Director of Public Prosecutions v Larkin
[2022] VCC 437
•5 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00125 (Plea)
Case No: CR-14-01593 (Contravention)
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB LARKIN |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 February 2022 (Plea) and 5 April 2022 (Further Plea) | |
DATE OF SENTENCE: | 5 April 2022 | |
CASE MAY BE CITED AS: | DPP v Larkin | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 437 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence - Contravention CCO - Plea of guilty (Indictment) - Recklessly causing serious injury - Intoxicated at time of offending - Relevant criminal history - History of poly-substance abuse - Delay - Suffers from Bi-Polar Affective Disorder - Single hit to face of victim - Victim suffered acquired brain injury (ABI) with protracted recovery - Effect of ABI enduring with devastating impacts - Winch considerations - high degree of probability serious injury would result but not to magnitude of seriousness which did result
Cases Cited:Boulton & Ors v The Queen (2014) 46 VR 308; Cockerall v The Queen [2001] VSCA 239; Winch v R (2010) 27 VR 658
Sentence: Convicted and sentenced to a Community Corrections Order of 3 years’ duration with supervision, treatment and rehabilitation conditions, re-offending programs and judicial monitoring reviews - Contravention CCO proven - Original CCO confirmed - Fine $1,000 for breaching offence
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Fallar | Solicitor for Public Prosecutions |
| For the Accused | Mr C. Pearson | Adrian Paull Criminal Law |
HER HONOUR:
1 Jacob Larkin, you have pleaded guilty to one charge of recklessly causing serious injury which has a maximum penalty of 15 years' imprisonment.
2 This offending breaches a Community Order to which you were subject at the time. You admit the breach of that Community Correction Order. The maximum penalty for the breaching offence is 3 months' imprisonment.
3 In sentencing you, I must take into account the maximum penalties as these reflect the seriousness with which Parliament regards the offences.
4 The victim in relation to the charge of recklessly causing serious injury is your stepfather, Peter Carey. Mr Carey is married to your mother, Carolyn. At the relevant time, you had joined Mr and Ms Carey, as well as some of their friends, for New Year's celebration at a block of land owned by Mr Carey in Dereel. The incident occurred shortly after midnight on 1 January 2019.
5 The block of land to which I have previously referred was used as a holiday camping ground for Mr Carey and he hoped to build a holiday home there in the future. At the time of your offending, he had built a deck with a fire pit in the middle of it. There was no power to the block.
6 On 31 December 2018, a number of Mr and Ms Carey's friends gathered at the block of land, intending to celebrate New Year and to sleep over. The couples who attended were mostly in their fifties.
7 One of the couples, Brian Hewitt and Sarah Maguire, arrived at about 8:20 pm. As they got out of their car, Mr Hewitt said hello to you and you responded saying, 'No, no. Come in here, give us a cuddle.' It was apparent to Mr Hewitt that you were drinking alcohol.
8 According to the prosecution opening, several other guests were already by the fire having drinks and conversing. Your stepfather was cooking. Ms Maguire had only met you once before and felt uneasy as you were acting in an overly friendly manner toward her.
9 You were observed to be dancing around as if you were trying to be the centre of attention. Ms Maguire had brought a speaker to play music. You repeatedly asked if you could use it. However, she said no as she was using it to play music for everyone. When you continued to ask, Mr Hewitt told you no several times, which led you to then play your own music, competing with the music that Ms Maguire was already playing.
10 During the evening, one of the guests received the sad news that his mother had passed away, which led to he and his partner leaving the gathering to go home. Other guests went to their camp sites on the property, leaving you, the victim, your mother, as well as Mr Hewitt and Ms Maguire.
11 In the early hours of 1 January 2019, you turned your attention to your mother telling her that she was a bad mother and had caused all your problems. You began yelling and swearing at her, saying 'You need to fucking listen to me.' She said that she would not listen to you put her down and left the gathering.
12 The victim and Mr Hewitt continued to have a conversation. They were seated on chairs on the decking. They spoke about older and younger generations, and about driving and young people using drugs. You kept inserting yourself into their conversation and were becoming aggressive, raising your voice. On several occasions your stepfather told you to calm down and stop. At one stage you interrupted their conversation, saying something to the effect that if you wanted to put a needle in your arm then you could. Mr Hewitt told you to settle down and not to worry about it. The victim said, 'Jacob, that’s enough.' You then walked towards the fire pit and said to the victim, 'What gives you the right to call my mother a fucktard?'
13 As the victim stood up from his chair to tell you that that was enough, Mr Hewitt observed you lunge forward and forcibly hit the victim in the face with your elbow. His partner, Ms Maguire, also saw this. The force caused the victim to be knocked out. He hit a table and his chair on the way down as he fell flat on the deck. The victim was unconscious for about a minute. Ms Maguire told you to fuck off. Your conduct gives rise to Charge 1 – recklessly causing serious injury.
14 After hearing you yelling and screaming, your mother decided to walk down to stop you. After hitting the victim, you walked up the block. Ms Maguire and Mr Hewitt helped the victim sit on a chair and placed a blanket on him and put ice on his head.
15 Mr Hewitt heard yelling noises. Your mother, who was walking down the block, was met by you who said, 'I've knocked your fucking husband out because I don’t like the way he speaks to you.' You were heard to say, 'Next time I'll kill him. His army skills aren't very good, are they? Next time I'll fucking kill him. How dare he call you a fucktard.'
16 Mr Hewitt walked to your mother to check on her. You then fronted up to him and kept asking him if he wanted to have a go. He told you to settle and just leave. As Mr Hewitt took your mother down to see her husband, he could still hear you yelling and threaten the victim that you would kill him next time.
17 You continued to yell at one stage saying, 'Yeah, you've been in the fucking army ya cunt. Come up here and I'll knock you out again.' Your mother felt very frightened. She called Triple 0. Your yelling continued. The victim began convulsing and was having a fit. When he regained consciousness, he did not know who he was, where he was or who the people around him were. Ms Maguire was very frightened and asked your mother to call the ambulance again.
18 You then emerged from the darkness, demanding your phone and charger, saying that you were going. Ms Maguire fetched these items and gave them to you. You then jumped onto the deck, stared at the victim and again threatened to kill him. You were heard to say, 'You’re a fucking cunt. You’re fucking nothing. I'm gunna fucking get you. I'll fucking kill you next time.' Ms Maguire stood in front of you and told you to fuck off. You left on foot.
19 As you were leaving, you were heard to say, 'I'm gunna go to your house, smash your fucking shit and steal your stuff.'
20 The ambulance arrived. The victim’s recollection of events was badly impacted. He recalled getting up to tell you to stop and the next thing he remembered was talking to ambulance officers.
21 At 1:10 am, police were called to attend the property. Police located you about 4 kilometres from Rokewood. You confirmed your identity and said you were walking home to Delacombe; you said you were upset, that you had had a fight with your stepfather and wanted to get out of there. You were observed to be alcohol affected. You were cautioned and arrested then taken to Ballarat Police Station.
22 You took part in a record of interview and said that you did not like the conversation that your stepfather and his mate were having. You disagreed with them saying, this was not right and they should not be talking like this. You said that you got up and walked away. You said your stepfather was not happy with you and that he got up and shaped up in front of you ready to hit you. You said before he had the chance to hit or push you, you defended yourself. You said you were scared because your stepfather had been in the army and knew what he was doing. You said that your stepfather got to your face, so you elbowed your stepfather's face for your own safety. You said your stepfather fell on the floor and his mate went to him. You were then told to leave.
23 You said that you did not feel the conversation as between your stepfather and his mate was directed at you.
24 You said to them aggressively, 'You guys are fucked, mate. You can't judge your life against other people's lives in this day and age.' You said your stepfather told you aggressively to 'Shut the fuck up.'
25 You realised you forgot your phone, so you went back to get it and a charger because you were in the middle of nowhere. You said someone gave you a lift to the end of the road and you were walking hoping to hitchhike to your parents' home, get your stuff and look for another place to live. Police had then driven past and picked you up.
26 You said there was a person who could verify your version of events but you did not know the person's name.
27 You said your mother was quite proud of you that night because you had done quite well with the amount of alcohol you had consumed.
28 You described your stepfather to be in his fifties, about 170 centimetres shorter than you but that you were about the same weight, although you were slightly bigger in build than he.
29 You said that your mum and dad had given you Captain Morgan's, a type of drink, because you did not have the money. You were drinking Canadian Club. You said you were a bit tipsy but not pissed 'last night'.
30 Extensive evidence in relation to the serious injury suffered by the victim was set out in the prosecution opening which is as follows:
31 Dr Angela Williams compiled a report dated 11 May 2021. In preparing her report she was provided with numerous reports from the victim's treating practitioners over the course of 2019 and 2020. These were summarised as follows:
32 On 1 January 2019, the victim was seen by Dr Waris at the Emergency Department, Ballarat Health Services, at 4:05 am. He was complaining of severe pain on the left side of his head and sharp headache with increased movement. A CT scan showed left zygomaticomaxillary complex fracture and involvement of left infraorbital canal. Dr Waris referred the victim to a maxillofacial surgeon for the cheekbone fracture.
33 The victim was admitted to the Neurology Unit from 2 to 7 January 2019. He was then transferred to the Inpatient Rehabilitation ward at the Queen Elizabeth Centre from 7 to 11 January 2019 and was then discharged.
34 On 2 January 2019, the victim had been admitted to the surgical unit and complained of left side weakness, unsteady gait and amnesia. Medical records indicated the victim had suffered six days of post-traumatic amnesia and some left sided weakness.
35 On 3 January 2019, it was noted that the victim was not usually cognitively impaired but post-assault had some amnesia. He could recall his name but not his date of birth. He had headaches and left-sided weakness.
36 On 4 January 2019, the left zygomatic fracture was repaired to be followed up for removal of sutures.
37 During this time at the rehabilitation ward from 7 to 11 January 2019, the victim presented with a surgical scar to the left side of his face. Initially there were mild to moderate left arm and leg weakness and noticeable sensory changes and poor concentration. There was evidence of psychosocial stressors and anxiety upon questioning. There was mild reduction in visuospatial ability and memory. There was also visual disturbance on his left eye. He had dental injuries from the assault. He occasionally used a single point stick. He had ongoing flashbacks, anxiety, mood disturbance and was sleeping poorly. He had difficulty recognising faces and had reduced memory. He had to resort to having a photobook which contained faces and names of friends and relatives in order to regain memory. Dental work costs amounted to $7,000 which had not been performed due to loss of his employment.
38 Upon being discharged on 11 January 2019, the victim undertook two programs:
(a) Firstly, Acquired Brain Injury service – to provide case management and support with his return to work; and
(b) Secondly, Community Rehabilitation Program – for outpatient therapy including occupational therapy, exercise physiology and support from a clinical psychologist and neuropsychologist to get a better understanding of any changes to the brain following the assault. He was to see a social worker if needed for emotional support or help with Centrelink and financial assistance.
39 Physiotherapist noted upon discharge on 15 January 2019 that the victim was ambulating independently with one forearm crutch or no aid. He was able to manage steps independently. He participated in daily personal training to facilitate improved mobility and introduction to a gym program while on inpatient rehabilitation.
40 On 16 September 2019, Dr Lorensini, psychologist, noted that the victim fell in the extremely severe range to questions put in relation to depression, anxiety and stress scales. He exhibited PTSD symptoms, re-experiencing the traumatic event through distressing dreams and experienced psychological distress when exposed to cues that symbolised the events. Since the assault he had lost his full-time job and business. He was unable to perform his duties as a health and safety officer due to lack of concentration and memory loss from his acquired brain injury.
41 After a year, he had continued to see a number of medical specialists.
42 He was reviewed by a Dr Patel, senior registrar rehabilitation medicine at Ballarat Health Services. Dr Patel saw the victim on 23 January 2020. He took the view that the overall six days of post-traumatic amnesia supported the diagnosis of moderate traumatic brain injury.
43 He said that the victim continued to have ongoing impact of traumatic brain injury function, mood, behaviour and cognition. He said that his mental health issues and post-traumatic brain injury were the main contributing factors to a protracted course of recovery. He was to be referred to centre-based exercise physiology and occupational therapy and would continue to receive input from ABI service who would monitor the need for a repeat neuropsychology assessment to review his progress.
44 According to Dr Keshavarz, a general practitioner at Ballarat Community Health, the victim presented in August 2019, December 2019 and then on 8 January 2020. His condition with which he presented in August 2019 was unchanged when he presented again in January 2020 insofar as the following were concerned: memory loss, lack of concentration, headaches, fatigue, loss of peripheral vision to the left eye, anxiety, depression, panic attacks.
45 On 14 January 2020, the victim was seen at the Ophthalmology Clinic at Ballarat Health Services. According to Dr Francis, ophthalmologist, his left eye had reduced acuity and colour vision was reduced. His visual field testing showed left temporal field loss.
46 On 22 January 2020, clinical psychologist, Dr Lorensini said that the victim had continued to suffer from extremely severe depression, anxiety, stress and post-traumatic stress disorder symptoms as a result of the assault.
47 Mr Larkin, your offending is serous and calls for a punishment which is just in all of the circumstances. Your offending must be appropriately denounced and I must give strong weight to general deterrence in a bid to deter others from offending as you have. You behaved in a most dreadful fashion on the night in question, striking your stepfather to the face with such force that it caused the physical injuries to which I have referred and for him to suffer unconsciousness. As you are aware, the effects of the injury he suffered are of an enduring nature and have had a devastating impact upon him. He and his friend were minding their own business. However, you continually pestered them, insisting on their attention. You would not take no for an answer when it came being quiet but became more and more obnoxious, culminating in you assaulting your stepfather when he was trying to tell you to be quiet. Your apparent perception that he was about to strike you was an entirely inaccurate one, no doubt born of your intoxicated state and apparent insistence on looking for trouble on that night, so it seems to me. Moreover, rather than realising that you had behaved in a deplorable fashion, and helping the victim after you struck him, you behaved very poorly, when others were trying to attend to your stepfather who was obviously very unwell.
48 Intoxication is no excuse for your conduct, although it provides something of an explanation. However, you were fortunate that the prosecution did not submit that it was an aggravating feature of your offending in circumstances where it was previously been a feature of offending for which I sentenced you on 19 May 2015.
49 In sentencing you, I must and I have taken into account the devastating impact of your offending upon the victim. In essence, the injuries which he suffered as well as the psychological impact of the offending has devastated him and the plans that he and your mother have had for the future. He has lost his ability to earn income and to live a happy and productive life.
Previous offending
50 You have a criminal history which is not the lengthiest in the world but it is not too brief either. You have prior convictions for dishonesty matters, drug use and possession matters, but the most concerning and relevant prior matters are those for which I sentenced you in 2015, being aggravated burglary, intentionally causing injury and criminal damage. On that occasion I imposed an aggregate term of 6 months imprisonment and a community corrections order for 4 years with various conditions designed to assist you in your rehabilitation. You had already breached the community corrections order but I was persuaded to confirm it in April 2018. Now, here you are again, having breached the community corrections order but this time, you have done so by committing a further act of violence, in circumstances where community corrections report your compliance with the order’s other conditions had been satisfactory. The recommendation in the breach report is to confirm the order which has already expired. The prosecution submitted that I ought sentence you to a term of imprisonment which could be served concurrently or a fine in respect to the breaching offence which has a maximum penalty of 3 months imprisonment. Mr Pearson submitted that in view of the fact that you had been largely punished by way of a 6 month gaol term in respect to the prior offending, that your progress on the community corrections order had been otherwise satisfactory and you had continued on with steps toward rehabilitation even after the expiry of the community corrections order, that I ought impose a fine in respect to the breaching offence and confirm the community corrections order previously imposed. However, Mr Pearson submitted that if I were to sentence you to a term of imprisonment in respect of the 2019 offending then I ought impose a term of imprisonment in respect of the breaching offence which was wholly concurrent or at least largely concurrent with the other term.
51 There has been no subsequent offending which is a matter in your favour. Although you have been charged with a subsequent offence or offences, I am not sure but in any event, the alleged conduct giving rise to the further matter or matters, is to be contested in the Magistrates Court and very much contested on your part, so I have had no regard to that matter.
Winch considerations – seriousness of the offending
52 As set out in the Sentencing manual and supported by authorities such as Winch and I will give the citation in due course, determining the seriousness of a particular instance of recklessly causing serious injury involves considering: 1), the degree of probability that serious injury will result; and 2), the seriousness of the probable injury foreseen. The impact on the victim is also a key consideration, albeit only one. I have already factored in the last mentioned consideration in sentencing you. At the plea hearing there was a good deal of discussion in respect of the first two matters. I accept that at the time you inflicted the severe blow to the victim's face you foresaw the probability of the immediate consequences of this; namely, the various facial injuries, impairment to the victim's eyesight and unconsciousness. However, I do not accept that you foresaw the probability of the victim sustaining an acquired brain injury, the fitting that he endured or endures, and his mental health issues. Therefore, I find that there was a high degree of probability that serious injury would result but not of the magnitude of the serious injury which did result. The seriousness of the probable injuries which you did foresee were serious enough, but not as serious as the injuries actually sustained.
Background
53 In sentencing you I take into account your background-these were set out in my previous sentencing remarks, and were relied upon largely in the matters now before me, so I incorporate these into my sentencing remarks and these are extracted from my previous sentence.
54 Your parents separated when you were six months' old and you were brought up by your mother. She re-partnered when you were about two. Sadly, your stepfather at that time died because of an epilepsy attack in 2005, and your grandmother died the following year. You were very close to each of these people and their deaths hit you hard. You had little contact with your biological father, who died when you were 13 years old.
55 You moved around a great deal throughout your childhood because of your stepfather’s work. This meant that you attended numerous schools, which was destabilising for you. You exhibited behavioural issues whilst at primary school and you were diagnosed as having ADHD. However, your mother was against you taking medication for this, so this never happened. You completed Year 8, then commenced TAFE studies, completing Year 8 level, but you then did not finish Year 9. You experienced learning difficulties and difficulties with forming friendships throughout your years at school.
56 After leaving school, you undertook a carpentry course through the Brotherhood of St Lawrence. After this, you worked as a builder's labourer with the uncle of your brother's fiancée until you were 18. You have also worked with your uncle and your brother. You were two weeks into an apprenticeship in interior design when you were involved in a serious car accident, which put an end to this training.
57 In 2006, you undertook a Certificate of General Education. You have also assisted your brother in his restaurant for two years and you worked at the Rye Hotel for a while. You have completed other courses and obtained qualifications along the way, which is to your credit. You have shown a preparedness to work and to better your situation in this regard.
58 When you were 18, you witnessed the death of a friend, who died in your arms after a motorcycle accident. Subsequently, you were involved in a serious car accident, from which you suffer ongoing back pain. You were also the victim of a savage assault in 2009 sustaining facial injuries.
59 When you were 13 or 14, you commenced to drink alcohol and consume marijuana, and you developed significant problems in relation to poly-substance abuse. In September 2011, you sought help from a drug and alcohol service and attended a residential detoxification service for seven days. You also obtained counselling from a psychologist.
60 In late 2011, a long-term relationship that you were in, broke down, which caused you a good deal of distress. Unfortunately, the steps you had taken to deal with your substance abuse problem did not serve to address your difficulties and you continued to abuse alcohol, marijuana and ice.
61 In early 2012, you had a drug-induced psychotic episode and exhibited symptoms of depression. You were then placed on a mental health care plan and were referred to a Peninsula drug and alcohol program. You were diagnosed with major depressive depression and anxiety and were prescribed medication for these, which was changed from time to time, as the medications were not effective.
62 As the detailed chronology tendered at that plea hearing in relation to my previous sentence indicated, you went on to have various crises in your mental health, including a suicide attempt and you also continued to have problems in respect of your drug use. You have sought to deal with these from time to time and your family had been strongly supportive of you in this regard, in particular as I understand it, your sister.
63 One of your attempts to deal with your difficulties saw you moving to Mildura in mid-2012. You lived with your maternal grandfather and completed a TAFE course in general education. Whilst there, you met a young woman with whom you had formed a relationship and you became engaged to be married. Your fiancée became pregnant, but she ended the relationship before your child was born, apparently at the urging of her father. I understand that it is still the case you have not seen your daughter, who was born of that relationship.
64 The ending of the relationship had a major effect on you at that time. You returned to substance abuse, including alcohol, and you returned to Rye, where you worked in the field of landscaping and general labouring. That work endured until September 2014, although with a short break because of back pain. You were treated for this and other ailments associated with the motor vehicle accidents in January 2014.
65 On 13 February 2014, your GP placed you on a mental health plan for mixed anxiety and depression and you were prescribed an anti-depressant.
66 In 2018, I confirmed the community corrections order that I had imposed after you breached it by findings of guilt in the Magistrates Court in respect of possessing a small quantity of methamphetamine and failing to answer bail. You were convicted of those matters and placed on an adjourned undertaking with the sole condition that you continue to comply with the community corrections order that I had imposed, so you kept on with the community corrections order and I note that the offending for which I now sentence you, that is the offending on the indictment, happened about 7 months later.
67 I was told that since the commission of the offence on 1January, 2019 you have worked hard on your life, successfully ridding yourself of drug taking, in particular methylamphetamine and that your mental health is now sound. Having said that, I note from the extended report, that you did engage in self-harm in 2021 which is concerning. You undertook residential treatment at Windana from 25July 2019 until 1 May 2020, a period of 9 months. Since exiting the residential program, you have engaged in outpatient counselling with Windana in mid-2020.
68 At the plea hearing I was provided with two drug screens taken in November and December last year, each of which were clear. At the time of the plea hearing I was told that you still drank alcohol but that your intake has substantially reduced. However, in my view expressed at the time this could have reduced even further. At that time I was told that you were drinking alcohol occasionally in social settings and that on a given occasion you might consume 6 full strength beers; that the last time you were drunk was about 6 months before the plea hearing. As I indicated at the time, I appreciated your candour as to your drinking habits, but I did remark to your counsel that in view of the circumstances of your offending before me and your prior offending, I would have thought that sobriety and abstaining from alcohol altogether would be optimal in your case. Certainly with all the work you are doing in terms of your own rehabilitation and in respect of your aspirations, I would have thought that this would be rather obvious. I have been told today that in fact you took those remarks on board and since the plea hearing, you have fully abstained from alcohol and I hope that you continue to do so.
69 As to your present circumstances, Mr MacKinnon, forensic psychologist said:
'Mr Larkin is employed as a commercial cleaner, whilst studying part-time, completing Certificate IV in mental health studies (having recently completed Certificate IV in alcohol and other drugs studies). Mr Larkin has also recently commenced a placement at a Hallam residential substance abuse rehabilitation program. Mr Larkin stated: 'I’d like to make a career working in AOD, helping other people'.
70 At the plea hearing, Mr Pearson addressed me about these matters, telling me that you wished to become an alcohol and drug counsellor and that, as at the plea hearing, you had 25 hours of the 80 hour placement to go in relation to your own training.
71 The law requires me to also factor in the delay in respect of this matter in two ways: Firstly, the delay of over 3 years since the offending has meant that you have had the anxiety of the outcome of these matters hanging over your head for a considerable time. In saying this, I do not for a moment take away the anxiety that has been hanging over the head of the victim and all concerned with the victim, but the law does require me to take into account the delay of these matters insofar as it impacts on you; secondly, during this substantial delay period you have demonstrated significant steps toward rehabilitation in that you have not committed any further offence and you have actively engaged in treatment and rehabilitation for yourself, and you are now working towards obtaining a qualification designed to help others with alcohol substance abuse issues.
72 Mr Pearson referred me to the case of Cockerall v The Queen [2001] VSCA 239 where it was said:
'………..where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation…………' [10]
73 In your case, I sentence you for what you did, not for what you did not do however, the offence that you committed was constituted by one blow rather than a sustained attack and I factor in that no weapons were used, in contrast to other cases involving the offence of recklessly causing serious injury.
74 In sentencing you, I take into account the report of Mr McKinnon psychologist who was of the view that you suffer from bi-polar affective disorder and that this probably contributed to your offending to some degree in that it probably deprived you of your ability to reason and make sound judgements. However, he was of the view that the major contributing factor was your intoxication.
75 Mr Pearson quite properly did not submit that your moral culpability was reduced in view of Mr McKinnon’s findings but in view of other aspects of Mr McKinnon's report, I do accept that if you were to be imprisoned that your mental state would likely deteriorate to the point of suicidal ideation. This would mean that any time in gaol would be harsher for you than for others. I also must factor in that the restrictions put in place due to the pandemic would also make your time in gaol harsher than it would otherwise be. I have also borne in mind that you have only been in gaol once before being the 6 month period that you served in respect of the sentence that I previously imposed.
76 The character material tendered indicates to me that you are a person who is very well regarded by your aunt and sister and that you are an excellent tenant according to your landlady. The material is further testament to what you are capable of and what you have done to turn things around since the offending and I am most impressed by it.
77 In your favour, I allow for a significant discount in the sentence that you would otherwise receive, as you were prepared to plead guilty to the charge for which I am now sentencing you before the committal hearing. That offer was rejected by the Crown and so the committal proceeded, with the issues being your state of mind at the relevant time and the seriousness of the injuries of the complainant. The matter did not resolve at a case conference in this court but before the matter went to trial, it resolved on the basis now before me. In such circumstances, although there were no savings to the witnesses and the community at the committal stage, had your offer been accepted then this would have occurred, although it is not entirely clear that the present factual scenario would have been agreed to by you as at that time. Mr Pearson referred to the fact that you had previously indicated in your defence response that you relied on self-defence, which is something that is obviously now abandoned. All that said, you have saved the witnesses the time and trouble of giving evidence at trial and you have saved the community the time and expense of a trial, and I factor in that you were willing to resolve the matter to the charge now before me prior to the committal hearing.
78 I have read your letter and although a cynic might say it is somewhat self- serving, I am satisfied that it is a genuine expression of remorse and that the various actions which you have taken toward rehabilitation are a further and palpable expression of this. Your remorse has been a work in progress as your initial stance when interviewed by police was obnoxious and completely lacking in remorse. Also, I have viewed your expressions of remorse against your criminal history, breaching the community corrections order for the second time, your preparedness to rely on self-defence at one stage. However, weighing all of these matters up and in view of your early offer to plead guilty to the charge now before me, your impressive steps toward rehabilitation, and enlightenment in relation to your problems and issues, I accept that you have developed genuine remorse and I also accept that you have developed a good deal of insight into the seriousness of your offending and how it has impacted on others, especially the victim.
79 The law also requires me to impose a sentence that gives real effect to a recognition that you have pleaded guilty to this offence, contributing to the reduction of the backlog in the Courts due to the COVID-19 pandemic.
80 In all of the relevant circumstances I find that your prospects of rehabilitation are guardedly fairly good. Much will depend on your ability to keep going in the way that you have and developing further insight into the need to address issues in respect of alcohol and continue with appropriate treatment in respect of your mental health. I place less than moderate weight on specific deterrence and protection of the community. I must place strong weight on general deterrence to which I have previously referred.
81 In relation to the charge on the indictment, the Prosecution submitted at the plea hearing that a term of imprisonment involving a head sentence with a non-parole period was warranted in your case. Today, having considered the extended community corrections report, Ms Fallar on behalf of the Crown was instructed to make a secondary submission that although the primary submission was principally relied on, the alternative submission and a secondly one was that a community corrections order in combination with a gaol term would be within the range. Mr Pearson submitted that a community corrections order was warranted and maintains that submission with further submissions today, largely in written form as to matters raised in the community corrections assessment report.
82 I arranged for an extended community corrections assessment to be conducted without committing to a view as to whether I would impose such an order, and if I did, with or without gaol. The report has indicated that you are a suitable candidate for a community corrections order and you are at medium risk of re-offending.
83 Mr Larkin, after a great deal of consideration of the relevant matters in your case, and bearing in mind that gaol is a last resort as the law provides, also bearing in mind the sentiments of the Court in Cockerall to which I have just referred, and the principles set out in Boulton as to the approach Courts ought take in respect of community corrections orders, I have come to the view, but only just, that a suitably crafted community corrections order can accommodate the weight that I must attach to all relevant sentencing considerations. In view of the significant steps toward rehabilitation that you have made in the past three years, I cannot see any utility in sending you to gaol. But make no mistake, if you commit any further offences or fail to comply with the community corrections order that I am about to impose, I will have very little hesitation in cancelling the community corrections order and sentencing you to a term of imprisonment. Do you understand that? You are nodding your head.
OFFENDER: Sorry, yes, yes, Your Honour.
84 That is all right. I have adopted a number of the recommended conditions of the community corrections report but I have taken the view that there ought also be an assessment in respect of drug taking and treatment if necessary, as well as judicial monitoring. The author of the report had told you that a mental health condition was not needed but on reflection, took the view that it was. I agree and even if that were not the recommendation, I would have imposed such a condition in any event.
85 You are convicted of the breaching offence in relation to the previous community corrections order and in relation to the offence on the indictment.
86 In relation to the breaching offence you are fined $1000. I confirm the previous community corrections order, noting that it is now expired.
87 In relation to the offence on the indictment, I intend to place you on a community corrections order but I can only do this with your consent, so please listen carefully to the order that I propose:
88 The community corrections order would run for a period of 3 years.
89 The conditions of the community corrections order would be as follows:
90 The mandatory terms that apply to all community correction orders which are:
91 You must not commit another offence for which you could be imprisoned during the time that the order is in force;
92 You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;
93 You must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate);
You must report to the Frankston Community Corrections Centre at 2 pm tomorrow.
94 You must let a community corrections officer know within two clear working days of you changing your address or job;
95 You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice (or his/her delegate);
96 You must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his/her delegate).
97 The conditions that will apply in addition to the mandatory terms listed are:-
Community Work
98 You must undergo 200 hours of unpaid community work within the next 3 years.
99 Up to 100 hours of this condition may be satisfied by the successful completion of the equivalent period of time of all or any of the treatment and rehabilitation conditions of this order. This is just a comment of mine, but unpaid community work may well include any counselling that you can do, not for profit in the field that you have chosen, if you qualify in that field. That is just a comment of mine, not to be part of the order.
Supervision
100 Further, you must be under the supervision of a Community Corrections Officer for a period of 3 years.
Treatment and Rehabilitation
101 Next, you must undergo assessment and treatment including testing for drug and alcohol abuse or dependency as directed by the Regional Manager. I know that you have been off drugs for a significant period but I want you to be assessed in relation to drug abuse and be provided with any necessary treatment and rehabilitation if the assessment results in you being assessed as appropriate for such treatment and rehabilitation.
102 You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, as directed by the Regional Manager. And I make a remark here, I do not want to hear when I, and I will be seeing you from time to time, and I do not want to hear that you thought it is best that you do not see a psychologist. It is not up to you, this is a condition of the order. If you do have bipolar effective disorder and you have obviously got mental health issues, I do want you to go through with that condition and you are risking going to gaol if you do not, all right.
Programs re offending
103 Also, you must undergo programs or courses aimed at addressing factors relating to your offending as directed by the Regional Manager.
Monitoring
You are to attend this Court from time to time to be monitored by me. Your first appointment will be on Friday 24 June.at 9.30 am. Ahead of each monitoring appointment I will have community corrections provide me with a report as to how you are going on the order. You are not to be represented at these appointments as they are an opportunity for me to have a chat with you about your progress, and community corrections may also attend. It may be that we can arrange, seeing you live quite a distance away, we can arrange for those to be conducted via Webex or Zoom, but you will hear about that closer to the time.
Now, having heard what I propose, do you consent to the terms and conditions of the order?
OFFENDER: Do you want me to stand up? Yes, Your Honour.
HER HONOUR: All right. Now I should tell you that if you do not comply with all of the requirements of the community corrections order you will face breach proceedings before me. You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charge, in which case you may well be sentenced to a period of imprisonment. I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order. Do you understand this?
OFFENDER: Yes, Your Honour.
HER HONOUR: Do you maintain your consent to the order?
OFFENDER: Yes, Your Honour.
104 HER HONOUR: Therefore in relation to the charge on the indictment, you are convicted and sentenced to a community corrections order in the terms and conditions that I have just set out.
105 If not for your pleas of guilty I would have sentenced you to a total effective sentence of 4 years imprisonment with a non-parole period of 3 years.
106 Take a seat please. I will have Mr Pearson assist you if you are still able to? You have not had a - - -
107 MR PEARSON: Yes, I am fine, Your Honour. Thank you.
108 HER HONOUR: Yes. If you could assist your client please - - -
109 MR PEARSON: Of course.
110 HER HONOUR: - - - in understanding the proposed order and signing it. Do not forget the hand sanitiser either please, it is up there.
111 MR PEARSON: Thank you, Your Honour. Yes, in a very - sorry, Your Honour. He has signed the first page, not the second page, my fault. I will - - -
112 HER HONOUR: He has got to sign that.
113 MR PEARSON: Yes, I will just return. Thank you, Your Honour. Yes, now that document has been signed in both places where the accused has to sign it. I took him in a fairly abbreviated way through the conditions of the order. I will speak with Mr Larkin outside regarding the order, the conditions of the order, his obligations.
114 HER HONOUR: I think I set out fairly clearly when I made the order.
115 MR PEARSON: Yes, of course.
116 HER HONOUR: Community Corrections will enforce those. The first thing he has got to do is turn up at 2 pm tomorrow.
117 MR PEARSON: Tomorrow.
118 HER HONOUR: And I do not want him to be tempted to go out and have a drink to celebrate. Go and have a cappuccino and chocolate cake or something like that, but just stay off the alcohol, all right. And a bit of fitness, that will be your new thing, I would recommend, to help you replace anything else that you might be tempted to take. Just get into a bit of fitness or something of that nature and I do hope to have a very meaningful and positive chat with you on the next occasion at the judicial monitoring, all right. So I am hoping to hear good things. I know that you are capable of them because you have shown in the last 3 years you are, and I think it is going to be for the community's benefit and your benefit if you keep going the way that you are going, all right.
119 OFFENDER: Yes, Your Honour, thank you.
120 HER HONOUR: Thank you, all right we will now adjourn.
121 MR PEARSON: If Your Honour please.
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