Director of Public Prosecutions v Gray
[2016] VCC 910
•1 July 2016
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00525 and
CR 16-01057
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| REECE FELIX GRAY (also known as RHYS GRAY) |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 21 June 2016 | |
DATE OF SENTENCE: | 1 July 2016 | |
CASE MAY BE CITED AS: | DPP v Gray | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 910 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – recklessly causing serious injury – contravening a Community Correction Order – contravening a Family Violence Intervention Order – dealing with property suspected as proceeds of crime – committing an indictable offence whilst on bail – unlawful assault – failing to answer bail – threat to inflict serious injury – criminal damage
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Criminal Procedure Act 2009
Cases Cited:R v Mills [1998] 4 VR 235; Ashdown v R [2011] VSCA 408; Director of Public Prosecutions v Russell [2014] VSCA 308
Sentence: …
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecutions | Ms C. Parkes | Office of Public Prosecutions |
| For the Accused | Ms A Wong | Victorian Aboriginal Legal Service |
HER HONOUR:
1 Reece Gray, you have pleaded guilty to one charge of recklessly causing serious injury. The maximum penalty applicable to that offence is 15 years' imprisonment.
2 You have also consented to me hearing and re-sentencing for breach of a Community Correction Order pursuant to s.83AM Sentencing Act 1991 imposed on 7 July 2015 at Stawell Magistrates' Court, and have pleaded guilty to that breach.
3 Turning to the charge on the indictment, that crime arises out of events which took place between yourself and the victim of your offending, Kapai Rehu. It is not necessary for me to recount in great detail the facts of that matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor (Exhibit A).
4 I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and your behaviour was quite unacceptable.
5 I turn to a brief summary of it.
6 At the time of this offending you were 18 years of age and at the time of sentence you are 19. The complainant, Mr Rehu, was at the time of the offending 33 years of age. He lived in Ararat, as did you.
7 You and Mr Rehu knew each other through your girlfriend, Tori Grimes. Ms Grimes and you were the parents at that time of two children, 2 years and 1 year of age. Ms Grimes and Mr Rehu commenced a sexual relationship approximately three months prior to your offending, at a time when she was separated from you.
8 Ms Grimes and yourself had reconciled shortly before this offending, however, Ms Grimes was still 'seeing’ Mr Rehu. She did not tell you that she was still seeing him.
9 On Saturday, 10 October 2015, Mr Rehu attended Elizabeth Green's home in Ararat to take a shower after work. Ms Green and he were friends.
10 At approximately 11.30 pm he went out to the backyard to text a friend to come and pick him up. Ms Green and two other friends were in the house. As he was texting his friend, you approached him from behind and struck him with a wooden fence post to the right side of his face. The blow caused Mr Rehu to fall to the ground. You then struck Mr Rehu's head again with a fence-post to the left side, which caused extreme pain to him and rendered him unable to see.
11 After being struck in the eye, Mr Rehu tried to cover up with his arms to defend himself, but you continued to strike him with the fence post. You continued striking him a further seven or eight times with the wood, attacking his back, left shoulder area and right leg. The force of the blows you inflicted was such that the piece of wood broke during the assault.
12 Ms Green, who was indoors, heard what she thought was someone getting hit multiple times, and heard you yell, "Stay away from my missus and my boy, cunt". Mr Rehu got to his feet, grabbed the lump of wood from you, threw it to the ground and put his hands up to protect himself. Ms Green came outside to see what was going on, and recognised you. You walked past Ms Green and jumped over the neighbouring fence.
13 Ms Green assisted Mr Rehu to his feet and helped him to her car. A neighbour, Ms Vogl, walked into the property after hearing a strange noise. Ms Green pointed out a wooden fence post to her and both Ms Green and Ms Vogl observed Mr Rehu's injuries.
14 Ms Green rushed him to hospital, whilst Ms Vogl looked around to see if she could find the assailant. She eventually saw you crouching behind a fence in a neighbouring property.
15 I turn to the injuries sustained by Mr Rehu. After his arrival at Ararat Hospital he was assessed, then urgently transferred to the Royal Melbourne Hospital for treatment, and remained in hospital until 14 October 2015, when he self-discharged.
16 As a result of your assault upon him, Mr Rehu suffered a number of injuries, as set out in the Prosecution Opening (Exhibit A, paragraph 15), including lacerations, bruising, abrasions, and a traumatic left-eye-globe rupture and a retro-orbital haematoma.
17 For the latter, Mr Rehu underwent an emergency procedure to relieve the pressure within his left eye, followed by surgical repair of his left globe rupture. He also underwent surgery to repair a laceration on his right thigh.
18 Whilst in hospital, Mr Rehu underwent daily assessment of his vision, which showed that he was totally blind in his left eye.
19 I was not given any further update regarding Mr Rehu's injuries apart from a report from Dr Gaya, dated 20 January 2016 (Exhibit C). He was unable to say, due to his lack of relevant expertise, whether Mr Rehu's blindness in the left eye would be permanent.
20 Despite the lack of a victim impact statement, I accept on the material before me, which also includes the report of Dr Pope (depositions p.36) that the victim of your offending suffered considerably as a result of your offending.
21 On 22 October 2015, approximately six days after Mr Rehu self-discharged, he attended Ararat Police Station and reported the assault to police. Police then attended the scene of your offending on 23 October 2015 and located the wooden fence post and the broken section of post.
22 You were arrested on 27 October 2015 and a record of interview was conducted. During that interview, you made a number of admissions. You said you had warned Mr Rehu to stay away from Ms Grimes "heaps of times" but that he had kept coming back, "so he copped it". You said that Mr Rehu was still talking to Ms Green, so the “job's still not fucking finished".
23 When you were asked what other choices you could have made that night, you replied, "Shoot him. Finish him. He can't get away". When asked what you thought was going to happen when you hit Mr Rehu with the piece of wood, you said, "I was going to really hurt him so he couldn't move". I note, however, a level of remorse by you in the record of interview when you referred to your feeling sorry that Mr Rehu had "lost his eye".
24 You have pleaded guilty to this charge and you are entitled to have that fact taken into account in your favour, and I do so. Witnesses have been spared the ordeal of having to give evidence upon your trial, in particular the victim of your offending. I also take into account in your favour you intimated early your intention to plead guilty to this charge and also acknowledged your involvement in this offending when spoken to by police in the record of interview. In the circumstances, I am prepared to accept that your plea of guilty indicates some remorse for your actions, although I am concerned about the genuineness or extent of your remorse.
25 Ms Wong, who appeared on your behalf, submitted Mr Rehu's injuries fell within the mid-range of serious injury, although conceded that the impact of your offending had the potential to be long lasting, with the loss of Mr Rehu's eyesight in his left eye, should that be the case. In my opinion, the offences fall into the mid to higher range (the latter if his eye damage is permanent) but not the highest range.
26 Turning to your offending involving Mr Rehu, you instructed Ms Wong that you thought Mr Rehu was supplying Ms Grimes with methamphetamine. There were also, it seemed to me, to be issues of "fidelity" and I discussed that with your counsel.
27 On your instructions, your offending had occurred whilst you were under the influence of alcohol and methamphetamine. However, it was somewhat unclear to me, given your own admitted use, why you would have been so upset about Ms Grimes getting methamphetamine from Mr Rehu, unless it also included issues of fidelity.
28 As I discussed with Ms Wong, and conceded by her, your drug use is an aggravating feature of your offending, as you were aware of your potential for violence when affected by that drug. Ms Wong conceded there were a number of other aggravating features of your offending, the assault was unprovoked, with features of planning, a weapon was used, and that it was a sustained attack.
29 I turn to your prior criminal history, which is extensive and very concerning for someone your age.
30 You first appeared at Ararat Children's Court on 13 September 2010 on a charge of theft and were, without conviction, released upon entering an undertaking for six months.
31 You next appeared at Ararat Children's Court on 2 March 2012 on charges of burglary, theft and criminal damage and were without conviction placed on probation for six months.
32 You next appeared at Ararat Children's Court on 7 May 2012 on charges of recklessly cause injury and dealing with proceeds suspected of being the proceeds of crime. You were without conviction placed on probation to 21 December 2012. You were unable to provide instructions to Ms Wong as to the victim or circumstances of that offending.
33 You next appeared at Ararat Children's Court on 18 June 2012 for driving offences and, without conviction, were placed on an undertaking to be of good behaviour and your licence was cancelled for six months.
34 You then appeared at Ararat Children's Court on 13 August 2012 on charges of theft of a motor vehicle and unlicensed driving and were without conviction fined an aggregate of $500 and your licence cancelled for six months.
35 You next appeared at Ararat Children's Court on 5 November 2012 on charges of theft of a motor vehicle, burglary, without lawful excuse entering a private place, criminal damage, contravening a Family Violence Intervention Order (two charges), unlicensed driving, using an unregistered motor vehicle and possess, use or carry a prohibited weapon without exemption or approval. For those offences you were placed on probation for a period of nine months to 4 August 2013 and your licence was cancelled for six months.
36 You then appeared at Ararat Children's Court for breaching a Probation Order relevant to your earlier court appearance on 7 May 2012. The offence was proven and you were, without conviction, released on a Youth Supervision Order for a period of nine months.
37 You then appeared at Ararat Children's Court for breach of the Probation Order imposed on 5 November 2012. That breach was proven, probation was cancelled and you were, without conviction, placed on a Youth Supervision Order to 14 December 2013.
38 You also appeared that same day at Ararat Children's Court on a number of other driving offences, also burglary, theft and criminal damage, and on those charges were without conviction placed on a Youth Supervision Order for nine months and your licence was cancelled for 12 months.
39 You then appeared on 15 July 2013 at Ararat Children's Court and were dealt with for theft from a shop and without conviction fined $40.
40 You next appeared at Ararat Children's Court on 11 August 2014 on charges of criminal damage, unlawful assault, contravening a Family Violence Intervention Order, obtaining a financial advantage by deception and unlicensed driving and on that offending you were, without conviction, released upon a Good Behaviour Bond.
41 You then appeared at Ararat Magistrates' Court on 22 May 2015 for being drunk in a public place, resisting a police officer and two charges of failing to answer bail and, without conviction, the matter was adjourned to 20 May 2016.
42 As I discussed with your counsel, your history is extensive and many of the charges are relevant when determining the appropriate sentence for the charge before me.
43 I note your offending involving Mr Rehu occurred on 10 October 2015 was committed approximately three months after the Community Correction Order was imposed on 7 July 2015 and such is relevant when assessing your rehabilitation prospects.
44 I turn now to the offences for which you are to be re-sentenced, having breached that Community Correction Order. They are contravening a Family Violence Intervention Order, dealing with property suspected as proceeds of crime, committing an indictable offence whilst on bail, two charges of unlawful assault, failing to answer bail, threat to inflict serious injury and criminal damage.
45 In the breach report before me from Corrections Victoria dated 6 January 2016 reference was made to your non-compliance from the time of your induction, and supervision and treatment on that Order. There was also further offending by you during the operational period of the Order, which included the offence of recklessly causing serious injury, which is on the indictment before me.
46 In that report was a list of other offences committed by you following the imposition of this Community Correction Order. I was advised they had subsequently been heard at Horsham Magistrates' Court on 6 April 2016 (with the exception of the charge before me) and for a number of driving offences, you were fined. In relation to a charge of contravening a Family Violence Intervention Order, which I understood reflected two breaches, you were fined $500 and on offences of theft committed on 2 September 2015 and again between 16 and 20 October 2015 you were placed on another Community Correction Order for a period of twelve months with 120 hours of community work to be performed by you, that unpaid work being the only condition attached to that Order.
47 In regard to your compliance with that most recent Order I heard evidence from Ms Barnes of Horsham Community Corrections Centre. Whilst you had attended the office seven times you had also failed to attend on seven occasions for community work, such deemed to be unacceptable absences.
48 As I discussed with your counsel, the only charge on the indictment before me is recklessly causing serious injury. The relevance of the most recent Community Correction Order is to ascertain your compliance or otherwise when considering the sentence initially urged upon me by Ms Wong for recklessly causing serious injury, being a sentence involving a Community Corrections Order. As her plea progressed, however, I understood that, as her primary submission, was abandoned.
49 So turning to the breach of the Community Correction Order imposed on 7 July 2015, that report indicates that at induction on 10 July 2015 (three days after you were placed on that order) you presented under the influence of alcohol. A further induction appointment was re-scheduled for 20 July 2015. On 17 July 2015 you were personally reminded of your induction appointment scheduled for 20 July 2015, however, you failed to attend and no contact was able to be established with you.
50 On 31 July 2015 you attended Ararat Corrections Centre, despite an appointment not having been scheduled for that day, and expressed your frustration with the requirements of the Order (I note despite your consent to being on the Order). You were concerned about the amount of appointments and programs you would be required to attend in order to comply with your Order. A further induction appointment was arranged for 7 August 2015 to have the Order and its further terms explained to you.
51 You attended that induction, however then failed to attend supervision appointments on 28 August 2015, 31 August 2015, 4 September 2015, 25 September 2015, 12 October 2015 and 23 October 2015.
52 You attended supervision on 4 December 2015 and 18 December 2015, it would appear, upon the recommendation of your then solicitor, however, since then you disengaged.
53 You failed to attend an appointment with ACSO Coates on 16 December 2015.
54 Due to your disengagement, a mental health assessment had not been completed nor were you assessed by a Corrections Offending Behaviour clinician.
55 In the conclusions and recommendations in the report it was noted you had had a long involvement in the criminal justice system, a matter I also discussed at some length with your counsel, Ms Wong, and in the past been given the opportunity of various sentencing dispositions, also discussed with Ms Wong.
56 You were described in that report as having demonstrated unsatisfactory compliance with the July Community Correction Order and attempts to engage with you had been unsuccessful. You had shown no commitment to complying with the requirements of the Order or attend programs. Further, you had committed further offences during the operational period of that Community Correction Order, which, as I said, includes the offence before me of recklessly causing serious injury. The recommendation was that the Order be cancelled and you be re-sentenced on your original charges and you are now before me for resentencing.
57 I then discussed with your counsel the summaries of the offending for which I am to re-sentence you and those summaries were read into the transcript by me and discussed with counsel.
58 In brief, that offending involved an incident on 10 May 2015 which involved your partner, Tori Grimes, and related to a charge of criminal damage and unlawful assault.
59 I turn to the second summary that was read into the transcript. Following your being bailed from Ararat Police Station on 10 May of 2015 you were involved in offences of breaching an Intervention Order (relevant to Tori Grimes), dealing with property suspected of being stolen, committing an indictable offence whilst on bail and one charge of unlawful assault. I just interpose and indicate I will need to mark those as an exhibit at the end of this sentence.
60 The third summary involved the victim of your offending, Alison Grimes (mother of Tori Grimes) and your assault upon her on 10 May 2015. That involved putting a knife to Alison Grimes' throat and threatening to slit it. That offending related to charges of threatening to inflict serious injury, and failing to answer bail.
61 As I discussed with your counsel, these incidents are very concerning behaviour by you, not only when re-sentencing you for those charges, bearing in mind your extensive criminal history, but also the relevant type of offending as that involving Mr Rehu, ie: violent-type offending.
62 Your counsel, Ms Wong, prepared a written outline of submissions for your plea hearing and addressed those during the course of it. Ms Wong relied extensively upon you being a young offender and I am also aware of that.
63 In her oral and written submissions Ms Wong referred to your personal background and history.
64 You were born in Broome, Western Australia, and are an Aboriginal Australian. You have a younger sister, Claudine, now 17.
65 You had a traumatic and dysfunctional childhood. You described your mother as an alcoholic and prone to violence. Your parents separated when you were 4 years of age, and you and your sister went to live with your father. You continued contact with your mother until you were 9 years of age. You then moved to Ararat with your father and sister.
66 Not long after your 10th birthday your mother passed away due to alcohol-related health problems. There were also other deaths of family members over the period of a year.
67 You suffered ADHD and learning difficulties as a child, and began exhibiting defiance and aggression when around 12 years of age. You developed drug problems when 12 to 14 years of age. You completed year 10 of your education at Ararat.
68 When you were 17 you met Ms Grimes and there are now three children of that relationship. The most recent child was born on 18 June of this year.
69 I was told you had a supportive family and were currently living at home with your father and sister.
70 Further details were provided of your employment history. You had been in employment with Ararat Meatworks from 2011 to 2013, then at Davidson's Casings from 2013 to approximately September 2015, and on occasions you were involved in shearing.
71 Turning to your drug and alcohol abuse, you began using cannabis when you were twelve, alcohol and methamphetamine when 13 or 14. You reported having ceased methamphetamine use after this offending. You continue to use cannabis.
72 You had an IQ in the borderline range. You had been under the care of a paediatrician for your ADHD and taking prescription medication until year 9.
73 Your prior criminal offending commenced when you were 13 years of age and you have had a number of court appearances for relevant offending including violent offences to which I have previously referred.
74 Ms Wong described you as a devoted father, actively involved in the care of your children, and continuing to enjoy the support of your father, sister and your partner.
75 Also before me was a report from Ms Carey, Clinical Neuropsychologist, dated 13 June 2016. Further details were provided in that report relevant to your background and history, including your diagnosis when in Broome of Attention Deficit Hyperactivity Disorder and learning difficulties. Further, you demonstrated oppositional defiance and aggression in 2009, and fire-starting in 2010.
76 Reference was also made to your substance use over the years, which had included a history of excessive alcohol consumption. You now reported you did not believe your level of alcohol consumption was problematic.
77 You were still using cannabis and said you had previously participated in some weekly one-on-one drug and alcohol counselling, although you said you had not found that useful. No further details were provided.
78 Regarding your offending on the indictment before me, you told Ms Carey you had consumed six to eight beers prior to your offending and had taken a "point" of methamphetamine. You also said Mr Rehu had been warned about engaging in sexual contact with Ms Grimes.
79 You reported you could be quick to anger and that you could act impulsively in matters related to threats to your children and family.
80 A number of tests were conducted by Ms Carey. Your full-scale IQ score was 75, within the borderline range.
81 In the opinion/conclusion of Ms Carey, there was no evidence you had sustained a substance-related Acquired Brain Injury. Ms Carey concluded there was no association between your level of cognitive functioning and your offending.
82 In the opinion of Ms Carey, your acute substance use as described by you, ie: alcohol and methamphetamine, at the time of your offending was more closely relevant to poor judgment and decision-making and this increased disinhibition at the time you committed the offence rather than your profile of borderline to low-average functioning.
83 In Ms Carey's opinion, your level of cognitive functioning was unlikely to have a significant impact on your ability to manage a term of imprisonment. In her opinion, you were experiencing a moderate level of depressive symptoms and there would be a risk that you would suffer exacerbation of your depressive symptoms if sent to prison.
84 I note Ms Wong was not relying upon the principles in R v Verdins & Ors[1], and such was an appropriate concession on the material before me (see also the recent decision of Binse v The Queen[2]).
[1] (2007) 16 VR 269
[2][2016] VSCA 145
85 Also before me was correspondence from Dr Harry Zehnwirth. In correspondence dated 4 April 2007 he confirmed the earlier diagnosis of ADHD in Broome. You were, at the time of this report, receiving medication relevant to that. A further report from Dr Zehnwirth dated 11 April 2008 referred to the positive impact upon you of the medication you were then receiving.
86 In correspondence dated 19 March 2010, Dr Zehnwirth referred to concerns about your conduct disorder, lighting fires, and oppositionality. That seemed to be associated with the "new relationship" then developing between your father and his new partner. In correspondence dated 11 June 2010, you were more stable, with perhaps some attention-seeking activity.
87 In her oral submissions Ms Wong referred to this being your first time in custody in an adult jail undergoing sentence. You had spent 28 days in remand for the offence on the Indictment prior to being bailed approximately six months ago. I accept and appreciate this is your first time in an adult prison and at a young age.
88 Ms Wong submitted since you had been released on bail there had not been any further offending, and that is so.
89 You were, she submitted, still living in Ararat, as was Mr Rehu, with no further "dealings" with him. I also note that.
90 You instructed Ms Wong you were abstinent from amphetamine use, however, you continued to consume alcohol sporadically. Ms Wong submitted that on your instructions you had recently attended drug and alcohol counselling. No material was forthcoming regarding that and at least from the evidence of Ms Barnes of Community Corrections there had not been any such counselling through Corrections on the recently imposed Order, although I note it was a work-only component Order.
91 The birth of your third child was four days prior to your plea hearing. You are not living with Ms Grimes, however, I was told you had spent most of your day with her sharing parentage of the now three children. Ms Wong referred to the concern you would have for your children if incarcerated and away from them. Whilst not relying upon that as family hardship, I accept that being away from your children will weigh heavily upon you in custody, no doubt worrying about how they are coping in your absence and not being able to see them as often as you would like. I note, however, the presence of children, two of them, has not prevented you from the commission of your offending, as I discussed with Ms Wong.
92 Ms Wong referred to your behavioural problems and aggression issues from a young age. You are no longer taking medication for that or for any other reason as I understood it.
93 Ms Wong referred to your work history, which she said reflected consistent employment and I am aware of that. Ms Wong referred to your previous employment as a protective factor, however, as I discussed with her, whilst working you were also using ice on occasions and also committing offences, as reflected in your extensive prior criminal history.
94 Ms Wong submitted that you were keen to get work, however, I discussed with her my concern regarding your instructions that your NewStart allowance had been cut off because you had missed an appointment. I sought further information in that regard. None was forthcoming.
95 Turning to sentencing, Ms Wong conceded general deterrence and denunciation of your offending was relevant. In my opinion, specific deterrence is also relevant.
96 In mitigation, Ms Wong relied heavily upon your plea of guilty at an early stage (committal mention). I also note that and I also note that you made admissions to the offending in the indictment in your record of interview.
97 Your counsel also referred to a number of authorities in which there have been considerations of sentencing principles relevant to the offences of recklessly causing serious injury and I have read that summary.
98 Ms Wong referred to your disadvantaged background and I discussed that with her. Such is relevant when sentencing you, (see Marrah v The Queen[3], Scott v The Queen[4] and DPP v Terricks & Ors[5]).
[3] [2014] VSCA 119
[4] [2013] VSCA 347
[5] [2009] VSCA 220
99 The individual circumstances of an offender are always relevant to sentence and circumstances of disadvantage may be explanatory if not causative of the offending. The weight to be given to those circumstances of disadvantage depend upon a number of factors including the importance of deterrence (specific and general) and community protection. The latter are important sentencing considerations in your case.
100 Ms Wong also referred to your young age and the importance of rehabilitation. I agree that at your age, 19 at time of sentence, rehabilitation is an important sentencing consideration. I am aware, as I discussed with counsel, the decision of R v Mills[6]:
[6] [1998] 4 VR 235
101 I also discussed with Ms Wong that Mills is not of usual or automatic application. Each case depends on its own circumstances, including the circumstances of the offence as well as the offender (see DPP v Lawrence[7]).
[7] (2004) 10 VR 125
102 In Connolly[8], Coldrey J referred to the principles in Mills and stated that:
"No doubt a sentencing court will endeavour to implement these principles as far as is possible in sentencing a youthful offender, but they are not to be regarded as immutable. In the context of the variety of fact situations and offenders with which courts have to deal, such factors as the seriousness of the offence or offences committed (and just punishment therefore); the need for deterrence (specific and general); the offender's prospects of rehabilitation; and the need to protect the community may need to be reflected in the sentence imposed".
[8] [2004] VSCA 24
103 This was confirmed in Gosland and McDonald v The Queen[9]:
"It is apparent from his Honour's sentencing remarks that he paid close attention to the principles essayed in R v Mills. As his Honour observed, however, the premium which is placed on the rehabilitation of youthful offenders must be balanced against other sentencing considerations such as general and specific deterrence, denunciation and community protection. More specifically, as Batt JA explained in R v Lawrence, the general propositions enunciated in R v Mills are just that, general propositions, and they are not to be treated as if they were of usual or automatic application. Each case depends on its own circumstances, including the circumstances of the offence as well as of the offender. That is particularly so where a sentencing judge is required to deal with a case of gratuitously violent offending in a public place by youthful offenders under the influence of alcohol or drugs; especially where, as here, the offender has had previous opportunities to rehabilitate through community-based orders and Youth Justice Centre orders and in effect has thumbed his nose to those chances. Additionally, as Batt JA said, the benefits that flow to youthful offenders diminish the older they become".
[9] [2013] VSCA 269
104 I note of course the factual differences in that case to yours, nevertheless, the principles therein stated are applicable.
105 Also in R v JED[10], Justice Kellam also considered the principles relevant to sentencing young offenders:
“In R v Mills Batt JA expressed his approval of the proposition that the youth of an offender should be a primary consideration for a sentencing court and that usually rehabilitation is far more important than is general deterrence. His Honour pointed out, however, that that was particularly so in circumstances where a youthful offender is a first offender, which is not the case with you. Furthermore, in R v Bell, Batt JA said:
- 'the general propositions accepted in R v Mills are just that - general propositions. They are, as their terms show, not of universal or automatic application. True it is that they may apply not infrequently, but each case depends upon its own circumstance, including, it is to be noted the circumstances of the offence as well as those of the offender'."
[10] [2007] VSC 348
106 I also make reference to the authorities of DPP v SJK and GAS[11].
[11] [2012] VSCA 131
"When youth is raised for sentencing considerations, the focus is usually placed upon the offender's prospects of rehabilitation, but this is by no means the only basis upon which it assumes relevance. For at least a century, the attribution of criminal responsibility and the response in terms of the dispositions handed down upon offenders has increasingly reflected developing ideas and understandings concerning personal responsibility, moral culpability and accountability. In the case of young people, to some extent, the law incorporates an acknowledgement of aspects of immaturity. By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and full consequence of the offending actions. However, it does not follow that this is always the situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity.”
“The Court stated further:
“These remarks are not intended to diminish in any way the considerable significance to be accorded to youth and rehabilitation as factors to be taken into account in the determination of the appropriate sentence to be imposed on a youthful offender. They are intended, however, to emphasise that these factors constitute only some in a number of matters that must be taken into account and that, even in the case of a young offender, there are occasions on which they must give way to the achievement of other objectives of the sentencing law.”
107 I also made reference to the decision of R V Tran[12] and Justice of Appeal Callaway said:
“The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not the only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true in the case of a youthful offender that rehabilitation is usually far more important than general deterrence. But the word I have italicised is there to remind us that there are cases where just punishment, general deterrence and other sentencing objectives are at least equally important.”
[12] (2002) 4 VR 457 at p.462
108 Most recently the Court of Appeal has referred to the "tension" between rehabilitation of a young offender and the need for general deterrence (see DPP v Russell[13]).
[13] [2014] VSCA 308 [63]-[64]
109 Of course, one hopes you will be rehabilitated but at the moment there is very little to give me any comfort in that regard. Your rehabilitation prospects, however, are not extinguished.
110 Ms Wong referred to the ongoing support of your father and he was in Court to support you during your plea hearing. As I discussed with counsel, I accept he has done his best to assist you in your life, however, despite that support, your offending has continued.
111 Ms Wong urged that a Youth Justice Centre disposition be imposed for your offending on the Indictment and when re-sentencing for breach of a Community Correction Order. She submitted you had not previously been confined in an adult prison or in a Youth Justice Centre and that you would be vulnerable in the adult prison environment. She submitted that a Youth Justice Centre disposition of up to three years would appropriately reflect all sentencing considerations.
112 Ms Wong referred to sentencing statistics for offenders under the age of 20 years sentenced for the offence of recklessly causing serious injury between July 2010 and June 2015. As I discussed with Ms Wong, statistics of course do have a place in sentencing, however, they are absent details about the type (gravity) of offending, details personal to the offender including any prior criminal history, whether Verdins principles applied, or whether co-offenders and parity issues had to be considered. Ultimately I must determine the appropriate sentence in your case, taking into account your offending and all matters personal to you and in mitigation of sentence and of course sentencing principles as enunciated by the Court of Appeal in this state.
113 Ms Wong's secondary submission, without abandoning her primary submission, was that if I considered a term in an adult prison to be the only appropriate disposition, such should be combined with a Community Correction Order.
114 Ms Parkes, who appeared on behalf of the prosecution, submitted a Youth Justice Centre disposition with a maximum period of three years would be insufficient to reflect all sentencing considerations in your case. Ms Parkes submitted the only appropriate disposition was an immediate term of imprisonment in an adult gaol.
115 Ms Parkes referred to the seriousness of your offending involving Mr Rehu, that it was an unprovoked attack, a weapon was involved and it occurred on private property with you effectively laying in wait for the victim.
116 Ms Parkes referred to a degree of planning involved in your offending and that in your record of interview you said that you took ice to assist in the "planning" of this offending. Ms Parkes submitted your drug use aggravated your offending, as you were aware of your tendency towards violence when on ice.
117 Ms Parkes referred to your relevant prior criminal history.
118 Ms Parkes referred to the significant trauma and injury to Mr Rehu as a result of your offending, including ongoing scarring and an eye injury, which could be permanent, although conceding that this was inconclusive.
119 Ms Parkes referred to the need for general and specific deterrence when sentencing you, also denunciation of your offending and also just punishment.
120 Notwithstanding your youth at the time of sentence and your offending, Ms Parkes referred to the overriding need for general deterrence when sentencing you for this offending. In that regard, Ms Parkes referred to the decisions of Ashdown v R[14] and Russell.
[14] [2011] VSCA 408
121 Ms Parkes also referred to the lack of reports before the Court which suggested any current treatment was in place for you relevant to assist your rehabilitation prospects. You had ongoing anger management issues which were yet to be addressed which also, she submitted, raised concerns about your prospects of rehabilitation. I agree.
122 Regarding your rehabilitation prospects, I have concerns about that, as I have stated previously in these sentencing remarks, however, in fixing an appropriate sentence I must seek to maximise your chances of rehabilitation as they may be. You are still young and hopefully during your sentence you will undertake and seek out assistance and counselling. That will hopefully improve your chances of rehabilitation.
123 As well as matters personal to you to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
124 There is also the need for specific deterrence when sentencing you, as you have a concerning and relevant history for someone of your age, including violence to others.
125 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re‑offending. This concerns me.
126 I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment. As I have said, your counsel urged that I consider the imposition of a Youth Justice Centre disposition. In my opinion, such would not adequately reflect all sentencing considerations, and nor would a disposition involving a Community Correction Order be appropriate.
127 So I therefore sentence you as follows.
128 On Charge 1, convicted and sentenced to 3 years' imprisonment.
129 Now, regarding the breach of the Community Correction Order, I find the breach proven and on the breach I impose a fine of $100.
130 But for the offences for which you are to be re-sentenced I sentence you to an aggregate of 10 months' imprisonment.
131 Charge 1 on the Indictment is the base sentence and I direct that 4 months of the sentence I have imposed when re-sentencing for the offences before me is to be served cumulatively upon the base sentence.
132 That results in a total effective sentence of 3 years and 4 months' imprisonment, and I direct you serve a period of 16 months before you are eligible for parole.
133 But I will say this about that non-parole period. In so sentencing you to 16 months' non-parole, I have imposed what I regard as a short non-parole period, being mindful of R v VZ[15], and the need for your rehabilitation but also that the non-parole period should include a penal element and where general or specific deterrence is important that objective should not be undermined by an unduly short non-parole period (see paragraph 15 of VZ).
[15] (1998) 7 VR 693
134 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of the charge on the Indictment following jury verdict, I would have sentenced you to a term of imprisonment of 5 years on that charge of reckless cause serious injury and set a non-parole period of 3 years.
135 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 38 days in custody by way of pre-sentence detention (which is 28 days from 27 October to 23 November 2015 and 10 days from 21 June, the date of your plea hearing, up to and including yesterday, 30 June 2016), and direct that this be entered into the records of the court.
136 I need to just clarify a couple of things. That fine of $100 for the breach, I know I could have sentenced him to up to three months, but I checked the various sections of the Sentencing Act and a fine is permissible, it seems.
137 MS PARKES: Yes, Your Honour.
138 HER HONOUR: And $100 does fall within the amount that could be ordered, so it is comfortably within that, as I understand it. So that is $100. Now, I have not actually declared a s.6AAA on that matter, because this offending, which activates that breach of the CCO automatically - - -
139 MS PARKES: Yes.
140 HER HONOUR: I suppose if I have to make any declaration I would have added a few months on top of that sentence to reflect re-sentencing on those other charges.
141 MS PARKES: Yes.
142 HER HONOUR: But I am not sure whether it actually had to apply given the way this has worked, ie: he commits the offences, this one breaches it automatically, activates the others. But if it is a fact he has proven - pleaded guilty to the breach, if that has to be taken into account, then if he had not pleaded and we had had to go on through all of that, then the time in custody would have increased. It just seemed a bit artificial in the circumstances.
143 MS PARKES: I do not think it is necessary for a declaration on that, no.
144 HER HONOUR: I would not have given him $100 fine either.
145 MS PARKES: Yes, yes, Your Honour.
146 HER HONOUR: He would have been sentenced to some gaol. But as to working out the exact figures, I have not bothered with that. I have, however, very specifically noted the s.6AAA in relation to the recklessly cause serious injury.
147 MS PARKES: Yes, Your Honour.
148 HER HONOUR: So it is out there. It is on transcript. That is my line of thinking. That is why I have approached it that way.
149 MS PARKES: Yes, Your Honour.
150 HER HONOUR: So have I got the PSD right?
151 MS PARKES: Yes, and that is agreed.
152 HER HONOUR: Excellent. Now, were there any other orders? I do not have a note of any.
153 MS PARKES: Disposal order, Your Honour.
154 HER HONOUR: All right. I cannot remember that.
155 MS PARKES: For the fence post.
156 HER HONOUR: Yes, I cannot remember. What was the attitude, do you recall? I cannot imagine Ms Wong having opposed it.
157 MS PARKES: I do not think there was any issue with the order, Your Honour.
158 HER HONOUR: Well, I make the order in the terms sought.
159 MS PARKES: Thank you.
160 HER HONOUR: Ms Jackson will have a note of what her attitude was. She is coming to it in a minute. So I will sign that. Ms Jackson will have her look. She makes - - -
161 ASSOCIATE: It was not opposed, Your Honour.
162 HER HONOUR: It was not opposed according to the notes of Ms Jackson and she makes her notes at the hearing, so on that basis, plus in my opinion it is appropriate that the disposal order is made. So I am signing. Now, there was nothing else? Just remind me.
163 MS PARKES: No, Your Honour.
164 HER HONOUR: No 464 or anything. Three copies coming down. Anything further in this matter?
165 MS PARKES: No, Your Honour.
166 HER HONOUR: No. I had to mark exhibits, yes, those summaries that were given. There were three summaries provided. They are a prosecution exhibit and they will become what?
167 ASSOCIATE: D, Your Honour.
168 HER HONOUR: EXHIBIT D three prosecution summaries of the offences the subject of the re-sentencing on the breach of the Community Correction Order.
169 HER HONOUR: Does that make sense?
170 MS PARKES: Yes, Your Honour.
171 HER HONOUR: So that will be D, three copies.
172 MS PARKES: Yes, Your Honour.
173 HER HONOUR: Nothing further? No. Thank you. Yes, you will have to leave. Thank you very much, Mr Gray. Yes, all right. Well, thank you very much.
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