Director of Public Prosecutions v Golding

[2022] VCC 899

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT BAIRNSDALE

CRIMINAL JURISDICTION

CR-20-00953

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZACHARY GOLDING

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Bairnsdale
DATE OF HEARING:
DATE OF SENTENCE:	10 June 2022
CASE MAY BE CITED AS:	DPP v Golding
MEDIUM NEUTRAL CITATION:	[2022] VCC 899

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Grant	Office of Public Prosecutions
For the Accused	Ms A. Fitzgerald	Kurnai Legal

HIS HONOUR:

1Zachary Golding, you have pleaded guilty to one charge of intentionally causing serious injury.  That crime carries a maximum penalty of 20 years' imprisonment.  You are now 20 years or 21 years of age or very close to, and you were only 18 years of age at the time of the offending.  In your particular situation I accept that the plea of guilty was always going to be made to some form of charge and I accept that there is appropriate remorse.  You must, of course, also get the utilitarian benefit of that plea of guilty, and I will not go into the detail of it all, but it is of value to the Crown, as it may have some difficulty with the victim insofar as a trial was concerned.  In any event, I am well aware of the principles outlined in Worboyes and subsequent decisions and, in my view, effect has to be given to that and not just lip service paid to it.  You have no prior convictions as such and I sentence you on that basis.

2A summary of the offending is that at the time of the offending, as I have said, you were 18 years of age.  The complainant, Mr Calloway, had been a former family friend. A  belief had been formed,  by you and your father, that he was in a sexual relationship with your 15 year old sister and was supplying her with amphetamine.  In any event, on 24 July 2019 your sister contacted the victim, asking to stay at his - or his girlfriend's house.  She came over at around midnight and they both went for a walk to get something to eat.  She called your father and asked him for money to get dinner and he then sent $20 and wanted to know where she was as it was getting late.  The victim and your sister were walking to get money from the bank and ran into another man, who then rang your father and told him that your sister and Calloway were together.  At around 1.15 am, and I cannot say that you are party to this, your father rang your sister and made threats in relation to the complainant.

3The complainant told your sister to hide as he was concerned about their safety.  However, he had then continued to the bank and withdrew the money from an ATM and walked into Seymour Street in Traralgon.  You and your father were in the ute and you were in the passenger seat.  You both got out of the ute.  Your father yelled, 'What are you doing with my daughter?', and the pair of you began to assault him.  You were interviewed when you denied participation in the assault but you finally showed some sense and agreed that you were involved in it.  It is captured on CCTV very graphically.  It was a violent assault.  There was a serious intensity to it.  It was repeated and there was opportunity to withdraw.  In terms of time it takes less than a minute.  So it is not as if it is drawn out or extended, but there was ample time to withdraw and you obviously were very violent during the course of it.

4The victim was found barely conscious and the injuries alleged and accepted in the Crown opening were multiple and complex facial fractures requiring specialist surgery, a complex blow - a fracture to the right eye socket and depression of the cavity of the upper jaw bone, large collections of blood collections in the face and soft tissue injuries such as facial swelling, a
2 centimetre laceration and pain.  As I recall the history of this matter, which has now been before me for some time, there was great difficulty in trying to get any sort of update on the injuries suffered by the complainant, and he gave some pretty bizarre versions of what had happened to various people.  Be that as it may, they are clearly serious injuries.  I have no trouble with that, and when one looks at the assault the intention could have been no other than to cause serious injury.

5This is a situation where I have heard the pleas concurrently but I am sentencing separately for a number of reasons, and I will go into that in a moment.  There is no valid victim impact statement before me but as I have indicated previously, it is obvious that there would have been lasting effects on this man whatever they may have been.

6Insofar as the incident is concerned, I accept for the purposes of sentencing you that your participation was not premeditated, that it was basically going out, on your situation, to protect your sister in a sense, that you suddenly became involved.  I am comforted in that there were no weapons taken and I have no doubt that your behaviour was led very much by your 41 year old father, and I am coming back to that again fairly shortly.  I have sentenced your father already for this and he was sentenced to be imprisoned for a period of three years and 10 months with a minimum term of two years and eight months.  In my view, and as it is agreed by both parties, parity plays no part in this sentencing operation.  His involvement in all this and his responsibility is far greater than yours.  However, the offending is serious and must call for the application of general and specific deterrence as well as denunciation and appropriate punishment.

7I have taken into account the fact there has now been a delay of some years, mainly because of COVID, and you were only 18 years of age at the time.  After the offending, with no prior convictions, you spent 50 days on remand before being bailed, and I have no doubt as an 18 year old with your difficulties, that would have been a very salutary lesson indeed.

8The charge is a Category 2 offence, and I will come back to that again in a moment.  I have no doubt that Youth Justice can be imposed in that situation.  I have received reports from Youth Justice and a CCO report from the
Office of Corrections, and I will refer to them again in a moment.

9I then turn to matters personal to you and they are, in my view, very powerful indeed.  The Crown's submission here is that a custodial sentence of some form should be imposed.  The defence position originally was of Youth Justice or a community corrections order.  I will not go into the difficulties of sentencing indications that can be caused by all that, but the situation is that I have to determine effectively between a combination of 50 days and a CCO or
Youth Justice.

10So in terms of matters personal to you, there may be some repetition in this because the material doubles up, but it is a serious matter and I think I have to go into it in a little bit of detail.  Your mother is Aboriginal and from New South Wales.  You are the oldest of three brothers.  Your parents separated when you were in primary school, you witnessed physical violence by your father to your mother.  Your father was not actually physically violent to you.  Your mother moved to West Australia.  You spent time swapping between your mother and your father.  You attended different primary schools.  You went to school in both Victoria and
Western Australia because of those moves.  You ended up finishing school at the very start of Year 10.  You played sport, apparently, until you were about 13 or 14 years of age.  You left school at the age of 15 and began working as a concreter.

11You, in those circumstances, started smoking marijuana at 15, you started using ice not long after when you were still 15 and used it occasionally until you turned about 18.  It was around about that time that your ice use dramatically escalated and you were also abusing Xanax for anxiety, and the reasons for that will become apparent.

12Your use of ice continued for a period of time and in March 2020 you were remanded.  You were released on Youth Justice bail and I have the reports from them, which are encouraging.  There are a number of reports, and I will not be going into the detail of them but it is clear to me that at a young age you were doing everything within your limited capacity to turn your life around.  You have endeavoured to re-establish connection with your people and all those things are very much in your favour.

13You decided one morning you woke up and knew that you did not want to be like the adults you saw on remand. You decided to stop the use of ice.  That is not an uncommon experience for young Aboriginal men, certainly not in my experience anyway.  You moved to your mother's in Bendigo to remove yourself from this, what you were doing in Gippsland, and effectively have resided in Bendigo since.  You have significant ongoing support.

14You have dealt with a number of people, and I will just very briefly summarise what they have got to say.  Firstly, Anglicare.  You were referred to their support services in May 2021.  They said that you had met with them several times and demonstrated a genuine willingness to try and identify your challenges and barriers.  They said that you worked hard to develop a supported plan and that you had endeavoured to stay focussed throughout the period of support.  You were being supported by the Bendigo and District Aboriginal Cooperative.  That became more difficult, as you found work. You worked closely with Dr Flynn or Goh for the treatment of diagnosed anxiety.  He is still giving you support with that treatment.  You were then sent to get psychology, and I will be referring to that in a moment, and also that report points out that you had taken the opportunity that you made some, 'fantastic connections', to your local community and started to develop in that area.

15Get Psych'd, which is obviously a psychological firm, said that,

'Zach is a 20 year old male who presents with symptoms of anxiety, depression and substance abuse with a background of childhood trauma.  Predisposed with early parental separation, instability in housing throughout childhood, a history of extensive childhood trauma in the form of domestic violence and childhood sexual assault, early school refusal, likely impacted the development of social skills in connections with peers.  Zach reported significant somatic symptoms in social situations with an intolerance for uncertainty, his associated maladaptive thoughts and beliefs that he will be negatively evaluated by others, and catastrophic thinking.  He avoids situations such as leaving home and being around other people, to minimise perceived risk.  He also self-medicates, using' - this is back then - 'using cannabis and benzodiazepines, which has been impacting treatment by promoting avoidance, inhibiting and numbing trauma related emotions and inhibiting cognitive processing.  He also has a strong sense of worthlessness.  Zach has held the belief that therapy is unhelpful, which is likely driven by his coping mechanism of avoidance'.

16They are the difficulties that you, as an 18 year old, faced.  I have got no doubt in this situation, whatsoever, that the principles enunciated in Bugmy very clearly have a part to play, and a very significant part to play.

17You, as I have indicated, were assessed by Corrections and they found you suitable.  I do not need to in this situation go through their report.  They made a number of suggestions in relation to that.  You were assessed by Youth Justice and, as indicated during the course of the plea, they went into some detail.  They pointed out that your compliance with the Youth Justice supervised bail had been satisfactory, that you had been attending pretty well, that you had been with the Bendigo District Aboriginal Cooperative, but that you had ceased that to a certain extent because of work commitments.  They pointed out that you are aware that you have cultural support available to you, and it is to be hoped that you re-engaged, they pointed out that you have an appointment with a psychiatrist in August to discuss your anxiety disorder and medication.

18You have, and I accept this, acknowledged the seriousness of your offending and the detrimental effect on the other person's life.  As I said, you accepted responsibility and determined never to do this sort of thing again.  You had been working up until fairly recently at Moira Mac's food service in July, and obviously these matters have played a part in your current psychological difficulties.  In the end they said this:

'Mr Golding presents as a polite, respectful, young man who engages well during supervision and contributes to discussions with a positive attitude.  He has been compliant with Youth Justice directions and has shown good prospects for rehabilitation through his attendance and participation with program interventions'.

19They say that you are suitable for YJCO.  They then say, and I do not think I have seen this before, directed to me, obviously:

'Consideration given to the benefit of custody when he was currently engaged in for the most part with services in the community to address his offending behaviour.  Consideration should be given to a community based disposition given Mr Golding's ability to engage with support services and his efforts towards a prosocial lifestyle or subject to Youth Justice supervised bail'.

20It says, 'A condition to participate in Wulgunggo Ngalu Learning Place was' - is very well known to me - 'may also be of benefit'.  I cannot do a CCO with such a condition in it but I am certainly aware that Youth Justice are aware of you and I am sure that Corrections would take that into account.

21Finally I will refer to the report by Ms Megan Rodgers, a psychologist, and again it is an unusual report.  I have seen many from her in Latrobe Valley and Bairnsdale on frequent occasions, and this is probably one of those, I suppose voluminous is one word, but positive reports I have seen from her, because obviously you impressed her to a large extent with your determination to succeed.  She said this, and again I do not think I need to go into great detail of all this:

'Mr Golding was born and spent his early years in Gippsland, Victoria, with his mother and father, younger brother and sister as well as another younger brother who passed away at birth.  He witnessed significant violence perpetrated towards his mother by his father, also witnessing violence in his father's subsequent relationships (for which he was imprisoned) and was aware of the violence in his mother's subsequent relationships.  Mr Golding further reported that his father would make him, "belt"' -

that is, 'assault' -

'his younger sister and if he refused he himself would be physically assaulted.  Mr Golding's parents separated when he was aged approximately five years.  He initially stayed with his father and his mother moved to Western Australia with the younger children.  He stated that his younger sister was removed from his parents' care when she was very young, remaining in State care until recently when she turned 18.  He reported that he was also removed from his father's care.  He stated he would continually return to his father's house and eventually the Department of Human Services simply stopped removing him.  After that time he received - - -'

22It would appear under that time you received very little assistance from them.  He spent time, it says, in Western Australia with your mother.  Sexual abuse, which I do not have to go into in these purposes, and you are currently endeavouring to deal with that.  It goes through the work history, which I have said before, and your drug history, which I have said before, and also the effect that the 50 days that you spent in custody had on you in terms of your determination not to end up like the older men you saw during your period of remand.

23That report, I have formed the view anyway, in any event, points out the decision of Bugmy, of which I am very much aware.  It said in that report:

'His experience of anxiety has been crippling for many years, including panic attacks.  Mr Golding largely managed anxiety by self-medicating with substances of abuse as well as medications which were not prescribed.Mr Golding has demonstrated progress in relation to his management of anxiety, including gaining full time employment, making connections in the community, attending various appointments, including with a psychologist, to address his childhood trauma, and he has joined a local gym'.

24Ms Rodgers took the view that your remorse was sincere.  I do not think I need to go into those in any more detail.  There is a summary of what has happened since.  Essentially you have gone to Bendigo and you have tried to do your best to stay out of trouble and to a very large extent you have, and I take that into account as well.

25As I have already indicated, the charge is Category 2, which is then covered by s5 of the Sentencing Act, and I must make a sentence of imprisonment or of Youth Justice unless under s5(2)(viii)(e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order of custodial imprisonment or youth detention.

26I am aware, pursuant to sub-paragraph (2) to give less weight to the personal circumstances as to you, other than in a matter of such is the nature of gravity of the offence.  I am not to have regard to your previous good character and I am also, in determining whether there are substantial and compelling circumstances, I must have regard to whether the cumulative impact of the offence, the circumstances of the case, would justify a departure from such a sentence.  That is a sentence of custody.  The sentence I impose will, of course, include a period of custody.

27There are a number of decisions which have been handed down and I have the decision of Farmer, which refers to a number of earlier cases as to what that expression means, and I think that was accurately summed up by our
Court of Appeal in a matter of Fariah v The Queen, which was August 2021.  In that Her Honour said, and I will not go to the facts of it all:

'In our view, the judge erred in considering that the applicant bore an onus to satisfy the court that there was substantial and compelling circumstances that were exceptional or rare that justified not making an order under Division 2 of Part 3 of the Act. We accept the submission of the applicant's counsel that s5(2H)(e) does not impose a burden on an offender to prove on the balance of probabilities evidence the existence of substantial and compelling circumstances that are exceptional and rare. That is an evaluative judgment for the judge to make once the relevant underlying facts have been established in accordance with a settled principle. We also consider that the mere fact that some individual circumstances may commonly be encountered by sentencing judges in the County Court will not by that fact alone necessarily deprive them of their character as substantial and compelling and exceptional and rare. Every case will necessarily depend on its particular facts. Circumstances which individually are relatively common may, in combination, enliven the exception in 5(2H)(e). Indeed, in our view, the applicant's appalling childhood experiences, coupled with his youth and other factors relied upon, were sufficient in combination to engage s5(2H)(e).

28In this particular matter I take into account in that scenario in making that evaluative judgment, that your Aboriginality, the Bugmy aspects of your youth, which was very unsettled, very, very difficult.  As I have indicated already, you were only 18 years old at the time of the offending.  It is a situation where clearly you were led by your father, with whom you had had a tempestuous relationship.  I can understand that you have been sexually abused yourself.  You have grave emotional feelings about your sister, as indicated when sentencing your father.  I understand what the Crown say about vigilantism but I do not take issue with it but a lot of this is preventative rather than retributive.

29You have shown, since you have been on bail, that you have rehabilitated, and I am not going to talk - or partially rehabilitated, and that is not going to your prospects of rehabilitation, but as your counsel pointed out, shown rehabilitation.  I am also - it is a situation these days where most of those decisions were pre-COVID and it is a situation where any gaol sentence that you undergo will be done - you would have - the 50 days that you did do, I do not know whether that was COVID or not, but any sentence now would have to be under COVID, so that Worboyes has to play a part, and I take that matter into account as well.

30Significantly, though not determinatively, I take into account the Youth Justice report, which is basically telling me not to lock you up, that you have done very well, and to give you a community corrections order.  When I take all those matters into account I am comfortably satisfied that the test in 5(2H)(e) is satisfied.  I then look at decisions such as Bolton and Bradshaw and decisions such as Toumngeun, Tokova and those matters involving a judge trying to rehabilitate or trying to assist in the rehabilitation of a person, if that is at all possible, as it rebounds very much to the benefit of the community.  In all those circumstances I have again comfortably decided that a community corrections order is within range but it must be one which is accompanied by imprisonment to show that it was not some trifling offence, and must include a number of conditions which will keep you under supervision for a period of time.

31The community corrections order will be for - it will be over three years upon release, which will be today.  It will be with conviction.  It will be with treatment and rehabilitation for drugs, treatment and rehabilitation for mental health, treatment and rehabilitation or programs to reduce reoffending, which I understand, when I put this in my sentencing remarks, will include the consideration of Wulgunggo Ngalu, which I think would be very, very good for you.  I will also be imposing supervision.

32The difficulty in these circumstances I have with judicial monitoring is that at the present time I am on circuit almost all of the time, but what I am going to do is I am going to make a judicial monitoring a few months into the future, if you agree to all these things, just to see how you are going.  There will also be in this situation 200 hours of unpaid community work, and that the hours done in programs can be deducted, all hours done in programs can be deducted from that 200 hours.

33Insofar as judicial monitoring is concerned that is going to have to be done, I think, over the link.  So three months from now, where are we?  Yes, all right, I will make it 8 September at 9.15.  Obviously I will be - where am I then, in the valley?  Yes.  I will be in Latrobe Valley, so obviously I do not expect him to come in for that but if - I do not know if Mr Chisholm is listening, or Ms Fitzgerald, but you just make sure that he does not forget that day.  I am sure Corrections will not, and we will just have a chat to him on the video link and see how he is travelling.

34All right, so you heard all those conditions, Mr Golding.  Do you agree to that community corrections order?

35OFFENDER:  Yes, Your Honour.

36HIS HONOUR:  All right.  The COVID rules are still in place where I can just accept that orally and that is what we will do.

37Insofar as 6AAA is concerned in this scenario it is a bit academic because of your age and the time running out, but I will say for the purposes of 6AAA I would have given you three years YTC.

38Fifty days, yes, 50 days plus a CCO.

39MR GRANT:  I am sorry.  I was going to check that, Your Honour, so it is - - -

40HIS HONOUR:  Did I not say?  Sorry, no, if I did not say it I apologise.  It is
50 days with 50 days reckoned as having been served.  There is also a disposal order, I think, I have got, have I not?  All right.  That must be that one.  So no other orders I need to make?

41MR GRANT:  No, thank you, Your Honour.

42HIS HONOUR:  No, all right.  You follow all that, Mr Golding?

43OFFENDER:  Yes, Your Honour.

44HIS HONOUR:  Yes, look, and I know you have done real well since.  Get back into your culture.  It is very, very, massive support for you, all right.  You have always got uncles and aunties and people who can give you a hand and get right back into your culture.  I think it is very important.  If Corrections can get you to Wulgunggo Ngalu. Shauny Braybrook and the boys up there, I am sure you will have a real connection, so we will see how we go, but if you breach it by offending, anything like this, I am going to have to put you in, all right?

45OFFENDER:  Yes, Your Honour.

46HIS HONOUR:  And you are going to be over 21, remember that.  So YTC will not be an option, all right?  All right, thanks for that.

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