Director of Public Prosecutions v Germaine
[2012] VCC 1058
•27 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-00547
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID GERMAINE |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21-22 may 2012 27 July 2012 | |
DATE OF SENTENCE: | 27 July 2012 | |
CASE MAY BE CITED AS: | DPP v. Germaine | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1058 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Holding | |
| For the Accused | Mr S. Lindner |
HIS HONOUR:
1 David Germaine, you have pleaded guilty to a charge that on 9 August 2010, without lawful excuse, you recklessly caused serious injury to your mother, Christine Jill Aghan, and you have admitted a number of prior convictions.
2 The prosecution tendered at the plea hearing a summary of prosecution opening for plea, dated 21 May 2012, and I incorporate that summary into these reasons for sentence by reference. Suffice it to say, that late in the evening of 9 August 2010, whilst you were resident at the small unit occupied by your mother, and with your brother occupying the garage at the premises as a bedroom, you attacked your mother and stabbed her a number of times, causing her serious injury.
3 You had used two knives apparently to prevent access to the unit, jamming those knives in the security door. Police attended and you were arrested. Your mother suffered quite serious injuries, but as I understand it, she substantially recovered from those injuries.
4 The maximum term of imprisonment is 15 years' imprisonment, and I must take that into account in assessing the appropriate sentence for you.
5 A number of reports were tendered by your counsel which document your history, your psychiatric, psychological and drug abuse history, and I do not propose at this stage to go into any detail about those.
6 During the plea hearing it became apparent that your moral culpability for these offences was quite substantially reduced by your mental emotional circumstances, your mental impairment and intellectual disabilities, I am persuaded that those conditions very substantially reduce your moral culpability for this offending.
7 In those circumstances, the usual sentencing considerations which involve denunciation by this court of conduct of this kind and punishment, adequate punishment, just punishment can be subservient to promoting your rehabilitation. I think, also, you are not a suitable vehicle for general deterrence and I think the best way of giving weight to the consideration of deterring you is to assist your rehabilitation as far as possible. It was pursuant to that end that, having heard your counsel, I ordered that a report be prepared as to your suitability for a Community Correction Order. That step was taken and recommendation made that you be assessed by the Department of Human Services to determine whether you qualified for their services and as to your suitability for a Justice Plan. As a result of that, a report was prepared which not only recommends that a Justice Plan be put in place, but sets out the proposed plan.
8 I was considering imposing a Community Correction Order with a condition that you undergo unpaid community service. Ordinarily, even a substantial requirement for you to perform unpaid community service would have been lenient punishment for an offence of the seriousness that you committed.
9 I have taken into account, of course, your plea of guilty and very much into account your history as set out and the various reports and, in particular, the views of those who have assessed you for the suitability for a Community Correction Order and a Justice Plan condition attached to that order.
10 In the circumstances, I think that a just outcome can be achieved, and I note incidentally that your mother is present in court and is supportive of you, and that too, I think, is a significant factor in determining that you can be treated leniently and with a degree of sympathy and understanding.
11 You must realise, of course, that your co-operation with those who are seeking to assist you under the terms of the order that I am about to impose is vital to your future. If you fail to co-operate, then you will be brought back before this court, and quite apart from that, you would be passing up a valuable opportunity of receiving some very valuable assistance that should help you stay out of trouble in the future and help you learn to lead a worthwhile and trouble-free existence.
12 In those circumstances, for the offence of recklessly causing serious injury to your mother, I convict you, and I propose to make a Community Correction Order for a period of two years. That order carries with it a number of core conditions, and I am about to read those to you, all right?
13 I take it you have already explained these to - - -
14 MR LINDNER: I have, Your Honour.
15 HIS HONOUR: Yes. Nevertheless, I think for the record I should read them to you.
16 Firstly, that you must not commit, whether in or outside Victoria, during the next two years an offence punishable by imprisonment. Secondly, you must report to and receive visits from the Secretary, that is, the Secretary of the Department of Corrections, during the period of the order. Thirdly, you must report to the Community Corrections Centre specified in the order within two clear working days. I will just identify that for you. I think that it will be the Sunshine Community Correctional Services. Is that correct, gentlemen?
17 MR HOLDING: Yes, Your Honour.
18 HIS HONOUR: At 10 Foundry Road, Sunshine, and you must notify the Secretary of the Department of Corrections of any change of address or employment within two clear working days after the change. You must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary, and you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
19 I also propose to attach a condition to the order that you be supervised by the Secretary during the period of the order, that is, for the next two years, and I propose to make a further condition of the order that you participate in a Justice Plan in the terms set out in the Justice Plan that will be attached to and form part of the order. Have you had those conditions all explained to you?
20 PRISONER: Yes, I have.
21 HIS HONOUR: Yes. Are you willing to agree to be bound by those conditions?
22 PRISONER: I'm more than willing to do the order as required.
23 HIS HONOUR: Yes, all right, I am glad to hear that. That order will now be drawn up and I think you will be asked to sign it. Is that right, Mr Travers? Yes. You can sit down for the moment whilst that is being done.
24 Gentlemen, I think there might have been an order sought for a forensic sample; is that right?
25 MR HOLDING: Yes, that's correct.
26 HIS HONOUR: Yes. Is there any opposition to that?
27 MR LINDNER: No, Your Honour.
28 HIS HONOUR: All right. I think I have got some drafts here. There are two alternatives, aren't there. One presumably is a custodial disposition, and the other is the non-custodial. Just remind me which is which, the shorter or the longer?
29 MR HOLDING: Sorry, Your Honour, I have to refresh my own memory, but I think it was handed up when my instructor wasn't here. The one with the address of the police station I'm helpfully told is the one on the - this one, Your Honour, I'll hand up is the one where he's not in custody.
30 HIS HONOUR: All right.
31 MR HOLDING: These, Your Honour, are disposal orders - - -
32 HIS HONOUR: Thank you. So, which would be the appropriate police station, Sunshine Police Station?
33 MR LINDNER: Yes, Your Honour.
34 MR HOLDING: Your Honour, there needs to be three copies, and if we could just hand up the copies and ask that the date be amended from 22 May to today's date.
35 HIS HONOUR: Yes, all right. Thank you very much.
36 MR HOLDING: And I've been reminded, Your Honour, that there's a disposal order somewhere on the file in relation to the knives.
37 HIS HONOUR: Yes. Mr Germaine, I am about to make an order for you to supply a forensic sample. That will require your attendance at the Sunshine Police Station for that purpose.
38 PRISONER: I just gave the DNA just last week.
39 HIS HONOUR: Did you?
40 PRISONER: Yeah, at Footscray Police Station, as I have to sign there every Monday, and I just give them one literally a week or two ago.
41 HIS HONOUR: I see. Could you just check that out?
42 PRISONER: They just quickly swabbed my mouth in Footscray. There was a lady in a room, she was doing a whole heap of DNA tests. Yeah, I was in and out pretty quick, though.
43 HIS HONOUR: Yes.
44 PRISONER: Yeah. I think they lost it on the database and they just wanted to put it back up there or something.
45 HIS HONOUR: Is that in relation to this matter, Mr - - -
46 MR LINDNER: It's the first I've heard of this procedure.
47 HIS HONOUR: Yes.
48 MR LINDNER: Could I just approach my client?
49 HIS HONOUR: Yes.
50 PRISONER: Well, I'll do it again or whatever.
51 HIS HONOUR: Yes, hold on, we will try and sort it out.
52 MR LINDNER: Your Honour, I'm instructed that the explanation is that a sample was given some years ago on a prior occasion. Mr Germaine was before a court about seven years ago and the informant from that event has sought another sample because the original one was lost.
53 HIS HONOUR: I see. All right. Well, I think I probably should make this order. I have to say, and this is no reflection on anybody in connection with this case, that this kind of thing is becoming commonplace, and if it keeps happening, I think that judges will be persuaded not to make further orders, and the extent to which without an order a replacement can be obtained seems to me to be highly questionable. I very much doubt, unless some specific order was made, that what happened was lawful, but I guess if it is done by consent, then maybe it is, but I have to say that it leaves me with some disquiet when I hear stories like that.
54
MR LINDNER: Yes, I must say I haven't seen anything in the legislation
about back-up procedures, Your Honour.
55 HIS HONOUR: No, well, I certainly had circumstances where further applications have been made because samples have been lost and I have generally been persuaded to make the further order, but that will not continue if this becomes a regular practice, not in my court anyway.
56 PRISONER: I'm willing to do it again, Your Honour.
57 HIS HONOUR: I'm sorry?
58 PRISONER: I'm willing to do it again.
59 HIS HONOUR: Yes. Look, I think you are being extremely co-operative, and I am going to make the order that you do do it again, but I do have to warn you that when you attend Sunshine Police Station for the purpose of providing the sample - - -
60 PRISONER: Yes.
61 HIS HONOUR: If you do not consent to a providing a scraping from the mouth - - -
62 PRISONER: Can forceably do it, yeah.
63 HIS HONOUR: - - - they can do a blood test.
64 PRISONER: Blood test, yeah.
65 HIS HONOUR: Use such force as is necessary.
66 PRISONER: That's right.
67 HIS HONOUR: I have to warn you about that.
68 PRISONER: Yes, I understand that.
69 HIS HONOUR: I am sure you will co-operate.
70 PRISONER: Yeah.
71 HIS HONOUR: All right. I will make the orders sought. I am just struggling to find the draft disposal order. Do you have a spare copy of that? I am not saying we do not have it.
72 MR HOLDING: No, Your Honour.
73 HIS HONOUR: Thank you. Does that need to be done in triplicate as well, or is that - - -
74 MR HOLDING: Yes, Your Honour.
75 HIS HONOUR: It does. We might have to make copies of that for that purpose. I made the disposal orders sought as well.
76 The order has been prepared, and I will ask that you sign it now. Do you want to have a look at that, Mr Lindner?
77 MR LINDNER: Perhaps if I could approach the dock with it?
78 HIS HONOUR: Yes, would you? Yes. All right, Now I have signed that order. Mr Lam, thank you very much for your attendance and your help, and I thank counsel.
79 COUNSEL: Thank you.
80 PRISONER: Thank you, Your Honour.
81 HIS HONOUR: Right. Well, I hope things go well for you.
82 PRISONER: Thank you.
83 HIS HONOUR: I do not want to see you again.
84 PRISONER: Yeah, I know, me neither.
85 HIS HONOUR: You can be excused from the Bar table.
86 MR LINDNER: Thank you, Your Honour.
87 MR HOLDING: Thank you, Your Honour.
88 HIS HONOUR: Are you looking for a copy of the order?
89 MR LINDNER: Just waiting for a copy, Your Honour.
90 HIS HONOUR: Yes.
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