Director of Public Prosecutions v Black

[2022] VCC 1288

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-19-01318

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEOFFREY MAURICE BLACK

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	11 August 2022
DATE OF SENTENCE:	11 August 2022
CASE MAY BE CITED AS:	DPP v Black
MEDIUM NEUTRAL CITATION:	[2022] VCC 1288

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Common law assault – Guilty verdict – Criminal trial – Community support – Pre-sentence detention – Indigenous – Bugmy – Drug addiction – Family violence – Criminal history

Legislation Cited:      

Cases Cited:Cheung v The Queen (2001) 209 CLR 1 - Bugmy v The Queen [2013] 249 CLR 571

Sentence:                  TES: Aggregate Sentence of 8 months Imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Z. Petric (Trial) Mr J. O'Toole (Plea)	The Office of Public Prosecutions
For the Accused	Mr J. Miller	Michael J. Gleeson & Associates

HER HONOUR:

1Geoffrey Maurice Black, following an eight-day trial, on 25 July 2022 a jury found you guilty of three charges of common law assault. The maximum penalty for these offences is five years imprisonment.

2You were acquitted of three charges of rape, one charge of false imprisonment, one charge of threat to kill, one charge of intentionally cause injury and one charge of common law assault. In sentencing you I must sentence you upon a factual basis that is consistent with the jury’s verdict.[1]

[1]Cheung v The Queen (2001) 209 CLR 1.

Factual basis for sentence

3I find that the jury must have acted on the following factual basis.

4You were at the victim’s home when she arrived back there having been out. An argument began almost as soon as the victim got home. The argument became physical, and you repeatedly struck the victim to the head and ears. The victim described this assault in her evidence as being power punched, non-stop real hard and real fast like a boxer. The victim had visible bruising on her ear, consistent with her description of the assault. This is Charge 2.

5The argument between yourself and the victim continued. You went to the kitchen and grabbed a black handled knife. You returned to the victim and struck her multiple times. The victim said you were beating the shit out of her and bashing her up. You were punching her, laying into her and going around with the knife. This is Charge 3.

6At some stage during the argument the victim went to leave her house. When she was at the front door you slammed the security door onto her leg several times. This caused the bottom of the door to get caught in her leg and rip the skin. This is Charge 5.

7As a result, the victim had a significant wound to her leg that required treatment and stitches. I understand that the injury was not a direct result of the charge in which you have been found guilty, but certainly the banging of the door multiple times resulted in swelling to her leg.

8Ultimately, you took the victim to St Vincent’s Hospital and once she was away from you, she was able to get a nurse to assist her to call the police. The victim received treatment for her leg which included cleaning and suturing and later that day you were arrested by the police, the report having been made by the victim.

Nature and gravity of the offending

9The maximum penalty prescribed by Parliament is an important yardstick in the assessment of the gravity of offending and in the fixing of sentence. In this case the maximum penalty, as I have said, is five years imprisonment for each of the offences.

10I note that the offending occurred during the one continuing argument over a relatively confined period of time. I accept the submission of the prosecution that the fact the offending occurred in the context of a domestic dispute in the victim’s home increases the seriousness of the circumstances of the offending. I also accept that each instance of assault involved multiple strikes and punches to the victim and that at some stages you were armed with a knife.

11I accept that you had been in a relationship with the victim for a relatively short amount of time and that over time the relationship had become toxic. I was told that you met the victim whilst you were both inpatients at Odyssey House. In your record of interview, you spoke of the difficulties you were having and of your need for counselling. You also made admissions to certain aspects of your offending. What is clear from the evidence is that you were struggling to cope and had threatened to harm yourself on the night. This would indicate that you were not in a stable state of mind at the time you offended.

Victim impact

12Having watched the victim give her evidence at trial, it was very apparent that she has been traumatised by not only the offending but the whole trial process. Even though she has not completed a Victim Impact Statement, I take into account that your offending would have had a significantly negative impact upon her. I hope that the matter having now finalised will allow her to gain closure and move forward with her life.

Offer to plead guilty

13I accept that on 1 July 2020 you made an offer to plead guilty to the very charges for which you were convicted. I note however that the factual basis of this offer was somewhat different to that accepted by the jury.  

14I consider this plea offer to be valuable and that you should be entitled to a considerable discount which would have been available to you had your plea been accepted. A plea of guilty in this case would have been of significant utilitarian value. As can be seen, there has been considerable court time expended in relation to this matter. There have been two different pre-trial hearings requiring rulings, three attempts at trial with three juries discharged. Although the complainant was cross examined at committal an acceptance of your plea offer would have avoided her giving evidence on at least three to four further occasions. It was clear that this was a distressing and frustrating experience for her.

15In addition, I accept that your offer to plead guilty entitles you to some amelioration of sentence in terms of the subjective factors inherent in a plea of guilty. That is, I accept that it demonstrates some remorse on your part. I understand that this must be qualified to a degree by the fact that you pleaded not guilty in front of the jury. However, I do see it as some indication of your remorse particularly when coupled with your admissions in your record of interview, the acceptance of responsibility for your offending behaviour, your presentation and the way you conducted yourself during the trial. It also shows a desire on your part to facilitate the course of justice.

16In all the circumstances I intend to discount your sentence to a degree similar to, but short of that which would have been allowed had your offer to plead been accepted.

Delay

17Delay is another important mitigatory factor I take into account in your favour. In your case there has been a delay of three and a half years from the date of the offending to verdict. There are two recognised aspects to delay. Firstly, you have had the uncertainty of this matter hanging over your head for a lengthy period of time. It must have been very difficult for you not knowing what your future would hold. Secondly, you have been able to demonstrate some capacity towards rehabilitation in terms of the courses, certificates and painting that you have undertaken whilst in custody.

18You have experienced very significant and direct consequences for your offending.  You have been on remand for this matter for 1,086 days, but have also served a further six months imprisonment, so you have been in custody now for a long time.  You went straight from the community to custody straight after the offending, which is why I say that the consequences have been very direct.  I have no doubt that this period of time in custody would have been very difficult for you, more than other times in custody. The COVID-19 pandemic has meant that quarantine, lockdowns, no visits and limited programs have all been common place so that your time in custody would have been far more onerous than other periods that you have served.

Background

19In terms of your background, you are a Yorta Yorta and Wemba Wemba man and you were born in Echuca. Tragically, in your early life you experienced an unstable home and DHHS were involved with your family. You spent time away from your home and culture in secure accommodation facilities and foster homes.

20At the age of five it was apparent that your mother experienced problems with alcohol and you spent much of your life in the care of your maternal grandmother and your father, who was a big part of your life. At age seven years your father’s brother was murdered. This was incredibly distressing for your family and your father coped by increased alcohol consumption which meant he was unavailable to care for you. There were issues within the aboriginal community also surrounding your uncle’s death. From this time the police and DHHS became regularly involved in your life and as I said, you were placed in foster care with your brother whilst your sister was able to stay with your maternal grandmother.

21I was told that you ran away from placements of secure welfare and foster care and did not settle. At age 14 you returned to the care of your mother whilst she was in Preston. This did not go well as her problems remained unresolved.

22Up until this time you had attended some schooling in Echuca but had been expelled and didn’t return to school after starting year 7. It was apparent from the evidence at trial that you struggled to read and write. I can see that some of the certificates you have obtained whilst in custody have concentrated on reading and writing.  There was a certificate of reading and writing, simple information and form completion which are practical skills that I hope will assist you in the future.

23It was in your early teenage years that you came under the influence of an uncle who had significant drug and alcohol issues and was significantly involved in crime, spending time in and out of Pentridge. You followed suit and have spent a good portion of your life drug and alcohol addicted and on the cycle of spending time in and out of custody.

24However, in more recent times you have attempted to reform, firstly by going to Odyssey House for seven months in 2018. You left there thinking your problems were behind you and with a desire to be there for your children. Unfortunately, you were not able to maintain abstinent and sought admission to Wulgunggo Ngalu, where you stayed for several weeks. Unfortunately, you made the decision to leave there so that you could support the victim in this matter who had been assaulted.

25

You have four children. Two of your daughters are in Echuca with their mother.  They are aged 10 and 12. You have maintained a good relationship with them and are on good terms with their mother and I understand that you may well stay there with them upon your release from custody. You have another daughter who is 14 years old and you have not maintained the same level of contact with her as her mother has had significant issues and DHHS have been involved, or DFFH now. Notwithstanding this you have a strong desire and motivation to rebuild this relationship and intend to do that when released from custody. Your son is

10 years old and in Darwin. From what I was told you will be able to have contact with him when you are released and this only stopped in the context of it being too distressing for him whilst you have been in custody.

26

Mr Black, I see your children as being a huge source of motivation for you and I hope that you are able to take up your fatherly role in a more hands on way once you are released. As your counsel said, you have plenty to look forward to. It is your plan to return to the Echuca area, which is your country, and where you have a lot of family support. You are able to participate in programs at

Njernda Aboriginal Corporation that will build on the programs you have done in custody.

27The certificates that were tendered on your plea show that you have worked hard on your drug and alcohol problems, and you have taken other opportunities to better yourself by taking part in the courses that were available to you.[2]

[2] Exhibit 2 on the Plea.

Application of Bugmy principles

28Mr Miller on your behalf, submitted that the principles of Bugmy applied in your case and are a significant mitigatory factor that I should take into account.[3]  In this regard, he relied upon the circumstances in which you were raised, in an aboriginal family where your mother was alcohol dependent and unable to care for you.  The case of Bugmy stands for the proposition that profound childhood deprivation is directly relevant to sentencing in and of itself.  This is so because it is likely that moral culpability will be reduced for someone whose early years have been marked by such disadvantage.  The effects of such hardship do not diminish over time, and full weight must be given to those matters in sentencing. Bugmy principles are also relevant to the court’s assessment of moral culpability for the offence itself and also for the court’s consideration of the weight to be given to your prior criminal history.

[3]Bugmy v The Queen [2013] 249 CLR 571.

29In your case, I accept that your childhood involved significant deprivation as a result of the neglect by your mother in the context of her alcohol abuse; exposure to tragedy in the context of the murder of your uncle; your father’s abuse of alcohol and your placement away from your family and culture in state run secure welfare and foster homes. I accept that there is both a foundation and nexus between your experience of significant childhood deprivation and the current offending.  As a result, I find that your moral culpability should be somewhat reduced.  I also consider that these same factors would have been in operation at the time of your prior matters and, therefore, put your prior convictions in context.  It is still my view that there is a place for general and specific deterrence in your case although it is reduced as a result of my findings pursuant to the Bugmy principles. I accept also that there is still a place for protection of the community as submitted by Mr O’Toole on behalf of the prosecution.

Rehabilitation

30In terms of rehabilitation, tendered on the plea was an impressive amount of certificates that I have already referred to – these detail the courses you have done whilst in custody.  You have spent your time well.

31Also tendered were letters from Njernda Aboriginal Corporation and I understand that you will return to live in the Echuca area upon your release and that you have significant supports there.[4]

[4] Exhibit 3 on the Plea.

32Whilst in custody I have been told that you have been painting and some of your works are for sale at the Torch.

33Although you have a significant history, I am hopeful that this will be your time to make lasting and significant changes. You are now 37, soon to be 38. You have the motivation of your family.  You are a skilled artist and you have significant community support. In the circumstances I find that you do have prospects for rehabilitation.

Sentencing principles

34I consider that the relevant sentencing principles that must be applied in your case are general and specific deterrence, denunciation and just punishment.  I accept that your moral culpability, and therefore general deterrence, should be somewhat moderated as a result of the application of Bugmy. I also take into account the principles of proportionality and parsimony.

35

Mr Black, I propose to sentence you to one aggregate term of imprisonment as I am satisfied that the offences are founded on the same facts or form or are part of a series offences of the same or similar character. So in relation to the three charges of common law assault you will be convicted and sentenced to be imprisoned for a period of eight months. I note that you have pre-sentence detention in excess of that, in the amount of 1086 days. In the circumstances I propose to order that a period of eight months has been served by way of

pre-sentence detention.

36As indicated during the course of the plea I will make the order for disposal sought by the prosecution.

37And I am hoping that this will now finalise this matter. Good luck with everything Mr Black.

38OFFENDER:  Thank you.  Thank you very much, I really appreciate it.  Thanks.

39HER HONOUR:  No worries.  Keep up with your painting and keep in touch with all the supports that you have got there.  It looks like, you know, going to Echuca is probably the answer.

40OFFENDER:  Yeah.  I look at this as a blessing in disguise, you know.  Like it's just something that I can move on from now and just be a good role model for my kids so.

41HER HONOUR:  Yes.

42OFFENDER:  To let what's happened go and leave it in the past now so.

43HER HONOUR:  Yes.  You had a big time in custody to think about things and get clean and get yourself sorted so, yes, you need to really build on it.  Yes, I just wish you all the best.  All right.

44OFFENDER:  Thank you so much, Your Honour.

45HER HONOUR:  All right.  Thanks very much to counsel.  Thanks, Mr Miller, for all your hard work and well-run trial.  All right, we'll adjourn.

46MR MILLER:  As Your Honour pleases.

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