Director of Public Prosecutions v Do
[2018] VCC 369
•22 March 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Un) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 17-01372
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GON DO |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Arraigned 2017:Plea:6 February & 22 March 2018 |
| DATE OF SENTENCE: | 22 March 2018 |
| CASE MAY BE CITED AS: | DPP v DO |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 369 |
REASONS FOR SENTENCE
---Intentionally causing serious injury, Handle. Machete attack. Severe hand injuries and fractured skull. 40 year old offender at time of sentence, strong evidence of drug and social rehabilitation.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Foot | Office of Public Prosecutions |
| For the Accused | Ms L. Torres | Papa Hughes Lawyers |
HIS HONOUR:
1.Gon Do, you have pleaded guilty to two charges on this indictment, being one charge of intentionally causing serious injury and one charge of handling stolen goods. These offences are punishable by 20 and 15 year maximum terms of imprisonment respectively. You have a relevant criminal history, with a number of appearances for offences of violence, including an old appearance for recklessly causing serious injury.
2.The details of your offending are set out in Exhibit A, which is the written summary of prosecution opening that is dated 1 December 2017. I was told by your counsel, Ms Torres, that this was an agreed statement. It is a quite lengthy document. It was read aloud in open court on the day of the plea by the prosecutor. It will remain on the court file. In those circumstances, I really see no need to fully restate the sentencing facts in these, my reasons. I will not stray beyond those agreed facts.
3.Your offending was very serious as your counsel correctly concedes. Very briefly stated, on 6 November 2016, you attended at the house of your victim. You had known he and his wife for some years. You drove there in your car. You exited your car carrying a large machete. You walked up the drive shouting and swearing. Your victim was asleep. His wife, who had woken up, peeked through the door and saw you banging on the door. She recognised you. She woke her husband, who went outside to meet you.
4.You then engaged in a terrifying and unprovoked attack with a machete, swinging the machete at him. He initially put his hands up to block the blow and he sustained the first large laceration to his right hand. He tried to prevent further blows by grabbing at the machete with his left hand. He sustained grave hand injuries. Even as he then turned from you to seek refuge back in his house, you chased him. The attack continued. You continued to strike him with the weapon. Blows to the head, the back, knee and foot.
5.Having been dealt with in this way, your victim told you he would die if he was not taken to hospital. You drove him to the hospital, leaving him in the ambulance drop off zone. The injuries are summarised in paragraph 9 and 10. Also in the updated medical notes that were marked as Exhibit D on the last occasion and since then, the report from Jessica Newton, the occupational therapist, has arrived and that has been marked as part of that same exhibit. There are also photos which depict the size of the injuries and the site of the blows to the head, that is Exhibit B, though there are also black and white photographs within the depositions. These were dreadful injuries and they have been life altering, it is as simple as that.
6.You were interviewed by the police on 7 November 2016. You made a no comment interview, as was, of course, your right. You spent about 21 days in custody before then being bailed. You have done excellently on bail when you were on bail and I will return to this in much more detail later in these reasons.
7.A committal was conducted in July 2017. It is a bit hard to understand why, actually, but it was your right to do that. The victim and his partner were cross-examined. Again, I do not really know why. You were committed to this court and pleaded not guilty. That stance was maintained initially in directions hearings and then even after the matter was settled, you conveyed though counsel that you were disputing the facts and this would require the victim and his wife to be called as witnesses on the plea. Well, that came to naught, as by 8 December 2017, when I came into this matter, taking it out of the reserve list, I was told that it was no longer a factual dispute.
8.I had taken the matter out of the reserve list quite late in the day. It was evident that the matter could not be concluded on that date, so instead it was adjourned off to 6 Feb and on that occasion, the majority of the plea was conducted before me. Ms Torres, on that occasion, stated that the summary placed before me was an agreed one.
9.Well, the summary, as I have said, is much more detailed. It sets out in much greater detail the chronology of appearances before the court. At the end of the plea on 6 February I revoked your bail and I returned you to prison. Prison was inevitable. Your counsel was conceding that. It served no useful purpose, your remaining in the community.
Victim Impact
10.There are two victim impact statements that have been placed before me in this case. They were read aloud on the plea. There was one aspect of the wife’s statement that was not relied upon. That is the small portion that is crossed out on p.7. I have no regard to that portion. I have read them in their entirety since the plea and I am not going to descend to the full detail of those impact statements either. There is no need to, but I take them into account.
11.This was obviously a terrifying attack and one with very serious consequences. This man was right handed. He cannot use his right hand. He was a 41 year old labourer. He is left with very significant disabilities. The impact statement was written with his left hand. Just think about that. He has had all manner of surgical interventions, one of the most recent being the decision to amputate his right index finger. Your crime has affected every aspect of his life. Social , economic, psychological , physical and employment. All very much ruined by your conduct. So too has his wife suffered. She has witnessed this terrifying event and then she has been left to pick up the wreckage. That is not too strong a word for it, the wreckage of their lives.
12.I take into account the impact of your crime. It has been very sizeable and it will continue into the foreseeable future. Whilst your life has picked up very significantly since these events, theirs, of course, have been very much eroded. Their lives have been pretty much ruined. One hopes that there may be some improvement into the future, but it is undoubtedly the position that they will never forget this day and your crime will continue to have ramifications long into the future.
Mitigation
13.Now, Ms Torres, who conducted, if I might say so, both a realistic and an excellent plea on your behalf, raised, in the course of that plea, a number of matters in mitigation. She relied chiefly upon:
·your guilty plea;
·the relatively early stage of that plea;
·the presence of remorse;
·your most unfortunate personal background;
·your very strong sustained and genuine engagement in the efforts at rehabilitation since and consequently, your very good prospects of rehabilitation. There was a range of material including references, reports, records of attendance at Narcotics Anonymous meetings and evidence of clean drug screens. This was a case, she said, owing to the steps that you had taken, for there to be some degree of mercy in the sentence imposed.
14.She made some very brief submissions as to your son’s difficulties at school. She conceded that was not a sizeable matter on the plea. She made submissions as to how the residential drug inpatient component should be viewed in accordance with the recent decision of the Court of Appeal of Akoka. She also made submissions as to the level of seriousness of the offending, suggesting that this was a mid-range example of the offence. She made some submissions as to the role of drugs and the mental illnesses detailed in the reports of Drs. Helman and Kwong. She had, at one point, argued for the application of two principles from the case of Verdins, being the 5th and 6th limbs from that case, dealing with custodial impact. She has explicitly this morning abandoned any reliance upon the 6th limb of that case, owing to the report of Dr Deacon, which has been received late in the piece, from Forensicare that was a court ordered report, which is now marked as Exhibit E and following consideration of that report and the other reports and a consideration of all the materials.
15.As I have said already, she relied upon a very large array of positive character references, marked as Exhibit 10 on the plea. Many of those were from people that you have met as you have attended Narcotics Anonymous, or otherwise in your journey towards rehabilitation. Many were present physically on the last occasion of court on the day of the plea. From memory, there were a large number also present back in December and a large number are present here again today. You have got a lot of support.
16.Ms Torres relied also upon a body of medical and expert material dealing with your deteriorating mental state in the lead up to the offence. However, she was not pointing to any reduction in your culpability. Her instructions were that you attended over a drug debt and to recover some tools. It is incredible in the circumstances that you moved directly into the physical attack, as you did.
17.There were many other aspects of the plea, including, of course, the evidence called from Dr Humphries and one of the character referees; Michael Sgro. Despite all of this material and there was much material in mitigation, sensibly Ms Torres conceded the inevitability of a term of imprisonment and one of a dimension requiring the fixing of a non-parole period. The various matters raised, she argued, should moderate that sentence. She referred me to the sentencing snapshot and to one so-called comparable case of Webber.
Prosecution
18.Ms Foot did not need to make many lengthy submissions, either today, or on the last listing of the plea and that was owing to the sensible way the plea was conducted and the direct concession made by your counsel as to the matters of significance here, as to the weight that had to be given to various sentencing purposes and as to the inevitability of a prison sentence. Ms Foot submitted on behalf of the Director that this was very serious offending, though she recognised, as had to be recognised, the existence of a number of mitigatory matters here.
Background
19.I turn only very briefly to your background. Ms Torres outlined your personal background to me in some detail. There is also reference to it in some of the other written materials that have been placed before me, including the written outline and Dr Humphries descends to great detail as to that background. I accept the personal background that has been placed before me. I see no need, no utility in then setting it all out again in these reasons. You know what your background is. I will provide a very broad summary of it.
20.You are now forty. You had, in my judgment, a very disadvantaged background growing up in relative poverty in Vietnam. You left that country with your family as refugees in 1988, travelling via Malaysia. You arrived on these shores therefore with virtually no English and school unsurprisingly was very difficult for you. It was certainly not a success.
21.You have had a very patchy at best employment record and a long term problem with a variety of drugs. You are married with three children and one of those, it would seem, has found schooling challenging, as the reports of Mr Orkin and Mark Lewis make plain enough. You now plainly have family support and support from others in the community. I suspect you must have seriously tested many relationships in the past, but your family stand by you, no doubt owing to the excellent efforts you have made since being bailed.
22.Since being bailed, you have done remarkably well, spending all up some 14 weeks in intensive residential drug rehabilitation and the balance leading up to my remand of you, in a very dedicated rehabilitation program. It has been very successful to date. You could not have done much more than you have and that included attendances at Narcotics Anonymous and community meetings and urine screens. You have ticked all the boxes as the evidence, the reports and those many references make plain enough. You also were engaged with study, which is no small feat for someone from your background. You have been studying, doing a youth work diploma. So you have family support as well. There is a strong reference from your wife amongst those materials.
23.I do take into account your disadvantaged personal background insofar as I am permitted to and I am speaking now of the early background, including the position you found yourself in upon coming to this country. I pay regard to what was said of that, that sort of matter in the Court of Appeal decision of Marah. It makes more impressive the changes which have ensued whilst you have been on bail and up until my remand of you.
24.You undoubtedly have a relevant criminal history. It is not a particularly long one, but you have been dealt with for crimes of violence on a number of occasions. You were dealt with in this court in 1998 for affray and recklessly causing serious injury. There was a recklessly causing injury dealt with in July 2011, trafficking in 2010 and an unlawful assault in 2015. Drugs obviously are implicated in this attack, probably both in terms of reducing your inhibitions and also more directly, it is said, in that there is said to have been a drug debt owed by your victim to you.
25.I was told of a couple of other matters in the criminal history, not prior convictions obviously and even not said to have been committed subsequently to this matter. One was a handling offence committed in January 2015, for which you were placed on a community corrections order, which you seemingly completed. The other was an allegation of assault and that is all it is, an allegation. It has not been dealt with. We do not know how it will be dealt with and it is an allegation predating these matters anyway. It is outstanding and as such, I put that aside altogether. It is obvious enough, given the nature of this crime and I am speaking of the intentionally causing serious injury and your past history before the court, that I must deter you, though of course I cannot ignore the powerful evidence of your efforts to date.
Guilty Plea
26.I turn to some of the other matters raised in the plea of mitigation. Firstly, your guilty plea. A committal was conducted here. As I said earlier, it is something of a mystery as to why that was thought appropriate. Your counsel suggested the issue of intent was in issue. Your victim and his wife were cross-examined. It is a bit of a shame that they were, but again, it was your right to approach the task in that way.
27.You then pleaded not guilty in the Magistrates' Court and you came to this court intent upon running a trial and then even when it settled there was said to be a factual dispute to be waged. It is plainly not the earliest of pleas. Your counsel concedes that, but there are plenty enough that are later even than yours. I will still treat it as a relatively early guilty plea. It still has obvious utilitarian value. You took responsibility for your acts. The community has been spared the time, the cost and the effort of an actual trial up this court.
28.You have, in these various ways, facilitated the course of justice and I will pass a lesser penalty because of your guilty plea and the stage of that plea. The discount simply cannot be of the same dimension as would be afforded to someone making full admissions and pleading guilty at the very earliest stage. That is not what has happened here.
Remorse
29.As to remorse, I make the following observations. You have chosen to cross-examine your victims at committal. However, the matter settled pretty swiftly up in this court. You have pleaded guilty. You have done so at a relatively early stage and a guilty plea is usually evidence of some remorse. Your counsel was suggesting that there was some remorse here. There is reference to remorse in a number of the written references and reports and I am prepared to find that you do actually harbour, or feel remorse for the crime that you have committed and I am speaking of the intentionally causing serious injury and I take into account your remorse in mitigation of sentence here.
Rehabilitation
30.What then do I make of your prospects of rehabilitation? It is to those prospects that I now turn. It is often quite difficult, sitting up here making judgments as to a person’s future prospects. It is never easy. You have made excellent efforts over a large period of time since you have been bailed. Of course, those efforts have to be seen in the context of there being strict bail conditions and your understanding of the impending court case. You have a supportive family, but you did at the time of these crimes. You were back in study until I remanded you.
31.You have a relevant criminal history, but more significantly though, some long-term issues and problems with drugs. You are clearly not out of the woods, not by a long shot. Still, when I read those materials placed before me, including the very many powerful references, you have put your best foot forward and for a very sizeable period. Not just for your own benefit, by the way. It has also seemingly benefitted many others, as some of the references make plain enough.
32.There is evidence called directly before me, from Dr Humphries and from Michael Sgro and it was powerful indeed. It is backed up and supported by much of the other material placed before me, including their written reports and the very large body of references from others who have come to know you. It is not mere window dressing for a plea. Sometimes courts see that.
33.I do not think that is what I am dealing with here. I think you have taken steps to alter your life, to change it for the better and, to a large extent, it has been actually transformed. You have, it would seem, a different attitude to your wife, to family, to the community and even to yourself. You were actually giving back to others, even as you waited for the case to come to an end. So you have been living a very different life from the life you were living in the lead up to the attack. Regrettably, as I have said already, your victims lives are now also very different, but the alteration in their lives has headed altogether in the other direction. Their lives have been greatly damaged by your conduct.
34.I am very impressed by your efforts. There is also the aspect of your mental health that I have not spent much time dealing with, to this point. Firstly, evidence of its deteriorating state at around the time of the events. You hopefully will have a much better insight into the dangers of drug use for you. Of the way that they can alter your attitudes and conduct and disinhibit you. You know what you have done. You know how serious your crime is and I am speaking again of the intentionally causing serious injury. Additionally, there seems now to be a much firmer diagnosis in terms of your mental health issues. That is, a diagnosis of schizophrenia and it is being quite well controlled at the present with medication.
35.I believe, if you can remain drug free into the future, that you have very good prospects of rehabilitation. Now, that is no simple business. It is an “IF”, because you have struggled with drugs for many years, but I see some very strong signs here that you will give it your best shot, which is what you have been doing already for a sustained period. Of course, conversely, if you cannot remain drug free, your prosects of rehabilitation will pretty much plummet.
Time in a rehabilitation facility
36.Dr Humphries gave detailed evidence as to the actual regime in relation to the period of 14 weeks that you spent in a residential rehabilitation facility. There were two cycles of 28 days at the Toorak facility, followed by the remainder at the Brunswick facility. Now, this was not prison, that was obvious, but nor was it any picnic for you. There was a very sizeable reduction in your personal freedoms for that entire period. You were, for instance, not free just to walk away from the premises alone. There were some outings, but they were very much connected to your rehabilitation, or to your court case, or the need to report to police on bail. You could go to a gym. There were some home visits.
37.The reality is though that this period was onerous and it was dedicated to your rehabilitation and by the way, it has produced excellent results leading, as it did, into a lengthy program of non-residential rehabilitation. In any event, I do make an allowance for that 14 week period. I take that period into account directly. It is appropriate to take it into account in the manner contemplated by the case of Akoka.
Verdins
38.Much material was placed before me dealing with aspects of your mental health. It is clear enough that you were experiencing some deterioration in your mental health in the lead up to the offence. There is a report that says as much. However, it is equally clear that you were using drugs and indeed, did on the day as well. There are a number of reports commenting on your presentation and likely diagnosis. The opinions have not been uniform and on occasion, a doctor or counsellor has even changed their view, which is, by the way, perfectly understandable. The early suspicion, it seems to me, was of this being a drug induced psychosis, or schizophrenic illness.
39.However, the longer you remained drug free and yet continued to suffer from symptoms, the less likely that diagnosis was. The less likely it was it was drug induced, the longer you were remaining free of drugs. It seems now to be pretty much the uniform view that you suffer from schizophrenia. Well, that is a serious mental illness. There is the fresh report from Dr Deacon. That deals with this aspect as well. The condition is being treated by way of medication and that treatment, it would seem, is relatively successful.
40.There are side effects, which are unpleasant for you. You are also still having some hallucinations and some feelings of paranoia. You are anxious, owing to some of the auditory hallucinations and you are suspicious of other inmates. As a result, you keep to yourself. You are not wanting your family to visit, which I think is a dreadful mistake and you will need to rethink that. You are going to be in prison for some years.
41.Now, your counsel was not suggesting any reduction in your culpability. There was just no reason to think that the illness had any role to play. She was never suggesting any reduction in culpability here. She abandoned her submission as to the application of the 6th limb, as there was not material supporting that limb in her judgment. I am sure she was right in that respect. She has argued for the application of the 5th limb from the case of Verdins. That is, an allowance being made for your having an increased custodial burden, owing to your illness. The Crown accepted that submission. Well, I do as well. I am prepared to find that there is an increased burden suffered by you, owing to your illness. It is not a major matter in mitigation, I must make that plain. You are doing quite well in custody, but I am prepared to find an increased burden and so that 5th limb is made out.
Purposes
42.I am required to take into account current sentencing practices. I am required to take into account a large range of matters, including, of course, the impact of the crimes upon a victim. Current sentencing practices are but one factor. They are not a controlling factor. I have looked at a variety of materials, including the Sentencing Advisory Council snapshot, to which reference was made earlier today, that is 187 of 2016, as well as the JCV sentencing manual overview of sentences in this case. I have looked at the summaries as well. Ms Torrres took me to the snapshot earlier this morning and also to a single case that she placed before me of Weber.
43.The snapshot demonstrates that the most common prison sentences for intentionally causing serious injury fell within the band of four to five years. There was a sizeable number falling in the band of five to six years, but of course, the range of sentence runs from sentences of less than one year, up to sentences of close to 15 years. Statistics always have inherent limitations. So too do other cases. Statistics tell me nothing about the individual facts of that particular case, or that particular offender, or that particular crime, or that particular impact.
44.Other cases also have significant limitations. They are not precedents. I have been taken to one case, that of Weber, that is 2017 VSCA 93 and I have read that case in the period that I have been off the Bench. Even before reading it, even as Ms Torres placed before me a summary of it, it was evident to her and to me that there were many and varied differences. Well, there are, having read it, there are differences in each direction, actually. Some things in Weber's case are not present here. Some things present here are not present in that case. Different crimes. Different mechanism. Different injuries. Different consequences. Different matters in mitigation, including, in that case, two limbs of the case of Verdins having application. It was undoubtedly, in Weber, a dreadful attack, no question about that, with life threatening impact, life altering consequences. There was no weapon used. There was no past association. There was less premeditation. The case is perhaps more of use speaking as it does of matters of principle and the increases in sentences imposed for this crime, that is, intentionally causing serious injury, over the years.
45.At the end of the day, I have to pass an appropriate sentence in your case. That outcome is not driven by what has happened in other cases, or by statistics. As I say, other cases, they are not precedents and statistics disclose none of the essential detail as to the nature of the crime, the presence or otherwise of aggravating features, of any of the personal factors at play.
46.I have taken into account the submissions made by your counsel in what I said and say again, was an excellent plea conducted on your behalf over two dates. I have taken into account the various exhibits that have been placed before me as well. It would take forever for me to go through those various materials, at least in my reasons for sentence and I am not going to. These reasons will be quite long enough without me going into the references and quoting chapter and verse from them. I have read them all again. I have read all of the material again. I take all the material into account.
47.I have not even mentioned in detail the reports dealing with your son. They are not sizeable matters in my task. Your counsel said as much. He had some issues at school, he has had for many years. He is doing pretty well and there is no suggestion that there is any third party hardship at play here that requires exceptional circumstances to be made out and your counsel did not even suggest that was a possibility. She conceded that that was a modest matter. Still I take it into account.
General
48.I talk now more generally as to matters that the court must pay regard to. There are a large range of matters that I have to take into account.
49.I have to take into account the maximum penalty, 20 years, for Charge 1, 15 years for Charge 2. I have to pay regard to the impact of your crimes. It has been profound. You know that. You have heard the victim impact statement material read aloud. You have seen the photos. You have heard the concession made by your own counsel. Your victims will never forget this awful event. Your direct victim will carry the reminders of your crime for the rest of his life. Its impact will persist forever into the future. It has altered his life.
50.Now, your prospects of rehabilitation are also a highly relevant purpose. They are very good subject, to continued abstinence from drugs, but they are not the only matter that I must consider. If they were, sentencing would be a good deal easier than it is, but I have to pay regard to many other purposes of sentencing. Not just your needs. Not just your rehabilitation. One obvious purpose of sentencing required to be given significant weight in this case is punishment. It is an important purposes in this sort of case. You must be punished for your crimes, justly and proportionately.
51.I must also denounce your conduct. Again, that is an important purpose. Community protection is also a purpose of sentencing. It is not something I can ignore, given the nature of your crime and the nature of your past appearances before the Court. This was quite startling offending in a public place. You were wielding and using a weapon and a bad one at that. Specific deterrence also has a role here for the same reasons. That is, the need to deter you from offending in the future. Whilst I am very impressed by your efforts to date, there is still a need to deter you. Specific deterrence will also be further served, I am sure, by the sentences which I will soon pronounce. Given the evidence of your positive response upon being released on bail, it seems to me that I can, to a degree, reduce the weight to be given to specific deterrence and community protection. I am not saying, though, that I can ignore those purposes. I cannot and I will not. Merely, that there can be some reduction in the weight given to them.
52.General deterrence, however, is a different proposition. It is of great importance in this case. Armed attacks in public places must be roundly denounced. They must be very firmly discouraged by the courts. This court must seek to deter other people in the community who might be minded to commit this type of offence. That is the principle that us lawyers refer to as general deterrence. It is a matter I must pay very strong regard to, in relation to Charge 1. There is no question about that. Your counsel concedes as much. The message must be sent loud and clear to likeminded potential offenders that that sort of crime of violence involving the carriage and the use of a dangerous weapons will be met with a very strong response at court.
53.I have to pay regard to the gravity of the offence before the court. It, and again. I am speaking of the intentionally causing serious injury, was very serious offending indeed. The definition itself of serious injury is easily satisfied here. It is worth reminding you what that definition is. Serious injury is injury including the cumulative effect of more than one injury that endangers life, or is substantial and protracted.
54.Well, there is serious injury here, no question about that and you intended to cause serious injury. That is the nature of this offence. There is some planning here obviously enough, in that you have driven to the house in a car. You have taken the machete from the car. You then used it quite mercilessly, with multiple blows. That is, multiple blows with an obviously dangerous weapon and at least two to the head and there was no provocation that I can see. Maybe there was a debt. Who knows and what if there was? The attack did not even commence with any endeavour to recover money or tools. You launched straight into it.
55.As I say, straight into a merciless attack upon an unarmed and hence vulnerable victim. You were very fortunate you did not kill him. You have maimed him instead. You intended to cause him serious injury and you succeeded handsomely. As I said in the course of the plea, I say again now, there was no disconnect between the mechanism that you used and the actual injuries caused, as there sometimes is. He did not, for instance, fall to the ground and sustain serious injury in that way. His injuries were precisely the sort of serious injuries contemplated by that sort of mechanism, by the use of that sort of weapon, all of it in a public place and he, your victim, summonsed out of his home to meet his fate. The context was a drug debt. This was no minor example of this crime.
56.Of course we regrettably, as judges, see injuries that are even more catastrophic than these. I am speaking of unfortunate victims reduced to almost a vegetative state, or a wheelchair for life. Well, that is not what we are dealing with here, but it is always a matter of degree, I suppose and this sort of grading of injuries and grading of offence seriousness is of no comfort to your victim. These serious injuries are nowhere near the lowest level example of such injuries. They will mar your victim's life forever. He is scarred, he is disabled, by you, by your crime and the mechanism was a dire one. I do not accept that the offence facts fall at the mid -level. This offending falls well above the mid-level, in my judgment.
57.Your counsel correctly conceded the inevitability of a term of imprisonment and one of a dimension requiring the fixing of a non-parole period. That submission was undoubtedly correct. I accept it. Your crimes have left me with no choice but to impose a prison term. In imposing the individual sentences, the head sentence and the non-parole period, in each instance I take into account the many matters in mitigation. The question always is, how long is required and what style of non-parole period is required?
58.I have to proceed on the footing that you will serve every day of my head sentence. It is not for me to speculate as to what the Adult Parole Board may or may not do. I am not allowed to. I am not allowed to speculate as to whether you will be released on parole. That is not something that I can determine. It is not something that I can even speculate about.
Totality
59.I pay regard to the principle of totality here. I have got these two offences occurring in the similar timeframe. They are very different offences and the handling, frankly, there has barely been a word spoken of it and for good reason. It is completely overshadowed in seriousness by the Charge 1 on the indictment, being the intentionally causing serious injury.
60.I have taken a last look at the effect of the sentences that I will pronounce to ensure that they are commensurate with the gravity of your overall offending, and that they are not crushing upon you.
61.I do accept that as serious as the offending is, the intentionally causing serious injury, that I must not let that swamp all other considerations. That cannot be allowed to happen and it does not. As serious as the crime is, there are powerful materials. There is the evidence placed before me. There are a number of matters in mitigation. It is not a one dimensional approach of looking at your crime. There are many other things that a judge must look at and I do.
62.Your rehabilitative efforts, as I have commented on already, are significant and they suggest to me that some level of mercy can be engaged in here. However, I am afraid you have committed a very serious example of a very serious offence and I am not permitted to impose a sentence which is inadequate. Your offence of intentionally causing serious injury was a very serious instance of it. It was not the earliest of pleas by any stretch of the imagination. There was the contested committal I have spoken of, where the victim and his wife were called as witnesses and the matter came to up this court as a trial and even when it settled, you were still wishing to engage in a factual challenge. That was the position until December of last year. As to the crime, it was an unprovoked public attack upon a defenceless and surprised acquaintance in the vicinity of his home, using a seriously dangerous weapon and causing, as is conceded, devastating injuries with a life -long impact.
Disposal & 464ZF Orders
63.There are ancillary orders for me to sign. I will sign those now. Firstly, there is an application for a disposal order. I am satisfied that it is appropriate to make that order, under the provisions of s.78 of the Confiscations Act, for the various matters referred to in the schedule attached to the order. I order, pursuant to the provisions of the Confiscations Act, that the forfeiture of the state of the property referred to and I direct that it be handled in the manner directed in the order itself, which I have already now signed. In addition, there is an application for a forensic sample, for the taking of a scraping from your mouth. There is no opposition made to this order being granted. I believe it is open, indeed, appropriate, for me to make the order. I order, pursuant to s.464ZF that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with the provisions of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. I have made that order in relation to these matters, owing to the seriousness of the circumstances of the offences, the presence of the prior convictions, the fact that it is not opposed and I judge it to be in the public interest. We are talking here about a mouth swab.
64.That is what I am authorising, Mr Do. So the authorities will, at an appropriate time in custody, come and have a swab run around the inside of your mouth. It is not a difficult or invasive business. I have not authorised a blood sample at this point. I think the least invasive procedure is the one that I should countenance and that is what I have done. They can use reasonable force to take the swab. Of course, if they are not successful, no doubt the authorities will be back before me, making application for a blood sample, but it should not present any issues, I would not have thought.
Sentence
65.Yes, if you would stand up, please?
66.On Charge 1, that is the charge of intentionally causing serious injury to Matthew Sanders, I convict and sentence you to six years' imprisonment. That is the base sentence. On Charge 2, I convict and sentence you to one month's imprisonment. That sentence will be served entirely concurrently with the base sentence.
TES
67.So that produces a total effective sentence of six years' imprisonment.
Non Parole Period
68.I fix a period of three and a half years', during which you will not be eligible for release on parole.
Section 18 PSD
69.Grab a seat please? You have been in custody already, following my remand of you the other day. That period, from then until now and the earlier period of 21 days totals 65 days and it is that period of 65 days pre-sentence detention that you have already served that is to made the subject of this s.18 declaration. It is to be entered into the records of the court.
6AAA
70.I have taken into account your guilty plea. Had you pleaded not guilty and been found guilty of these matters following a jury trial, I would have sent you to prison for nine and a half years. In those circumstances, I would have fixed a non-parole period of seven years and that declaration also is to be entered into the records of the court pursuant to s.6AAA.
71.Let me see if there any other matters? Ms Torres, Ms Foot, is there any other matter I need to deal with at all?
72.MS FOOT: No, not from this side of the Bar Table.
73.HIS HONOUR: No?
74.MS TORRES: No Your Honour.
75.HIS HONOUR: All right, well, thanks very much, each of you, for your assistance. You will go down and see your client downstairs, Ms Torres, will you?
76.MS TORRES: Yes I will, Your Honour.
77.HIS HONOUR: Yes, all right, well, thank you. Again, thanks for your efforts. I'll sign that formal order in a moment.
78.MS TORRES: If Your Honour pleases.
79.MS FOOT: Your Honour pleases.
80.HIS HONOUR: Yes, look, I've signed that order then. So, Mr Do can be removed. Thank you. Yes, 9.30 tomorrow then, thank you.
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