Director of Public Prosecutions v Hood
[2013] VCC 1412
•6 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL DIVISION
Case No. CR-12-02406
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALI KENNETH HOOD |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 6 September 2013 | |
CASE MAY BE CITED AS: | DPP v Hood | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1412 | |
REASONS FOR SENTENCE
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Catchwords: Recklessly Cause Serious Injury, young offender, prior offences for violence, P.S.D, sentence 2 years 14 months non-parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K. Doyle | |
| For the Accused | Ms J. Clark |
HIS HONOUR:
1 Ali Kenneth Hood, you have pleaded guilty to one count of recklessly causing serious injury to Shaun McCagg. Parliament has set a maximum penalty of 15 years' imprisonment for this offence.
2
The circumstances of the offence: in June 2012, your de facto lived at
2/30 Mitchells Road, Moe. Mr McCagg's de facto lived at 2/28 Mitchell Road, Moe. Both you and your victim, Mr McCagg, were some time visitors to your respective de facto partners. On 17 June 2012, you attended at Sullivan's home. McCagg was visiting Ms Kappas' home. A verbal dispute commenced between the two parties across the common back fence. You produced a tomahawk during this initial argument. Kappas rang the police. At approximately 9.15 pm, the police attended at her home. Things seemed to have settled down a little bit at that time.
3 Then there was some text messaging between the two parties. McCagg was again out the back of Kappas' property. The verbal stoush between the two parties resumed. All parties ended up on the front gardens of the two properties in Mitchells Street. You brought your tomahawk along. The yelling and shouting continued between the two groups. Kappas pleaded with you to put the tomahawk down. Thankfully, you decided to throw it away. You hit Kappas. She fell over. McCagg went to assist Ms Kappas and you then struck him twice in the face with your fist.
4 McCagg was knocked unconscious. He suffered a fractured orbital bone, which is the eye socket, a broken nose, lacerations and bruising to his head. The photographs of McCagg clearly and graphically show the extent of the injuries to him. Clearly, your punches were very forceful and damaging blows to McCagg's head. Mr McCagg has been given the opportunity to make a victim impact statement and has not done so. The injuries to him are clear in the photographs and are serious in nature.
5 This offending is in the context where there had been a neighbourhood dispute, all of it in hot air and text messages, which then escalated into this serious physical assault by you. The fortunate part is that you had the good sense to get rid of the tomahawk before you stepped up the verbal altercation to a physical assault. In short, this is an assault by punching and no weapon was utilised in the commission of the offence. This places this offence in the lower end of the range of recklessly causing serious injury.
6 I now turn to your personal circumstances. You are 25 years old. You life so far has been full of drug addiction and criminal behaviour that has followed on from a less than fortunate start in life. Your biological parents lived in South Australia. Your father departed the family home prior to your birth. At the age of three, you were removed from the care of your mother. Your mother died shortly thereafter. You have a sister, Cathy. She lives in this area.
7 The two of your were placed in an orphanage. When you were approximately four years old, you were adopted by Jenny and Tony Hood. You are from Aboriginal background, as are your adoptive parents. You then grew up in the Moe area with your family. Mr and Mrs Hood later had two children of their own. You have attended a number of primary schools but only had two days of secondary education. You are functionally illiterate and have the ability to read a bit, but tend to get others to do your reading for you. It seems that most of your education was completed either in YTC or other prison programs.
8 You first appeared in the Moe Children's Court in November 2003. You have had seven subsequent Children's Court appearances, mostly for robbery or violence-related offending. In November 2005, you were sentenced in the Sale County Court to a sentence of three years' imprisonment with a two year non parole period. The charges were attempted rape and assault. You breached your parole on that sentence and have subsequently nearly served the full three year sentence.
9 Since that sentence, you have had six further court appearances relating to assault and driving matters. The last appearance was some two months before this offending, when your charge for assault was dismissed after you had complied with the terms of a good behaviour bond under the supervision of Tony Carsons.
10
You have tried every illicit drug - heroin, amphetamines, ecstasy, chroming. You are currently on a methadone program within the prison system. Some time in the future, you will realise that none of these substances are doing you any good. I have read and noted the detail of your drug abuse and psychological statement in the report of Lee Mitten, psychologist, dated
19 July 2013. That is Exhibit B on your plea. I take those matters into account when fixing your sentence in this case.
11 Isabella Walters, a clinical neuropsychologist, prepared a report dated 22 July 2013. Ms Walters was of the opinion that you may have an acquired brain injury. She notes that you qualify for Department of Human Services' Disability Services. You function in the intellectually impaired range and she has tested you and found you in the lowest 2 per cent of the population on the IQ quotient. The relevance of this in sentencing is that you are not necessarily a good vehicle for general deterrence, and that prison for you may be more difficult than it would be for a person of average intelligence.
12 I turn to sentencing considerations. The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence both general and specific, rehabilitation, denunciation of your actions and the protection of the community. In sentencing you, I must have regard to the range of factors, such as the seriousness of the offence, your culpability for it, your personal circumstances and those of your victim, Mr McCagg. I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, you as an offender are rehabilitated and reintegrated into society.
13 You have pleaded guilty to the charge. Whilst there was a committal in this matter on 21 December 2012 and you entered a plea of not guilty on that day, there have been ongoing negotiations to settle the charges arising from these events since that time. Your plea of guilty has the utilitarian value of allowing the orderly and effective administration of justice. There is a certainty of outcome and the resolution of the substantive issues raised by your offending. Your plea allows for the preservation of court and police resources to deal with other matters. You plea vindicates public confidence in the legal process set up to protect the community. You have, by your plea, relieved your victim, Mr McCagg, from giving evidence against you. It facilitates some closure for him as a victim of your offending.
14 The plea of guilty also indicates and demonstrates your remorse. Whilst you exercised your right to make a "no comment" record of interview at the time of arrest, I accept that your plea is clear acknowledgment by you that you accept responsibility for your criminal behaviour in this case. Your plea also recognises you are willing to facilitate the course of justice in the community.
15 I regard your prospects of rehabilitation as guarded, however you have engaged in programs whilst on remand for this charge, and the indications are that you are trying to better yourself whilst you are in prison.
16 The prosecution submitted that the totality of your offending called for an immediate term of imprisonment. I have previously referred to the maximum penalty set out for the offence by Parliament. The prosecution submitted the considerations of general and specific deterrence are to be tempered by your compromised intellect and the lower end of the range of your offending on this occasion. The prosecution submitted a range of 18 months to two years as a total effective sentence, with a minimum period of nine to 12 months before being eligible for parole.
17 Ms Clark, on your behalf, was urging upon me a sentence structured around an eligibility for a parole date in the near future for you. I accept that time served in prison as a remand prisoner is harder incarceration, due to the uncertainty of your future and the ever-changing fellow prison population around you. That has its own pressures.
18 I note your pre-sentence detention in this case is 352 days. I take the length and harshness of that remand gaol time into account when fixing your sentence, however I also take into account the extent and seriousness of the injury to Mr McCagg in fixing the sentence.
19
On the charge of recklessly causing serious injury, I convict and sentence you to two years' imprisonment. I order that you serve a minimum period of
14 months' imprisonment before being eligible for parole.
20 I declare you have served 352 days' pre-sentence detention, which is to be deducted administratively from your sentence.
21 Pursuant to s.6AAA, but for your plea of guilty in this case, I would have sentenced you to three years' imprisonment with a non parole period of two years.
22 I have signed the Disposal Order sought and I will hand that down to the prosecutor.
23 Mr Hood, it will all be explained to you, but you have effectively served nearly 12 months of the minimum period of 14 months, which means with a bit of a good luck and good management on your part, you may be eligible for parole in a couple of months' time. If the opportunity presents itself, take it, but when you get out, just remember you have got the extra ten months hanging over your head. You know what happened to you last time: you ended up doing it. So if you get out, stay out.
24 OFFENDER: Yes, Your Honour.
25 HIS HONOUR: Good luck.
26 OFFENDER: Thank you, Your Honour.
27 HIS HONOUR: Good. Is there anything else?
28 MR DOYLE: I just want to - - -?
29 HIS HONOUR: Clarify something?
30 MR DOYLE: No, this is about the trial.
31 HIS HONOUR: Yes, certainly. Thank you, Mr Hood.
32 OFFENDER: Thank you, Your Honour.
33 HIS HONOUR: Thank you, officers.
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