Director of Public Prosecutions v Delamare
[2022] VCC 1950
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-00716
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JORDYN DELAMARE |
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JUDGE: | Her Honour Judge Gwynn | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 September 2022, 28 October 2022 | |
DATE OF SENTENCE: | 9 November 2022 | |
CASE MAY BE CITED AS: | DPP v Delamare | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1950 | |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Causing serious injury intentionally in circumstances of gross violence, intentionally damaging property, drug induced psychosis, cannabis, LSD
Legislation Cited: Sentencing Act 1991 (Vic), Crimes Act 1958 (Vic), Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Cases Cited:Worboyes v The Queen [2021] VSCA 169, Nash v The Queen [2013] VSCA 172, R vVerdins & Ors (2007) 16 VR 269, R v Martin [2007] VSCA 291, Guden v The Queen [2010] 28 VR 288
Sentence: 7 years and 6 months imprisonment with a non-parole period of 4 years and 10 months. 713 days have been reckoned as served. Convicted and fined amount of $1500
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Porceddu | Office of Public Prosecutions |
| For the Offender | Mr C. Grant | Paul Vale Criminal Law |
HER HONOUR:
1Jordyn Delamare, you have pleaded guilty on indictment to causing serious injury intentionally in circumstances of gross violence and to a charge of damaging property.
2In sentencing you for these crimes I must have regard to the maximum penalties for the offences you have committed. Those maximum penalties are as follows:
·
Causing serious injury intentionally in circumstances of gross violence -
20 years' imprisonment; and
· Intentionally damaging property, - 10 years' imprisonment.
3These maximum penalties reflect the seriousness with which Parliament regards each of these offences.
4In addition, the charge of causing serious injury intentionally in circumstances of gross violence is a category 1 offence under the Sentencing Act 1991 and therefore pursuant to s5(2G), I am required to impose a sentence of imprisonment which cannot be in combination with a Community Corrections Order.
5Section 10(1) of the Sentencing Act 1991 requires that the court impose a term of imprisonment and fix a non-parole period of not less than four years unless a 'special reason' exists.
6I will return to these provisions at a later stage.
7The circumstances of your offending are set out in a document entitled 'Summary of Prosecution Opening for Plea' dated 17 June 2022. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.
The offending
8
I will not repeat the entire summary as it is a matter of record, but in brief terms, the offending that gives rise to these charges occurred on the evening of
27 November 2020, at which time you were 21 years of age. The victim in this matter is Mr Chantheravuth Heng.
9On 27 November 2020, at around 8.30 pm, you were in the garage of your family home watching YouTube videos with your brother and his girlfriend. During this time, you smoked 6-8 cones of cannabis and consumed LSD.
10
At approximately 9.30pm, Ms Hannah Semaan was driving along
Chandler Road in Cranbournewith Ms Melissa Hatzopoulos in the passenger seat. Ms Hatzopoulos saw two men walking along the footpath. One of the men was you, the other was Mr Heng. She saw you flapping your shirt as though preparing to fight.
11Ms Hatzopoulos saw you suddenly on top of Mr Heng. You were standing over him. You then held onto the fence and kicked Mr Heng in the head with a stomping movement.
12Ms Semaan beeped her horn in an attempt to stop the assault. You looked up, smiled, and continued to stomp on Mr Heng's head with both feet.
13You were seen to have grabbed the fence with both hands and jumped up and down on Mr Heng's head 'like it was a trampoline'. To Ms Hatzopoulos you appeared to be enjoying yourself as you were grinning and looked happy and proud.
14Ms Semaan stated that you appeared to be holding onto the fence to '…stabilise [yourself], but also so [you] could use more force as [you were] jumping'. She said you jumped with both feet on Mr Heng, at least 3-4 times, and to his head.
15It is these facts which form the basis for Charge 1, causing serious injury intentionally in circumstances of gross violence.
16To each observer that I have already described, you appeared to be substance affected.
17
Ms Semaan beeped her horn again and yelled for you to stop. You got off
Mr Heng and charged towards their car. Ms Semaan drove away and did a loop of the block before returning to check on Mr Heng. Meanwhile, Ms Hatzopoulos called ‘000’ for an ambulance.
18When they returned, Mr Heng was laying on the ground, breathing but unresponsive. The right-hand side of his face was dinted in, and he had blood coming out of all of the gaps in his teeth. He also had blood spattered over his face. He did not appear conscious and was groaning in pain.
19
Mr Mohammad Alavi was driving and saw you walking, naked, in the middle of Chandler Road. He slowed his car down to a stop and observed you to be running and dancing. To him, you also appeared to be substance affected. You then ran towards his car and jumped shoulder first into his windscreen, causing it to shatter and forming the basis for Charge 2, intentionally damage property.
Mr Alavi was in shock and frightened. He also called ‘000’.
20Police attended Photographs were taken of Mr Alavi's vehicle.
21Police also observed Mr Heng laying on his back with blood on his face and making a groaning noise. He appeared to be conscious but unresponsive. Paramedics arrived a short time later and took him to hospital.
22Witnesses told police that you had run north along Chandler Road while removing your clothes. The police drove along Chandler Road and spotted you, still naked. You began to charge towards their vehicle.
23The officers both yelled 'Police' and you yelled 'Coppers, shoot me shoot me'. You continued to charge at them and they used capsicum spray in an attempt to subdue you. The spray had limited effect, and you lurched toward one of the officers who retreated and struck you with his baton. You were described as being violent and aggressive towards police but were eventually subdued.
24
You had blood on your face and were covered in grazes. An ambulance arrived and gave you a sedative to calm you down. You were then taken to hospital. You suffered an intraparenchymal brain bleed but were discharged on
30 November 2020 without further intervention recommended apart from that fact that you were to attend for a review six weeks post discharge. I have no updated information.
25
On discharge from hospital, you went into police custody and were taken to the
St Kilda police station where an interview was conducted. You answered the questions asked of you. You did tell police that you had consumed LSD and that when you noticed Mr Heng you thought to yourself, 'I've gotta - I gotta kill that.' You admitted to kicking Mr Heng three to four times to the face and that Mr Heng was not awake at the time.
26Mr Heng was admitted to hospital with potentially life-threatening injuries which are outlined at length in the Crown opening. He was a patient of the Alfred Hospital between 27 November 2020 until 18 January 2021.
27Mr Heng suffered multiple facial fractures including:
(a) Right lower jawbone fracture;
(b) Minimally displaced left inner eye socket wall fracture;
(c) Left eye socket floor fracture;
(d) Minimally displaced nose fracture with nasal deformity; and
(e) Multiple tooth fractures.
28Mr Heng also experienced lung problems due to possible aspiration and lung tissue collapse on both sides, problems taking in food, mental health complications with low mood, complication of falls with head strike and fluctuating alertness and engagement. He suffered post traumatic amnesia.
29Mr Heng also suffered multiple soft tissue injuries including facial bruising, blood collection to the left ear and in the soft tissue around the left eye.
30Dr Jason Schreiber, Forensic Physician, from the Victorian Institute of Forensic Medicine reviewed the medical records and was of the opinion that the injuries suffered by Mr Heng were life threatening, meaning potentially fatal.
31Mr Heng suffered a traumatic brain injury resulting in significant cognitive changes and impairment. These included impaired memory, decreased speed of processing, reduced ability in managing divided attention and speech and language impairment. He now has emotional and behavioural disturbances with the development of severe anxiety and depression requiring medication. His higher-level balance is also impaired.
32His doctor opined that Mr Heng will need support in the foreseeable future to manage his finances and affairs. The timeframe for severe traumatic brain injury recovery takes years and Mr Heng will need rehabilitation and support to optimise his recovery over time.
33As of 3 February 2021, Mr Heng had no recollection of the incident or as to how he ended up in hospital.
34Dr Kim Proudlove, rehabilitation physician with the Acquired Brain Injury Unit at the Caulfield Hospital, provided a supporting letter dated 8 October 2021 in relation to Mr Heng's functioning. In that document Dr Proudlove states and I quote:
'The cognitive disabilities have been characterised as severe verbal memory impairment, reduced attention and working memory deficits. He has reduced capacity currently for new learning and severe retrieval deficits. These cognitive changes mean that Mr Heng would not be able to re-engage in the foreseeable future with paid employment. He was previously a fully employed taxi driver and he now has his driving licence suspended. These cognitive changes also mean that he has difficulty with problem solving and navigating even basic tasks such as finding employment.'
35Dr Mathuri Ranjan, Mr Heng's dentist, confirms the breakage of two upper front teeth and other ongoing dental issues.
36I do not have any updated medical information post 8 October 2021 other than that contained in Mr Heng's victim impact statement to which I now turn.
Victim impact
37A victim impact statement authored by Chantheravuth Heng dated 12 June 2022 was tendered by the prosecution at the plea hearing.
38The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.
39Mr Heng describes feeling alienated from his son as his ability to articulate his opinions and share compassion are now limited. He can no longer work and has limited mobility affecting his sense of self-worth. He spends his days within a relatively small area of where he lives. He now has a cognitive disability and is isolated and lonely. He can no longer do the activities that he once enjoyed.
40Mr Heng now sees a psychologist regularly to deal with his anxiety and mood swings as well as to learn strategies to manage his cognitive impairment.
41Mr Heng's victim impact statement was read to the court so the profound and enduring effect of your offending upon him is well known to you. On what is presently known to me his life as he knew it has been fundamentally changed.
42Of course, in some ways Mr Heng is not the only victim. I have little doubt that the events of 27 November 2020 witnessed by Ms Semaan and Ms Hatzopoulos, even Mr Alavi, have stayed with them.
Gravity of offences
43I turn now to the offence gravity.
44I am not so troubled by the charge of criminal damage in the overall circumstances.
45The charge of causing serious injury intentionally in circumstances of gross violence is in another category all together. It is put on the basis that you continued to cause injury to Mr Heng after he was incapacitated contrary to s15A(2)(e) of the Crimes Act 1958.
46The offence of intentionally cause serious injury in circumstances of gross violence was introduced to the criminal calendar in Victoria in 2013. There are limited higher court decisions considering the offence and, naturally, they do reflect different circumstances.
47There are, however, numerous higher court authorities regarding the offence simpliciter, that is without the circumstances of gross violence, which are of some assistance.
48In Nash v The Queen [2013] VSCA 172, a case which dealt with the charge of causing serious injury intentionally, the Court of Appeal referred to a range of factors which are routinely taken into account in sentencing for that charge. These include:
(a) the offender's proven intent: was it to cause serious injury, or really serious injury, or the maximum possible injury;
(b) the seriousness of the injury actually caused (both the immediate and the long-term consequences for the victim);
(c) how vulnerable the victim was;
(d) whether a weapon was used;
(e) how long the attack on the victim lasted; and
(f) whether the offender acted alone or in company.
49It has since been reinforced by the Court of Appeal that the first two factors – that is the proven intent and the seriousness of the injury – are ordinarily the primary indicators of seriousness.
50I accept that your offending was unplanned. Whilst you were alone and without a weapon, the commencement of your attack on Mr Heng was entirely unprovoked and would have given him little opportunity to defend himself. Mr Heng was not known to you and would have been caught by surprise.
51
Your continued assault of him was both vicious and brutal. You delivered three to four stomps to Mr Heng's head using both feet when he was on the ground, motionless and therefore entirely helpless and at his most vulnerable. The Crown summary would indicate that, at a point after Ms Semaan had first beeped her car horn in an effort to distract you, you smiled and continued to stomp on
Mr Heng's head with both feet using a fence for purchase, elevating the gravity of your offence.
52Your blows were directed to Mr Heng's head and reflect higher potential for really serious injury. These facts overall also inform your intent. I am satisfied that when you commenced to jump on Mr Heng's head with both feet and then did so multiple times, that you had formed an intent to cause really serious injury to
Mr Heng. This is not the subject of challenge by you. It is also reinforced by your own comments in your record of interview such as 'I gotta kill that' and your admissions at Questions 115-120 that Mr Heng was knocked out by the time of your first or second blow yet you continued to kick him.53Mr Heng required hospitalisation, suffered very serious injury and many significant injuries remain, possibly for the rest of his days. From the medical material available the ramifications for Mr Heng have impacted every aspect of his life and are properly described at this point in time as being life changing.
54The events of 27 November 2020 also unfolded in a very public way and exposed others to your savage attack on Mr Heng and bizarre behaviour afterwards.
Expert reports
55An initial report authored by Dr Kevin Ong, Psychiatrist, dated 2 April 2021 looked to whether or not you were mentally impaired at the time of your offending and whether or not you were fit to be interviewed by police.
56In that report of Dr Ong, you described a pre-offence escalation in your drug use. You had been feeling rejected by others. This apparently references a situation when you were 17 years of age and didn't assist a close friend when he was being beaten, a situation you very much regret and for which you feel shame. You associate this with the decline in your friendship with that person and you believe that others were also judging you, particularly your brother who had otherwise become a close confidante.
57By November of 2020, you had a well-established habit of cannabis use since the age of 14 -15 years. You were using up to 5 grams of cannabis a day in the months leading up to your offending. You had become somewhat paranoid.
58You had also used GHB previously. A month prior to your offence you had a seizure from ingesting magic mushrooms.
59According to what you told Dr Ong at that time, you were also using psychedelics, including LSD, up to 2 tabs several times a month. When using LSD, you would experience hallucinations and 'unreal voice…. witchy 9sic) voices' which would intensify your thoughts of others speaking or thinking about you in a negative way.
60On the day of your offending, on 27 November 2020, you had consumed cannabis and LSD . You told Dr Ong that you could just feel that your brother was talking about you in a negative way, relating again to the incident when you were 17 years of age. You heard voices. When you left the house, you told Dr Ong that when you saw the victim, you saw him as your 17 year old self which you had to punish.
61In his report of 2 April 2021, Dr Ong opined that you had a significant history of polysubstance abuse and would meet the criteria for substance use disorder. In the lead up to your offending cannabis use had exacerbated your paranoia.
62According to Dr Ong, on the actual day you appeared 'to have experienced acute intoxication with LSD, resulting in a drug induced psychosis which resulted in his erratic and assaultive behaviour.' Your offending was 'driven by the effects of intoxication with LSD, and an already vulnerable mental state that experienced the paranoia inducing effects of long term cannabis use.'
63
Dr Ong did not find that you were mentally impaired pursuant to s20 of the
Crimes (Mental Impairment and Unfitness to be Tried) Act1997. You did not present with a diagnosable mental illness.
64A subsequent report of Dr Ong dated 19 June 2022 looked to whether or not the principles of R vVerdins & Ors (2007) 16 VR 269 had application to your case. The Verdins' principles provide guidance as to how courts may take into account a defendant's mental impairment when determining an appropriate sentence.
65In his subsequent report dated 19 June 2022, Dr Ong again found that at the time of your offending you experienced acute intoxication with LSD resulting in drug induced psychosis which manifested in your erratic and offending behaviour. He again found that your offending was 'driven by the effects of intoxication with LSD, on an already vulnerable mental state that experienced the paranoia inducing effects of long-term cannabis use.'
66You told Dr Ong that on the day of your offending you had experienced auditory hallucinations, felt like you were in 'the matrix', and developed a belief that you were a werewolf. Consistent with the previous report, you described believing that you had gone back in time and that Mr Heng was the 'weak' part of yourself from years ago and that you had to 'kill it'.
67Dr Ong did opine that 'whilst intoxication with a substance is usually in and of itself insufficient to be considered a mental disorder, it was his opinion that the substance intoxication caused [you] to act out of character, thereby potentially reducing [your] moral culpability.'
68
I have no reason not to accept the unchallenged opinion of Dr Ong that you were psychotic from drug ingestion at the time of your offending on
27 November 2020. The issue is its relevance to the sentencing exercise.
Drug induced intoxication
69At your initial plea hearing on 27 September 2022, your counsel did call into your aid the principles of R v Verdins & Ors, you sought to reduce your moral culpability for this offence as expert opinion would indicate that your offending occurred in circumstances of a drug induced psychosis. You argued at that time that you were 'mentally impaired'. This was also used to argue that the principles of general deterrence and denunciation should carry less weight.
70The prosecution argued that it was not open for the court to reduce your moral culpability because you were 'mentally impaired' at the time of your offending as ordinarily, self-induced psychosis through the voluntary ingestion of drugs does not displace an offender's moral culpability.
71As of your further plea on 28 September 2022 you withdrew any reliance on the Verdins' principles. It was further submitted on your behalf that your moral culpability is not reduced by way of 'mental impairment.'
72
Your psychosis was, as described, self- induced. As was stated in
R v Martin [2007]VSCA 291 at paragraph 21, and I quote,
'the critical factor in determining the significance of drug-induced psychosis for sentencing purpose is the degree of foreknowledge on the part of the offender.' The Court must consider what the probable consequences of the ingestion of the particular drug by the particular offender were and whether the offender foresaw those consequences.'
73Whilst a longstanding and daily user of cannabis, you had apparently only used LSD on some six or so occasions. You had no prior criminal history or history of drug related hospitalisations or any earlier episodes of psychosis.
74You had previously heard voices when you had used LSD with cannabis and would have associated the two but your young age and your limited use and experience of this drug lead to the conclusion that it is difficult to suggest that your previous experience would have given you a reason to believe that you would behave irrationally or lose your ability to exercise control to the extent that you did and I could not find, in those circumstances, that your self-ingestion of drugs should aggravate your offending in any way. Neither party argued that it should.
Plea of guilty
75In terms of your plea of guilty, the Sentencing Act 1991 obliges me to take into account the stage at which you entered your plea. This matter resolved at a further direction hearing in the County Court held 25 February 2022 at which time you were arraigned.
76There is some explanation for the delay in resolution as, on your behalf, psychiatric evaluations were sought.
77Whilst not a plea at the earliest opportunity, there remains clear value in saving the victim and other witnesses the need to give evidence and relive traumatic events, and there is utilitarian value in saving the community the expense of contested proceedings.
78Your decision to plead guilty in the context of the COVID-19 pandemic has additional utilitarian value as it provides certainty and finality to all parties in circumstances where the court's operations have been significantly disrupted and trial dates remain as yet unfixed.
79In the recent decision of Worboyes v The Queen [2021] VSCA 169 at paragraph 39 the Court of Appeal said that,
'A plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time…'
80I do accept that you are genuinely and extremely remorseful for your offending.
81These factors will be taken into account in your favour.
Personal circumstances
82I turn now to your personal circumstances.
83You were born in Wellington, New Zealand, and are currently 23 years of age.
84You lived in New Zealand with your parents, brother and three sisters until you were 13 years, when your family relocated to Australia. Your family lives in Cranbourne, and you were residing with your mother, father, brother, Joshua, and sister, Samantha, in the family home at the time of your offending.
85You described violence and aggression as a feature of your childhood. Growing up, your parents were described as being strict. Your father was 'always angry' and a physical disciplinarian. You reported that he gave you and your siblings 'hidings' when you misbehaved, which created some turbulence in your relationship. You described your early childhood as 'rough'.
86You completed primary school in New Zealand and despite being both physically and verbally bullied, you reported no difficulty with social engagement or attendance. You were in Year 8 when your family relocated and recommenced high school at a Year 7 level in Australia. At school you were 'sports orientated’ and enjoyed running. You otherwise described yourself as a bit of a; misfit' and a 'class clown' who 'didn't do any work [and] just liked wagging with [your] mates'. You were expelled in Year 9 due to disciplinary problems.
87When you were 15 years of age you enrolled in a TAFE program, which allowed you to complete your studies to a Year 11 standard. You also completed a Certificate II in Mechanics and Certificate III in Retail.
88After you left school, you worked in retail and food production, and prior to being remanded, you were employed as a knife hand for about two years in an abattoir where your father also worked.
89As has been referenced, you ruminate about an event when you were 17 years of age when your then best friend was the victim of a violent episode and you did not assist. You consider this event to have led to the end of your friendship.
90After you lost contact with your friend, your brother became your closest confidante. During the period leading up to your offending, you believed your brother had become aware of the incident with your friend, which resulted in a distance between you and your brother. You described 'feeling disconnected, pushed away from [your] family [and] emotionless'. You felt isolated and like everyone was laughing at you to the point that you contemplated suicide.
91Your illicit substance use increased during this time.
92In terms of cannabis use, you started using cannabis when you were 12 years of age on an experimental basis. As a teenager, you would use cannabis whilst truant from school. Your use eventually escalated to the point where you were smoking it daily and developed a dependency, stating that it made you feel comfortable as it would allow you to escape reality. You were using 5 grams of cannabis a day in the months prior to your offending. Dr Ong opined that due to your long-term cannabis use, you developed overvalued ideas and paranoia about your life deteriorating in relation to the aforementioned incident that occurred when you were aged 17.
93He further opined that you would meet the criteria for substance use disorder for cannabis and hallucinogens due to taking increasing amounts of illicit substances over a prolonged period, leading you to place yourself in danger and causing you psychological harm and relationship problems.
94In terms of your psychiatric history, you do not have a history of mental health difficulties outside those associated with your substance use.
95In terms of relationships and family supports, you have had a limited number of short-term relationships over the years and have no children. Whilst incarcerated, you have had regular phone contact with family and occasional visits from parents and siblings.
96As to your future prospects, you have expressed a desire to undertake further vocational training when you are back in the community and to potentially gain employment as an electrician.
97You are not an Australian citizen. You have an expectation that you will be deported at the conclusion of any sentence of imprisonment imposed.
98In a decision of Guden v The Queen [2010] 28 VR 288 at 294 the Court of Appeal said that,
“The fact that an offender will serve his/her term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk.'
99This of course depends on the personal circumstances of the offender.
100To Dr Ong you expressed that much of your time was now spent worrying about your court proceedings as you fear the prospect of deportation on completion of your sentence. You told Dr Ong that you would 'lose everything' if deported, acknowledging you think about it every night given your family are in Australia and you only have any distant relatives in New Zealand.
101Dr Ong opines that 'given Mr Delamare's express concerns about being deported if given a lengthy sentence, a term of imprisonment is likely to weigh more heavily on him compared to a prisoner without such concerns.'
102You have lived in Australia with your family since you were 13 years of age. Your immediate and extended family remain in the Cranbourne area and intend to remain in Australia. Your working life to date has been in Australia. You have significant ties to life in Australia and would have made it your home.
103I accept that the burden of imprisonment is heavier on you than a prisoner who faces no such risk and that is an additional source of stress for you. I do take this into account in a general sense.
Prospects for rehabilitation
104Youth is another relevant factor to the sentencing exercise.
105You were aged 21 years at the time of your offending.
106You are, in effect, a youthful first time offender. I accept that the principles relating to young offenders have relevance to your sentencing exercise. The added potential for young offenders to be rehabilitated is obviously in the public interest, and as has long been recognised by the courts is the well-established understanding that incarceration can impair, rather than enhance, a young offenders future prospects.
107It is also recognised that, in general terms, the more serious an offence, the weight which would normally attach to youth and rehabilitation may lessen, giving way to some of the other relevant sentencing purposes.
108Weight in this sentence will still attach to your youth and your prospects for rehabilitation.
109You do seek to use the injury you suffered at the time of your offending leading up to and during your arrest as a form of extra-curial punishment. On the information before me you were treated expeditiously, released within three days and without any residual injury. I accept that this factor may also be one that bears on your decision making into the future but it otherwise has limited weight in the sentencing exercise.
110You do have the continued support of your family who have been present for your plea hearings and sentencing exercise.
111Numerous references have been tendered on your behalf and I take their contents into account. Family members which include your mother, father, sister, brother and aunt describe you as kind and loving and speak of your remorse. Your offending is described as being out of character. Co-workers describe you as hardworking, honest and as having a good heart. Whilst your referees have known you in different capacities the overall theme is clear. I accept that your offending is out of character and that you are remorseful for it.
112You have no prior criminal history.
113You are not afflicted by a mental illness likely to inhibit your rehabilitation.
114Your time on remand has been during much of the Corrections Victoria response to the COVID-19 pandemic. In general terms, this has involved quarantine upon reception at any prison. There have been periods of lockdown within the prison system, less access to therapeutic and educational programs and less access to personal visits which have made both the remanded and sentenced prisoner experience more burdensome than it would otherwise be. For you personally, I am told that you have had limited access to contact visits with your family during this time. I do take this all into account in a general sense.
115You have managed to complete some courses in custody which include 'THC and me', 'Alcohol and me', 'Doing Time', 'Anger Management' 'Changing Gears' and 'Building Better Relationships'. Certificates have been tendered on your behalf and I take these efforts into account in your favour.
116
You have commenced counselling. A letter from Claire Spinks, Clinician, dated
1 April 2021 confirms that you were accepted into the Everton Mission based Unit at Ravenhall Correctional Centre, a 25 bed therapeutic treatment community for offenders who have not previously served a lengthy custodial sentence.
117Overall, you appear to be using your time wisely.
118In addition, for some time you held a cleaning billet's position and are now working as an induction billet. These are said to be trusted positions within the prison system.
119Ultimately, and as referred to earlier, you aim to qualify as an electrician.
120There is no reason not to assess your prospects for rehabilitation as anything but very promising, contingent on you remaining drug free, a lesson I am sure you have learnt by this stage.
121In his initial report dated 2 April 2021, Dr Kevin Ong, Psychiatrist opined that you would meet the criteria for a substance use disorder. I have already referenced this finding.
122In his report dated 19 June 2022, Dr Ong was of the opinion that you were displaying insight into the detrimental impact of your drug use and how that had affected your mental state and subsequent offending. He was also of the opinion that you would benefit from education into relapse prevention.
123I have little doubt that the time in custody you have spent already has a role to play in terms of both a sanction and a deterrent for the future. Given this, your lack of prior criminal history and continuing family support, there is a basis to place less weight on the principles of specific deterrence and a need to protect the community in the sentence to be imposed. There is also a basis for an extended period of a supported transition for your ultimate return to the community.
Causing serious injury intentionally in circumstances of gross violence
124As referred to earlier, causing serious injury intentionally in circumstances of gross violence is a category 1 offence under the Sentencing Act, therefore pursuant to s5(2G) I am required to impose a term of imprisonment.
125Pursuant to s10(1) of the Sentencing Act, I am required to impose a non-parole period of not less than four years, and any parole period must be at least six months less than the total effective sentence, unless a special reason exists under sub-s(2).
126The Sentencing Act recognises four exceptions to these minimum terms. These include:
(a) That the offender has assisted or given an undertaking to assist authorities in the prosecution or investigation of an offence.
(b) That the offender proves, on the balance of probabilities, that at the time of the offending they had a mental impairment that is causally related to their offending, which substantially and materially reduces their culpability, or would cause them substantially and materially greater than ordinary burden or risks of imprisonment.
(c) Thirdly, that the court intends to impose a Court Secure Treatment Order or Residential Treatment Order.
(d) And finally, that there are substantial and compelling reasons, that are exceptional and rare, which justify not imposing a term of imprisonment.
127That limb requires powerful circumstances that are wholly outside run of the mill factors usually present in such offending. The burden falls on you to show that there is a 'special reason' not to impose the mandatory term. This burden is described as one that 'should be a heavy one, and not capable of being lightly discharged'.
128In accordance with s10A(2B), in determining whether there are 'substantial and compelling reasons', the court is required to regard general deterrence and denunciation as the primary sentencing purposes. The court is also required to give less weight to the offender's personal circumstances than to other matters, such as the nature and gravity of the offending. A court must not consider the offender's prior good character other than a lack of previous convictions or findings of guilt, early guilty plea, prospects for rehabilitation or parity and must have regard to Parliament's intention that a custodial term should ordinarily be imposed.
129You do seek to rely on the limb to which I have just referred, based on a combination of factors, those being your youth, absence of prior criminal history, and likely deportation.
130These considerations can only have real relevance in circumstances where the fixing of an appropriate sentence is one where the court would ordinarily consider a non-parole period below the minimum non-parole period when using its intuitive synthesis and in consideration of all relevant sentencing principles. Only then would a judge have to start with the minimum non-parole period and to consider ‘special reasons’.
131Whilst argument has concentrated on submissions that I find that there are 'special reasons', and hence should not consider fixing a minimum non-parole period of not less than four years, an assessment by me of the objective gravity of the offending, my intuitive synthesis and all other relevant sentencing considerations to which I have referred, is such that the arguments have limited relevance as I am of the view that the appropriate sentence is one which would require a non-parole period in excess of four years.
132I doubt that the reasons proffered would have overcome the legislative hurdle in any event.
133Factors relied on by you otherwise, including your plea, youth, prospects for rehabilitation, and other matters raised in mitigation do remain relevant to the sentencing exercise.
134I will just turn to the parties now whether there has been any errors or factual matters you wish to bring to my attention?
135COUNSEL: No, Your Honour.
Sentencing
136HER HONOUR: I make the ancillary order in the terms sought for forfeiture of LSD which was located in your possession.
137The basic purposes for which a court may impose sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters which include the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.
138I am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure where possible, that offenders are rehabilitated and are safely reintegrated into society.
139I have taken into account the sentencing purposes referred to in s5 of the Sentencing Act where relevant to your case. I have taken into account current sentencing practices, as best as can be determined regarding Charge 1, and for the offences to which you have otherwise pleaded guilty.
140In relation to Charge 2, damaging property, and in the context of no prior criminal history and the relative seriousness of this charge, you are convicted and fined the amount of $1500.
141In relation to Charge 1, causing serious injury intentionally in circumstances of gross violence, you are convicted and sentenced to seven years and six months imprisonment. You are to serve four years and 10 months before being eligible for parole.
142I reckon 713 days as having already been served as pre-sentence detention.
143Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty to the charges. If not for your pleas of guilty, I would have sentenced you to a total effective sentence of nine years with a minimum of six years and four months before being eligible for parole.
144Anything further from either of you?
145MR PORCEDDU: Yes, Your Honour. On my calculations and my learned friend's calculations concerning PSD was 712 days.
146HER HONOUR: Seven hundred and thirteen does include today.
147MR PORCEDDU: Well, then we're right, yes, thank you Your Honour just to clarify that. The second matter that Your Honour - and Your Honour might be getting to this now and perhaps I'm prematurely getting to my feet, the 6AAA's required.
148HER HONOUR: I just gave that.
149MR PORCEDDU: Did you?
150HER HONOUR: Yes.
151MR PORCEDDU: Sorry.
152HER HONOUR: Yes.
153MR PORCEDDU: Thank you I was making a note about the PSD date. Other than that, Your Honour, thank you.
154HER HONOUR: No, thank you. Anything from you Mr Yang?
155MR YANG: Not from my point of view Your Honour, thank you.
156
HER HONOUR: All right. Well, I'll leave you to speak privately with
Mr Delamere and his family.
157MR YANG: As the court pleases, thank you.
158HER HONOUR: Thank you. Otherwise, I close the court until Friday, thank you very much.
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