Director of Public Prosecutions v Diamond
[2014] VCC 1679
•6 October 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 13-01825
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOEL DIAMOND |
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Trial: 21 - 25, 28 – 31 July, 1, 4 –8 August 2014 Plea: 2 October 2014 |
| DATE OF SENTENCE: | 6 October 2014 |
| CASE MAY BE CITED AS: | DPP v Diamond |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 1679 |
REASONS FOR SENTENCE
---Subject: Sentencing; intentionally causing injury
Catchwords: Jury verdict; alternative charge; offer to plead to charge; disputed causation of injuries; offending on parole; relevant prior criminal record
Legislation Cited: Sentencing Act 1991
Cases Cited:Storey’s case (1996) 89 A Crim R 519; York v R [2014] VSCA 224; R v Verdins & Ors [2007] VSCA 102
Sentence: 14 months imprisonment, CCO, 305 days PSD
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Fisher | Office of Public Prosecutions |
| For the Offender | Ms K. Churchill | Turnbull Lawyers |
HER HONOUR:
1Joel Diamond, you have been found guilty by a jury of intentionally causing injury to Michael James. The maximum penalty for this offence is ten years' imprisonment. You also have admitted a considerable prior criminal record to which I shall refer later.
2This charge arises out of events on 9 April 2013 at the Commercial Hotel Werribee. That evening your girlfriend, Sarah Ellis, and brother, Rhys Diamond, had been involved in both verbal and physical altercations with a regular patron of that hotel, Mr Michael James. They had both been ordered out of the premises. You were called by your girlfriend to come to the hotel and arrived some 15 to 20 minutes after those events. You say that you went there just to pick them up. They were waiting outside for you. Your girlfriend told you that Mr James had made derogatory remarks about her. Your brother told you he had been in a physical altercation, and he had a bleeding lip, and one or both of them described to you or pointed out Mr James.
3At 6.32 pm, you entered the hotel by the Bridge Street doors into the area known as the Sports Bar, walked past Mr James who was sitting drinking at a table against one wall, and then went into the outdoor smoking area. You were followed there shortly afterwards by your girlfriend, and the two of you were shown in that area on CCTV. According to the evidence of the bar attendant, you were told to leave the premises, but she is not shown on the camera at that stage, so I am unsure whether she entered the smoking area, or told you to leave from the end of the bar. You then went through the door back into the Sports Bar. Seconds later, you committed the assault on Mr James which gives rise to this charge.
4Your assault on Mr James was recorded on CCTV camera in that bar area, which to a great extent speaks for itself, and the incident was also the subject of eye-witness evidence in the trial. Mr James was sitting on a high bar chair, drinking a glass of beer, then put it on the table and bent down and forwards to pick up something from the floor. As his head was low, and his face towards the floor, you approached with some speed and took a deliberate kick at his head. Your shoe appears to have connected forcefully with his face, causing his head to jolt a little upwards and then he fell forwards face down to the floor where he remained motionless for almost ten seconds before he began to move his hand and then his arm.
5Whilst he was still lying on the floor motionless, Sarah Ellis, who had followed you from the smoking area, also kicked Mr James' head. She had thongs on her feet and appeared to make contact with the back of his head.
6Even after he moved his hand and then arm, Mr James remained face down and apparently stunned and injured on the floor for some more minutes until assisted first to sit up on the floor and eventually assisted up onto his chair. Long before he could sit up, you and Ms Ellis and your brother who had entered the Sports Bar during these events, all fled through the door to Bridge Street, followed by various bar patrons but you all left without being detained at that stage.
7I must assess the objective seriousness of this offence and your subjective culpability. To do so in this case, I must make findings as to some disputed facts. In doing this, I have taken into account all of the evidence in the trial, and my own assessment of each piece of it. My findings must be consistent with the jury's verdict, namely to find you not guilty of intentionally or recklessly causing serious injury to Mr James, but guilty of intentionally causing him injury. In approaching these findings, I have followed the principles set out in Storey's case, (1996) 89 A Crim R 519. Specifically, to make a finding of fact which is necessary to sentencing and is adverse to you, I must be satisfied of that fact beyond reasonable doubt. To make a finding of fact in your favour or which is mitigatory, I must be satisfied of that fact on the balance of probabilities.
8The first disputed fact is your purpose or intention in committing this offence.
9I am satisfied on the balance of probabilities that your manner of assault on Mr James was opportunistic and spontaneous in that on seeing his lowered head, you saw the opportunity or perhaps could not resist the temptation, to treat his head like a football.
10However, from the evidence at trial, I am satisfied beyond reasonable doubt that your purpose in entering the Commercial Hotel less than two minutes before that assault was to seek some type of retribution against Mr James, whether as “payback” or to “teach him a lesson” for or on behalf of your girlfriend and your brother. The reasons for my finding of that intent are as follows.
(i) You had no other apparent reason or purpose to enter the hotel at all. If your only purpose for going there was to pick up your brother and girlfriend, you did not need to enter the hotel as they were outside and had been ordered out and not to re-enter.
(ii) Your actions on entering the hotel were not consistent with any other purpose than staking out Mr James. When you entered, you did not go to the bar itself, make any enquiry, order a drink or dinner, go to play the machines, watch the races on television, or even use the toilets. You walked past Mr James, turning your head towards him as you did so, as shown on CCTV footage in exhibit 6. Then you went straight to the outdoor smoking area, where you did seem to smoke a cigarette, and soon afterwards were joined by Ms Ellis. If you had an immediate need to smoke, you could have done that outside the hotel without entering it at all.
(iii) You entered after first talking with your girlfriend and brother outside, but on your own with them watching from the doorway.
(iv) Ms Ellis entered soon afterwards and followed you into the smoking area despite having been excluded. You and she are then seen talking for barely a minute before you head back into the Sports Bar, and within seconds you approached and kicked Mr James.
(v) Your counsel submits that your kick was spontaneous and that you panicked and lashed out because you knew this was the man your brother had fought with, and you saw Mr James reaching down to the floor and thought he might be reaching for a weapon. The panic is said to be at least partly influenced by your having become very wary of other people since a home invasion in 2007 in which you had been stabbed. Not only is there no evidence to support the version that you anticipated Mr James might be reaching down for some sort of weapon, or to attack you, I am satisfied that that version can be excluded from being a reasonable possibility. Your demeanour as you walked into the hotel as seen in exhibit 6 is self-assured. You turned to look at him as you passed, and seemed to concede here that as you walked past him you knew he was the man that you had been told had assaulted your brother and insulted your girlfriend. However, there is nothing to indicate that Mr James knew you or your connection with either the man he had earlier fought or the young woman who had punched him. Further, you could have walked out of the hotel without going closer than a couple of metres from Mr James as he was bent over looking down at the floor. There is nothing in my view in that evidence that could support a reasonable possibility that you thought he was going to attack you.
11For these reasons, I am satisfied that your purpose in entering the hotel was to take some action in retribution against Mr James. I accept that the manner of the assault was opportunistic as opposed to planned, because you could not have known that he would lower his head for you. Nevertheless, your action was callous, brutal and as your counsel conceded before the jury, cowardly. In my view, the circumstances put it quite high in the middle range of seriousness for offences of intentionally causing injury. It is saved from being at the high end because it did not involve a weapon. I also take into account that it was a single strike rather than repeated blows, but a single blow can be deadly in some circumstances, and there have recently even been changes in the law relating to sentencing when a single blow causes death. The result here was not nearly as serious as that, but a deliberate and apparently forceful kick at a man's vulnerably lowered head, connecting with his face, must be considered serious.
12Mr Diamond, is there something wrong? Your head is down. I do not mind if you are not looking at me but are you able to concentrate on what I am saying?
13OFFENDER: Yes, Your Honour.
14MS CHURCHILL: Would Your Honour like me to approach my client?
15HER HONOUR: Just to check, yes please.
16MS CHURCHILL: Thank you, Your Honour. We're all right to continue, thank you, Your Honour.
17HER HONOUR: I continue with the findings and matters I am taking into account in assessing the seriousness of the offending and the culpability of Mr Diamond.
18An aggravating factor is that you were on parole at the time. You had been released less than three months earlier from a sentence for a variety of offences, including a charge of recklessly cause serious injury. Several offences breached a suspended sentence previously imposed, also for at least one offence involving violence or threat of it. Knowing that you were on parole ought to have been a very strong reason to pick up your brother and girlfriend and drive away. You ought to have realised that you should avoid bringing about situations where you might be tempted to act with violence. This was not a situation where you acted in the heat of the moment. You were not present for the earlier events, and there was nothing that had occurred between you and Mr James to provoke you. You could easily have avoided any such confrontation by simply not entering the hotel. Any insult to your girlfriend or fight involving your brother was well over before you arrived and they were safely, if unhappily, outside.
19Next there remains dispute, as there was during the trial, as to which injuries your assault caused to Mr James and the extent of those injuries. Mr James was taken by ambulance to hospital after this incident, where several injuries to his face were found including those you were alleged to have caused, and he was kept overnight. However, overnight his condition deteriorated and some very serious abdominal injuries were found requiring surgery and leading to his being placed in an induced coma for some days. It was conceded that your kick was unlikely to have caused the abdominal injuries or the necessity for the coma, so none of those facts were made known to the jury.
20The prosecution case at trial was that you caused him the following injuries- three facial fractures with which he was diagnosed, namely to the right inferior orbit (that is the base of the orbit where the eye sits), to the right medial pterygoid (that is a bone that is part of the skull,)and a left side nasal fracture, that you also caused him bruising and swelling around the right eye, (colloquially speaking a "black eye"), a right sub-conjunctival haemorrhage (meaning bleeding in the white of his right eye) and unconsciousness.
21Although it is conceded on your behalf that an injury of some nature was caused by your kick, it is argued that the court cannot be satisfied beyond reasonable doubt which injury or injuries you caused because Mr James had been in a physical altercation with your brother about 20 minutes earlier, when punched by your brother and wrestling on the floor with him. Then he had been punched in the face once or twice by your girlfriend, and, further, after your kick she also kicked him in the head.
22I am satisfied beyond reasonable doubt that your kick knocked Mr James unconscious, albeit for no more than ten seconds. I conclude this partly from my visual impression from the CCTV footage as what appears to be a forceful kick causing his head to jerk, and then he fell forwards to the floor without any protective action. That was also the impression - that is that he was knocked unconscious by your kick - of each of the witnesses who saw it occur. Mr Craig Murphy, the first to be asked about this, gave his reasons. He said the man looked like he was knocked out because he just fell without bracing himself and his chair went from under him and he just slumped and went on the floor and he was not moving. Although Dr Parkin, the forensic physician who was called by the prosecution to explain the injuries in this case, acknowledged that she could not say that Mr James definitely lost consciousness at that stage, as she was not present and did not examine him at the time, her opinion was - after watching the CCTV footage - that he was unconscious for some seconds. She based that on the apparent force of the kick, including the pendulum motion, and because Mr James' fall was what she called a "dead fall", that is without bracing himself with his arms or hands, and flat onto his face without trying to turn his face away.
23As Ms Ellis followed your kick with one of her own to Mr James' head, I cannot say whether it also contributed to the duration of his loss of consciousness, but as I have said it was about ten seconds going by the timing on the video after he landed on the floor from your kick before he first moved at all and that was moving his hand.
24I am also satisfied to the requisite standard of beyond reasonable doubt, that it was your kick which caused two of the facial fractures he suffered - the right sub-orbital fracture, and the fracture to the pterygoid plate. I base these findings on the evidence of Dr Parkin that they would have required considerable force, and from her experience in emergency departments of hospitals, while punches to the face can often cause a broken nose, it would be very unusual for punches to be forceful enough to cause either of these other two fractures. I have taken into account that in the earlier struggle with Rhys Diamond he appears on the CCTV footage to have held Mr James while delivering at least two punches to the right side of Mr James' head, and that some of what occurred between them was not caught on camera, and that there was a degree of struggle on the floor in which it is impossible for me to make out what exactly occurred.
25I have taken into account that after that incident, Mr James had blood trickling down the left side of his neck and face as shown on the CCTV footage. I have also taken into account the punches of Ms Ellis. All witnesses who saw those described the second punch as forceful, some said both were, but two witnesses including Ms Marni Richards who was standing nearest, said the first missed and another witness said that it barely made contact. Ms Richards said the second punch hit him right in the nose. On the video he is seen dabbing at either his lip or nose after Ms Ellis' punches, however those punches do not appear to be forceful enough to cause the two fractures that Dr Parkin described as likely to have required more force than a punch to the face. Also, Mr James, although clearly still dabbing at his face whilst sitting on his chair before your entry onto the scene, looked reasonably steady and not as if further facial fractures had been caused.
26Finally Ms Ellis' subsequent kick to Mr James' head after yours, whilst also cowardly and a very nasty act by her, does not appear to make contact to his face, or with sufficient force to the back of his head as to fracture the sub-orbital bone or the pterygoid plate.
27In relation to the nasal fracture - the broken nose, - while I think it was probably caused by your kick, there is evidence of Ms Ellis' second punch connecting forcefully to Mr James' nose, evidence of some bleeding after that which could well have been from the nose, and I cannot exclude beyond reasonable doubt that it was caused before your kick. Similarly with the black eye, although not visible before your kick as shown on the video, I cannot exclude as being reasonably possible that it was caused by either the fight with your brother, or girlfriend's earlier punches, so I cannot exclude beyond reasonable doubt that you did not cause it with your kick.
28I have reached these findings as to which injuries you caused taking into account the jury's verdicts, which in my view are still consistent with the jury either not considering that in combination the two fractures and unconsciousness did not amount to a serious injury. There was no evidence of consequences after discharge from hospital, and the unconsciousness did not last more than seconds. Alternatively, the jury might not have been satisfied that you intended to cause serious injury, as opposed to intending to cause simple injury.
29Finally, before leaving issues arising as to the overall culpability and seriousness of your offending on this occasion, I note that there were Victim Impact Statements tendered from Mr James himself and from his sister and mother. At my urging, Mr Fisher for the prosecution marked those parts to be excluded as not relating to your assault on Mr James. The Victim Impact Statements indicate very substantial and so far long-lasting consequences for Mr James as a result of the overall injuries he suffered that evening, and for which he was treated in hospital over the following days. However, it is not possible in my view to distinguish what were consequences just of the injures that I have found that you caused. Moreover, the statements were prepared for the plea hearing of Ms Ellis early this year, and as such could appropriately take into account the injuries she inflicted beyond your kick.
30Having been referred to the Court of Appeal decision of York v The Queen published since these statements were written, I do not consider that I can distinguish from those statements what consequences can be specifically related to your assault. That is not to say that I doubt that there have been very serious consequences to both his physical and mental health for Mr James as a result of the overall injuries he suffered that evening. I consider it likely that the injuries you caused him have contributed to some extent to his overall cognitive difficulties and psychological reaction to those overall events. However, I cannot distinguish what resulted from your assault in isolation so I have not taken any of the specific matters raised in those statements into account.
31From all I have said so far, it follows that I regard both the objective seriousness of your offence, and your culpability, as in at least the middle level of seriousness for the offence of intentionally cause injury. It calls for a sentence which adequately denounces and punishes for such behaviour, and which provides general deterrence to others considering taking violent action as some sort of payback, that they can expect a stern sentence as punishment.
32The kicking of a person's head in any circumstances let alone when the person cannot see it coming, and is in a very vulnerable position, is conduct which the community cannot tolerate and which must attract serious enough punishment to adequately denounce it and to deter others from attempting it.
33Apart from your being on parole, I must also take into account that you have a prior criminal history. Commencing with driving offences in 2008, you appeared in Magistrates' Courts once in 2011 and once in 2012 when numerous charges of varying nature were consolidated. Of particular relevance was a charge of reckless conduct endangering serious injury arising from an incident in May 2010 when late at night you drove at a woman who was leaving a police station after making a statement about an incident involving your girlfriend, having not long before made threats to kill the woman's partner in his car with a young child while banging against the car window.
34In 2012, you were sentenced for 18 offences arising out of several incidents, mainly in March and April 2012, but including a charge of recklessly causing serious injury in January 2010. On that occasion, in company with your brother Rhys, you had assaulted a man causing him facial injuries, attempting to recover an alleged debt.
35These previous offences are relevant as they involve displays of intimidatory violence by you. They indicate that your assault of Mr James was not an isolated action totally out of character for you.
36You had been placed on a Community-Based Order together with a suspended sentence in July 2011, but breached that by failures to comply as well as further offending. In October 2012, you were sentenced in total including three months of a restored suspended sentence, to 15 months' imprisonment with a non-parole period of nine months. There was a significant amount of presentence detention, and it was from that sentence that you had been released on parole a couple of months before the assault against Mr James.
37Apparently a Community-Based Order, an earlier suspended sentence, and then a term of imprisonment and the grant of parole, had not sufficiently impressed on you the need to stay out of trouble, and in particular to restrain yourself in circumstances where you might be tempted to violence. This means that specific deterrence, that is to try to deter you from further offending of this nature in future, must also be a significant factor in my sentencing of you.
38I turn now to your personal circumstances. You are now aged 30 and were 29 at the time of this offence. You have one sibling, your younger brother Rhys.
39Apparently your father left the family when you were very young, and despite the support and stability of your mother who was a primary school teacher throughout your childhood, you misbehaved at school, were expelled from several schools, including primary school. If this was a response to upset and a sense of abandonment by your father, your behaviour did not improve when you were sent in your mid-teens to live with him. You abandoned school in mid teenage until your mother made you return to Year 11 when you returned to live with her.
40You told a psychologist, Ms Matthews, who assessed you for your court appearances in 2011 and 2012, that your father introduced you to cannabis use when you were 13, and that you used it daily from age 15 until Ms Matthews saw you. Her 2011 report also sets out extensive use of various amphetamines, including methylamphetamine and ecstasy. In August 2012, she reports that you told her that prior to going into custody, you had been using half a gram of methylamphetamine a day, and a gram or two of marijuana a day.
41Your counsel submitted that you had no history of drug dependence, but this seems to be habitual use at these times and together with some of your prior convictions, that include possession and trafficking of cannabis and amphetamines, I take you to have been involved in considerable drug use over many years. I accept that you ceased using drugs while in prison, and negative urine screen results in August 2013 and April 2014 confirm this. I also accept that while living with your mother since being granted bail, she would not tolerate you using drugs in her home.
42There is no suggestion that use of drugs was in any way connected with your commission of the offence for which I sentence you. Overall it will be your own decision whether to revert in future to drug abuse. You clearly can abstain if you wish to do so. In that sense, your rehabilitation will not be impeded by drug addiction unless you choose to revert to use or trafficking in such illegal drugs.
43You do have a sustained work history. After leaving school you did an apprenticeship as a brick layer, and seem to have maintained employment or work in that industry. You worked in the building industry and I have read two references - references from two of your former employers, one of whom appears to know nothing of your offending but speaks well of you, and the other who does know of the offending and has recently re-employed you since your release on bail. Apparently you left their previous employment and started your own business in about 2006 or so. I accept that you did maintain work for most of your adult years, until sentenced to imprisonment. This is an indication that if you decide to turn over a new leaf, you will have the ability to work, earn income and establish a responsible and stable lifestyle for yourself in the future. Again, that is a decision for you to make.
44As I have said, you were assessed by psychologist Ms Matthews before your court appearances in 2011 and 2012. Her reports set out your personal history, some of which I have already indicated including feelings of abandonment and some disruption in your childhood to do with your father's absence, although your mother maintained a stable influence for you and your brother.
45I have also outlined the history that Ms Matthew outlines of your drug use over the years. Ms Matthews also reported in 2011 that you had suffered injury and been traumatised by a home invasion in 2007 in which you were stabbed, requiring treatment in hospital but which you did not wish to report to police. Further, in her 2012 report, she outlines your account of having a close friend commit suicide in circumstances that you saw his body, and that you had found the whole event extremely traumatic and that it continued to invade your thoughts. Her opinion was that you satisfied some but not all of the diagnostic criteria for post-traumatic stress disorder at that stage. She expressed the view in 2011 that you could find imprisonment more difficult or onerous due to that condition. Another upsetting event which occurred when you were in custody in 2012 before the Magistrates' Court sentence was that your house was the subject of an arson attack, and in that event your dog died.
46These are all events which had occurred and affected you emotionally before you were sentenced to imprisonment in October 2012, and also before you were released on parole and committed the assault for which I am now sentencing you. It is not suggested in this case that any symptoms of post-traumatic stress disorder, if indeed you were still experiencing them when you kicked Mr James, could operate to moderate sentencing factors of general or specific deterrence, and I have already indicated that I exclude as a reasonable possibility that your culpability was lower because past trauma led you to act as if you were expecting Mr James to attack you.
47It was submitted by your counsel that I should take into account what is referred to as the fifth head of the Verdins principles - that you would find imprisonment more onerous than someone without symptoms of PTSD. Since Ms Matthews gave that opinion in 2011, you committed several more offences for which you were imprisoned in 2012, and in total have spent 26 months in prison since then. I do not know if there are any such symptoms still being experienced, and there is no up to date psychological report as apparently funding was not available for it although an adjournment was given for that purpose. I do not regard the opinion of Ms Matthews on this issue, that is that you would find the serving of time in prison more onerous, as carrying much weight at this stage given the intervening events.
48Although you were convicted after a trial, I am told that you offered to plead guilty to this charge on the second day of trial and before empanelment of any jury, and even more significantly that last December - that is more than nine months before the trial started - you offered to plead guilty to a more serious charge of recklessly causing serious injury to Mr James. These offers were not accepted by the prosecution, but you are entitled to the same degree of leniency for the utilitarian value of avoiding the cost of a disputed trial as if the offers had been accepted and the trial avoided. That would also have spared a number of witnesses not only the inconvenience but also the stress of being cross-examined in the trial.
49Your offers were not at the first available opportunity, as both were well after a disputed committal hearing at which various witnesses were cross-examined, but I note that Mr James was not, because just as he could not give evidence at the trial because he has no memory of the events, he was not called at the committal hearing. Nevertheless, there would have been considerable utility if the offers to plead guilty had been accepted, in particular the early one, and I give you credit in the sentence as if you had pleaded guilty on that basis.
50However, it does not seem to me that I can infer much genuine remorse for your actions from the earlier offers to plead guilty. That is partly because the keeping live of issues in the trial of both causation of serious injury, and intention to cause injury or serious injury, reflect that your proposed acceptance of responsibility for your actions through such plea offers was not unequivocal.
51I have also taken into account the sentence imposed on your co-offender Sarah Ellis. She pleaded guilty to a single charge of recklessly causing serious injury to Michael James, and was sentenced to two years and six months imprisonment, with a non-parole period of 15 months. I must consider whether your positions are comparable such that a different sentence from hers would entitle either of you to a justifiable sense of grievance, if the same sentence were not imposed on both of you.
52Her role in injuring Mr James was more extensive, in that she accepted involvement not only in acting together with you in your kicking of Mr James' head, but also for earlier approaching him twice and punching, or attempting to punch him in the face, and also for her kick to his head seconds after he fell to the floor after your kick.
53Also she accepted that these actions in combination have caused him serious injury, and the charge she admitted was a more serious one than the one on which the jury ultimately found you guilty. However, she was 19 years old at the time, with no prior convictions, compared with your being ten years older, having a prior criminal history including for violence, and in particular your being on parole at the time.
54There are sufficient differences between your two situations to justify different sentences, but there are also in my view some factors which balance each other out.
55I must also take into account the total time you will have spent in custody for this and the other offending over a similar period and take into account that although you are not a youthful offender, you are still at an age where a sentence should not be so crushing as to discourage you from attempting rehabilitation on your release from prison.
56You spent nine months in custody for a consolidation of multiple offences which occured over a period of at least two years up to April 2012. You were released only a couple of months before committing the assault on Mr James, and then spent another 16 months in prison having had the remaining six months of your earlier sentence called in by the parole board, and then about ten more months awaiting trial on the charge for which I sentence you. That of course will count towards the sentence I impose. You have therefore spent more than two years of the last two and half years in prison. The six months required by the Parole Board was related to the present charge as this offence breached your parole, but it was not a sentence imposed to punish you for this offence - it was the balance of the sentences imposed at Sunshine Magistrates' Court for multiple offences and for breaches of sentences for other prior offences.
57Nevertheless to take into account the total time you have been in prison over the last two and a half years, I have moderated both the form of sentence and term of imprisonment I intend to impose.
58Ms Churchill on your behalf urged me to impose a straight sentence of no more than 305 days which is your pre-sentence detention on this charge. As an alternative, she submitted that if 305 days imprisonment were not sufficient, then a Community Corrections Order could be imposed in addition to that period of imprisonment.
59The prosecution urged that a longer term of imprisonment be imposed with a minimum term set before you would be eligible for parole, allowing for the sanction and supervision of parole. Mr Fisher submitted that 305 days as a minimum term would not be outside an appropriate range but at the lowest end. To the extent that that might be interpreted as suggesting a range for the term of imprisonment, I am not to take it into account.
60Due to an amendment to the Sentencing Act that came into account last Monday, I have the power to impose a Community Corrections Order in addition to a term of imprisonment of up to two years. To cover this option I requested a pre-sentence report as to your suitability for a Community Corrections Order. As I have already canvassed with your counsel, you were reported as unsuitable owing to you having breached a Community-Based Order imposed in 2011, both by non-compliance and by further offending, and also having breached parole by this offending, all being relatively recent non-compliance with community corrections requirements.
61As to your non-compliance with the Community-Based Order, you told Ms Mathews in August 2012 and the officer assessing you last week, that you were affected by the death at the time of a friend. You told Ms Matthews that you saw this friend who had hanged himself. I am not in a position to assess whether having to discuss this with community corrections officers was the reason that you ceased to comply with that order. I accept that such an experience would have been very distressing and also unsettling. I am not convinced that it has a connection with the commission of the offence for which I sentence you, and it was some time ago.
62I have seen certificates showing that whilst in custody, both in 2012 and after your parole was breached, you have undertaken a number of courses to equip you with further skills, and I am told you also did that to keep yourself occupied. I am told that you have abstained from drugs while in prison and accept from the negative screens that that is confirmed.
63Since being released on bail in the last two months, you have obtained employment with a former employer as a bricklayer, and while living with your mother, have apparently remained drug free and stayed out of trouble. It is difficult to know whether you have in fact committed yourself to reform your previous ways. That will be in your own control, but as I have said, with work available to you and no general physical or mental health impediments, and drug use being entirely in your own hands, your rehabilitation is quite possible if you choose to build a responsible life for yourself.
64Taking into account all of the matters that I have outlined, I am of the view that only a term of imprisonment of longer than that which you have already served would be appropriate. I say that notwithstanding the urging of your counsel and the submission on behalf of the prosecution that the time already served would be, albeit at the lowest end, in a range for an appropriate non-parole period.
65I have considered imposing a straight sentence which once completed would mean your immediate release with no ongoing supervision by community corrections. Given your past history, I do not consider that to be in the community's interests, and to an extent not in yours. In the past you were not compliant with community corrections or indeed parole conditions in that you committed this offence whilst on parole. In my view you do need some supervision on release from imprisonment, either through the parole system or under a Community Corrections Order.
66I have decided in all the circumstances, and notwithstanding the assessment report I obtained, that it would be appropriate in your case to impose a term of imprisonment followed by a Community Corrections Order. That guarantees your release from imprisonment when the time I impose has been served but you would immediately commence a Community Corrections Order and its supervision.
67Would you stand up now please, Mr Diamond. Mr Diamond, are you concentrating? I am about to impose sentence. I am not sure if your client has actually been awake.
68MS CHURCHILL: May I approach, Your Honour?
69HER HONOUR: Yes.
70MS CHURCHILL: Thank you, Your Honour.
71HER HONOUR: Ms Churchill, I am not sure if - I am not expecting a medical assessment by you but I am not sure if your client - his head has been down throughout. I do not expect him to have to look at me, but I am not sure whether he has been following what has been said. Is he in a position to hear and understand the sentence?
72MS CHURCHILL: I have asked him if he is all right. Certainly I am not a doctor. He does not look well, he looks pale but I suspect that is in anticipation of what is coming.
73HER HONOUR: Yes. I will proceed with the sentence then. If there is some medication affecting him, it is better that it be known than not known but I am certainly not in a position to understand whether it is being unwell or is something else. I understand it is a stressful circumstance to have to go through to be sentenced and given that he realises now what is coming.
74MS CHURCHILL: Yes, Your Honour. I think that is what it is but could I just clarify with him if he's on any medication, Your Honour.
75HER HONOUR: Yes.
76MS CHURCHILL: Your Honour, he is prescribed Avanza. He does not have it with him, it is at his mum's house but he is prescribed Avanza so perhaps at the end when we discuss custody management, Your Honour, he can be seen by somebody.
77HER HONOUR: Right.
78Joel Diamond, on the charge of intentionally causing injury to Michael James, you are convicted and sentenced to a term of imprisonment of 14 months. I declare that 305 days of pre-sentence detention is to be recorded as reckoned served and that will be deducted administratively and recorded in the court records.
79In addition, on the same charge, I impose a Community Corrections Order to commence immediately after that term is completed, to last for 12 months with conditions of supervision, of a very small amount of unpaid community work of 25 hours, and that you be assessed and referred for relevant programs suitable to avoid re-offending. I have in mind that they are anger management or men's behavioural change programs but it is ultimately up to community corrections whether they assess you as suitable for and refer you for those.
80I must explain the terms and implications of the Community Corrections Order. The term of imprisonment does not need explanation but it has a finite end date. The Community Corrections Order includes the conditions I have just indicated of supervision, of unpaid community work, and of assessment for and referral to relevant programs to try to assist with avoiding you re-offending.
81In addition, it has all of the usual terms of a Community Corrections Order. I know they were explained to you last week, but they are in summary that you must report within two clear days, that will be after your release from prison, to a community corrections office; that you must obey all lawful instructions and directions of community corrections officers; that you must report to community corrections officers within two clear working days any change of address or of employment; that you must not leave the State without prior permission of community corrections officers and you must submit to visits from community corrections officers if they are required. Most importantly of course is that during the period of the Community Corrections Order, that is 12 months from the date of your release from prison, you must not commit any other offence punishable by imprisonment in Victoria. That does not mean that it has to be an offence for which you would necessarily receive a term of imprisonment but if it is an offence for which a court could impose imprisonment, it would breach the Community Corrections Order and that includes most of the offences of which you have been convicted over the years, including trafficking of drugs, driving whilst disqualified, all of the offences of violence for which you have been convicted in the past, and are now being convicted.
82If you were to breach the Community Corrections Order either by failing to comply or by further offending, you could expect to be brought back before me and to be resentenced in respect of this offence. Do you understand those terms and conditions? You are nodding, so that is a yes?
83OFFENDER: Yes, Your Honour.
84HER HONOUR: Do you agree that you would comply with such an order if it is imposed? Is that a yes?
85OFFENDER: Yes, Your Honour.
86HER HONOUR: All right. In addition I make an order for a forensic sample to be taken from you limited to a scraping from the mouth so that will enable your DNA details to be placed on the state's data base. That was opposed, but my reasons for making the order are the seriousness of the circumstances of the offence, your prior criminal history and because in light of both of those together, I consider it to be in the public interest. You can take a seat for a few minutes please.
87All right. Now, a Community Corrections Order will need to be produced and signed as part of that. I am prepared to make a custody note if that is sought. Your client would have medical records.
88MS CHURCHILL: Certainly.
89HER HONOUR: From his previous time in custody up till two months ago. I do not think that there is anything to be gained by adding the now out of date reports of Ms Mathews but if you want to add - I don't have anything from a GP?
90MS CHURCHILL: No, Your Honour. Perhaps if it could simply be noted that ‑ ‑ ‑
91HER HONOUR: He is believed to be taking Avanza, taking prescribed ‑ ‑ ‑
92MS CHURCHILL: Taking Avanza and perhaps he could be seen by the nurse or the doctor.
93HER HONOUR: Yes, I think that happens automatically.
94MS CHURCHILL: I am not sure, Your Honour, if it happens automatically or whether if Your Honour's notes on the remand warrant ‑ ‑ ‑
95HER HONOUR: I am prepared for there to be a custody order to that effect.
96MS CHURCHILL: Thank you.
97HER HONOUR: But my understanding is on this, that soon after arrival there is an examination.
98MS CHURCHILL: Yes, Your Honour.
99HER HONOUR: All right. We will have to have this order prepared, thank you. I will have that shown to counsel and if it's ‑ ‑ ‑
100MS CHURCHILL: It looks accurate, Your Honour.
101HER HONOUR: All right. I will have my associate take it for your client to sign and then I will sign it.
102MS CHURCHILL: Thank you, Your Honour. Would Your Honour mind if I approach as well.
103HER HONOUR: If you would like to approach as well, that's fine.
104MS CHURCHILL: Thank you, Your Honour.
105HER HONOUR: I have now signed that Community Corrections Order and there will be a copy made available for each party. Mr Diamond, I have also signed the order I said I would make in respect of the taking of your DNA sample. I have restricted that to a scraping from the mouth rather than blood sample but I warn you, as I must, that an authorised officer or member of the Police Force can use reasonable force to enable that forensic procedure to be taken if you resist. It is just a swab on the inside of the mouth and if you do not resist, it should not require very long at all or any intrusion. But force, reasonable force may be used if you try to resist. All right. I have signed copies of that order also. Is there anything I have not covered?
106MR FISHER: No, Your Honour, there's not.
107HER HONOUR: All right. Can Mr Diamond be taken from the court, please.
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