are a young Aboriginal man whose father was a member of the Stolen Generation and that the effects of intergenerational trauma are profound and ongoing.
54However, the prosecution submitted that your upbringing did not meet the requisite level of “profound deprivation” set out in Bugmy. Moreover, you committed the offence of intentionally cause serious injury while on bail and on a CCO. You appeared to Dr Robertson to lack insight into your behaviour and limited appreciation of the impact of your offending, and had also been assessed as a moderate risk of future offending. For these reasons, it was submitted that your prospects of rehabilitation are guarded, and will depend on your continuing abstention from alcohol.
55The prosecution agreed that you have made efforts on remand that show a desire for rehabilitation, but that your prospects of rehabilitation remain guarded as they depend on your continuing to abstain from alcohol.
56Finally, the prosecution submitted that the sentencing principles of general and specific deterrence, denunciation and protection of the public loom large in this matter and that the only available sentence is one that includes the imposition of a term of imprisonment and a non-parole period.
Defence Submissions
57In relation to the first indictment, your counsel submitted that while you knew the victim through your mother, at the time of offending you had been drinking and were passing Mr Ramsden’s house and that of the victim after swimming in the backyard pool of a nearby friend’s house. You were carrying a beer bottle and got involved with Mr Ramsden at that point. It was conceded that the offending occurred at night, in company, when you knew that the victim was inside the house, and that you broke in carrying a beer bottle and struck the victim as alleged.
58However, it was submitted that you are to be sentenced as a youthful offender, and that other factors to be considered in mitigation of sentence include your plea of guilty, your participation in the sentencing conversation, the circumstances of deprivation in which you were raised, and the additional amelioration in sentence to flow from a plea made during the currency of the backlog in the Court flowing from the Covid-19 pandemic.
59No submission was made on the issue of parity between your sentence and that of Mr Ramsden.
60In relation to the second indictment, your counsel conceded that the offending was particularly violent, that you provided no explanation for it but were too drunk to remember it. The victim was known to you and your co-offender (your brother, Nathan) as a former associate of your mother. Nathan struck him from behind first, and then you participated in the brutal offending caught on CCTV footage.
61While in prison you have been actively involved with indigenous programs through the Torch Project including the Healing Program, Aboriginal Art and cooking. You have gained positions of responsibility in the prison system and have a cell of your own and a billet. You have remained abstinent from alcohol and been taking anti-depressant medication.
Sentencing Considerations
62In relation to sentencing you, I take into account your aboriginality and your deprived background. In particular, I note on the authorities[4] that there is no requirement for a finding of “profound childhood deprivation” before the principles set out in Bugmy are engaged. Rather, the principle is that “social disadvantage may reduce an offender’s moral culpability, especially where the offending is in the nature of impulsive or learned responses to situations, arising from the circumstances of social disadvantage”.[5] I am satisfied that the principles set out in Bugmy are applicable to the social disadvantage you experienced in being raised in an alcohol and violence-fuelled environment with alcohol-dependent parents who also had mental health problems; being removed from your parent’s care, being placed in foster care, then resuming residence with your mother in a difficult environment; developing a dependence on substances but particularly alcohol as a means of managing your circumstances as well as your anxiety and depression. I also note that your distress at the death of your brother was a factor in your abusing alcohol in the period prior to the 2019 offending and in the period prior to your offending in 2022. I therefore apply Bugmy principles in mitigating your moral culpability in relation to your offending in 2019 and 2022.
[4] Hoskins v R [2021] NSWCCA.
[5] Ibid [57].
63Your youthfulness remains a significant matter weighing in favour of a disposition which recognises your prospects of rehabilitation. Whilst I acknowledge that these prospects remain contingent on your remaining alcohol free, it is clear from the constructive efforts you have made in prison, and from the evidence about the support structure from family that awaits you upon your release, that your period on remand has put you in a strong position to work and thrive upon your release.
64In relation to the charges in each indictment involving violence, I take into account the maximum penalties which may be imposed for the offences of aggravated burglary, causing injury intentionally, causing serious injury intentionally, as indicating the seriousness with which Parliament views such offending.
65In sentencing you, I have considered your participation in the sentencing conversation along with the sentencing principles of denunciation, just punishment, general and specific deterrence, protection of the community, rehabilitation, youthfulness, parsimony, and totality. In respect of each of the indictments, you are entitled to a discount for your plea of guilty, as well as a further amelioration of sentence because your pleas have been made during the currency of the backlog in hearings caused by the Covid-19 pandemic. There has been significant delay in finalisation of the 2019 matter. I consider that you have expressed remorse for your offending. I must also consider your youthfulness in considering the weight to give to the principle of rehabilitation, although being mindful that the weight diminishes with the seriousness of offending.
66In relation to the charges in the first indictment, I consider that you did not plan or instigate the offending and played a lesser role in it than Mr Ramsden. You were a young man at the time, with no relevant prior convictions for offences of violence, who had never been in prison. I consider that your moral culpability for the offending is reduced by the social disadvantage you experienced. I consider that your offending is a less serious example of the offences of aggravated burglary and causing injury intentionally. There was considerable delay in finalising this matter. The time spent on remand for this offending was your first time in custody.
67I noted above the sentence imposed on Mr Ramsden. I note that although Mr Ramsden had prior convictions for offences of violence, with dispositions including intensive corrections order and a suspended sentence of imprisonment, he was able to demonstrate successful efforts at rehabilitation efforts through: compliance with his bail conditions; successful completion of a CISP program, and no further offending.
68Your situation is different in that you committed further violent offences and have been assessed as posing a moderate risk of further violent offending if you abuse alcohol. On the other hand, you have in custody been abstinent from drug and alcohol, reconnected with culture, taken medication for your mental health issues, obtained a number of certificates, and been engaged in painting and selling some of your work. You have a strong family network, including an older sister who can provide guidance, and a mother who is now free of alcohol, living in a renovated home in which you can live and paint. I consider that your prospects of rehabilitation are promising but remain guarded because they depend on your remaining free of alcohol.
69In relation to the charges in the second indictment, I note that they represent an escalation in your offending, at a time when you were abusing alcohol, as part of your ongoing difficulties which were at least partly referable to your socially disadvantaged upbringing. I consider, as the prosecution conceded, that the injuries inflicted on the victim fall toward the lower end of the scale of ‘serious injury’. I consider that Bugmy principles apply as outlined above to reduce your moral culpability for this offending. I repeat the matters outlined in the previous paragraph. You are still to be sentenced as a relatively youthful offender, and appropriate weight must be given to the sentencing principle of rehabilitation. I note the concessions made by the prosecution concerning your early plea of guilty. The early plea has utilitarian value in sparing the community and witnesses the expense and inconvenience of a trial. Apart from the remorse which inheres in your plea, I accept that you have expressed remorse for this offending.
70I consider that there is a risk of re-offending if you resume drinking, and for this reason, and your relative youth, you would be assisted by a longer period on parole than would otherwise be the case. In sentencing you, I have also given appropriate weight to your participation in the Sentencing Conversation, and to the principles of denunciation, just punishment, general and specific deterrence, protection of the community, youthfulness, rehabilitation, parsimony and totality.
Sentence
71Mr Baker, please stand.
72I turn to the charges in the first indictment. On those charges, I sentence you to an aggregate sentence of 3 months’ imprisonment.
73I turn to the charges on the second indictment. On the charge of Causing Serious Injury Intentionally, you are sentenced to 3 years and 6 months’ imprisonment. This is the base sentence. For the summary charge of Committing Indictable Offence Whilst on Bail, you are sentenced to 3 months’ imprisonment to run concurrently with the base sentence.
74I direct that 1 month of the sentence imposed in respect of the charges on the first indictment be served cumulatively upon the sentence imposed in respect of the charge in the second indictment. The total effective sentence is one of 3 years and 7 months’ imprisonment. For the reasons outlined above, I consider it appropriate to impose a longer period on parole than is usual. I fix a non-parole period of 2 years. I declare that there are, across the two indictments, a global period of pre-sentence detention of 585 days and direct that those days be deducted administratively from the total effective sentence imposed today.
75I indicate, pursuant to s 6AAA of the Sentencing Act, that, but for your plea of guilty, I would have imposed a total effective sentence of 4 years and 7 months’ imprisonment with a non-parole period of 2 years and 8 months.
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