Director of Public Prosecutions v Hood
[2023] VCC 344
•7 March 2023 (further plea and sentence)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-22-00327
Indictment No. M11704241.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
Norman HOOD
‑‑‑
JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 February 2023 (sentence indication) 24 February 2023 (arraignment) | |
DATE OF SENTENCE: | 7 March 2023 (further plea and sentence) | |
CASE MAY BE CITED AS: | DPP v Hood | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 344 | |
REASONS FOR SENTENCE
‑‑‑
Catchwords: Recklessly Causing Serious Injury (“RCSI”) - theft. 44 years old – Plea following Sentence Indication – limited remorse; Sizeable and relevant criminal history including 3x RCSI, 1x Negligently Causing Serious Injury, 1x Recklessly Causing Injury and 4x Intentionally Causing Injury – Guilty plea; Worboyes v The Queen [2021] VSCA 169 – Disadvantage; Bugmy v The Queen [2013] HCA 37; 249 CLR 571 – Delay; COVID-19 increased burden.
‑‑‑
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Pathmaraj | Office of Public Prosecutions |
| For the Accused | Mr S. Kenny | Kurnai Legal Practice |
HIS HONOUR:
1 Norman Hood, you have pleaded guilty to recklessly causing serious injury and also a charge of theft.
2 You are 44 years of age and you have a lengthy and relevant criminal history. You have been in custody since your arrest on 12 August 2021.
3 Recklessly causing serious injury has a 15-year maximum term of imprisonment, theft a 10-year maximum prison term.
4 There is a summary of the prosecution opening for the plea dated 6 March 2023 which has been marked as Exhibit A. This document is essentially a rebadged version of the Crown summary that had been provided for the sentence indication, and your counsel, Mr Kenny, told me that was an agreed factual summary. For that reason, there is no need for me to set out the full sentencing facts in these, my reasons. I will sentence pursuant to that agreed summary. So I will say something only briefly as to the facts.
Facts
5 As that summary discloses, on 11 August 2021, your victim, Mr Joseph Nicastro, who was 44 years of age at the time, went to visit a friend. It was a woman named Sasha Katsanis. She was living in a caravan park in Lakes Entrance. On that day in question when he went into Ms Katsanis' caravan, you were present and for whatever reason, you told Mr Nicastro to leave. He did. Later that evening he was out walking and he returned to that caravan park. He went to Ms Katsanis' caravan and he found you sitting on Ms Katsanis' bed. Ms Katsanis stood up and gave him a hug. You appeared to be unhappy that Mr Nicastro had returned. You told him that it was, to quote, 'Best that you fuck off'. I note there is no other material at all touching upon any past history of animosity or disagreement between you and Mr Nicastro. Mr Nicastro left the caravan. A short time later, he left the caravan park itself and you followed in the direction he had taken. He did not get too far. He was set upon by you and severely assaulted. You stole his phone.
6 You were captured on various footage which implicated you circumstantially in these events, though it must be said none of the footage showed the assault itself. There was footage before and after as well as blood/DNA found on your shoes and shorts linking you to the victim. The summary discloses the way that your victim sought assistance, and his state at that time.
7 One of the people who first saw him described how the left side of Mr Nicastro's face appeared to be ‘caved in’.
8 These injuries were photographed, and those photographs are relied upon and they were marked as part of exhibit A.
9 The agreed summary sets out the details of the injuries. There were multiple facial fractures including to the nose, the right zygomatic area, the right orbital roof, the anterior base of the skull, the left maxillary wall and the right sub condylar. He had bruising internally at the front of his brain and changes to his right lung. Also some lost teeth and some facial lacerations. He had post traumatic amnesia. He was taken by ambulance for urgent treatment at the Bairnsdale Hospital, but owing to the nature of those injuries, he had to be airlifted down to Melbourne and he stayed as an inpatient at the Alfred hospital for about week. His brain injury was treated conservatively. He underwent faciomaxillary surgery on 17 August and ultimately was discharged home the following day with various reviews to take place down the track. The agreed summary refers to a statement taken from Dr Moller and her interpretation of the various injuries.
10 You were arrested on 12 August 2021 and made a no comment interview as was your right. You have been in custody since.
11 So much then for what is only a brief summary of the more complete summary placed before me. I will sentence pursuant to the more detailed agreed statement which is marked as Exhibit A on the plea and also, of course, those photographs that I have referred to. As I have mentioned, this matter resolved following a sentence indication. I gave the sentence indication on 14 February of this year. The matter was adjourned for two weeks and came back before me on 24 February. The plea indictment was filed over and you pleaded guilty on that day, and as I will treat 24 February as the ‘first available opportunity’, as a matter of law, you cannot do worse than that figure I provided on the sentence indication which was a head sentence of four and a half years. Of course, that is not to say you cannot do better. That is because of course, I have to sentence you on the materials placed before me and your counsel, Mr Kenny, has filed some additional brief submissions in an addendum dated 3 March. There is also a letter from Ms Koswig and some examples of your artwork. It is not a question of looking at the original figure and then making allowances for any new material by way of deduction from the original figure. In fact, that sort of process would involve two-stage sentencing which is prohibited to me. Rather, I have if you will, gone back to the drawing board and considered all of the materials afresh including any new material filed on either side and engaged in the intuitive or instinctive synthesis which is at the heart of the exercise of a sentencing discretion.
Impact
12 I turn then to the impact of your crimes. I was told only a little about the impact by the prosecutor as at the day of the sentence indication hearing. That is because there was no victim impact statement at that stage. What I was told by the prosecutor was done without objection, as I was dealing with a sentence indication and I had some reservations as to whether I had sufficient detail, in the absence of a victim impact statement. Those reservations were overcome.
Obviously, there were the short-term impacts arising from the multiple fractures and the repair of the jaw injury. There were plates and pins inserted. I was told there was no further surgery. I was told that the teeth were still missing, as Mr Nicastro did not have funds to have them repaired and that as of December 2022 when the prosecution conferred with him, he still had some jaw pain. I was told that the emotional cost continues and that he felt less safe and felt that his life has changed for the worse. I was told that this was not however one of those cases where it was being submitted that there was severe or irremediable ongoing or catastrophic impacts.
13 Since then, of course, I have received the impact statement dated 6 March. Whilst it is true that it, to an extent, accords with what I had been told, Mr Nicastro does, however, go into far greater detail and speaks about ongoing issues. The victim impact statement is, plainly, more informative. Mr Nicastro says he has suffered a real loss of trust. He does not socialise as much as he used to. He is more reserved and he has lost confidence. In the initial stages after emerging from hospital he was hypervigilant. He has had ongoing pain and emotional impact. He has facial numbness and a scar that he describes that runs down the front of his head and face. He still has pain. He had trouble eating owing to the teeth and jaw damage. Pain medication has been problematic owing to his previous substance abuse issues. He has been significantly affected by your crime, of that I have no doubt at all. I take that into account.
Plea in Mitigation
14 Your counsel, Mr Kenny, relied upon some written plea submissions that were dated 12 February 2023, but they were badged up as a defence response to the summary of prosecution opening dated 28 July. There was the brief addendum which I mentioned a moment ago and the letter from Ms Koswig and some examples of your artwork. Mr Kenny has informed me of your family and personal background including your relationship and drug history.
15 He conceded the relevance of your past offending. He made submissions about the relative objective gravity of the offending before me and as to your prospects of rehabilitation. He made submissions as to the relevant sentencing purposes in play in this case. He conceded the seriousness of the offending and the existence of some aggravating features here.
16 Mr Kenny relied upon the following matters in mitigation:
· Your guilty plea in the midst of the global pandemic;
· The delay in the finalisation of the matter;
· The impact of COVID-19 upon your custodial experience; and also
· Your disadvantaged background.
17 He conceded that a term of imprisonment with a non-parole period was the only available disposition in this case, and plainly one extending beyond your existing presentence detention.
Prosecution
18 The prosecution had prepared some very detailed written submissions and referred to a number of so-called comparable cases, though they spelt out some of the key differences. Many of those other cases had involved youthful offenders with early guilty pleas. Many had genuine remorse. The Crown submissions as to sentence were not seriously challenged by Mr Kenny. I asked him directly and he made that clear. I see no need to set out those detailed written submissions in full. They were uncontroversial and they were calling for a head sentence and non-parole period which is exactly the disposition which was being conceded as being the only option open by your own counsel.
19 I will deal with the various submissions in one moment.
Background
20 I will turn firstly to your background and will do that quite briefly.
21 I have no reason not to accept what I have been told about your family background and I do accept it.
22 You were born in August 1978 and so you are 44 years of age.
23 You are an Aboriginal man from East Gippsland. You were adopted as an infant and raised by those adopted parents. You had very little, if any, contact with your biological parents. It was hardly an ideal start in life. I understand that your adoptive parents are both now dead. I was told by Mr Kenny that drugs and alcohol did not feature in your home life with your adoptive parents, nor, for that matter, violence, but that you did have some exposure to these things through members of your extended family as well as within the local community. That is hardly surprising.
24 You were educated to Year 9 level.
25 You have an extensive and long-standing drug history and that is referred to in the written submissions. I was told that you took to drugs and alcohol at a very early stage. You have had two relationships of note and have four children. All but one is grown up. You have a grandchild who was born whilst you have been on remand.
26 I was told that you have never really had a job. I understand that you have been engaged in the Torch Program in custody. Housing has been very much problematic for you as well.
27 You have a serious criminal history with many matters of violence within it. The record speaks for itself, and I am not going to set it all out in these reasons in great detail. Suffice to say, that in the period since your first adult court appearance in 1996, you have accumulated a most unenviable criminal history. There are a number of dishonesty and drug offences. Worryingly, though, there are many matters of violence: four prior convictions for intentionally causing injury, one for recklessly causing injury, one threat to kill, one threat to inflict serious injury, two assault emergency service workers, one assault and one assault with a weapon and a couple of riotous behaviour convictions. There is also a conduct endangering serious injury, one negligently causing serious injury and pretty disturbingly, three convictions for recklessly causing serious injury, the very same offence I am dealing with. Your counsel was not able to tell me much about the nature of these past offences. However, it follows that this victim, Mr Nicastro, is the fifth person you have seriously injured if we factor in the negligent causing serious injury charge as well.
28 So you are a slow learner indeed. You have breached many court orders and you continue to offend, notwithstanding the prison sentences which have been imposed over the years.
29 I must pass proportionate sentences here, and I need you to understand that you do not fall to be sentenced a second time for any of that past offending. That history does not aggravate the offending I am dealing with. You received those other sentences for those other crimes, and you served them. Those matters do, however, have relevance to my task and that is because I have to make judgements about your risk of re-offence and your prospects of rehabilitation. There are some serious violence offences lurking in that criminal history. You have been sent to prison and that has not deterred you in the past. The criminal history does, to quote your counsel, 'Illuminate your moral culpability'.
30 I have to make judgments about the need to deter you from future offending as well as the need to protect the community from you. Each purpose necessarily looms large in this case. Mr Kenny told me in the course of the submissions that he made at the time of the sentencing indication that you had not done courses or programs whilst in custody and that he was not relying on any process of rehabilitation taking place since you have been on remand. He has amended that submission in the recent written submissions relying on a letter from an Aboriginal Liaison officer and examples of your artwork and your involvement in the Torch program which he has told me about this morning. He also pointed to some short courses that you had done and also a process of reflection that he said you had engaged in as to the need to make changes in your life. I am told that you intend to apply for admission to the Bairnsdale Odyssey House residential facility when ultimately you are released. Hopefully you will follow through with this upon your release, whenever that may be.
Guilty
31 I turn then to consider the other matters that have been raised on your behalf by Mr Kenny. The first of those matters is your guilty plea. You have pleaded guilty and that is always important, whatever the stage. It is not an early plea. You have though, at least, and at last, taken responsibility and I do not lose sight of the fact that there was the more serious charge of intentionally causing serious injury at the top of the trial indictment. That matter has ultimately not proceeded.
32 The trial was not reached in the September/October 2022 circuit. It was listed to be heard in the March 2023 sittings. I see no need to set out the full listing chronology chapter and verse. For at the end of the day, as a result of your plea, the time, the cost and the effort of an actual trial in this court before a jury has actually been avoided. Witnesses have not been required to give evidence at a trial. Though he was cross-examined at the contested committal hearing in March 2022, you have at least spared your victim, Mr Nicastro, that experience of giving evidence at trial.
33 You have then, in these various ways facilitated the course of justice. Your guilty plea is worthy of extra weight for the many reasons set out in the Court of Appeal decision of Worboyes.[1] A large backlog of cases has developed in the course of the global pandemic over the last few years. That has just been unavoidable. Your case was part of that backlog, but now it is not, and that is because you have pleaded.
[1]Worboyes v The Queen [2021] VSCA 169
34 You get the heightened benefit of pleading guilty amidst the global pandemic. So I take these various matters into account in mitigation.
35 I take into account also that your plea brings finality to a case where the outcome, really, was far from a certainty from the Crown perspective. It was not a hopeless case for the prosecution or for you. The Crown relied upon the seeming animosity or hostility displayed in the caravan and the timing and sequence of departures, the limited distance Mr Nicastro got and your presence in the vicinity of that assault, seemingly shouting on the CCTV. They relied upon things Mr Nicastro said to others as to who had assaulted him, representations though, that he can no longer recall making. He had no remaining memory of who struck him. The Crown also relied upon the blood and DNA evidence. I was told by the prosecutor that Mr Nicastro is a serving prisoner, so one would expect there is a great sense of relief that he does not need to testify. Relief in his mind. He does not, and that is because, of course, you have taken responsibility for your acts, and you have admitted your guilt. That is actually very important.
36 As to delay, I do not lose sight of the fact that the matter has been over your head for a very long period. That is not easy, and I take that into account. There is now some material touching upon efforts you have made in the period of the delay. I do take into account Ms Koswig's letter and the new material placed before me since the plea. I must also, of course, have regard though to the impact statement which has also been placed before me since the day of the sentence indication.
Remorse
37 No submission was made as to the presence of remorse, and I can find no indication of any remorse in the depositions or the materials placed before me.
38 However, as I said a moment ago, you have admitted your responsibility and in a setting where your victim had no memory of the actual assault itself. You could have taken your chances and run the matter to trial. You did not. I am prepared to treat your guilty plea as indicative of some limited remorse and I do take that into account in your favour.
Bugmy[2]
[2]Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (“Bugmy”)
39 I have mentioned your personal background but not gone into much detail. Nor shall I now. It was not the best background, but by no means was it the worst. Not too many prisoners have had idyllic backgrounds. Your counsel initially told me that he was not relying upon the principles from the case of Bugmy. I pressed him, as whilst that case was not mentioned in his written submissions and he disavowed the application of the Bugmy principles in his oral submissions made on the day of the sentence indication, then in mentioning how I might take into account your background, he seemed to be relying to some extent on some of those very same principles.
40 As I said on 14 February, that Bugmy line of authority seems to have had something of a resurgence in recent times and what seems to be forgotten is the extent of the disadvantage actually required to enliven the Bugmy principles and the need for adequate evidence in support of them. I am sure that is what caused your counsel to adopt a conservative approach in his submissions, as in this case, I pretty much have your account to him about your background. It is not substantiated by medical or Department of Health and Human Services records or by contemporaneous reports from doctors or counsellors or schools, or even by way of evidence placed before me by you or by family members. Nor even by a forensic psychologist.
41 However, I need no convincing that you did not have an ideal background.
42 I am certainly prepared to accept that there were some corruptive influences in your early and developing life, not so much in the family home but in the other circles identified in the written submissions and perhaps as a product of your position as a young Aboriginal man in that setting. I think it was likely an unenviable background which I am prepared to find, by only the barest of margins, enlivens these principles. I apply them to my task in the way contemplated by the case law in this area as described in Bugmy and Marrah[3].
[3]Marrah v The Queen [2014] VSCA 119
43 An offender's circumstances and their experience during their childhood and formative years must be considered in the sentencing process. This is not just out of some historical curiosity, but because the effect of social disadvantage does not diminish with time. A background of disadvantage is likely to have profound and lasting consequences, and, in some cases, it can explain but not excuse the offending. It does not do that in this case as your counsel conceded. It is always a matter of the weight to attribute to the evidence of a significantly disadvantaged background. Disadvantage does not attract the same weight in every case or in the same way. Sometimes it might lead to a very substantial reduction in moral culpability and also a sizeable reduction in the weight to be given to general and specific deterrence. That is not the position in this case at all.
44 Sometimes it might be enough to take into account in a general way without any of these very sizeable reductions, and that is what your counsel was asking me to do and I will. I do take into account your background in a mitigatory fashion in the way urged upon me. In that sense, I am giving full weight to your background in the way that phrase is employed in those cases to which I have referred.
Rehabilitation
45 I turn now then to your prospects of rehabilitation. Your counsel submitted and continued to submit that you had some guarded prospects. It really could be put no higher than that, and that is understandable. There is no point making unrealistic submissions.
46 You have had long‑term issues with drugs and alcohol, and that casts a dark shadow over your future prospects of rehabilitation. You have really no work history to speak of. You have very limited supports in the community. You have not taken the many chances offered to you by the courts over the years. Violence has arisen frequently enough and at a serious level. Non-custodial sentences which have been designed to avoid exposure to prison have not succeeded, and prison has not deterred you. You do not have youth on your side. At least there have been some steps taken in custody with your engagement in the Torch Program, doing some courses, doing some cultural programs and also a process of reflection taking place over the longest period you have ever been in custody. You do seem to behave yourself in custody, as Ms Koswig's letter makes clear. That is a positive. However, you must somehow learn to live in the way described in that letter when you are released out into the community and that has been a big issue over the years for you.
47 Your attack on Mr Nicastro was, of course, a serious one.
48 I am certainly not going to write you off and say that you have no prospects of rehabilitation at all. That is too grim a finding, and I just do not think it is open here. But I do need to be realistic. There is no cause for enormous optimism here. I can only be guarded but at least there are some prospects of rehabilitation. It is possible that someone of your age can alter the trajectory of their life and I hope that you can. You seem to recognise that there is a need for real change and plainly you need ongoing drug and alcohol rehabilitation. You do seem to recognise that fact. Whether you will follow through with the inpatient treatment upon your release, well, only time will tell. You are a grandfather, one who has not met his first grandchild and that is owing to your being imprisoned. That is not easy, and surely it must cause you to reflect on your life. You will need to take serious steps to move away from drugs and offending and the courts and prison but it is never too late Mr Hood. If you do not make these changes in your life, you have a pretty decent preview of what life will be like into the future. It will be more of the same, and I accept that that can surely hold no appeal for you at all. Hopefully you can alter your life, and as I say, I will not write you off. Not at all. I do accept there are some prospects of rehabilitation in this case.
COVID-19
49 I turn to the issue of COVID-19 and its impact upon you, a prisoner, held in the course of the global pandemic. I raised that matter with Mr Kenny who then adopted some of the matters that I had raised. I do accept that the COVID-19 virus and the response to it by those who run the prisons has increased a prisoner's burden of imprisonment. Prison has undoubtedly been a more stressful environment in the time that you have been there.
50 No doubt there has been worry about catching the virus in such a setting as that, where, unlike someone out in the community, there is no level of autonomy or control. There have been some lockdowns and you would also have experienced the increased burden of quarantine or lockdowns on many occasions. There undoubtedly would have been the suspension to visiting and to the full range of courses and programs in a decent amount of the period in which you have been held. I do not lose sight of the fact that you have been held in custody continuously since August 2021. On the COVID front, things looked up last year and also this year, both in the community and also in a prison setting. Personal visits resumed from about March 2022.
51 As to what lies ahead in the future on the pandemic front for prisoners, it is impossible for me to determine. I am not free to speculate or guess about that. Those whose job it is to run the prisons will be able to reflect on the actual impact of any past and ongoing limitations on a case-by-case basis. They will have the power to address any actual increased burden in your case by way of conferring emergency management days in relation to the sentence that I am shortly to impose. I cannot know if that will take place or not and I certainly do not proceed on the assumption that it will. To take that into account in advance in that way would involve me contemplating a future executive action and that is prohibited.
52 It is not unreasonable for me to think that prisoners may yet have some issues thrown up by COVID-19 in the coming handful of months. I suspect lockdowns will still occur in a prison setting from time to time and these things obviously have impacts. I take into account the increased burden posed by the response to COVID-19 in the manner that I have described.
General
53 I turn, now, then to some general matters. I am required to take into account a large range of matters when I exercise my sentencing discretion. Those matters include things such as the maximum penalties and the nature and the gravity as well as the impact of any crimes committed by you. The impact has been significant enough here. Mr Nicastro's victim impact statement makes that very clear.
54 It is conceded by your counsel that this was serious offending. Charge 1 is no minor example of recklessly causing serious injury for the reasons conceded by Mr Kenny.
55 Now, there is no suggestion of any great preplanning. That is just not the nature of this offending. Until Mr Nicastro returned that evening, you could not have been planning any attack. So such 'planning', for want of a better term, as occurred was almost in the moment in the sense of you – for whatever reason - reaching a decision to follow and then to assault him. Obviously enough, from the decision to follow him and from the fact of an assault and the nature of that assault, there was some animosity or hostility. After all, you foresaw that your blows would probably cause him serious injury, and on the materials, there is no reason as to why you would wish to assault him and do so in such a violent fashion.
56 All of this took place in a public place at night. It reeks of disinhibition brought about by alcohol and or drug use. Anger or hostility arising pretty much out of thin air. Maybe it had a connection to his attendance at Sasha's caravan. Maybe it did not. If it did, it was hardly a rational response. There was simply no issue arising there. None of these things are not mitigatory. It is impossible for me to know why you felt what you felt and why you did what you did. Whatever the cause though, there was a pretty brutal mechanism with multiple blows and with the stated intent.
57 Your victim was hospitalised and required a general anaesthetic and facial surgery. He had to be airlifted to Melbourne. He spent a week in hospital, or thereabouts. He has had some ongoing impact including pain and scarring, as his impact statement makes plain.
58 I do accept your counsel's submission that your offending does not fall at the highest level of recklessly causing serious injury. Plainly it does not. I am not dealing, for instance, with impacts that were life threatening or which have produced a dreadful and irremediable outcome. But sometimes those sorts of impacts arise from a single blow which is not what I am dealing with at all. The injuries were undoubtedly serious, and blows targeted the head region. Highly dangerous and with force sufficient to cause many fractures to the face and also to the skull with internal damage to the brain, though happily not of a really severe nature. That injury was managed conservatively.
59 Sometimes life-threatening injuries do not require surgery at all as some of the cases make clear. These serious injuries were not life threatening but undoubtedly were substantial and protracted. The impacts have been large enough. Forrest and Niall JA spoke of the difficulties in placing serious injuries on a spectrum. How does one compare a compound leg fracture that is serious but not life threatening to an injury that gives rise to a high risk of death. The latter may resolve without any need for significant or even any treatment. The former, if alleged as a serious injury, necessarily is substantial and protracted in its impact. Nor is the objective gravity of an example of recklessly causing serious injury tied solely to the nature and extent of the injuries. See the case of McLean[4] at paragraphs 33 and 37.
[4]McLean v The King [2023] VSCA 6 at [33] and [37]
60 There are a number of aggravating features present as was conceded. Also some features of aggravation absent, including for instance the existence of a weapon or a group attack. I cannot make any judgement as to the duration of the attack and so cannot find that it was protracted. Whatever its duration, it was a forceful attack and for no reason that I can discern. This example of recklessly causing serious injury falls a long way above the lowest level of the offence, in my assessment. I believe it sits comfortably in at least the mid‑range of the offence of recklessly causing serious injury and it was committed by a man with a most unenviable record before the courts with three prior convictions for the very same offence.
61 I am required to consider a number of purposes of sentencing. I must pay regard to your prospects of rehabilitation. That is, after all, one of the purposes of sentencing. I have said already, I can only really be guarded as to your prospects of rehabilitation. Your rehabilitation must, to a degree, surrender some ground to other purposes here. That is not to say I ignore that sentencing purpose. I do not, but other purposes loom large here. I do recognise that it is not unheard of for someone of your age to move away from drugs, alcohol and crime. It does happen. I hope it can happen for you, but of course, you will need to make it happen. You will need to take whatever assistance is on offer.
62 I am required to punish you for your crimes. That punishment must be just and proportionate. I must also denounce your conduct, and I do. I strongly denounce your conduct here.
63 I must pay appropriate weight to specific deterrence. That purpose relates to the need to deter or dissuade you from offending into the future. Of course, that is of real importance in this case. You must be deterred. Courts have tried to deter you with little success. This victim, as I have said earlier, represents the fifth person whom you have seriously injured. Three of those past victims were victims of the same offence, recklessly causing serious injury. It is obvious that specific deterrence must loom large in my task.
64 General deterrence also must loom large here. This court must send a very clear message to others in the community who may consider committing crimes of wanton public violence such as yours. The courts must convey that message loud and clear from the sentences imposed that those who commit crimes such as yours will be dealt with seriously when brought before a court. Community protection also has an obvious role to play in my task. It is one of the purposes of sentencing and it also looms large in my task. I must protect the community from you.
65 I also have to pay regard to current sentencing practices. That is not a single controlling factor. I have looked at the relevant sentencing snapshot for recklessly causing serious injury (No. 264 of 2021) published by the Sentencing Advisory Council of Victoria. The most common sentence in that timeframe covered by that data where prison was selected, fell in the range of 5 to less than 6 years. I have also looked at the overview of cases from the Judicial College of Victoria Sentencing Manual. So cases dealt with in the Court of Appeal as well as cases dealt with in this court. I have also read the cases to which I was referred by the prosecutor. He was correct though in saying there are a range of differences in conduct and background. Many of the offenders were young, virtually all had pleaded guilty at an early stage, some had genuine remorse and/or good prospects of rehabilitation. Some of the injuries were more serious, but some of those were caused by single punches. There are a host of differences in every direction.
66 I am sentencing you for your crimes and no amount of looking at other cases or statistics can ever provide the answer to my task. Other cases are not precedents and statistics have inherent limitations. Nor is there even any such thing as one correct sentence, in this case or any other.
Totality
67 I am required to take into account the principle of totality of sentence. I have taken a last look at the effect of the sentences imposed by the court to ensure that it is commensurate with your overall criminality. The theft occurred in the same time frame and pales into insignificance when the other offence is considered.
68 Prison is always a disposition of last resort. Your counsel correctly concedes that a prison term with a non-parole period is the only option open here. It is plain that I must send you to prison for a substantial period and fix a non‑parole period in your case. I take into account the various matters raised in mitigation. If you would stand up now, Mr Hood. Thank you very much. I will pass sentence. I am sorry to have taken so long to get to this point.
Sentence
69 On the charge of recklessly causing serious injury – so Charge 1 on the plea indictment - you are convicted and sentenced to 4 years 4 months imprisonment. That is the base sentence.
70 On Charge 2, the charge of theft, I convict and sentence you to 4 months imprisonment. I have decided, though that this sentence will be served concurrently upon the base.
Total Effective Sentence
71 It follows then that there is a total effective sentence of 4 years 4 months imprisonment in your case.
72 With a sentence of that dimension, I am required by law to fix a non-parole period. I can make no assumptions as to whether you will or will not be released on parole. In fact, I am prohibited from even speculating about that fact. That will be entirely in the hands of the Adult Parole Board. It will be really between you and them. I do accept that a level of structure upon your ultimate release could only be a good thing, not just for you, but also for the community. I will make my reasons available to the Adult Parole Board.
Non-Parole Period
73 I fix a period of 2 years 8 months during which you will not be eligible for release on parole.
Section 18
74 You have been in custody already for a period of 572 days and you get credit for that period. So you have already served that period pursuant to this sentence and that s18 declaration is entered into the records of the court.
6AAA
75 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences that I am dealing with by a jury, I would have sent you to prison for six years and four months. I would have fixed a non‑parole period of four years and eight months in that setting and that declaration under s6AAA of the Sentencing Act is also to be entered into the records of the court.
76 Just have a seat there for a moment, and I will see if there are any other matters. Any other matters from your perspective, Mr Pathmaraj?
77 MR PATHMARAJ: No, Your Honour.
78 HIS HONOUR: From yours, Mr Kenny?
79 MR KENNY: No, Your Honour.
80 HIS HONOUR: All right. Well, that completes the matter then. So I will revise those reasons once they are back from VGRS. I do that generally pretty swiftly, but it will take a bit of time for them to come back. Once they are revised, I will have them provided to the parties. You will have a conference in due course with your client, Mr Kenny, will you?
81 MR KENNY: I will.
82 HIS HONOUR: Okay. Well, that completes the matter then, Mr Hood. And Mr Kenny and your legal team will have a chat to you in due course about what has occurred here today and your rights in relation to this sentence. All right? So Mr Hood can now be removed, thank you. I have got a trial matter proceeding at 11 o'clock, so I will stand down until then.
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