Director of Public Prosecutions v Ford
[2020] VCC 762
•02 June 2020
Gorman
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02050
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN FORD |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 May 2020 | |
DATE OF SENTENCE: | 02 June 2020 | |
CASE MAY BE CITED AS: | DPP v Ford | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 762 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. James | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr A. Malik | Victoria Legal Aid |
HER HONOUR:
1 John Ford, you have been found guilty by jury verdict of one charge of intentionally causing serious injury. The maximum penalty applicable to that offence is 20 years’ imprisonment.
2 You have also pleaded guilty to Summary Charge 3, possess a prohibited weapon (flick knife) without exemption or approval, and have agreed to me hearing this matter pursuant to s.145 Criminal Procedure Act 2009. The maximum penalty applicable to that offence is 240 penalty units or two years’ imprisonment.
3 Prior to your trial commencing and in the presence of the jury you entered a plea of guilty to Charge 3 on the Indictment (intentionally cause injury).
4 I am also aware from earlier Direction/Mention hearings in this matter you offered through your solicitor/counsel, to plead guilty to recklessly cause serious injury. I accept these are indicative of some remorse by you.
5 Intentionally cause serious injury is a Category 2 offence (s.3(1) Sentencing Act 1991). Section 5(2H) is applicable. A custodial sentence is to be imposed unless s.5(2H)(a)-(e) Sentencing Act 1991 has application.
6 The prosecution submitted the appropriate disposition was an immediate custodial sentence incorporating a head sentence and non-parole period.
7 Mr Malik did not urge application of any exceptions to such a disposition.
8 It is not necessary for me to recount in great detail the facts of this matter as they were canvassed during the course of your trial. I proceed to sentence you on the basis of the evidence briefly recounted as follows.
9 On Friday 1 February 2019, the victim of your offending, Richard Williams, boarded the 10.45 pm Waurn Ponds V/Line train from Southern Cross railway station with his bicycle. He stored his bicycle in the designated area in the carriage before taking a seat and falling sleep.
10 Approximately an hour later, Mr Williams woke up as the train was departing Geelong railway station. He was flustered because he had missed his stop, having intended to get off at the North Geelong station, the stop prior to Geelong station.
11 Mr Williams went to retrieve his bicycle from the bicycle rack to disembark the train at the next stop. You and your partner, Melanie Harrison, were at the bicycle rack with your bicycles placed on top of Mr Williams’ bicycle in the rack.
12 Mr Williams spilt Coca Cola on his lap whilst he was asleep in the train, and as he stood up to retrieve his bicycle, you pointed at his wet lap and said words to the effect 'Look at this, he’s pissed himself'.
13 Mr Williams rolled his bicycle onto the platform, put his helmet on, his bag onto his shoulder, got on the bike and started his GPS tracking watch. Your partner Ms Harrison was standing in front of him on the platform, you standing behind her.
14 The evidence of Mr Williams was that your partner continued to mock him and talk loudly at him. Mr Williams replied 'fuck off, just fuck off'. When he said that, your partner was just in front of him, about a metre from his bicycle. You were behind her, maybe to the left of her, about a metre from Mr Williams.
15 Mr Williams said you walked away from him and Ms Harrison, and his attention then was more focussed on Ms Harrison.
16 You then stepped towards Mr Williams with your arm raised. Mr Williams saw in your hand a large, black ‘knife’ or ‘machete’.
17 You acknowledged in your interview with Mr Cummins it was a machete.
18 Mr Williams felt the blade enter his upper arm. He looked down and saw where it entered his arm. The machete entered the top part of his arm first then carried on in a shallower fashion down towards his elbow. When he looked down at his arm, he saw the blade in it. He could see inside the muscle of his arm and that the wound immediately welled up with blood.
19 He pedalled from the scene as he was terrified you were going to do it again. He rode to St John of God Hospital, his arm becoming weaker and weaker. Blood was running down Mr Williams’ body onto his bike, staining his clothing and shoes. Mr Williams thought he was going to die.
20 He rode his bike into the ambulance bay, got off the bike, and crawled towards the door. The hospital was closed, however he attracted the attention of cleaners inside before he lost consciousness. He was then taken to Geelong Hospital Emergency Department by ambulance where he underwent surgery.
21 After the operation, his arm was heavily strapped and bandaged and he needed a splint to support his wrist. He described in evidence the injuries he sustained and sequelae of them, which included needing to wear a splint for at least six weeks, limitations on the strength of his left arm and limitations on his ability to grip with his left hand. He also had hand therapy between March and May 2019.
22 Mr Williams described having been in hospital for two nights and, as I have said, wearing a splint for six weeks.
23 The jury accepted that the injury inflicted on Mr Williams by you was a serious injury.
24 The jury also accepted that at the time you inflicted the injury, you intended to cause serious injury to Mr Williams.
25
On Thursday, 7 February 2019, police executed a search warrant at your home, and amongst other items seized, was a flick knife (Summary
Charge 3). I note not related to your offending in Charge 1.
26 You were arrested at that address on 7 February 2019, and taken to Geelong Police Station for interview at which time you answered ‘no comment’ to questions asked of you. It was of course was your right to answer in that way.
27 It is sufficient for present purposes to simply say the facts in this case are most serious and your behaviour obviously unacceptable.
28 The victim of your offending, Richard Williams, has suffered considerably as a result of it, and I shall return to pass some remarks on that shortly.
29 You have been found guilty by a jury verdict in relation to Charge 1 on the indictment. By proceeding to trial, again I say which was of course your right, your victim was required to give evidence and be cross-examined at trial.
30 You have pleaded guilty to Summary Charge 3, and you are entitled to have that fact of your plea to the charge taken into account in your favour, and I do so. The community has by your plea to that charge been spared the time and cost of that trial and the witnesses have not been required to give evidence at trial relevant to that charge. I accept you indicated your intention to plead guilty to that charge, and did so before me on 24 February 2020.
31
You have admitted a significant and relevant criminal history in particular on 14 December 2001 when you appeared at Geelong Magistrates’ Court on a charge of intentionally causing injury and one charge of theft of a motor vehicle. That offending I note occurred approximately 19 years ago on
14 October 2001. The agreed summary of facts relevant to that offending was tendered by the prosecution (Exhibit B).
32 I note you instructed, at the time of that assault, you had been consuming alcohol that day at a barbeque. Despite that occurring some approximately 19 years ago, you were aware alcohol consumption could lead to violence by you. Given the intervening period of 19 years between that ‘violence’ offence and this, I do not however regard your awareness as an aggravating feature of the offending before me.
33 There was also an earlier court appearance on 30 November 1998 for offences including unlawful assault.
34 I note your other court appearances related to driving offences including exceeding prescribed concentration of alcohol. That offence likely confirming your excessive alcohol use at that time consistent with your instructions.
35 Your offending before me breached a community corrections order imposed on 27 March 2018 at Geelong Magistrates’ Court. You are of course not being sentenced for that by me for the breach, but the relevance of it being you were subject to a court order at the time, such not sufficient, it seems, to deter you from this offending.
36 Your counsel, Mr Malik, who appeared at your trial and plea hearing filed a written outline of submissions for your plea and addressed them during the course of it (Exhibit 1).
37 A number of other documents were provided for your plea hearing and were referred to in those written submissions and were discussed with your counsel.
38 There was a psychological report of Mr Jeffrey Cummins dated 28 April 2020 (Exhibit 2); correspondence from you, dated 28 April 2020 (Exhibit 10); one urine sample result showing negative for all substances dated 2 May 2020 (Exhibit 3); correspondence from Caroline Gorman, senior clinician, Department of Justice and Community Safety, dated 26 March 2020 (Exhibit 4); and correspondence from Ian Connop, social worker Caraniche, confirming your involvement in drug and alcohol problem program whilst in custody (Exhibit 5).
39 A number of certificates were also tendered confirming your involvement in rehabilitation programs whilst in custody (Exhibit 7). I shall refer to all of this material later in these sentencing remarks.
40 Turning to the gravity of your offending, Mr Malik referred to Nash v R[1] - all citation will be provided counsel - and matters noted therein when assessing the gravity of your offending. I did, however, discuss with him that case which was somewhat dated with more recent cases specifically addressing sentencing for serious offending such as yours.
[1](2013) 40 VR 134 (‘Nash’).
41 Relying on Nash, Mr Malik referred to assessment of gravity involving considerations of your intent; the seriousness of the injury caused for the medium and long term to your victim; how vulnerable the victim was; whether a weapon was used; how long the attack on the victim lasted; and whether you acted alone or in company.
42 Regarding ‘intent’ I expressed concern about the analysis referred to in Nash relevant to assessing the gravity of particular instances of intentionally cause injury. The jury determined your intention was to cause serious injury. There was no charge before the jury of intent to cause 'really serious injury' or 'maximum possible injury'.
43 Turning to the seriousness of the injury caused, Mr Malik conceded there was evidence from three sources; a medical practitioner, hand therapist and
Mr Williams himself as to the ongoing effects of his injuries. As I discussed with counsel, there are of course degrees of seriousness of injury. I accept that this injury was not the most serious that has come before the courts. However, in saying that, I am not suggesting Mr Williams’ injury was not a serious injury, just that it is not the most serious on a scale of gravity.
44 Turning to the third point, Mr Malik urged Mr Williams was not vulnerable in the sense that he, for example, had not been thrown onto the ground and then assaulted or was unable to physically move due to some physical disability which would have made him more vulnerable. That is so. He was, in my opinion, however vulnerable in that when assaulted he was on his bicycle and his movement to avoid your assault limited.
45 As to whether a weapon was used, you conceded it was a machete.
46 Turning to the next point, at how long the attack on Mr Williams lasted,
Mr Malik urged it was of short duration. In my opinion, the entire incident, which commenced on the train and continued over a couple of train stops and then on the platform lasted a number of minutes.
47 Whether your offending acted when you were alone or in company. You acted alone.
48 In referring to these matters raised by Mr Malik such is cold comfort to
Mr Williams. I have no doubt your offending and Mr Williams observing his injuries at the time were terrifying to him.
49 Regarding your offending, one explanation you gave for having the machete in your possession was the result of you previously having left the Rebels Motorcycle Club a few months prior to this offending. That you had been a member of that club for approximately 20 years and when you left you said you were threatened, thus the machete carried by you for protection. I discussed the arguable inconsistency in your accounts of any ‘animosity’ regarding your departure from the Rebels with Mr Malik.
50 As discussed with Mr Malik there were differences in your account of your relationship with the Rebels following your departure from the club and whether or not you were affected by alcohol on this occasion. Regarding the latter discussion with counsel including analysis of your activities on this day both prior and after your assault on Mr Williams occurred.
51 You described having been 'sort of excused' by the club about two months prior to this incident and that you were not assaulted by club members when you left.
52
Mr Malik urged I accept your offending was spontaneous in the context of your partner being on the platform within a metre of Mr Williams, swearing at him and in response Mr Williams telling her to 'fuck off' multiple times in a raised voice. You said at that time, you, standing behind your partner, struck
Mr Williams once to the arm with the machete.
53 Your explanation, I note, also included your instructions that Mr Williams pulled your partner’s hair. That was denied by Mr Williams in his evidence. You did not give evidence at your trial (your choice of course and your right of course). Whether that occurred or not, you accepted you overreacted to the situation. You said you were affected by alcohol at the time of this offending and your consumption of alcohol or otherwise was discussed during the plea hearing. There is no evidence of you being affected by alcohol on this occasion.
54 Mr Malik relied upon the report of Mr Cummins who opined that:
'As far as I could ascertain, at the time of offending he was experiencing acute symptoms of anxiety, depression and paranoia related to his recent departure from the motorcycle club and these symptoms were then also further exacerbated as a result of his dependency on alcohol. Simultaneously, he was dependent on alcohol because he was self-medicating because of his mental health symptoms and his fear that there would be retributions because he had made a decision to leave the motorcycle club'.
55 Regarding any intoxication on this day, the timeline of your days’ activities included at approximately 4.00 pm being at a Go-kart track riding your bicycle, then no evidence you consumed alcohol between then and this offending at approximately 9.30 pm. Nor was there any evidence you had consumed alcohol in the time up until 4.00 pm before going to the Go-kart track. CCTV footage also showed you riding your bicycle near the railway station after the assault.
56 The only reference to you being intoxicated at the time of this offending came from your instructions to Mr Cummins and most recently in this plea hearing. While I accept it would seem you have a history of alcohol use indicated by your 0.05 prior, and that at around the time of this offending you were consuming alcohol on your instructions, a couple of casks a day, there is no evidence to suggest you were intoxicated at the time of this offending.
57 I turn to your background and history. You are 49 at sentence and were 47 at the time of this offending. You are the eldest of two children. You parents separated when you were around 6 or 7 years of age. Your father has been in and out of gaol and described by you as an 'aggressive drunk'. You did not have ongoing contact with him.
58 You lived with your mother until you were 17, completing school to Year 9.
59 After you left school, you worked as an apprentice spray painter for four years, became a qualified spray painter and operated your own business in Geelong for approximately two years.
60 You then worked as a sheet plasterer working on major construction sites as well as intermittently continuing to work as a spray painter.
61 You described, approximately five years ago having what you called a 'nervous breakdown' and have not worked since.
62 You have been in a relationship with Melanie Harrison for the past 12 years. Whilst there are no children as I understand it of that relationship, you have five, I believe, from previous relationships ranging in age from 5 to 25.
63 Turning to your use of alcohol and drugs, you described your dependency on alcohol increased over the five years since your 'nervous breakdown'. That in the months leading up to this offending you said you were drinking daily.
64 You said over approximately the last five to seven years you occasionally used amphetamine/methamphetamine.
65 I turn to the report of Mr Cummins. You said as a result of your 'nervous breakdown', you decided to leave ‘the Rebels’ after approximately 20 years with them. Thereafter you had not worked, having panic attacks and consuming a lot of alcohol. Since the 'nervous breakdown', you had been prescribed Seroquel and Clonazepam. Referring to your panic attack, at the same time as the 'nervous breakdown', you said that attack occurred in the context of you feeling overwhelmed and being pressured by being a member of the motorcycle club.
66 In prison on remand you work out daily in the gym, running and lifting weights. You are also employed as a peer support worker. You were not currently receiving treatment for any physical, medical, or mental health condition.
67 Prior to restrictions on visitors to prison as a result of COVID‑19, you had been having weekly ‘in person’ visits with Ms Harrison. I accept ‘in person’ visits ceased from 21 March 2020. I accept that you had been receiving visits from your partner until then, every Saturday and Sunday, each visit of approximately two hours’ duration. Since then the ‘in person’ visits with your partner have been via Zoom and of limited duration. You also instructed a number of educational programs ceased also as at 21 March and I accept that is so.
68 You have never been hospitalised in any psychiatric hospital/ward, nor received ongoing mental health treatment.
69 At interview you said that you felt positive about now being sober and were proud of the work you were doing in prison. You maintained you had the machete for protection. You were, however, ashamed and embarrassed about what you did accepting you overreacted. You said at the time of the offending you were not in your ‘right mind’ and concerned about possible physical retribution as a result of leaving the club. You had, however, on remand not been harassed or questioned about whether you had ever a been a member of this motorcycle club.
70 Mr Cummins assessed you as being a moderate risk of further offending involving violence. You said you had usually been able to control your anger when you were not intoxicated, although upon being reminded of your prior convictions, agreed you probably had some underlying and unresolved anger management issues. You said you would participate in anger management programs such as the violence intervention program.
71 At interview you apologised for your offending and expressed what appeared to Mr Cummins to be genuine regret and remorse.
72 Mr Cummins opined on 1 February 2019 you were suffering from an alcohol use disorder severe in type. Again, I refer to lack of evidence this day of alcohol use. In his opinion you displayed a reasonable level of insight into your psychological history and your current psychological functioning. In the opinion of Mr Cummins should you not have any obvious personality disorder.
73 In his opinion your prospects of long term rehabilitation were favourable, most probably very favourable, your major risk factor being a return to problematic use of alcohol.
74 Also before me was correspondence from you. You described increasing alcohol use in the five years prior to this offending, and having been previously diagnosed as an alcoholic. You accept that alcohol made you a very 'unlikeable’ person. In custody you had attended AA meetings and completed courses to improve yourself and help manage panic attacks, anxiety and depression.
75 Having been sober whilst in custody, you were now thinking clearly and felt empathy for those you hurt, in particular the hurt and pain you inflicted on
Mr Williams.
76 In custody you said you had gained the respect and trust of prison officers and inmates. You had been an orientation billet helping new arrivals into the prison system, and were now a peer support worker helping to maintain good order in the gaol.
77 There was also correspondence from Caroline Gorman confirming you had been employed as a peer listener prison service worker in Marngoneet since 10 February 2020. Your roles and responsibilities included assisting prisoners by helping to diffuse conflicts and representing the prisoner group at meetings with senior custodial and vocational staff.
78 There was correspondence from Ian Connop, Caraniche. You were accepted into the AOD and Depression program on 24 June 2019 and completed it on 25 June 2019.
79 A number of certificates were also tendered. You have successfully completed the Adapt program, the Healthy Living program, Take Stock B program, Take Stock A program, Houses and Homes program, Jobs and Careers program, AOD and Depression program (certificate from Caraniche), 12 hour Drug and Alcohol program completed 12 July 2019 with Caraniche, and 24 hour Drug and Alcohol program on 19 December 2019 by Caraniche.
80 Mr Malik conceded principles of general deterrence, denunciation and just punishment were important sentencing considerations for your offending and he is correct. In my opinion you also have a prior criminal history for matters that involve violence in particular noting, however, that the last conviction for violence was in 2001 followed by a gap in your offending history until 2018. In my opinion specific deterrence is also a relevant sentencing consideration.
81 Mr Malik referred to a sentencing snapshot relevant to the offence of intentionally causing serious injury. Sentencing statistics of course have a place when sentencing, however as I discussed with him, statistics lack a lot of information such as whether or not principles in R v Verdins & Ors[2] applied. I note Verdins principles have not been urged by Mr Malik in your case and, in my opinion, appropriately not relied upon given the material before me.
[2](2007) 16 VR 269 (‘Verdins’).
82 Statistics also do not reveal for example whether there were issues of parity applicable. While sentencing statistics have their place, they also have limitations. The principles stated in cases relevant to this type of offending are of particular assistance.
83 I was referred to the decision of May-Jordan v The Queen[3] by Mr Malik. There were significant differences between the factual circumstances in that case and your offending in my opinion. It is difficult comparing cases factually as facts vary enormously case to case as do all matters in mitigation of sentence and personal to an offender. Ultimately I must determine the appropriate sentence in this case based on all relevant sentencing principles.
[3][2017] VSCA 30.
84 Mr Malik urged I find you were remorseful for your offending, having offered to plead guilty in December 2019, at that time, to recklessly cause serious injury, and to plead guilty to intentionally cause injury before this jury prior to the trial starting. I accept your offers were indicative of some remorse as I have previously stated.
85 Mr Malik submitted your rehabilitation prospects were good including reliance upon your participation in courses in custody, your role as a peer listener prison service worker, your insight into the underlying causes of your offending and willingness to engage in suitable programs.
86 Mr Malik also urged that while you were a moderate risk of violent offending your prospects of rehabilitation were, as described by Mr Cummins, good, probably very good.
87 Mr Malik urged the sentence I impose should result in a lengthy time under supervision on parole.
88 The prosecutor, Ms James, in her submissions on sentence referred to the aggravating features of your offending, in particular use of a weapon. She submitted there was no evidence of any ‘provocation’ on the part of your victim, rather, you prevented him leaving the railway station and in desperation, in response to your partner’s words to him, he told her to 'fuck off'. She urged Mr Williams was merely trying to get away from the situation and that there was no 'provocation' to explain your offending. I agree.
89 Ms James referred to your decision to physically move around your partner and then use the weapon relevant to your intent. I agree.
90 Ms James referred to the lack of evidence that you were affected by alcohol at the time this offending. I agree and have previously referred to this.
91 Turning to the severity of Mr Williams’ injury, Ms James referred to blood at the scene on the pavement and then a considerable amount of blood at the door of the hospital. That Mr Williams required a substantial amount of fluids, however started to bleed again, and more fluids were required. He required surgery to his nerves, and following that, intensive rehabilitation. In his victim impact statement Ms James also referred to the likely psychological impact of your offending upon him, consistent with his victim impact statement.
92 Ms James submitted there was a need for specific deterrence when sentencing you, also general deterrence. I agree.
93 Referring to your prior offending, in particular in 2001, that involved use of intimidation by you, force and threats, and occurred in company. Such required the need for specific deterrence when sentencing you, albeit that offending 19 years ago. I agree.
94 As I discussed with Ms James, your offending before me also breached a community correction order imposed on 1 February 2019.
95 Turning to the report of Mr Cummins, Ms James submitted Mr Cummins did not have a copy of the transcript of the trial only the initial prosecution opening and therefore was unaware of the actual evidence given. That in retelling your version to Mr Cummins, you minimised your involvement in it by failing to refer to the lead up to your offending, such as lack of reference by you to having spoken to Mr Williams on the train regarding him having ‘pissed’ himself.
96 Turning to the authorities referred to by counsel, Ms James submitted they were of limited use and that each case depended on its own facts and circumstances. I agree.
97 Ms James submitted there was no evidence you had been consuming alcohol to excess on this particular occasion and were intoxicated. CCTV footage showed you riding competently with no evidence of you slurring your words or being unsteady on your feet. Even accepting you had a history of alcohol abuse it was difficult, she submitted, to link that to this offending. I agree.
98 Ms James submitted there was a need for specific deterrence when sentencing you given your relevant prior violent offending, as I have said, and also that this offending breached a court order. She submitted this offending was arguably an increase in gravity of your offending from 2001.
99 Ms James submitted this was an unprovoked attack which escalated over some minutes. No ‘provocative’ behaviour by Mr Williams. That when he said 'fuck off' to your partner, it was in response to the situation he was put into by you and she.
100 I received a victim impact statement from Mr Williams. It is clear your offending has had and continues to have a significant adverse effect upon him. Since your offending he had a heightened sense of anxiety, particularly in stressful situations. As a result, he had withdrawn from challenging situations and was increasingly disassociated at home. He struggled to contain negative emotions about his self-worth, and experienced frequent recollections of the incident and the fear of death while trying to get to the hospital. He had uncontrollable anxiety which prevented him from functioning at work and had also led to stress at home. His heightened emotional response when dealing with situations caused tension with his co-workers and students. He frequently cancelled meetings that he should be chairing as a result.
101 He was unable to enjoy situations in the same manner as previously, dwelling on negative emotions and memory of trauma. As a result of your assault, he had been receiving regular psychological counselling, which he expected would be ongoing.
102 He had a large intrusive scar. Every time he sees it, it reminded him of what happened. There had been a cut through the nerve to his tricep and it partially severed the main nerve controlling his lower arm. He required surgery and general anaesthetic. Following that, his hand was paralysed and he was told he could lose movement permanently due to the extent of the injury. It had taken him a while to get any movement back.
103 He described since your offending it had been extremely stressful, being concerned he could be permanently if not significantly disabled, as he was an active outdoors person. His arm was returning to strength, although felt numb and was not as dexterous. Everyday activities he used to be able to do could be difficult for him. His wrist woke him up every night with pins and needles. The nerves where cut were extremely sensitive, causing a shock or sensation when performing certain activities, which caused significant pain.
104 He still did not know if he would fully recover as there was no active treatment for the repair of nerves, only time. A physiotherapist and surgeon have both said the only thing that he could do is wait and hope the nerves grow back properly. It was distressing to him that there was no treatment available.
105 The effects upon a victim are a relevant sentencing consideration (see s.5 of the Sentencing Act 1991), however I must of course not allow the effects upon a victim to swamp the sentencing process.
106 There was also the need to consider social rehabilitation. See DPP v DJK,[4] allowing of course for the very different offending in that case to yours. Statements regarding the importance of victims and social rehabilitation nevertheless apply.
[4][2003] VSCA 109.
107 Regarding your rehabilitation prospects, I have some optimism. I note the work/courses you have undertaken in prison and your awareness of the need to address your anger and continue addressing your alcohol use. I also note you have not offending in a violent manner between 2001 and this offending.
108 When sentencing you I must seek to maximise your chances of rehabilitation as they may be.
109 However, as well as matters personal to you, including your prospects of rehabilitation as I find them to be, I must also take into account the need for general deterrence when sentencing, which is of particular importance in a case such as this.
110 Also the need for specific deterrence when sentencing you.
111 I must also consider the need to protect the community from you and that concerns me, given this offending and the circumstances in which it occurred involving a ‘stranger’ over, at best, a minor ‘incident’ between the two of you in the train, or at least between Mr Williams and your partner on the station.
112 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment. I sentence you as follows:
113 On Charge 1, you are convicted and sentenced to 7 years’ imprisonment.
114 On Summary Charge 3, you are convicted and sentenced to 21 days imprisonment.
115 I direct that the sentence imposed on Summary Charge 3 be served concurrently with the sentence on Charge 1 on the indictment.
116 That results in a total effective sentence of 7 years' imprisonment.
117 And I direct you serve a period of 4 years and 9 months before you are eligible for parole.
118 In determining the appropriate non-parole period, I note R v VZ,[5] decision of Court of Appeal Callaway JA who referred to some of the considerations relevant to determining an appropriate non-parole period.
[5](1998) 7 VR 693, 697 [15].
119 The prosecution made application for a disposal order. This was not opposed by counsel on your behalf. I make the order in the terms sought.
120 Pursuant to s.18(4) Sentencing Act 1991 I declare you have spent 471 days - I want that checked - in custody by way of pre-sentence detention up to and including yesterday 1 June 2020 and I direct that this be entered into the records of the court in a moment when I check it.
121 Pursuant to s.6AAA Sentencing Act 1991 had you pleaded not guilty to Summary Charge 3, I would have sentenced you to 28 days' imprisonment and cumulated part of that on Charge 1. Obviously no s.6AAA declaration regarding Charge 1.
122 Now, PSD correct?
123 MR MALIK: 481 days, Your Honour, according to my calculations.
124 HER HONOUR: Do you agree with that, Ms - do you agree with that?
125 MS JAMES: Yes, Your Honour, 481 is agreed.
126 HER HONOUR: All right, we will change that, I will repeat that.
127
Pursuant to s.18(4) Sentencing Act 1991 I declare you have spent 481 days in custody by way of pre-sentence detention, up to and including yesterday,
1 June 2020 and I direct that this be entered into the records of the court.
128 Any other orders? No?
129 MR MALIK: No, thank you, Your Honour.
130 HER HONOUR: All right, we are going to disconnect the link. Nothing further, no?
131 MS JAMES: As the court pleases.
132 HER HONOUR: All right, thank you very much. Disconnect the link then.
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