Director of Public Prosecutions v Jeffrey

[2019] VCC 315

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

AT BALLARAT
CRIMINAL JURISDICTION

CR 18-00341

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANNON JEFFREY

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JUDGE:	HIS HONOUR JUDGE M. BOURKE
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	15 March 2019
CASE MAY BE CITED AS:	DPP v Jeffrey
MEDIUM NEUTRAL CITATION:	[2019] VCC 315

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Sharpley
For the Accused	Mr L. Howson

HIS HONOUR:

1Shannon Leigh Jeffrey, you are to be sentenced for one charge of intentionally causing injury.  The maximum sentence is ten years' imprisonment.

2You pleaded guilty before me on 8 March. When interviewed by police on 27 April 2016, you exercised your right to silence. A contested committal ran for one day on 14 February 2018, after which you entered a plea of not guilty. Ultimately the matter was listed for trial in these sittings at Ballarat County Court. On 7 March I was asked to give an indication of sentence under s.207 of the Criminal Procedure Act.  After hearing submissions on your behalf by Mr Howson for you and Mr Sharpley for the Crown, I indicated that my sentence would be a community corrections order.  The Crown did not submit that this sentence was out of range.

3Following that, you were arraigned on 8 March and pleaded guilty.  That plea has facilitated the interests of justice.  A plea hearing followed.  Much of the material or submissions that were relied had been developed in the  7 March indication hearing.

4The circumstances of your offending are set out in the tendered Crown opening which is Exhibit A.  My own summary may be short.

5In December 2015, you had been in a relationship with a man named Heath Shepherd.  You also knew the victim of this offence, Mark Carey.  Shepherd died in January 2018 and has not been dealt with for his part in the offence.  I accept that he was a violent man and that he was violent towards you, more particularly in the period following the offending.  I also accept that your role in this offence was influenced by him.  I am prepared to find at least implicit intimidation.  A feature of the relationship was methylamphetamine use and you were using at the time of the offence.

6At about 8 pm on 21 December, Carey came to your home in Lydiard Street, North Ballarat.  You had invited him there.  You led him to a bedroom.  Shepherd and three other men waiting there administered a brutal beating.  Carey states that he saw something in or on Shepherd's hand.  It is not shown beyond reasonable doubt that this was a ring or rings or something more sinister; although the depositional statement of forensic physician, Jason Shriver, describes in respect of the injuries caused to his left eye and socket "a stabbing force".

7Kerry left the premises badly debilitated.  He was able to ring 000 and was found in the street shortly after.  He was taken to hospital.

8The Crown opening describes a fractured nose, ruptured left globe, facial lacerations and bruising.  Photographs of his injuries were tendered as Exhibit B.  Carey self-discharged from hospital the following day.  There is no updated medical material;  that is,  beyond Mr Shriver's statement of June 2016.  There is likely or at least the real possibility of ongoing loss of vision in his eye. The Crown opening concedes that it cannot be said that you intended Carey to suffer injuries of that severity.  The basis of your criminality is intention (by complicity, that is agreement, arrangement or understanding with the others)  to injure.  Clearly, the consequence for Mark Carey meets the definition of serious injury.  The other two offenders, that is beyond - sorry, it is the other three offenders, is it not?  They were four men in the room.

9MR SHARPLEY:  There were four men in the room, Your Honour.

10HIS HONOUR:  The other three offenders, that is beyond Shepherd, remain unknown.

11Mark Kerry was offered the opportunity to make a victim impact statement but has declined. 

12This was serious offending which resulted in quite dire consequences for your victim.   You have prior offending.  In 2005 to 2012, there are a number of court appearances for offending, predominantly offences of dishonesty and violence.  There are also drug offences.  There are or were then no sentences of immediate custody.

13In such circumstances and given the serious circumstances of this offence, sentencing considerations of deterrence, your moral culpability and the need to denounce what you did and properly punish it  become relevant.

14The usual sentence would be one of imprisonment. 

15I shall not impose that for a number of reasons.  They include the following.

16A major factor in my decision to impose a community correction order rather than imprisonment is the need to apply the principles related to delay and totality.  It is now over three years since your offence.  I was told that some of that delay was caused by Heath Shepherd's assistance to police in other matters.  As I have said, he died in January 2018 not long prior to your committal.   Your relationship with him ended in March 2016.  The most relevant feature of the delay relates to totality.  Mr Howson took me to subsequent offending and sentences.  Most particularly, in September 2016, you were sentenced to imprisonment of 18 months with a minimum term of ten months.  There were multiple offences including theft, aggravated burglary, handling and drug offending.  You were released on parole in late November 2017.  That was revoked in January 2018 upon you being charged with offences of possessing proceeds of crime.  You served the rest of the sentence, which expired in April of that year.   You are presently in remand custody facing charges of deception listed for early May.  It can be said that the January 2018 and recent charges do not appear to be as serious as those for which you were sentenced to prison in September 2016.

17What I am meaning to refer to there are the January 2018 charges which led to revocation of parole and the recent charges yet to be heard in May.  It is not a reference to this offence.

18Throughout this period there was a continuing decline in  methylamphetamine use. 

19You have two children, aged six and three.  Child protection intervened and took them in mid-2016.  They have been returned to your care given that you appeared to have addressed your drug dependence.  I am not convinced of this and see that you still face the challenge of rehabilitation from that dependence.

20At the moment, the children are with their respective fathers.  When released from prison, you are planning to resume custody of them and move away from Ballarat to Melbourne.  Arrangements are being made for public housing.

21You have family support.   Several members attended court.   I was told that steps will be taken to bring the pending May hearing forward.

22I am guarded about your prospects for rehabilitation but do not utterly discount them.  Your apparent desire to raise your children should be a powerful motive.

23I take into account some aspects of the circumstances of offending, particularly the likely impacts of your relationship with Shepherd. 

24Bearing in mind these matters, the need to attempt to sentence properly reflecting the totality of your 2015 to 2018 offending and your efforts at rehabilitation, I have decided to impose a community corrections order with appropriate punitive and rehabilitative terms and conditions.  The assessment outcome report I have requested finds you suitable for that.  However, it raises significant concerns.  They were in turn raised with counsel this morning.  You cannot be seen as remorseful.  It can be said,  perhaps generously,  that your drug use at the time of offending over the three years since and that delay itself has affected recollection of the event.

25As I have said, I am guarded about your prospects for rehabilitation.   However, I am prepared to give you that chance.  Failure at this order will risk very highly your return to prison.

26I sentence you as follows.

27On one charge of intentionally causing injury, you are convicted and I impose a community corrections order of two years duration.

28The usual terms apply.  Additional conditions are that you perform 200 hours of unpaid community work, that you be under supervision, that there be judicial monitoring and there be assessment and treatment for drug dependence.

29All right.  Take a seat for the moment please.

30Before we go through the process of the order, I need to set a date for the judicial monitoring hearing and I need, do I not, to set a date for the commencement of the order.  She is presently in remand custody.  Have there been any developments about that?

31MR HOWSON:  Not so far as I know, Your Honour.

32HIS HONOUR:  What is your expectation?  Is there going to be a bail hearing?  Are the matters going to be brought forward?  Have they been brought forward?  What?

33MR HOWSON:  The offence surely - whether it is bail or sentence, whatever can be brought forward the quickest or a plea, Your Honour.

34HIS HONOUR:  Yes, I know that but you cannot help me.

35MR HOWSON:  I cannot assist Your Honour as to when it would be.

36HIS HONOUR:  All right.  I think I need to state the commencement ‑ ‑ ‑

37MR HOWSON:  Yes.

38HIS HONOUR:  - - -- upon release from ‑ ‑ ‑

39MR HOWSON:  Yes.

40HIS HONOUR:  ‑ ‑ ‑ custody.

41MR HOWSON:  Yes.  That so, Your Honour.

42HIS HONOUR:  That is upon release from custody.

43MR HOWSON:  Yes.  Yes.

44HIS HONOUR:  All right.  And therefore the judicial monitoring hearing probably needs to be at a time perhaps two months after May?

45MR HOWSON:  Yes.  Yes, Your Honour.

46HIS HONOUR:  Yes.  One concern I have is that if she is released quickly, how much time passes.  I have a level of anxiety about what she is going to do.  I might make it a month after ‑ ‑ ‑

47MR HOWSON:  Yes.

48HIS HONOUR:  ‑ ‑ ‑ May.  What is the date in May?  No, no.  I am asking what the date of hearing in May.

49MR SHARPLEY:  6 May, Your Honour.

50HIS HONOUR:  All right.  Well, I will set the judicial monitoring hearing for 6 June.  If she is still in custody, I will be advised, and, as I said, the commencement of the order must be upon her release ‑ ‑ ‑

51MR HOWSON:  Yes, Your Honour.

52HIS HONOUR:  ‑ ‑ ‑ from custody.  So that order can be printed out.  Yes.  What do I need to do?  Section 6AAA, I suppose.

53MR SHARPLEY:  Well, yes, Your Honour, and also there is ‑ ‑ ‑

54HIS HONOUR:  You do that order a community corrections order?  I have never been.

55MR SHARPLEY:  It does not apply to fines but I think it does apply to corrections orders.

56HIS HONOUR:  Section 6AAA.  Let's have a look at that.  Let's travel through the ever growing Sentencing Act.  One thing that the people that legislate these things, one thing they are not good at is sequential numbering.

57MR SHARPLEY:  No.

58HIS HONOUR:  You would think they would be on top of it, would you not?

59MR SHARPLEY:  You would.

60HIS HONOUR:  Yes.

61MR HOWSON:  It does apply for a ‑ ‑ ‑

62HIS HONOUR:  Does it?

63MR HOWSON:  ‑ ‑ ‑ term that is two years or more which Your Honour has applied.

64HIS HONOUR:  I see.

65MR HOWSON:  Yes.

66HIS HONOUR:  Well, if you had not pleaded guilty, I would have imposed a sentenced of 12 months with a minimum term of six months.

67Are there any other orders?

68MR SHARPLEY:  A disposal order, Your Honour, for a helmet, a towel and a face cover.

69HIS HONOUR:  Yes.  I will sign that order.  Yes, there you are.  Thank you.  It states upon completion of imprisonment or detention term.  Well, she is in remand.  Look, it conveys the meaning of it properly.

70MR HOWSON:  Yes.

71HIS HONOUR:  I suspect that the electronic system is not able to say anything else.  All right.

72All right.  Stand up please.

73I need to tell you what a community corrections order means, what its conditions are and ask you whether you understand and agree to it.

74This order will last for two years and it starts upon completion of your present imprisonment, namely your remand custody or what follows.  You must attend at the Ballarat Community Correctional Services in Mair Street within two days of the commencement of the order, that is two days of release.

75The usual terms are that you do not commit another offence for which you could be imprisoned; possession of a very small amount of a drug such as methylamphetamine meets that.  You must comply with an obligation prescribed by regulation that you do not attend any appointment, program or other like thing affected by alcohol or drugs or in possession of illegal drugs.  You must report to and receive visits from Community Corrections.  You must let Community Corrections know within two days of a change of address or job.  You must not leave Victoria without first getting permission to do so.  You must obey all of Community Corrections lawful directions.

76The additional conditions are that you perform 200 hours of unpaid community work, that you be under supervision of a community corrections officer, that you undergo assessment and treatment including testing for drug abuse or dependency, that you attend for a review before me on 6 June 2019 at the Melbourne County Court, not here, the Melbourne County Court on that date.

77Do you understand that?

78OFFENDER:  Yes, Your Honour.

79HIS HONOUR:  And do you agree to it?

80OFFENDER:  Yes, Your Honour.

81HIS HONOUR:  I will get you to sign it.  Well, do I need to say or do anything else?

82MR SHARPLEY:  No, Your Honour.

83HIS HONOUR:  Yes.  A significant number of people come back before me having breached these orders.  Sometimes I have a deal of sympathy for them.  I do not think I will have much sympathy for you.  All right.  You can go into custody now.

84All right.  That is it for Ms Jeffrey.

85MR HOWSON:  Yes, Your Honour.

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