Director of Public Prosecutions v Evans&Ors

[2015] VCC 1804

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01937
CR 15-01938
CR 15-01939

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON EVANS
LUCAS MILNE
BRADLEY THOMPSON

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	8 December 2015
CASE MAY BE CITED AS:	DPP v Evans&Ors
MEDIUM NEUTRAL CITATION:	[2015] VCC 1804

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Rose QC	Office of Public Prosecutions
For Accused Evans	Mr S. Moglia
For Accused Milne	Mr J. Saunders
For Accused Thompson	Mr P. Casey

HER HONOUR: 

1Jason Evans, Bradley Thompson and Lucas Milne, you have each pleaded guilty to one charge of intentionally causing injury.  The maximum penalty for that offence is 10 years' imprisonment.

2The circumstances of your offending are set out in the prosecution opening read in open court this morning by the prosecutor.  I do not propose to recite that document in full now but I direct that a copy be annexed to these sentencing remarks as the agreed factual basis upon which you have pleaded.

3In essence, however, on 28 July 2014, you were all prisoners at Barwon Prison.  The victim in this matter, Gavin Preston, was also a prisoner, having been transferred from Port Phillip earlier in the day.  Upon arrival at the prison, Mr Preston was released into the mainstream population and he attended a unit known as Eucalypt.  Outside the unit, he met a number of persons known to him and he was greeted by them before a number of prisoners moved to a picnic table outside the unit.

4You, Mr Milne, and you, Mr Evans, were seated at the table, and Mr Thompson, you initially ended up standing behind Mr Preston who took a seat.  During the course of the gathering, you, Mr Thompson, walked back towards Eucalypt unit before returning to the table and again standing behind Mr Preston.  You were at this time in possession of what is colloquially known as a shiv, and you used it to strike Mr Preston using your right hand.  You, Mr Evans, and you, Mr Milne, along with other prisoners then engaged in what can only be described as a frenzied assault upon Mr Preston.  He was forced back into a garden bed and the assault against him continued involving six prisoners.  A number of weapons were used in the assault.  The incident was captured on CCTV.

5Prison staff intervened, and you, Mr Thompson, were observed to throw a weapon over a fence.  It was subsequently recovered.  You, Mr Evans, and you, Mr Milne, ended up jumping in an outdoor swimming pool and dropping your weapons which was subsequently recovered and described as two Stanley-type blades in White Ox brand tobacco pouches.

6As a result of the assault, Mr Preston sustained five stab wounds to his upper back, two stab wounds to his left arm, two stab wounds to the right side of his neck.  In addition, he had multiple lacerations across his face and head, and a 15 cm laceration down the right side of his jaw.  He was conveyed to St Vincent's Hospital and his more significant injuries were treated by way of suturing although it was noted that many of the wounds were in fact superficial.  He was diagnosed as having a large left pneumothorax which resulted in significantly decreased airflow to his left lung.  He was treated and this resolved.  Mr Preston spent three days in hospital.  He has declined to cooperate with the police in investigating this matter in any way.

7It is asserted by the prosecution and not disputed by you upon your plea that each of you was a member of a group known as 'Prisoners of War', and it is believed that there had been a previous incident between Mr Preston and another member of that group. 

8You were all interviewed at Barwon Prison on 16 January regarding the assault and you exercised your rights not to answer questions in relation to the matter. 

9You were all initially charged with causing serious injury but the prosecution upon subpoenaing relevant medical material determined that serious injury could not be established.  Accordingly, on the day these matters were listed for committal hearing, it was indicated that the prosecution would accept pleas of guilty to charges of intentionally causing injury and would not oppose summary jurisdiction.  The magistrate, however, declined to exercise summary jurisdiction and the matter proceeded by way of straight hand-up brief to this court.

10Each of you entered pleas of guilty to the charges at an initial directions hearing on 12 November.  You each fall to be sentenced on the basis that you were acting in a joint criminal enterprise in a concerted attack upon Mr Preston.  I note that Mr Preston is fortunately described as recovering well from his injuries.

11This is on any view serious offending.  I have seen the video which makes clear that this was an unprovoked attack on a man who was, due to circumstance, largely defenceless.  It involved the use of weapons, multiple offenders and significant violence in a prison setting.  As was said in De Castres, deterrence assumes particular importance as a sentencing principle where the offending takes place in a custodial setting.  His Honour Justice of Appeal Vincent remarks in Devries were quoted and I think with respect are apt: "Our prisons must not become jungles with their own subculture and courts must play their part in handing down sentences to discourage such offending."

12I now turn to matters personal to each of you.

13Jason Evans, you have admitted the contents of a criminal history which discloses a history of appearances before the criminal courts.  Your history commences in 1997.  At that time it largely involved matters of dishonesty and what might broadly be described as street offending.  By June of that year, you had been sentenced to 18 months in a youth training centre.  In 1998 at Kyneton Magistrates' Court in relation to charges of criminal damage and recklessly threatening serious injury, you were sentenced to your first term in adult custody.  In the years that followed, you appeared on numerous occasions in relation to dishonesty, driving and street offending.  Your history also discloses that you clearly had issues with drugs of addiction.  Numerous dispositions were tried including a combined custody and treatment order. 

14Significantly, on 10 June 2004 before this court, you were convicted of two charges of armed robbery.  You were sentenced to be imprisoned for a total of eight years with a non-parole period of five.  Upon appeal, you were resentenced to a total effective sentence of seven years and five months and a non-parole period of four years and five months.  During the currency of that sentence on 14 January 2005, you were convicted of charges including robbery and sentenced to be imprisoned for 18 months; 12 months of that sentence was to be served cumulatively upon the sentence you were then undergoing. 

15On 5 February 2010 at this court before Her Honour Judge Pullen, you were again convicted of armed robbery together with a charge of recklessly causing serious injury and a number of other offences.  You were sentenced to be imprisoned for a total of six years and six months with a non-parole period of five years and six months.  31 days was reckoned as served.  Your end of sentence date is October 2016, taking into account cumulation orders and a breach of parole. 

16Like your co-offenders, your history discloses in my view significant disadvantage.  I have been told you were addicted to heroin by 15, amphetamines followed.  It seems that your addictions to a significant degree have underpinned your criminal offending.  You have a very limited education, leaving school in just Year 8.  You were in adult custody by the time you were 19.  You are on any view, in my view, institutionalised.  Unless and until you grapple with the issues which have underpinned your very long offending history, you will undoubtedly continue to be trapped in the revolving door of custody.

17Lucas Milne, you have admitted the contents of a criminal history commencing in 1998 at this court whereupon charges including robbery being found proven, you were sentenced to be detained in a youth training centre.  Subsequent to that, you too have a significant history of dishonesty.  Significantly at this court in February of 2000, you were convicted of armed robbery and theft.  You were sentenced to be imprisoned for 12 months for the non-parole period of six months.  Subsequently on 15 June 2001 at the Ringwood Magistrates' Court, you were convicted of a number of offences including recklessly threatening serious injury.  You were again sentenced to be imprisoned. 

18Your prior convictions include reckless conduct endangering serious injury and what might be described as dishonesty, driving and street offences.  On 30 July 2007 at the Melbourne Magistrates' Court, you were convicted of reckless conduct endangering serious injury and you were sentenced to be imprisoned for 18 months with a non-parole period of 12.  You were sentenced at this court in June of 2009 in relation to charges including armed robbery, attempted armed robbery and robbery.  A total effective sentence of seven years and six months with a non-parole period of five years and six months was imposed by His Honour Judge Taft.  189 days were reckoned as served.  Your current end of sentence date is June 2016.

19I am concerned, as I am in relation to your co-offenders, with your conditions in custody even given largely they were of your own making.  The community's interests are not advanced by increasing the difficulty of a person's rehabilitation.  Humanity must in my view be maintained as that is the community's best protection into the future.  You have spent the majority of your adult life in gaol, and as the matter stands, you would be released without any support or assistance which is of course a matter of concern from the community perspective given your history and what must be seen as the very real risk of reoffending.

20By way of background, you are now aged 34.  You were born in Sydney.  You are the second of three siblings.  Your parents separated when you were seven after your mother, it seems, fled a situation which included domestic violence.  She re-partnered and you moved to Melbourne aged 12.  Your mother unfortunately found you too difficult to manage and you ended up in the custody of DHS.  You have nevertheless maintained contact with your mother over the years.

21By way of education, you commenced Year 7 at Bayswater Secondary College but you did not complete that year.  I have been told you were bullied as a result of your hearing difficulties and the fact that you needed to wear a hearing aid.  You have only functional literacy; you suffer from congenital deafness but it seems you can now competently lip read.  You have received disability services as a result of both these deficits and a borderline intellectual disability which apparently places you in the fifth percentile.  I note this is referred to in the sentencing remarks of His Honour Judge Taft.

22You have never found employment in the community; you have on occasion had some employment in custody.  You have a long and tragic history of substance abuse.  You were smoking cannabis by 12, you were using heroin by 15, you also have a history of abusing prescription medication.  It seems that for you too, a substance abuse history has largely underpinned your criminal offending.

23Bradley Thompson, you too have admitted the contents of a criminal history dating back to 2006 at Ringwood Children's Court.  You at that time had breached a youth attendance order and it is clear and conceded upon your plea that you in fact had an earlier history but as it was a Children's Court history in excess of 10 years old it was quite properly not alleged.  Nevertheless, in 2006 you had a breached a youth attendance order and you were resentenced on charges including injury charges and robbery to be detained in a youth training centre for six months.  Subsequent to that, you have a number of prior convictions for dishonesty and again what might broadly be described as street offences. 

24In addition, you have a history of violent offending, including on 25 January 2006 at Ringwood Children's Court, you were convicted of intentionally causing injury and ordered to be detained for six months.  In 2007, you were sentenced to your first term of adult custody.  You were aged just 17.  You have numerous prior convictions for possession of weapons.  On 5 March 2008 at this court, you were convicted of two charges of armed robbery, robbery and theft.  You were sentenced to be imprisoned for 40 months, a non-parole period of 18 months was imposed.

25Further at this court in September of 2010, you were again convicted of armed robbery, attempted armed robbery, recklessly causing injury, prohibited person in possession of an unregistered firearm and associated offending.  You were sentenced to be imprisoned for a total of seven years with a non-parole period of four years and six months.  Twelve days were reckoned as served.  I note that you were sentenced aged 20 but I have been told the offending occurred when you were 18.  I have had the advantage of reading the sentencing remarks of His Honour Judge Chettle.

26Subsequently at the Sale County Court on 24 February 2012, you were convicted of intentionally causing serious injury. You were sentenced to be imprisoned for five years. Three years and six months of that sentence was concurrently sentenced which had been imposed in September of 2010 and a single new non-parole period of four years was imposed. I note on that occasion you were sentenced as a serious violent offender pursuant to s.6F of the Sentencing Act.  I note that that offending occurred in custody.  It involved the use of a weapon and an assault on another inmate.  As I have said, I have had the advantage of reading a variety of sentencing remarks including those of His Honour Judge Bourke.  In my view, there are concerning similarities between that offending and the matter which brings you before this court.

27On 15 February 2013, you were convicted of reckless conduct endangering serious injury and arson after you lit fire to your cell, endangering staff and other prisoners.  You were sentenced to be imprisoned for 30 months, 18 months was to be concurrent with the sentence you were then undergoing.  A new single non-parole period of three years and four months was set.  I have read the sentencing remarks of Her Honour Judge Nicholson.

28I have been told that since January 2009, you have been at large in the community for only a few months.  The circumstances in which you are imprisoned like that of your co-offenders in my view is concerning.  You are a management prisoner, I have been told by you on 22-hour lockdown although the prosecutor has provided what might be regarded as more detailed information this afternoon.  While this is a situation largely of your own making, it remains concerning in terms of your welfare and rehabilitation. 

29Most recently on 15 March of 2013, you were convicted of recklessly causing injury and intentionally damaging property after you threw a television at a prison officer.  You were sentenced to be imprisoned for two months cumulative with the sentence you were then undergoing.  Your earliest possible release date by way of parole is 2 August 2016 and your sentence end date is April 2020.  You will, by that time, be aged 30.

30You are now aged 25.  You have a Year 9 education.  Your employment history consists of five weeks' work as a plasterer.  This is of course in large part explained by your age and the period of time you have spent in custody.  Your IQ has been previously assessed at 79.  You too have a significant drug history.  It appears you started abusing cannabis at 12 before graduating to heroin and then methylamphetamine.  You are fortunate in that your parents remain supportive of you and visit you, as does your girlfriend who attended court upon your plea.

31In relation to each of you as regards your prospects of rehabilitation, I think they are in each case guarded at best given your histories and the conduct which you have pleaded in a custodial setting.  In my view, it simply gives this court no confidence that rehabilitation has commenced, much less been achieved.

32In each case you are entitled to have taken into account the fact that you pleaded guilty and the fact that you pleaded guilty at the first available opportunity on the current basis, more serious charges having been withdrawn.  You have saved the community the time and expense of a trial, you are entitled to the full benefit of a plea and I sentence you on that basis. 

33I accept in each case that your time in custody is onerous given your current lockdown conditions in single cells.  It is to be hoped that prison authorities can find a way of maintaining order and the safety of staff and inmates which must of course be paramount.  You of course will need to demonstrate that you are prepared to make the very real changes to your attitude and conduct which are required for that to occur.

34General and specific deterrence are relevant sentencing principles which must be given weight in the sentence I will impose this day.  I must seek to deter not only you but others who would engage in like conduct.  The message must be clear and consistent that this type of conduct will not be tolerated.  Gaol is a punishment that involves deprivation of liberty and should not include risk of harm.  The good conduct of custodial facilities must be maintained for the welfare of both prisoners and staff.  You must be specifically deterred and others must be deterred.  It must be clear that condign punishment will result in appropriate circumstances.  Your sentence in each case must manifest the community's denunciation of your conduct and impose just punishment.

35The Crown submit that as regards Mr Milne and Mr Evans, a term of imprisonment combined with a community corrections order would not be outside the range.  Your counsel do not seek to argue with such proposition.  As regards Mr Thompson, it is common ground that the only disposition open is an immediately servable term of imprisonment. 

36Your counsel all submit that totality should be given weight in the sentences I will impose this day, and that in effect this should be reflected in orders for partial concurrency.  I have acted on the basis that given your histories and your current sentences, totality should be given weight in the sentence I will impose this day.

37Would you all stand please.

38This is no doubt a serious offence.  In the circumstances, I have no option but to impose terms of imprisonment.  You are convicted and sentenced as follows.

39Jason Evans.  You are sentenced to be imprisoned for 19 months; 12 months of that sentence is ordered to be served cumulatively with the sentence you are undergoing.  At the completion of that sentence, you are placed on a community corrections order for 12 months.  I have considered carefully the period of the order.  In my view, it should be a period of time which is sufficient to advance your rehabilitation.  I order that during the currency of the community corrections order, you must perform 100 hours unpaid community work.  You are to be under the supervision of a community corrections officer.  You are to submit for testing and rehabilitation in relation to medical conditions.  You are to submit for testing in rehabilitation in relation to issues arising from drugs of addiction, and you are to attend as directed at programs to reduce reoffending.

40Lucas Milne.  You are convicted and sentenced to be imprisoned for 19 months; 12 months of that sentence is ordered to be served cumulatively with the sentence you are undergoing.  At the completion of that sentence, you are placed on a community corrections order for a period of 12 months.  You are to perform 100 hours community work.  You are to be under the supervision of a community corrections officer.  You are to submit for treatment and rehabilitation in relation to drugs of addiction.  You are to attend programs to reduce reoffending as directed by the regional manager.

41Bradley Thompson.  In my view your history increases the need to give weight to specific deterrence.  You have engaged in similar conduct and been sentenced as a serious violent offender with apparently little effect.  It must be made entirely clear to you that actions have consequences.  You have a great deal of work to do if you wish to have any hope of parole.  In addition, you were engaged in what can be described as the initial part of the assault, having left the picnic table and obtained the weapon.  It is clear that you were an instigator.

42You are convicted and sentenced to be imprisoned for three years.  I direct that two years of that sentence be served cumulatively with the sentence you are undergoing.  I set a new single non-parole period as I am required to do pursuant to s.14 of two years commencing this day.

43Counsel, firstly is there any factual matter which needs to be corrected?  There was one thing while I was reading that I wanted to check a sentence of Judge Pullen's in terms of head and non-parole - just excuse me - in relation to Evans.  Yes. 

44MR MOGLIA:  I think Your Honour was right, it was six years and six months.

45HER HONOUR:  And what was the non-parole?  Was it five years and six months because it took into account the fact that there was also the cumulation in relation to the breach of parole?  There was a new single non-parole period?

46MR MOGLIA:  I'm not sure about ‑ ‑ ‑

47HER HONOUR:  I just want to make sure that I have got - that was just one that I wanted to make sure I got right, sorry counsel, just let me check.  It was Judge Pullen, just let me find it.

48MR MOGLIA:  Paragraph 102 on p.16?

49HER HONOUR:  Paragraph 102 on ‑ ‑ ‑ 

50MR MOGLIA:  I can hand it up, Your Honour, if you don't have it.

51HER HONOUR:  Yes, thank you, I've got it, I just haven't got it in front of me.  Mr Tipstaff.  I think it could have been seven instead of six.

52MR MOGLIA:  The extra year was the effect of the cumulation on the previous ‑ ‑ ‑

53HER HONOUR:  Yes.  So it was a total effective years of seven years and six months and the new parole period was five years and six months, but on the charges themselves it was six years and six months.

54MR MOGLIA:  That's correct.

55HER HONOUR:  So I think that is sufficiently explained now into the transcript ‑ ‑ ‑

56MR MOGLIA:  It is.

57HER HONOUR:  ‑ ‑ ‑ in terms of how that all occurs.

58MR MOGLIA:  Thank you, Your Honour.

59HER HONOUR:  Yes.

60MR SAUNDERS:  Your Honour, can I just clarify one matter?  I'm pretty sure that I - I'm not sure that I misheard Your Honour - heard Your Honour accurately.  19 months, whether the 12 months was cumulative or concurrent?

61HER HONOUR:  Cumulative.

62MR SAUNDERS:  Cumulative, thank you.

63HER HONOUR:  Cumulative.  So counsel, in relation to our system, it requires me to enter the community corrections centre.  Can I say for your client's benefit that that will be reassessed closer to release date.  The fact that - it's currently set on last address that they have, but obviously that may well need to be changed in due course.

64MR ROSE:  Understood.

65HER HONOUR:  Counsel, you may approach my associate and have the orders signed, the community corrections orders.

66Counsel have checked the orders?

67MR MOGLIA:  Yes.

68MR SAUNDERS:  Yes, Your Honour.

69HER HONOUR:  There's no difficulty?

70MR MOGLIA:  No.

71HER HONOUR:  Thank you.  Have you - do you want to show them to the prosecutor?  Thank you. 

72MR ROSE:  Yes, thank you, Your Honour.  Can we get copies of those in due course?

73HER HONOUR:  Yes.  Counsel, there's nothing further?

74MR SAUNDERS:  No, Your Honour.

75MR CASEY:  No, Your Honour.

76MR SAUNDERS:  Thank you.

77HER HONOUR:  Mr Prosecutor, nothing further?

78MR ROSE:  No, Your Honour. 

79HER HONOUR:  Remove the prisoners please. 

809 o'clock tomorrow morning, thank you.

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