Director of Public Prosecutions v Lam
[2023] VCC 1352
•8 August 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00403
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CARLOS LAM |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 June 2023 | |
DATE OF SENTENCE: | 8 August 2023 | |
CASE MAY BE CITED AS: | DPP v LAM | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1352 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: One charge of intentionally cause injury – Offending against a custodial officer on duty – Blade inserted into the end of a highlighter used in the offending – Premeditated and sustained attack – Category 1 offence – Mandatory term of imprisonment – Young offender – Early plea of guilty – Deportation – Totality.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991.
Cases Cited:De Castres v R [2011] VSCA 377; Worboyes v The Queen (2021) 96 MVR 344; Azzopardi v The Queen [2011] VSCA 372; DPP v Talaumi [2020] VCC 1385; DPP v Simmons [2023] VCC 498; DPP v Dalgleish (2017) 262 CLR 428.
Sentence: 2 years and 9 months’ imprisonment with a non-parole period of 20 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J McCarthy | Office of Public Prosecutions |
| For the Accused | Mr L Dean | Slades & Parsons |
HIS HONOUR:
1Carlos Lam, you have pleaded guilty on indictment to one charge of causing injury intentionally, contrary to s 18 of the Crimes Act 1958. This is a category 1 offence[1] and carries a maximum penalty of 10 years’ imprisonment.
[1]Sentencing Act 1991, s 5(2G) and s 10AA(4).
Circumstances of the offending
2The circumstances of your offending are set out in an agreed summary of prosecution opening dated 30 May 2023.[2]
[2]Exhibit A.
3Your victim, Mr Masoe, was 30 years old and employed as a prison guard at Port Phillip Prison. He had been employed in that role for approximately 4 years at the time of the offending.
4On 20 July 2022 at approximately 7:00pm, Mr Masoe was sitting in the officer station at the Gorgan Unit of the prison. Another prison officer, Mr Dyett, was also present in the station.
5Mr Dyett observed you enter the officer station and he yelled out ‘Lam, get the fuck out of here’. You were in possession of an improvised weapon consisting of a highlighter with a razor blade attached to it. You walked directly towards Mr Masoe and stabbed him in the face three to four times with this weapon.
6Mr Masoe got up and both he and Mr Dyett attempted to restrain you. You resisted them for approximately 41 seconds. During this time, CCTV depicts you swap the improvised weapon from your right hand (which was being restrained by Mr Masoe) into your left hand and you used the weapon to slash Mr Masoe’s head.
7You then continued to resist Mr Masoe and Mr Dyett for approximately 24 seconds.
8Tactical Operations Group officers arrived at the officer station and you ultimately surrendered to them.
9Your offending was captured on CCTV.
10Mr Masoe thought he was going to die during the offending. He was conveyed by ambulance to the emergency department of St Vincent’s Hospital.
Injuries
11As a result of your actions, Mr Masoe sustained a number of lacerations to his face, neck and head. Other than the lacerations to the left temporal region, the other lacerations were deep, penetrating up to the subcutaneous fat. The following lacerations were caused by you:
(i)8 centimetre laceration to the left cheek.
(ii)6 centimetre laceration to the left neck.
(iii)15 centimetre laceration to the posterior neck.
(iv)3 centimetre laceration to the left ear.
(v)8 centimetre two superficial lacerations to the left temporal region.
12The lacerations to the left cheek and neck were treated with sutures under local anaesthetic. Between 6 and 8 sutures were required. The laceration to the left ear was treated with steristrips and suture glue. The superficial lacerations to the left temporal region did not require closure. A tetanus booster was administered.
13Mr Masoe’s left third finger was deformed with volar (upward) displacement of middle phalanx at the proximal interphalangeal joint. He was unable to move the finger. However, the finger was not fractured. It was treated by manipulating it back into alignment and buddy strapping it.
Impact on Victim
14In sentencing you, the Court must also take into account the impact of your offending upon the victim.[3] While there is no victim impact statement, I have had regard to the Victims of Crime Assistance Tribunal document dated 12 October 2022, prepared by Melissa Carnevali, a registered psychologist. Ms Carnevali states that Mr Masoe presented with symptoms which included difficulty with relaxing, low mood and sadness, reduced motivation, being over sensitive and over-reacting, trembling, panic attacks, sleep disturbance, struggling with flashbacks and nightmares relating to the offending, reduced appetite and weight loss, reduced energy and concentration and avoidant of public activities. As at 12 October 2022, Mr Masoe did not return to work.
[3]Sentencing Act 1991, s5(2)(daa).
15Ms Carnevali opines that these symptoms are highly consistent with someone experiencing symptoms of a mixed Anxiety and Depressive Disorder. Although, no diagnosis has been made, Mr Masoe needs to be monitored for Post-Traumatic Stress Disorder.[4]
[4]Ms Carnevali states that any diagnosis should be determined by a psychiatrist.
16Ms Carnevali states that the act of violence has resulted in the exacerbation of a combination of depressive and anxiety symptoms.[5]
[5]I have had regard to exhibit D.
17You waived your right to be interviewed.
18I have had regard to the photographs of the weapon that you used in the attack,[6] the photographs showing the injuries to Mr Masoe[7] and the CCTV evidence.[8]
[6]Exhibit B.
[7]Exhibit C.
[8]Exhibit E.
Criminal history
19You have a criminal history going back to 2020. On 9 December 2020, you were placed, without conviction, on a youth supervision order which included a condition that you complete drug and alcohol counselling. This order was imposed in respect of two offences of robbery, affray, recklessly causing injury, two offences of unlawful assault, assault emergency worker on duty, nine offences of theft from a shop, two offences of committing an indictable offence whilst on bail, dishonestly receiving stolen goods and throwing a missile damaging property.
20You next appeared before a court on 16 May 2022, when you were convicted and discharged for an offence of shop theft and committing an indictable offence whilst on bail.
21On 30 September 2022, you were sentenced by the Melbourne Magistrates’ Court to a term of six months imprisonment. This was your first time in custody. The sentence was imposed in respect of two offences of robbery, two offences of burglary, two offences of recklessly causing injury, two offences of theft, an offence of possessing methamphetamine, an offence of resisting an emergency worker on duty, an offence of obtaining a financial advantage by deception, six offences of contravening a conduct condition of bail and two offences of committing an indictable offence whilst on bail. At the time of sentence, you had accrued 118 days of pre-sentence detention.
22I was told that you have been in adult custody since 30 April 2022. The offending for which you fall to be sentenced, occurred some three months following your remand in adult custody.
23Following the current offending, you were transferred to Barwon prison on 21 July 2022. Between 27 July 2022 and 5 October 2022, you were placed in a loss of privilege cell. You remain on an Intensive Case Management Plan that was implemented in order to mitigate any risk to staff. I have read and had regard to the letter from Ms Hosking, Assistant Commissioner of Sentence Management Division, dated 21 June 2023.[9]
[9]Exhibit 3.
Personal circumstances
24I have had regard to your background as set out in Mr Dean’s written outline of submissions dated 20 June 2023,[10] and in Mr Jeffrey Cummins’ psychological report dated 19 June 2023.[11] There is further reference to your background in the Youth Justice Centre Order (‘YJCO”’) suitability report dated 31 July 2023.
[10]Exhibit 1.
[11]Exhibit 2.
25You are now aged 19 and will turn 20 in October of this year. You were born in Samoa and raised by your grandparents before moving to New Zealand at the age of nine. You have never met your biological father, and your contact with your mother has been limited. You have not seen her since 2015.
26In New Zealand, you lived with your uncle and aunt. You arrived in Australia at the age of 11 and lived with your mother and stepfather in Sydney. You observed your stepfather when drunk abusing your mother on several occasions. On one occasion, you intervened and physically assaulted him. You were told to leave the family home by your mother. You moved to Melbourne at the age of 12 and lived with your maternal uncle and aunt. Your relationship with your uncle and aunt was a troubling one. You suffered from sustained physical assaults at the hands of your uncle. Despite the difficult relationship, your uncle and aunt are present today in court offering their support.
27Your schooling has been limited and impacted by the instability in your childhood. You attended two high schools in Melbourne, and were expelled from both for fighting. You left school around the age of 15 or 16. You undertook some work in landscaping, as well as working at a fish and chip shop and a fast food restaurant. Your most stable employment involved working in steel fixing for a 12 month period.
28You started abusing Xanax at the age of 16 and began drinking alcohol to wash the Xanax down. You told Mr Cummins that you have a drinking problem. You have occasionally smoked cannabis. You describe a period of 12 months of abstinence when you were receiving drug and alcohol counselling with Youth Justice. This coincided with your employment as a steel fixer in 2021. You began using methamphetamine and GHB in early 2022, and it became a daily habit.
29You are a dual citizen of Samoa and New Zealand. You expressed to Mr Cummins your concern over being deported to New Zealand.
Psychological assessment
30Mr Cummins described you as a psychologically vulnerable and immature person. Whilst, Mr Cummins doesn’t make any concrete diagnosis, he opines that there is some nexus between your dysfunctional upbringing, and your reported levels of anger and frustration. He also opines that you are probably suffering from a Major Depressive Disorder, associated with feelings of hurt, abandonment and trauma. Mr Cummins states that you require mental health treatment. He states that your psychological problems would most probably be exacerbated the longer you spend in custody.
31You expressed some regret for your offending to Mr Cummins. You acknowledged that you had an anger management problem and would definitely participate in a Violence Intensive Program in custody, if directed to do so. Mr Cummins assessed your risk of committing a further offence of violence as moderate to high. He states that it is imperative that you participate in an intensive anger management program.
Objective gravity
32As your victim was a custodial officer on duty, Parliament has legislated that, absent special reasons, a mandatory term of imprisonment of at least 6 months must be imposed. As stated earlier, this offence carries a maximum penalty of 10 years imprisonment. The maximum sentence and the mandatory sentence regime that applies in your case, makes it plain that the offence you committed is an inherently serious one.
33The minimum term of imprisonment was introduced in Victoria in 2014 to ‘recognise the very special role played by Victoria’s emergency workers, and the need to ensure they receive the full protection of the law when treating, caring for and protecting Victorians at times of emergency.’[12]
[12]Victoria, Parliamentary Debates, Legislative Assembly, 26 June 2014, 2397 (Robert Clark MP, Attorney General).
34In the Second Reading Speech, relating to the enactment of that section, the Attorney-General said:
The longer sentences reflect the opprobrium that the community attaches to acts of violence against emergency workers who put themselves on the line in emergency situations on behalf of the community. It sends a clear message to perpetrators of these acts that violence against emergency workers will not be tolerated and will be met with strong penalties.[13]
[13]Ibid.
35This was a particularly serious example of the offence. You were armed with an improvised weapon capable of inflicting grave injuries. Your offending was premeditated. The assault that you engaged was relatively sustained, involving repeated stabbing motions to the victim’s face, including to a vulnerable part of his body, the neck. Despite your victim and Mr Dyett attempting to restrain you, you continued to resist and slashed your victim’s head with the weapon. At the time of this offending, you were on remand for offences which included violent offending.
36Your offending caused a number of injuries to your victim that required treatment. Thankfully, Mr Masoe appears to have made a complete recovery from his physical injuries.
37I also take into account the, not surprising, psychological impact that your offending has had on Mr Masoe as set out earlier in these reasons. I accept that your offending exacerbated pre-existing mental health issues.
38I was not provided with any explanation for your offending conduct during the plea hearing, but note what you said to Mr Cummins[14] and to the author of the Youth Justice Centre Order assessment report.[15] There can, of course, be no excuse for your horrific and cowardly attack upon Mr Masoe.
[14]Exhibit 2, [25].
[15]Exhibit G, second paragraph on page 3.
39Unsurprisingly, general deterrence must be given paramount consideration in the sentencing exercise.
40In De Castres, Ashley JA said:
The fact that an offence of violence is committed in a custodial setting renders general deterrence of paramount importance as a sentencing consideration. In part, that is because the victim has no choice but to be where he or she is, and has at least a reduced ability to take prudent measures for his or her own safety. In part, it is because the courts cannot permit the law of the jungle to take hold in prisons.[16]
[16]De Castres v R [2011] VSCA 377, [1] (‘De Castres’).
41While De Castres related to an attack on another prisoner, it has not been suggested that the principle should not apply in this case.
42Prison officers perform a vital role in difficult circumstances. The courts must ensure that they are protected by sending out a clear message to prisoners, that if they engage in violence against prison officers, they will be punished by the imposition of terms of imprisonment.
43You have relevant prior matters for offences of violence as well as assaulting an emergency worker on duty and resisting an emergency worker on duty. I was told these two offences occurred in the context of you being arrested. You accept that you have anger management issues and Mr Cummins assesses your risk of reoffending as moderate to high. You have demonstrated no genuine remorse, on the contrary you have sought to justify your violent offending. Accordingly, the sentence must give weight to specifically deterring you and the protection of the community.
44At the request of your lawyer, I had you assessed for your suitability for a YJCO. I have received a report authored by Mr Shah and dated 31 July 2023.[17] You are considered unsuitable for detention within a Youth Justice Centre. You do not meet the criteria set out in s 32(1) of the Sentencing Act 1991. It is concerning that you have expressed no remorse to the author of this report for your extremely violent offending. As agreed between the parties, I will not take into account the three passages highlighted on pages 3 and 11 of the report.
[17]Exhibit G.
45Your prior history, anger management issues, Mr Cummins’ risk assessment, and the contents of Mr Shah’s report suggest that your prospects of rehabilitation are guarded.
46On behalf of the community, your offending must be denounced.
Matters in mitigation
47I accept that you pleaded guilty at the earliest stage.
48By pleading guilty you have facilitated the course of justice. You have also saved the community the time and cost of a trial, and importantly, spared your vulnerable victim the further trauma of having to give evidence. Hopefully, this will bring some closure to your victim.
49The utilitarian benefit of your plea is heightened in the current COVID-19 environment when this court is facing a considerable backlog of trials. The courts must encourage those who are guilty to so plead and such encouragement must come from an ‘actual and palpable’ amelioration of sentence.[18]
[18]Worboyes v The Queen (2021) 96 MVR 344.
50I am unable to conclude that you are genuinely remorseful. Your comments to the author of the YJCO assessment report are concerning and are directed at justifying your offending conduct. You told the author of the report that the victim deserved the injuries you inflicted, and ‘at least he knows not to do it again.’
51You are a young offender aged 19. Your youth remains an important sentencing consideration. Ordinarily, youth requires rehabilitation be given paramount importance. I was reminded of the principles in Azzopardi.[19] Of course, I will bear in mind the importance of your rehabilitation. However, in this case other sentencing purposes, in particular, general deterrence assume significance.
[19]Azzopardi v The Queen [2011] VSCA 372, [34] ) (‘Azzopardi’).
52As a result of your offending, you face the real prospect of being deported. I accept that your deportation is a punishment and the concern of deportation will weigh heavily upon you as you serve your sentence.
53I take into account the burden of the custodial conditions that you have endured as set out in Ms Hosking’s letter.
54I bear in mind that you have been in custody since 30 April 2022 and have served a term of six months’ imprisonment. In sentencing you, I have had regard to the totality principle.
Sentencing
55Mr Dean sensibly conceded, that a term of imprisonment with a non-parole period is the only disposition open to this Court.
56I have read the two sentencing cases referred to me by Mr Dean, namely, Talaumi[20] and Simmons[21]. Amongst many other differences, no weapon was involved in either of these cases.
[20]DPP v Talaumi [2020] VCC 1385 (‘Talaumi’).
[21]DPP v Simmons [2023] VCC 498 (‘Simmons’).
57Current sentencing practices are not determinative; they are no more or less important than any of the other factors which the court is required to consider.[22] Each case ultimately turns on its own particular facts and circumstances.
[22]DPP v Dalgleish (2017) 262 CLR 428.
58I bear in mind that any term of imprisonment must not be longer than is necessary to achieve the sentencing purposes.
59Having carefully considered all the matters raised in this case, and weighed the various sentencing considerations, I sentence you, Mr Lam, as follows:
60On Charge 1, causing injury intentionally, you will be convicted and sentenced to a term of 2 years and 9 months' imprisonment.
61I set a non-parole period of 20 months’ imprisonment.
Pre-sentence detention
62Pursuant to s 18 of the Sentencing Act 1991, the period of 250 days of pre-sentence detention, not including today's date, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the court records.
Section 6AAA declaration
63Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted, I would have been sentenced to a term of 3 years and 6 months with a non-parole period of 2 years and 3 months.
Disposal order
64I grant the disposal order sought in respect of the weapon used in the offending.
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