Director of Public Prosecutions v Hood

[2022] VCC 1627

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR 22-00016

DIRECTOR OF PUBLIC PROSECUTIONS

v

BLAKE HOOD

---

JUDGE:	His Honour Judge Smallwood
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	21 September 2022
CASE MAY BE CITED AS:	DPP v Hood
MEDIUM NEUTRAL CITATION:	[2022] VCC 1627

REASONS FOR SENTENCE

---

Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Ms T. Theocharous	Kurnai Legal

HIS HONOUR:

1Blake Hood, you have pleaded guilty to two charges of common assault and one charge of causing serious injury.  Those crimes carry maximum penalties of five years and 14 years respectively.

2You are now 25 years of age.  You were 22 years of age at the time of the offending and were therefore still a very young person.  I accept that your plea of guilty is accompanied by appropriate remorse insofar as injuries to the victim are concerned and your plea of guilty confirms that.  You must also get the utilitarian benefit of that plea of guilty and in situations such as this where we are dealing with the decision of Worboyes and COVID conditions, that must be given a recognisable discount.

3This is a situation where it was brought before me as a case conference and you had at all times been prepared to plead guilty to a charge of affray.  In that case conference I indicated that I would be prepared to make a sentencing indication of a severe CCO and within a day or so that indication had been accepted and you then pleaded guilty.

4It is important to note that some month or so prior to that case conference the two co-accused in the matter had pleaded guilty in the Magistrates' Court and had received three and a half thousand dollar aggregate fines each.  They were dealt with in Koori Court, which of course does not lessen the penalty.  You yourself wanted to be dealt with in Koori Court but bureaucratic obstruction caused that to not occur and, to your credit, you have endeavoured to get the matter over as soon as you could.

5I take into account delay in this matter.  It is now approaching three years.  A lot of that delay was because of COVID and because of the court system.  It is clear to me that you had a viable defence to this matter had you decided to pursue it and I, in no way, shape or form, see that delay as being attributable to you.  One of your co-accused also, I think, had a very viable defence in relation to the matter.  He has pleaded guilty so that is the  end of that.  You do have significant prior convictions and, indeed, you have been incarcerated once before for recklessly cause serious injury.  That was when you were 19, now some six years ago.  Mr recollection is that it may have even been me that in the end passed that sentence.  You were put on a CCO and you were able, somehow or other to comply with it.

6That is the background circumstances to this.  It is a very valuable plea in circumstances where we are under real pressure and I accept that this is a genuine attempt to assist the administration of justice in the relief of that pressure.  In any event, a summary of the Crown opening is that you and
Tyrone Hayes, who was 20 at the time, and Rhett Blanko, who was 36 at the time, were all known to each other and you were drinking in the
Paynesville Hotel at approximately 12.42 am on Sunday, 25 January 2020.  What occurred is captured on CCTV and I point out that I have watched that on a previous occasion and there was no need to watch it again.  As I have indicated, the two co-accused have pleaded guilty to the charge of reckless serious at an earlier occasion and were given monitoring penalties.

7In any event, there was another group of people there and the two groups hang around and ultimately started playing pool against each other and it was agreed that the two parties would - or two groups would play for drinks and whoever lost would by the winners' drinks.

8Whilst that was going on the hotel called last drinks.  You and your friends won that game but when the opposition, if I can call them that way, went to the bar to buy drinks.  They were told they were no longer serving drinks.  Mr Bennett returned empty handed and at that stage an argument began between
Mr Hayes and Mr Harrell.   You then punched Mr Harrell in the face, and that is common law assault.  No great injury was caused.  People tried to calm the situation down and at that point Mr Sellick, the victim of the reckless serious, was standing next to a friend and started walking towards Mr Hayes. 

9Mr Hayes then punched Sellick and kissed to the face with his right fist, and Sellick immediately fell to the ground on all fours.  One can assume that that punch landed on the left-hand side of Mr Sellick's face.  Whilst on the ground you and Mr Blanko punched Mr Sellick.  For a short time there was pushing and shoving and then Blanko then punched somebody and Mr

Bennett fell forward onto a table.  Mr Hayes then approached Mr Sellick, who was still on the ground, and punched him to the head again.  You then pushed Mr Hayes to the ground, which again is a common law assault at the lowest end.  You then straddled

Mr Sellick, who was on the ground, and punched him to the head.  You then picked up a chair and held it over your head, appearing to have the intention to strike him.  I make it clear that has real relevance in an affray but the charge here is one of recklessly causing serious injury.

10In any event, Sellick was sufficiently conscious at that point in time to grab you around the legs, which caused you to fall backwards.  Mr Blanko then grabbed Sellick by the leg, held it in the air.  You punched him to the head and you were still struggling with Sellick at that time.  Whilst that is going on and clearly unbeknownst to you, Mr Hayes is seen on the CCTV to pick up a can from the table.  He then approached Mr Sellick, holding the can in his left hand, and punched Mr Sellick with the can to the left side of his face, and all that gives rise to the charge of recklessly causing serious injury.

11In any event, police were called.  You made a no comment record of interview, which is your right, and I will have described what happened to the co-offenders.  As a result of the offending Mr Sellick received a fractured left eye socket, bleeding behind the eye, five stitches below the left eye and a tooth knocked out on the upper left-hand side.  He requires surgery where a plate and pins were inserted.  It is my view here that there is a probability that bearing in mind Mr Sellick's capacity to fight back up until that last point in time, that the serious injury was indeed caused by the can and whilst you have pleaded guilty to the charge recklessly causing serious injury because of a group assault, in all probability there would have been no serious injury but for Mr Hayes picking up a weapon, which you simply were not aware of.  That, in my view, does not transverse the plea.  It simply means that I think that you, in this situation, in terms of that charge, are in a lesser position than Mr Hayes.  Mr Hayes was two years younger than you and Mr Hayes had no priors.  You, of course, do have priors.

12In any event, that is the circumstances of the offending.  I have before me the victim impact statement from Mr Sellick, which I have read.  That points out clearly the damage that has been done to him in this assault and the ongoing psychological difficulties that he has.  Those difficulties will probably continue and I take all those matters very much into account.  The charge itself is serious in its own nature.  Of course the application of general and specific deterrence in the normal course of events, denunciation and appropriate punishment.

13I then look to matters personal to you.  Tendered on your behalf was a report from Ms Cokorilo, a psychologist.  The submissions take that report into account.  You were born and raised in Warragul.  You are a young Aboriginal man.  Both your parents, as I understand it, were of Aboriginal origin and your family lived in Drouin for a period of time.  You, indeed, identify as Gunai Kurnai, as a member of the Hood family, which obviously is a family well known to myself.  You have a younger brother and a younger half-brother.  When you were eight years old you commenced residing with your grandmother due to your mother being unable to care for you.

14

Your mother suffered poor mental health in the form of bipolar and schizophrenia and substance abuse issues.  She was imprisoned for four months in 2012 and following that you returned back to her care in

Bacchus Marsh when you were 16 years old.  It is pretty clear over that period of time for the next few years until you met your current partner that you were somewhat itinerant.

15You studied up until early high school.  You struggled with schooling, having learning difficulties and problems.  Since leaving school you have had a number of previous labouring roles but they have been limited because you have had long term alcohol abuse and up until recent times, long term drug abuse.

16As pointed out to me, and is very significant in my view, over the last nine months you have had steady employment with the Gunai Kunai Land and Waters Group, doing national resource management.  You work three days a week and I accept that you are highly motivated and engaged in that work.  You now have a partner of some three or so years.  She has two children, one of whom has been ill but that is in remission at the present time.  You care for those children and you assist in providing remuneration for them as well as for your nanna.  It is a situation where your partner is anti-drugs and I accept, from what I am told, that despite having had a significant drug problem up until about three years ago, since you have been in the relationship with her you have been able to cease using drugs.  That is a very important factor.

17You have been drinking since about the age of 15 and clearly have a serious drinking problem.  Over the last few years you have been able to reduce the amount that you drink, to the point where at least you have not offended in the last three years, which is a somewhat unusual circumstance in matters such as this.  In any event, the report of Ms Cokorilo says that you have suffered from anxiety and depression for some time.  You meet the criteria for major depressive disorder.  You have a history of suicidal ideation.  She said that your presentation and history are highly suggestive of ADHD and a borderline range of verbal comprehension, extremely low range working memory because of an intellectual impairment.  You do have strong ties within family with your uncles and aunties and that will assist you in the future.  You, in recent times, started getting mental health treatment through the Mental Health Reimagined in Warragul, and that is another stabilising factor.

18Insofar as your childhood was concerned, I will do this very briefly, I do not intend to humiliate anybody, you witnessed family violence between your parents, you witnessed family violence between your uncles.  Your parents separated when you were seven.  You did not maintain contact with your father but your father then began a new relationship.  He began abusing illicit drugs and neglected you and your younger brother.  You had harsh discipline whilst you were being brought up and it is situation where, whilst it does not give rise to what could be described as a full blown Bugmy, it is certainly a situation where your background is certainly not one to be envied.

19It seems clear to me that on what Ms Cokorilo has described, that you should also attract the principles in I and also the principles in Muldrock.  Whilst there is no confirmation of a mild intellectual disability it is pretty clear from the material that you do suffer from one, and these matters, of course, are only on the balance of probabilities and I have no hesitation in finding that each of those decisions applies in this situation.  Accordingly, general deterrence is modified.

20So far as specific deterrence is concerned, I am impressed by the fact that you, with your background in this environment as it is down here, have been able to essentially keep out of trouble for about three years.  That is, as I think I have just indicated a moment ago, unusual and very much to your credit.  Your drug rehabilitation would appear to be well underway.  You are dealing with your alcohol as best you can and you are working.  You have a stable environment.  You look after a partner and you essentially assist that partner in looking after her two children.

21So when I take all those matters into account it is a situation where I would be very reluctant to give you a custodial sentence in any event, and it is not determinative but it has certainly played a significant part in this matter.  Your two co-accused, one of whom, in my view, probably caused the serious injury, received monetary fines in a totally different jurisdiction.  I have checked with Corrections and if those monetary fines are going to be transformed into work hours, which I assume is what will occur, knowing how things operate down here, that works out to 82 hours of work.  What I am going to do in this situation is give you a community corrections order, bearing in mind the Crown's submission that your role is greater, which I do not necessarily agree with, but in any event, the decision in the Magistrates' Court was light.

22What I am going to do is put you on a community corrections order.  It will be for a period of three years.  There will be 150 hours of Community Corrections work.  It will be with conviction.  I think the prospects of your rehabilitation are impressive, if I may say so, Mr Hood, and I wish you well with that.  The risk of you reoffending, I think is just going to depend on whether you can stay off the grog, to put it bluntly, and that is a matter for you.  I cannot help you with that.  Just so far as a CCO is concerned, the others were given fines.  The 150 hours adds up to, if one works it out, about a six and a half thousand dollar fine.  So you have got twice the punishment they got.

23

Being on a CCO for three years, you also run the risk of any offending will, despite it being an offence in itself, will also be a breach of the CCO, which will result in another charge against you, and you will also be called back for

re-sentencing on this matter, a disposition which neither of your co-accused have to face.  So a CCO in your situation is a very significantly greater punishment, in my submission, than what the co-accused received, but I think for you to be incarcerated would give you a totally justifiable sense of grievance, and in all those circumstances I think the CCO is the appropriate disposition.

24

All right, in this situation - yes, that is if he agrees, which I think he is going to, so I will print that off.  In this situation 6AAA is a bit meaningless because I think he may well have beaten it, but leaving that aside, for the purposes of the record I will have to give one, or I do not have to but I will, would have been a

three-year CCO with 250 work hours.

25Yes, all right, you would not mind, Ms Theocharous, if you would not mind going down to the dock?

26MS THEOCHAROUS:  Yes, Your Honour.

27HIS HONOUR:  There are no other orders I have to make?  All right, so just stand up for me for a second, Blake.  I have given you the CCO but the trouble is, right, if you get into strife for other matters and get brought back before me, particularly for fighting, all right, it breaches the CCO and I have to re-sentence you.  Now, you have gone up a level to CCO, so I do not want you coming back because you have been in a blue and me having to lock you up, all right?  You have done really well over the last few years and I am just trying to give you a chance to keep that up.  So, yes, all right.  What I also want to do at this stage is just so it is on the record - you can sit down now.  Thank you - is just insofar as gaoling Aboriginal people in this sort of situation, I look to the comments of the Court of Appeal in DPP v Leach:

'It is particularly important this court should not do that or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped.  That after all may be a decision which rebounds very much to the benefit of the community'.

28The President of the Court of Appeal said in DPP v Tokava:

'The sentencing judge should be astute to investigate whether a
non-custodial disposition is to be preferred.  Even in a case of a serious offence if in the long term the community's interest will be best served by that course this court should seek to promote public understanding of the fact that apart from the interest of the individual whom it is sought to rehabilitate, an important interest in itself, it is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime'.

29It is my view that to put this man into custody over this some three years after the event would place in jeopardy all those principles.

30All right, thanks, Ms Theocharous.  We have got the - yes.

- - -