Director of Public Prosecutions v Horton

[2021] VCC 1370

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

CR-21-00222

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADRIAN HORTON

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 September 2021
CASE MAY BE CITED AS:	DPP v Horton
MEDIUM NEUTRAL CITATION:	[2021] VCC 1370

REASONS FOR SENTENCE

---

Catchwords:

---

APPEARANCES:	Counsel	Solicitors
For the Director	Mr B Nibbs	Office of Public Prosecutions
For the Accused	Mr A Chernok	Melinda Walker Criminal Law

HIS HONOUR:

1Adrian Horton, you have pleaded guilty to one charge of causing injury intentionally.  That crime carries a maximum penalty of 10 years imprisonment.

2You are 34 years of age and pleaded guilty at a reasonably early opportunity, bearing in mind that it is a settled indictment that you in fact have pleaded to.  You get the benefit of that.  You get the utilitarian benefit of that plea of guilty and, in these COVID times, that is a benefit which is demonstrably shown in the sentencing process.  In your particular situation, one would have great scepticism about remorse, however, there are tapes of you talking to your partner on the day afterwards and it seems that you, whilst conceding that you have got the wrong man, are remorseful for what you have in fact done to the wrong man.  So it is limited but there nevertheless is evidence before me that you are capable of remorse.

3You have a very long criminal history, dating back to when you were a child.  You have many gaol sentences.  You have received five years imprisonment on a couple of occasions.  You have prior convictions for violence, for drugs, dishonesty driving and just about everything else.  It is an extremely unfortunately criminal history and I will be referring back to that again in a moment.  The circumstances here are that the matter resolved after a couple of case conferences and I will simply outline the summary of the prosecution opening which is an exhibit in any event. 

4

You were 34 years of age at the time of the offending and the victim was a

48-year-old male who was incarcerated at the same time.  On 25 February 2020 at approximately 4 o'clock in the afternoon roughly, you were standing next to him in the unit.  You had your hands down the front of your shorts.  You then pulled out a dark-coloured sock which had a rock in it.  You hit him over the head once with the rock using your left hand and he fell to the concrete.  You then kicked him in the face with your right leg and punched him twice in the head with your right hand while he was on the ground.  He curled up and attempted to cover his head.  You then punched him with your right hand, stood over him, took the rock out of the sock and hit him on the head approximately six times with it.  You then kicked him again twice in the upper body, hit him again in the head with the rock while he was kneeling down on the concrete and then stood next to him.  You, having done that, turned around, put the rock down your shorts and walked away, leaving him lying there.  You then disposed of the rock in what is somewhat euphemistically known as the reflection pond. 

5I have seen the CCTV footage and there are a number of other prisoners who were present, at least one of whom tried to clean up the mess afterwards I assume none of them made statements or become involved in any way.  The corrections officers obviously found out what had happened and I do not need to go through the detail at all after that.  The victim was taken by ambulance to hospital and he eventually ended up in The Alfred Hospital where he was for about four days and I will describe his injuries in a moment. 

6What occurred after that was that you were clearly were identified early on in the process by prison officers who clearly just simply looked at the video.  The day afterwards, you made a phone call to your partner which is recorded and I do not need to go through the detail of that, it has been read out by the prosecutor.  You basically said that you were a coward, a psychopath and that you probably made things worse.  You said that you had 'lost my shit yesterday' and said that you understood that you hurt the man ‘real bad’ and he should not have been hurt that bad and you then go on to talk about other matters which are of concern in terms of the circumstances in which you and this other man were incarcerated.  It is a clear indication to those who may not have been experienced in this area as to what the intentions are.  It was in a gaol and the pressures and the inability to escape, literally, that can bring this type of offending about. 

7When the victim was taken to hospital, he was found to have the following injuries.  He had a comminuted and depressed right parietal occipital skull fracture.  The skull was also depressed by three millimetres with speculated, that is, pointed bone fragments.  He had a haematoma been to the skull outside of the bone and with that there was a possibility of bony fragment and some gas.  The was a small defect in the outer lining of the brain caused by bony fragments.  There was a multiple fracture of the nose.  There was fracture of the nasal septum - that is the bone and cartilage that divides the nostrils.  The was a transverse fracture in the maxilla across the midline of the teeth and one of the teeth at least is displaced probably acutely and there was also a depression with mild anterior column, suspicious of an acute fracture and that is in the southern fracture, as I understand it on the first thoracic vertebrae. 

8

He was operated on.  He was in hospital for four days and, from his point of view, that is as much assistance as he gave.  Your victim refused, understandably, to make a statement and, on the material before me, which is possibly what facilitated resolution of the matter, he never returned for any

follow-up treatment so it is unknown as to whether the injuries were ongoing or the like.  The probabilities are that they were but you cannot be sentenced on that basis and I just simply sentence for injury, not serious injury.  It has to be viewed, as discussed during the course of this matter, high end intentional injury.  The attack was sustained.  It was on a man who was defenceless from the outset and remained defenceless as he was basically flogged on his hands and knees on the concrete with a bunch of other prisoners watching.  There was no, if I can put it that way, mercy shown to him and no-one intervened.  In any event, he was ultimately taken away.  It is a belting by any description and it is done in - as you said yourself in the phone call - cowardly fashion.

9Obviously, there is no Victim Impact Statement.  It has to be regarded as serious offending and at the higher end of intentional injury.  It calls very much for the application of general and specific deterrence, as is outlined in various cases regarding in-custody assaults.  It calls for denunciation and an appropriate punishment obviously and also, in your situation, because of the length and severity of your criminal history, it is getting to the stage where community protection has to be playing a serious part in the sentencing process.  Gaol is the only option.  As I indicated to your counsel, a combination sentence in this particular situation, in my view, would be appealable error.  One of the difficulties is that, at least for 10 years now you have been regarded as institutionalised.  You made it clear that gaol, you need to be there so you can survive.  Whenever you are released into the community you struggle and it is an awful situation. 

10It is clear also that a lot of the time that you spend in custody, you spend in management.  I am not going buy into why that may or may not be, but it affectively means that because of your antecedence or behaviour or whatever it might be, that you spend significant amounts of time in 23-hour lockdown and, as your counsel pointed out, that is hardly designed towards rehabilitating prisoners.  As to the situation that you find yourself in, I then turn to previous materials that have been provided on your behalf that go to matters personal.  Before I do that, it seems to me that there is around about nine months applicable Renzella time.  I will not go through the mathematics of that, it is not a mathematical equation.

11You also, in these circumstances, if I have not already said it, get the Worboyes discount for the plea of guilty.  I will also take into account that virtually the entire past portion of the sentence would have been served in COVID circumstances where things such as visits and programs are difficult to get into and I take all that into account in a generalised way.  It is dangerous to be trying to do it with individual prisoners and there are matters which Corrections will take into account later on which are of no concern of mine.

12You have a partner who is still supportive of you and, indeed, is watching today's proceedings, as I understand it.  You have three children and they were born in 2008, 2019 and 2021.  In those phone calls that occurred the next day, you expressed your desire to just be a father and a good husband in affect and I can understand that when you are not in an outraged situation, that is the way you feel.  Your background is one of extremely serious disadvantage.  You were sentenced back in 2015 by Her Honour Judge Lawson in respect of matters and she basically outlined your history.  The materials available are on file.  I am not going to sit here for 15 minutes explaining the background to you that you are so very painfully aware of, but for the purpose of these sentencing remarks, I do need to make some comment. 

13As a young child, you were born in Tasmania.  You were made a ward of State when you were about three, certainly before the age of five.  Your father had deserted the family.  You tried to catch up with him years later but that was a very distressing process for you.  Your mother, as I understand it, had real problems with schizophrenia and the like.  You were placed with a maternal uncle who was alcoholic and then a serious of foster homes before you were placed with your maternal grandmother from five to 10 for some sort of respite care.  It appears that you got on well with her but she died when you were 10.  It was at that point in time that you entered a secure placement as a ward of the State.  You were separated from your older brother at that age and then placed in various foster placements.  I accept on the material before me that there has been physical abuse while you were in care and there has been physical abuse while you were in juvenile settings. 

14You entered detained secure welfare from the age of 11 and only had brief periods in the community thereafter.  You moved to Melbourne at the age of 17.  There was some assistance from authorities in Tasmania but once you came to Victoria you were quickly involved in more offending.  You were then detained in youth detention and there were virtually no supports available to you here in Melbourne.  Ever since then, you have had an ongoing history of offending with matters of serious violence involved and, again, I am not going to go through the great detail of all that. 

15

Until we get here today, you spent a very significant portion of your life, to this date, in custody.  You had virtually no schooling.  You went to grade 5 and that was it.  You apparently have been able to teach yourself how to read to a certain extent in prisons over the years.  You refused schooling in YTC which is unfortunate.  You have a full-scale IQ of 82 and the reports that are before me of Ms Cidoni and

Mr Spanos-Lewis outline the severe disadvantage that you have suffered, the significant traumas, the abandonment and basically everything else that could happen to a small child.  Ms Cidoni said you presented as 'demoralised and depressed.'  That is understandable. 

16It is unfortunate that, on previous sentences, you have never had the opportunity, as I understand it or from what I am told, of parole.  You indicated back in 2010 that you did not want parole because you did not like being told what to do, but I am told by counsel and I accept that, for whatever reason, the fact of the matter is that every one of your sentences has been without parole in affect and you have just been released immediately back into the community.  That is clearly to nobody's advantage and one can only hope that somehow or other, the Parole Board can release you with some sort of support system, bearing in mind that you do have at least some protective factors in your relationship in your children as the expiration of the minimum term. 

17You clearly fall well within he matters outlined in Bugmy.  I am aware that those matters do not go away with time.  In simple terms, you do not get over your childhood in five minutes, if in fact you ever do.  However, it is also pointed out in Bugmy, there comes a time, as I indicated to your counsel, when community protection has to start playing a very significant part in this sentencing process.  The reports have been tendered and I do not need to go there.  There has clearly been long-term problems and, again, it is just going to take one-on-one therapy, I suspect, for you to ever have any success with them.  Whether that can be organised is in the lap of the Gods.  I have, as I indicated to your counsel, enormous sympathy for somebody who has been brought up in the circumstances that you were.  I have enormous sympathy for the difficulties in trying to overcome such a background but I think I have indicated that there comes a time, and this assault was a serious assault on a defenceless man, and as you indicated in the phone calls to your partner, was the wrong bloke. 

18The prospects of your rehabilitation have to be regarded as very guarded.  The risk of you reoffending, I would have thought, without appropriate treatment and appropriate supervision within the community, is going to be high but I simply leave that to others to work out in the future.  You have now been in custody for these matters for 225 days.  As I have indicated, on my calculations, eight or nine months of Renzella time.  And again, that is not a mathematical equation but I take it into account. 

19Accordingly, on the charge of intentionally causing injury, you are sentence to be imprisoned for a period of four and a half years.  I direct that you serve a minimum term of three years before becoming eligible for parole.  I direct that 225 days be reckoned as having been served under this sentence and just so that you understand, the benefit that you did get by pleading to this matter and resolving it had, but for your plea of guilty, you would have been sentenced to be imprisoned for a period of seven years with a minimum term of five.  So it is four and a half with the three, 225 PSD. 

20All right, no other orders I need to make, gentleman?  No other orders?

21MR NIBBS:  No, Your Honour. 

22HIS HONOUR:  All right.  If you want to talk to your client, Mr Chernok, that's fine.

23MR CHERNOK:  Very grateful, Your Honour.

24HIS HONOUR:  I'll leave the Bench and we'll go from there.  Thank you, Mr Nibbs.

25MR NIBBS:   Your Honour. 

- - -