Director of Public Prosecutions v Chand
[2023] VCC 990
•9 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-02140
CR-22-02141
CR-22-02142
CR-22-02143
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KRISHNEIL CHAND SHAYNE SMITH |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 May 2023 |
DATE OF SENTENCE: | 9 June 2023 |
CASE MAY BE CITED AS: | DPP v Chand |
MEDIUM NEUTRAL CITATION: | [2023] VCC 990 |
REASONS FOR SENTENCE
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Subject: Criminal Law Sentence
Catchwords: Pleas of Guilty – Causing serious injury intentionally – False imprisonment – Obtaining property by deception – Causing injury intentionally – Unauthorised possession of a traffickable quantity of firearms – Trafficking in a drug of dependence (commercial quantity) – Trafficking in a drug of dependence – Handling stolen goods – Prohibited person possess firearm – Extortion with threat to inflict injury – Possession of a drug of dependence – Related summary offences – Multiple victims – Partial cumulation with sentence currently being served.
Legislation Cited: Sentencing Act 1991
Cases Cited:DPP v Brooks [2008] VSCA 253; Bugmy v The Queen (2013) 249 CLR 571; DPP v Chand & Anor [2015] VCC 142; R v McKee [2003] VSCA 16; DPP v Tonkin [2022] VCC 1485 R v Verdins [2007] VSCA 62
Sentence:Total effective sentence of 10 years and 8 months’ imprisonment with a non-parole period of 6 years and 9 months
Sentence:Total effective sentence of 4 years’ imprisonment with a new non-parole period of 4 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G. McMaster | Office of Public Prosecutions |
For Accused Chand | Mr M. Kowalski | Leanne Warren & Associates |
For Accused Smith | Ms B. East | Slades & Parsons Criminal Law |
HIS HONOUR:
1Shayne Smith, you have pleaded guilty on Indictment C2114738.A to a charge of causing serious injury intentionally, which carries a maximum penalty of 20 years' imprisonment.
2You have also pleaded guilty on that indictment to two charges of false imprisonment, a charge of obtaining property by deception, a charge of causing injury intentionally, unauthorised possession of a traffickable quantity of firearms, trafficking in a drug of dependence, possession of a drug of dependence, trafficking in a commercial quantity of MDMA, handling stolen goods, being a prohibited person in possession of a firearm and extortion with a threat to inflict injury.
3On Indictment C2114813, you have pleaded guilty to a charge of causing injury intentionally and false imprisonment.
4You have also pleaded guilty to relevant summary offences of committing an indictable offence whilst on bail (three charges), possessing cartridge ammunition, dealing with property the proceeds of crime, introducing a drug of dependence, namely GHB, into the body of another (two charges), driving whilst suspended.
5You have admitted prior convictions. Your criminal history is limited but includes a conviction in November 2019 on relatively serious charges for which you were gaoled.
6You have been in custody since your arrest on the matters before me, which has been your longest experience of custody by some way.
7Krishneil Chand, you have pleaded guilty before me to a charge of causing injury intentionally and a charge of false imprisonment on Indictment C2114813.
8On Indictment C2114738.A, you have pleaded guilty to a charge of possession of methylamphetamine. It was submitted on your behalf that your possession was for your own use. On balance, I accept this submission.
9You have pleaded guilty to relevant summary offences of unlawful assault in company, committing an indictable offence whilst on bail (two charges), contravening a condition of bail (two charges).
10You have admitted relevant prior convictions. You are currently in custody, serving a lengthy sentence in relation to a subsequent conviction for very similar offending to what is before me.
Maximum penalties
11The maximum penalties of the offences before me are as follows:
(a)Causing serious injury intentionally, I have mentioned – 20 years;
(b)False imprisonment – a maximum of 10 years' imprisonment;
(c)Obtaining property by deception has a maximum of 10 years;
(d)Causing injury intentionally – a 10-year maximum;
(e)Unauthorised possession of a trafficable quantity of firearms – a 10-year maximum;
(f)Trafficking in a drug of dependence – 15 years maximum;
(g)Trafficking in a drug of dependence (commercial quantity) – 25 years maximum;
(h)Handling stolen goods – 15 years maximum;
(i)Prohibited person possess firearm – 10 years maximum;
(j)Extortion with threat to inflict injury – 15 years;
(k)Assault in company – 12 months;
(l)Assault with a weapon – 12 months;
(m)Commit an indictable offence whilst on bail – three months maximum;
(n)Contravene a conduct condition of bail – three months;
(o)Possess ammunition without licence – 40 penalty units;
(p)Deal with property suspected of being proceeds of crime – two years;
(q)Introduction of a drug of dependence into the body of another – one year;
(r)Driving whilst suspended – a two-year maximum or 240 penalty units; and
(s)Possession of a drug of dependence – one year and 30 penalty units.
12The details of your offending are set out in Exhibit A, the summary of prosecution opening dated 19 April 2023 and Exhibit B, summary of prosecution opening dated 19 May 2023. Both exhibits form part of these reasons for sentence.
13I do not propose to recite the facts and circumstances of your offending in the same detail. I summarise in briefer terms, commencing with Indictment C2114738.A, which I will refer to as the 'Dermott offending', and I will refer to 'Mr Dermott'[1] as the victim in that offending.
[1] A pseudonym.
Circumstances of Offending
Indictment C2114738.A
Dermott offending
14You, Mr Smith, took part in an extremely violent, degrading and humiliating assault on your victim, Mr Dermott, in company with others.
15The evidence before me reveals that you were near the top, if not at the top, of a loose collection of individuals who were part of a drug-related criminal milieu.
16Co-offenders such as Tuckerman, Whittaker and Mr Chand, who is sitting alongside you notionally today, performed tasks of brutality in conjunction with you, and on occasions at your behest, for some criminal-related purpose.
17Your victim, Mr Dermott, was a part of that group, it would seem, or on the periphery of. He was interviewed by police in relation to matters that touched upon criminal activities associated with a group of individuals you and Mr Tuckerman belonged to.
18Your co-offender Tuckerman asked to see Mr Dermott’s police record of interview. I am satisfied that you had an interest in either what he had said to police or simply the fact that he had spoken to police.
19Others were involved in the scheme to vilify Mr Dermott for talking to police as well. They are all referred to by name in Exhibit A.
20Mr Dermott was driven to Mr Tuckerman's home by another associate.
21Co-offender Mr Noble began physically assaulting Mr Dermott by punching him several times to his head and body. He was also verbally abused by Mr Noble and two others present.
22Mr Tuckerman arrived while this was in progress and joined in the assault.
23Punching and kicking continued. Mr Tuckerman forced Mr Dermott to remove all of his clothing while the physical assaults continued. Mr Dermott was filmed by others during his ordeal.
24You arrived at the address around this time. You were clearly aware of what was going on. I am satisfied that you had arrived to join in the assault, torment and torture of Mr Dermott, and I have inferred this from your actions and demeanour upon entry amongst the other matters in the opening.
25This is what you did immediately upon entry. You ran towards Mr Dermott with a knife. He used a coffee table to protect himself.
26At one point, Mr Dermott was filmed sitting on the lounge room floor with his hands tied in front of his body. The footage shows blood on his face and clothing. You can be seen at one point standing over him with blood on your shoes.
27The footage reveals you standing over Mr Dermott, speaking to him in a menacing manner whilst he was pleading with you.
28Mr Dermott asked for a drink of water. He was given a bottle containing 10-20 ml of GHB. He drank it knowing that this quantity of GHB could kill him. You have admitted by your plea to the relevant summary offence administering this drug to him.
29You made Mr Dermott drink that quantity of liquid whilst he was fearing further assaults despite his belief that such a quantity could kill him.
30In your presence, Mr Tuckerman then bent a wire coat hanger into the shape of a penis and used a blow torch to heat it up. He forced your victim to brand himself on the chest and buttocks with this implement on several occasions whilst he was filmed.
31At one point, you dragged Mr Dermott and stomped on his head.
32You then forced Mr Dermott to cut up a beanbag and to use it as clothing.
33Whilst he did this, you used a 'Trade Flame' device to burn his legs. You also used an electric drill and pushed it into the legs, arms and body of your victim.
34Not long after this, you encouraged Mr Tuckerman to assault Mr Dermott with a pole. You also punched Mr Dermott while he was cleaning up.
35Eventually, Mr Dermott was allowed to leave. He was seriously assaulted, seriously injured, humiliated and degraded. He was on the point of collapse and wearing nothing but the bean bag cover.
36He lost consciousness upon arriving at home. Paramedics were called.
37He required rapid sequence intubation.
38He was conveyed to the Alfred Hospital where he remained in an induced coma for the next 10 days.
39His injuries included:
·fractures of the nasal bones and left frontal upper jaw;
·mildly displaced fracture of lower neck spine;
·chest spinal bone fracture;
·mild lung tissue collapse;
·soft tissue injuries including left ear and cheek, two head scalp lacerations which required closure with clips, injuries to his lips, bruising left upper arm, abrasion and broken skin right frontal chest, right thigh lacerations which required closure by sutures, left thigh puncture wound which required suturing in the Emergency Department and a bruise below the right inner ankle;
·there were scalp blood collections or haematomas to the right head and left head and in the soft tissues around both eyes, also known as bilateral orbital haematomas;
·he suffered from complications of lung inflammation, hyperactive delirium with ongoing agitation and confusion and hypokalaemia due to dieresis in hospital.
Ryan McNamara[2] matters
[2] A pseudonym.
40Turning to what I will refer to as the 'Ryan McNamara matters'.
41Ryan McNamara was known to you, Mr Smith. Your conduct toward him was reprehensible, gratuitously violent and cowardly. I am satisfied that you understood the background regarding his dealings with Mr Whittaker given the text exchanges between the two of you.
42Mr McNamara was forced out of where he was living by your co-offender Whittaker. He left behind a bag and belongings containing, I am told, a large amount of jewellery of significant value.
43Mr McNamara had a conversation with you about getting his bag back. He agreed he would pay you $4,000 to retrieve his bag. He borrowed this sum from his father. He and his father went to your residence with the sum of $4,000. You were not there. You instructed Mr McNamara to leave the money with your neighbour.
44This he did. At no time did he receive his bag back. That relates to Charge 3 on the first indictment.
45On 7 July, your co-offender Whittaker accosted Mr McNamara, armed with a shotgun, and made him get inside metal toolbox on the back of his ute. He conveyed Mr McNamara to you at a factory rented by you in Oakleigh.
46You told Mr McNamara that he owed you $14,000 and that he had two weeks to pay. Mr McNamara agreed under threat of violence.
47You next saw Mr McNamara at Mr Whittaker's abode. Whittaker had told you that Mr McNamara would be there.
48The arrangement is revealed in the text message exchange set out at paragraph [82] of Exhibit A.
49This exchange reveals the plan to terrorise Mr McNamara. You stated, amongst other things, to Whittaker, 'You're about to see true fear in someone'. You were referring to Mr McNamara, of course.
50You arrived, and Mr McNamara was told to get into your vehicle, which he did. You drove your victim to an address in Dingley Village. You cable-tied Mr McNamara to a chair; a blindfold was placed over his eyes and a gag over his mouth.
51You assaulted him every time he moved, punching him, kicking him and threatening him with knives.
52You telephoned Mr Chand and summoned him. You, Mr Smith, sent a photo of Mr McNamara tied to the chair to you, Mr Chand. You, Mr Chand, responded by saying that you were 2 minutes away.
53You, Mr Smith, engaged in a terrifying episode of torture with Mr McNamara, during which he thought he was going to die. He was made to remove all of his clothing. You burnt him with jet lighters, and you used an electric drill to drill into the skin over his heart. You told him you were going to kill him. He believed you.
54At one point, Mr Whittaker telephoned you, Mr Smith, to ask how it was going. You told Whittaker that Mr McNamara had dropped a few names and it sounds like a lot of different people were coming after you.
55Whittaker asked if there was anything on Mr McNamara’s phone. You, Mr Chand, then got on the phone and said, 'When they make it difficult, it is more fun, but sometimes you would like it to be easy'.
56You were clearly part of an assault in company at that point in time.
57At 12.55 am, the special operations group arrived and found Mr McNamara. He still had the gag tightly around his head. He had his clothing removed for the most part.
58You were both arrested and remanded in custody.
59Mr McNamara was conveyed to the Monash Hospital for treatment. He had a significant head injury, abrasions to his face and body, a drill hole to his chest muscle and a severely broken nose.
60That is a summary of the serious aspects of the more serious offences before me.
61I have not sought to summarise herein the drug and firearm offences but rely on Exhibit A for the most part.
Indictment C2114813
62The second indictment relates to the offences against the victim I will refer to as 'Aaron Thomas'.[3] Those events take place in June prior to the previous mentioned incident.
[3] A pseudonym.
63Turning to this indictment, your victim, Aaron Thomas, was 31 at the time of the offences. He was an associate, it seems, of both of you and your co-offenders.
64On 13 June or thereabouts, it was arranged for Whittaker to drive the unsuspecting Mr Thomas to an address in Taylors Lakes where you, Mr Smith, and you, Mr Chand, were waiting along with another co-offender. A series of text messages between you, Mr Smith, and Whittaker, which are set out in the opening, reveal the context of the meeting.
65Not long after arriving inside the premises, Mr Thomas was struck to the head by you, Mr Smith, with a MAPP gas bottle with such force that he was rendered unconscious. When he came to, he saw you, Mr Smith, co-offender Tracey and you, Mr Chand, standing over him. Whittaker was seated on the couch nearby.
66Your victim was further assaulted in a cruel and extremely violent manner with you, Mr Smith, striking him to the head several times, causing severe bleeding. He was knocked to the floor. You, Mr Smith, stabbed him twice in the chest with broken glass.
67He was kicked by both of you over the course of the evening. You, Mr Smith, also branded Mr Thomas with a red-hot coat hanger bent into the shape of a penis. A dog choker chain was placed around his neck. He was dragged around the room by you, Mr Chand, in humiliating fashion.
68Mr Thomas was forced to clean up his own blood, which was substantial, with his own clothing. Whilst he was attempting to clean up the blood, you and others took turns kicking him. This assault was partially videoed on a phone belonging to you, Mr Smith.
69Before the victim was allowed to leave, you, Mr Smith, forced him to drink a dangerous quantity of GHB. The blood-stained clothes were placed in a bag and then in the boot of the car. Whittaker tried to force the victim into the boot before allowing him back in the car and driving him from the scene.
70Mr Thomas received a number of injuries, which are set out in the opening, including:
·right forehead wound, a CT scan confirming a 3-centimetre frontal scalp haematoma;
·a small abrasion on the centre of the forehead between the eyebrows;
·upper sternal puncture wound, a CT scan confirming it to be a superficial penetrating injury to the frontal chest wall with underlying bone infection;
·full thickness left pectoral W-shaped burn;
·right upper arm horizontal linear parallel abrasions/superficial graze.
Arrest and interview
71As mentioned in relation to the McNamara Matter, you were both arrested on 8 August 2021. You, Mr Smith, were interviewed and made no comment.
72You, Mr Chand, essentially made denials.
73You were both aged 26 at the time of the offending.
74You, Mr Smith, have spent 663 days' pre-sentence detention. I will be corrected if that is wrong.
75You, Mr Chand, have been in custody since 8 August 2021. However, you have no available pre-sentence detention.
76You were sentenced by Judge Riddell on 12 September last year in relation to kidnapping, extortion and common assault. You received a total effective sentence of six years and six months with a non-parole period of four years and 10 months. You were also sentenced to a three-month sentence in relation to contravention of a CCO, as I understand it, over that period.
77I have been provided with a copy of Her Honour Judge Riddell's sentencing remarks.
Objective gravity of offences
78Turning to the objective gravity of the offences and dealing with Mr Smith first.
79Intentionally causing serious injury is an inherently serious offence as reflected in the maximum penalty of 20 years' imprisonment.
80Serious aspects of your offending across these three similar assaults include:
·The degree of pre-planning and the occasioning of the assaults in company;
·The prolonged and tortuous nature of them;
·The purpose of the assaults appear to be to punish and humiliate the victim, or to extort, or to deter the person and others of a criminal milieu from speaking to the police about criminal activities;
·You participated in vicious assaults of Mr Dermott, and weapons were used;
·You also engaged in conduct aimed at degrading and humiliating your victims;
·Mr Dermott in particular suffered a range of injuries and medical consequences that are significant;
·You were on bail at the time of the offences.
81Your conduct in respect of victims Ryan McNamara and Aaron Thomas had all of the same features and hallmarks in relation to Mr Dermott save for the serious injury.
82A very serious and disturbing aspect of all of your offending before me is the pattern of imprisoning and isolating individuals and engaging in a coordinated assault in company, with a high level of violence designed to terrorise, designed to punish.
83This was a planned reign of terror with accomplices – accomplices who, on my assessment, varied in the degree to which they had enthusiasm for torturing helpless individuals.
84You, Mr Chand, clearly had an appetite for that sort of conduct.
85The objective gravity of your criminality, Mr Chand, insofar as it lies in common with Mr Smith's offending, is almost as grave.
86I accept that whilst at all times you were complicit with Mr Smith when you were in his presence, your acts of violence were at a lower level compared to his. The evidence also reveals that you, Mr Smith, had a higher degree of culpability where pre-planning and direction were concerned than Mr Chand.
Victim impact statements
87I have received three victim impact statements, the victim impact statements exhibited on these pleas. That is the victim impact statement of Ryan McNamara dated 19 April 2023, the victim impact statement of his mother, Janet McNamara,[4] dated 17 April 2023 and the victim impact statement of Aaron Thomas dated 19 April 2023. I am not going to summarise the impacts upon those victims as expressed. Understandably, the impacts are severe and enduring.
[4] A pseudonym.
88These were degrading, terrifying and humiliating experiences, and the sequalae of psychological trauma is not surprising. Further, in relation to Ms Janet McNamara, it is not difficult at all to imagine the trauma and heartache associated with knowing what her son had to go through.
89I take the impacts upon all of your victims into account.
Personal Circumstances
Shayne Smith
90Turning to matters of a personal nature and personal history. I will commence with you, Mr Smith.
91I was told you were born in Melbourne and moved to Cairns where you lived until you were around the age of four.
92Your parents separated, and you commenced living with his father full-time from approximately the age of six months old, and you have had limited contact with your mother for your entire life, and I accept that this has had an enduring and devastating impact upon your development. It is desperately sad, that circumstance. You told Ms Lechner going through school and primary school et cetera, everyone had a mum except you, and it hurt, and without dwelling on that trauma in your early life, that is something that is understood and something that clearly shaped you and you have grappled with in your life. That absence was unusual and exceptionally traumatic.
93You were raised primarily by your father and paternal grandparents, living in Grafton, New South Wales, from about four until the age of 12 when you moved to Cranbourne.
94The paternal grandparents who had helped raise you passed away between 2016 and 2019, and this also understandably had a significant impact upon you. It is touched on in the reference material that is before me, and I accept that that was a significant loss and it impacted upon you. They had been parental figures to you throughout your life.
95I was told you have two half-brothers, one older and one younger, and three older half-siblings on your father's side of the family who you are not in contact with. Another significant factor from your development was the matters, which I accept, that relate to your stepmother and the physical and sexual abuse occasioned on you over several years, I was told, from the ages of five until 12 years of age.
96I have reviewed the materials, including Ms Lechner's report, your father's reference material, and I accept those matters and their relevance to an assessment of the impacts on you that have shaped you and your responses throughout your life.
97I was told you had had two significant partners in your life, the most recent one ending when you were remanded in custody.
Education and employment
98Your schooling was interrupted. You left school during Year 8. That sort of education history is not unusual given what I accept is a disrupted and less than ideal and disadvantaged childhood for the reasons I have just set out.
99You did work installing garage doors. You got that work through a football coach.
100At 16, you completed a roof tiling apprenticeship, or at least commenced, and started your own roof tiling business at 21 years of age. This work history is to your credit.
101In 2018, I was told, you injured your shoulder, which caused you to take nine months off work, and that roof tiling business shut down.
102You have also worked in traffic management on building sites and as a roof tiler separately from your own business, but during the pandemic, I was told, the work shut down, and you lost your job.
Criminal history
103You do have a limited criminal history, which I have touched upon. What is most surprising in your case is, given the level of violence and the level of criminal engagement that is reflected across the indictment and the relevant summary offences – and I am not simply restricting my view to the false imprisonment injury and extortion matters, but it is difficult to reconcile your history, your good work history, and your limited criminal history, with the extraordinary breadth of the serious offending that is before me.
Substance use
104Your substance use provides the best explanation for your descent into
high-level criminal activity. It is perhaps also an explanation for the distinct lack of empathy you exhibited over the range of matters that are before me.105You have a significant history with substance use, I was told, commencing with cannabis use from 12-13 years of age, ice use at 15. I was told that at the time of the offending, you were using up to 7 grams of ice a day and up to150 ml of GHB, and I accept that the use of those substances clearly contributed to the level of violence and its sadistic tone across the two indictments in your case.
106I reach that conclusion based on, as I say, the difficulty reconciling the reference material and the material from those that know you, which seems to be mirrored in your background given your history, your limited criminal history and your work history. I am endeavouring to reconcile that with the shocking violence on display across these matters.
107You have used other substances, I was told. But essentially, it would seem the descent into ice and GHB use is at the centre of this extremely serious offending.
108That does not excuse it, of course. I raise it by way of my finding as to some explanation as to how to reconcile those matters I have set out.
Mental health
109A report was tendered from Ms Lechner, who examined you, and in her opinion, you presented with symptoms of stimulant use disorder – in remission given you are in custody, and I accept that – complex PTSD and adult ADHD. I accept that symptomology without necessarily accepting the formal diagnosis of complex PTSD and adult ADHD. I do accept the findings as to symptomology, though, in relation to Ms Lechner, and as I have stated, I do not have any difficulty accepting that due to those reasons I have set out as to your early life and development, you gravitated towards escape into drug use and negative peers from a young age.
110I was told that you witnessed a head-on motorcycle crash between two friends in Sale in 2017-2018 which led to the death of a close friend and that had an impact upon you. I also accept what is referred to in Ms Lechner's report in relation to previous attempts on your own life from when you were 13 and 14 and again at 21, and that there are underlying issues, symptoms of PTSD, including flashbacks, nightmares, avoidance and hypervigilance. I accept that symptomology.
Other Factors in Mitigation
Shayne Smith
Plea of guilty
111In relation to matters in mitigation in relation to you, Mr Smith, the plea of guilty, I do accept that the pleas in such a matter, given the far-ranging nature of the offending, take some time to resolve in matters of this nature. The matters have resolved in terms of the charges on a more favourable basis than some of the charges which you faced at the committal stage. I do accept that it is a relatively early plea in that sense.
112Importantly, resolving the matter enables it to be said on your behalf – and I accept this – that you have accepted responsibility, and in your case, I do find that there are signs of genuine remorse that I am prepared to accept. I base that upon your letter of apology, the matters expressed to Ms Lechner, my assessment as to how I reconcile your past history with the level of violence now before me and my observations of you during the plea hearing.
113Your plea, of course, also has a very significant utilitarian value. We are still at a point where we are endeavouring to reduce the trial backlog in this court due to the pandemic, and pleas of this nature save significant trial time and always have a utilitarian value, more so in the current environment.
Application of Bugmy
114I also accept the engagement of what is often referred to as the Bugmy v The Queen (“Bugmy”) principle.[5] Your counsel relied on other cases in addition to Bugmy. I think there is also some application in relation to the principles that derive from DPP v Brooks and R v McKee.[6]
[5]Bugmy v The Queen (“Bugmy”) (2013) 249 CLR 571.
[6]DPP v Brooks [2008] VSCA 253; R v McKee [2003] VSCA 16.
115Leaving the cases out of it, I accept that in particular the two features of your early life, which I summarised at the commencement, which relate to your mother and your stepmother – I accept that those were impactful and
life-shaping experiences which no doubt contributed to early engagement with illicit substance abuse, and in some distress, it seems you are vulnerable to a descent into that use, and that was clearly a feature that was at the heart of all of the offending before me. As I say, that explains, perhaps, how that doorway has opened but in no way excuses or justifies.116But in terms of assessing moral culpability for developing those substance uses and responding in the way that you have over the years and in particular settings, I accept that there is some reduction to moral culpability based on the Bugmy principle.
Prospects of Rehabilitation
117Prospects of rehabilitation is a difficult exercise. The sentence I will impose will see you remain in custody for some considerable time. There is a basis for some optimism, if not confidence, that you have reasonable prospects of rehabilitation, and your counsel has summarised those:
(a)The time you have spent in custody free from substance use. You have used your experience in custody to try and do courses and to engage in the manner in which you have, and I will not refer to all of the materials, but it was mentioned this morning, the Salvation Army Positive Lifestyle Program and the letter in support from Brett Morris;
(b)The lack of entrenched criminal history;
(c)The support of family and friends, which continues as per reference material, and I accept the tenor of those references; and
(d)The work history.
118All of those matters provide a basis for an expectation that you can reform and rehabilitate.
Totality
119Totality is a relevant factor to consider in your matter; in particular, given the length and breadth of offending before me. I take into account your experience in custody to date and the extent to which that has been experienced during the greater restrictions in the pandemic.
120As I have touched on, it is difficult to reconcile your willingness to inflict pain and suffering on others, which is apparent from the series of episodes before me, and the hardworking employee, friend and family member I have been told about. The facts of this case invite the conclusion that you are without empathy, enjoyed inflicting the pain, fear and domination over others in a very self-centred way. I think that is no doubt true when you are affected by substances.
121As I have said, the testimonials, Ms Lechner's report, your own letter to me and my observations lead me to that conclusion, that excessive drug use played a significant role in the offending albeit the likelihood that you are prone to that self-centredness that emerges and is exacerbated further under the influence, and it is at those times that you are a danger to the community, and the protection of the community is an important factor to consider. Addressing drug use and the underlying drivers of that are key to your prospects of rehabilitation.
Personal history
Krishneil Chand
122Turning to you, Mr Chand. You, unfortunately, Mr Chand, have a relatively lengthy criminal history for still a relatively young man.
123I was told you were born in Australia to Fijian parents, and I accept that you experienced bullying at school due to your appearance and racial background.
124I also accept that there was strong discipline in the home. I do not think that is an explanation on its own as to why you left home at the age of 13 to 14 years, but clearly, personality factors in combination with that strong disciplinary environment led you to do so. As with so many other young people in that situation, you also gravitated towards alcohol abuse and illicit substance abuse, engaging in low-level offending.
125I accept that at the age of 14 or 15, you were present during a serious car accident, and that is summarised further in the sentencing remarks of Her Honour Judge Riddell where she says that you were 14 or 15 and you witnessed a car accident where a man was thrown from and then crushed by his vehicle and died. You checked him to confirm that he was dead. A woman was also badly injured. You say that this was traumatic for you, and you continue to have nightmares and flashbacks about it. I accept that matter.
126You also experienced the trauma associated with being detained in a Youth Justice Centre. Now, you were detained due to your offending behaviour, but nonetheless, those years would have been difficult experiences for you, particularly when you were transferred to Port Phillip Prison after an assault on an officer at Parkville. You were 17 at that time. Notwithstanding your unsuitability for remaining at Parkville, Port Phillip and Charlotte Unit solitary confinement was clearly no place for a 17-year-old, and in 2013, the ombudsman made a finding that that was inconsistent with the Charter.[7]
Substance use
[7]DPP v Tonkin & Ors [2022] VCC 1485, Riddell J, at [106].
127I accept that that experience would have had a negative impact upon you. You say that you became more heavily involved in ice use at that time and thereafter. I accept that that has some resonance, but as you mature and as you get older, it is incumbent upon you to address these underlying factors and these underlying issues, otherwise you will simply experience longer and longer periods of custody.
Criminal history
128You have had a relevant criminal history, as I have noted, including a prison term of three years and three months with a non-parole period of two years and two months in relation to armed robbery. All of your offending seems to be related to drug-related criminal offending.[8]
Mental health
[8]DPP v Chand & Anor [2015] VCC 142, Grant J.
129I accept the matters referred to in the report of Mr Cummins in relation to the complex PTSD, major depressive disorder. I accept, as Judge Riddell did, that there is some application of the R v Verdins[9] principle in relation to your experience in custody, and you are accorded some mitigation in relation to that.
[9]R v Verdins [2007] VSCA 62.
Other Matters in Mitigation
Krishneil Chand
Prospects of rehabilitation
130It is positive that you retain the support of your parents, and that gives some hope for the future in relation to you although I must be guarded, as Judge Riddell was, as to your prospects of rehabilitation. You have a child who, I am told, is now aged three, which is a motivating factor for you. You were educated up to at least partway through Year 11 level. If you can address your substance abuse issues and if you can resist and extricate yourself from what is clearly a gravitation towards, to put it in the vernacular, criminal-gang-like activity, then you have some prospects of rehabilitation. It is up to you.
Plea of guilty
131I accept that your plea of guilty is at an early opportunity and has a significant utilitarian value. You are still relatively young. I must have regard to the principle of totality in your case given that you are undergoing a lengthy sentence at present and the period of time you have spent in custody to date since the commission of the offences before me, which is not just limited to the sentencing passed by Judge Riddell but the three-month sentence as well that I have referred to.
132I have had regard to your role. I also have regard to the principles of parity, as I do in the case of Mr Smith also, parity between you and Mr Smith, having regard to your particular roles, which I have touched on already, the particular violent acts you engaged in vis-à-vis Mr Smith – notwithstanding that you are complicit whilst you are present, but having regard to those matters I have already touched upon earlier in relation to Mr Smith's greater role in terms of control and direction.
133You, on the other hand, have a significant criminal history. In your case, I also take into account that your experience in custody to date has covered a substantial part of the period where the restrictions due to the pandemic are still in place, affecting your experience in custody in a negative way.
Other Sentencing Considerations
134In relation to both of you, the matters I have noted in mitigation reduce the sentence I would otherwise impose, of course, but nonetheless, there are important principles of general deterrence, denunciation, just punishment and community protection that must be reflected in the sentences I impose.
135In relation to the principle of parity in relation to you, Mr Smith, it is principally in relation to Mr Tuckerman. I have had regard to the point at which you arrived, which is a point at which an assault has already commenced and is underway. I have also had regard to my assessment as to you effectively taking over once you did arrive. You were clearly in control of the assault and the humiliation of Mr S from that point forth. That said, as I have noted, the assaults had progressed to a significant stage by you beforehand. You used weapons, you encouraged Mr Tuckerman to do the same at one point.
136I have also had regard to the principle of parity insofar as I can given the disparate facts in relation to Mr Whittaker and, as I have just mentioned, in relation to Mr Chand also.
137I sentence you as follows, Mr Smith.
138MS McMASTER: Your Honour, sorry, if I could?
139HIS HONOUR: Yes, sure.
140MS McMASTER: I would not usually interrupt.
141HIS HONOUR: No, that is all right.
142MS McMASTER: But just before you get to that point, in relation to Mr Chand, there are actually 209 days of pre-sentence detention that was not taken into account by Judge Riddell, and it is something that both parties have looked at.
143HIS HONOUR: All right, all right. Was I told about that at the plea? I cannot - - -
144MS McMASTER: I think we were meant to get that - - -
145HIS HONOUR: Yes, I was not sure.
146MS McMASTER: Yes.
147HIS HONOUR: Because I just went back over the records and her sentence, and it says 209 days, he has owing, PSD.
148MS McMASTER: Yes, yes, that is correct.
149HIS HONOUR: All right, all right.
150MS McMASTER: Thank you.
151MS EAST: Your Honour, perhaps just before you proceed further, the
pre-sentence detention I have for Mr Smith is 670 days, not including - - -152HIS HONOUR: Six seventy?
153MS EAST: That is correct, Your Honour.
154HIS HONOUR: All right. Two hundred and nine for Mr Chand, all right, thank you both.
Sentence
Shayne Smith
155I sentence you as follows, Mr Smith:
·On the charge of causing serious injury intentionally, I sentence you to be imprisoned for a period of five years and nine months. That will be the base sentence in relation to the sentence I am imposing;
·On Charge 2, false imprisonment, you are sentenced to a period of two years;
·On Charge 3, obtaining property by deception, six months;
·On Charge 5, extortion, 18 months;
·On Charge 6, possess a trafficable quantity of firearms, two and a half years;
·On Charge 7, trafficking methylamphetamine, 12 months;
·On Charge 8, attempted trafficking of GHB, seven months;
·On Charge 11, false imprisonment, four years;
·On Charge 12, intentionally causing injury, four years' imprisonment;
·On Charge 14, possess methylamphetamine, three months' imprisonment;
·On Charge 15, commercial trafficking, MDMA, two and a half years' imprisonment;
·On Charge 16, handling stolen goods, three months' imprisonment;
·On Charge 17, being a prohibited person in possession of a firearm, two and a half years' imprisonment.
156On Indictment No.2, the Thomas indictment:
·Intentionally causing injury, three and a half years' imprisonment;
·False imprisonment, three years' imprisonment.
157In relation to the relevant summary offences:
·On the three charges of committing an indictable offence whilst on bail, one month's imprisonment on each charge;
·On each of the charges of administering GHB to your victims, the two charges, six months on each of those two charges each; that is, six months on one charge, six months on the other;
·Possessing cartridge ammunition, you are fined $1,000;
·Dealing with property the proceeds of crime, one month's imprisonment.
158Is there one driving whilst suspended charge or two?
159MS EAST: Two, Your Honour.
160HIS HONOUR: There are two, that is right.
161MS EAST: Sorry, Your Honour, two.
162HIS HONOUR: There are two.
163MS McMASTER: Yes.
164HIS HONOUR: Two, yes. Fined $1,000 on each charge, so that makes a total fine of $2,000.
165Is there mandatory licence suspension in relation to that charge? I do not think there is.
166MS EAST: I do not believe so, Your Honour.
167HIS HONOUR: No, all right.
168Now, I make the following orders for cumulation. As I said, Charge 1 on the first indictment is the base sentence. Three months of the sentence imposed on Charge 2 on that indictment will be cumulative upon the base sentence and other sentences; one month of the sentence imposed on Charge 3 will be cumulative; six months of the sentence imposed on Charge 5, the extortion charge, will be cumulative; three months of the sentence imposed on Charge 6, possess a trafficable quantity of firearms, will be cumulative; one year of the sentence imposed on Charge 11, false imprisonment, will be cumulative on the base sentence; one year on the sentence imposed on Charge 12, intentionally causing injury, will be cumulative on the base sentence; three months on Charge 15, commercial trafficking, will be cumulative on the base sentence; six months of the sentence on Charge 17, being prohibited person possess firearm, will be cumulative on the base sentence.
169On Indictment 2, seven months of the sentence imposed on intentionally causing injury will be cumulative on the base sentence; four months of the sentence imposed on false imprisonment, Charge 2 on that indictment, will be cumulative on the base sentence.
170In relation to the relevant summary offences, one month on each of the charges of administering GHB – so that is two months in total across those charges – will be cumulative on the base sentence.
171That makes a total effective sentence of 10 years and eight months' imprisonment.
172I set a non-parole period of six years and nine months before Mr Smith is eligible for parole.
173I declare that pursuant to s18 of the Sentencing Act, 670 days of pre-sentence detention apply in his case.
174Pursuant to s6AAA, were it not for your pleas of guilty, Mr Smith, I would have sentenced you to a total effective sentence of 13 years with nine years'
non-parole period.175I make the orders that are sought, the compensation orders and disposal orders and forfeiture orders, subject to those items that are still the subject of submission, and I will rule on them if required.
Krishneil Chand
176Mr Chand:
·In relation to Charge 1 on the second indictment, intentionally causing injury, you are sentenced to three years' imprisonment;
·In relation to Charge 2, false imprisonment, you are sentenced to two and a half years' imprisonment;
·In relation to Charge 13 on the first indictment, one month imprisonment.
·In relation to the relevant summary offences, assault in company, six months' imprisonment;
·In relation to the relevant summary offences of committing an indictable offence on bail – there are two of those, as I understand it – one month on each of those two charges; and
·In relation to the contravening bail offences, seven days on each of the contravening bail offences.
177In relation to cumulation, nine months of the sentence imposed on Charge 2 on the indictment will be served cumulatively; on the sentence imposed on Charge 1, three months of the sentence imposed in respect of assault in company will be served cumulatively.
178That makes a total effective sentence of four years' imprisonment.
179In relation to that sentence of four years' imprisonment, I order that two years and nine months of that sentence be served cumulatively on the sentence you are now undergoing.
180I set a new non-parole period in respect of the sentences. That new non-parole period is four and a half years from today's date.
181I declare that you have served 209 days of pre-sentence detention.
182Pursuant to s6AAA, were it not for the pleas of guilty, it would have been a head sentence of five and a half years, and I do not think I can indicate non-parole period in relation to that given the circumstances and not being able to speculate as to where we would be at the end of a trial.
183Are there any other orders in respect of Mr Chand?
184MS McMASTER: No, Your Honour.
185HIS HONOUR: All right. Anything any of the parties need to correct or raise?
186MS McMASTER: No, Your Honour. I did reflect on the submissions and the discussion earlier, and I have married it all up.
187HIS HONOUR: You have had that opportunity.
188MS McMASTER: And I make no submission on that, Your Honour.
189HIS HONOUR: Thank you very much, Ms McMaster, all right, yes. We will adjourn the court.
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