Director of Public Prosecutions v Last Name

[2023] VCC 2321

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CR-22-01130
CR-22-01131

DIRECTOR OF PUBLIC PROSECUTIONS

v

COREY SMART

and

COREY SMITH

---

JUDGE:	HER HONOUR JUDGE HAWKINS
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2023
DATE OF SENTENCE:	11 December 2023
CASE MAY BE CITED AS:	DPP v LAST NAME
MEDIUM NEUTRAL CITATION:	[2023] VCC 2321

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW – SENTENCING

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:R v Smart & Oths [2023] VSC 469; Bugmy v The Queen [2013] HCA 37; 249 CLR 571; R v Mills [1998] 4 VR 235; Boulton v The Queen [2014] VSCA 342; Worboyes v The Queen [2021] VSCA 169

Sentence:                  For Smart – Total effective sentence of 12 months’ imprisonment

For Smith – 2 year Community Correction Order with 200 hours of unpaid community work

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr T Crouch	Office of Public Prosecutions
For Smart For Smith	Mr D McGlone Ms C Oldham	Leanna Warren & Associates Slades & Parsons

HER HONOUR:

1Corey Smart and Corey Smith you have each pleaded guilty to one charge of intentionally causing injury.

2Mr Smart you have admitted your prior criminal history. Mr Smith you have no prior criminal history.

Circumstances of Offending

3The circumstances of your offending are set out in the 'Summary of prosecution opening for sentence indication hearing' dated 25 October 2023, which was adopted by the prosecution on your plea and the accuracy of which you both accept through your counsel.  

4At the time of the alleged offending, the victim, Cassidy Phelan, and Skye Shaw‑Woods had regularly been spending time together as friends.

5You both knew Shaw-Woods from school and Mr Smart, you were her neighbour for around six years. Mr Smith, you contacted Shaw-Woods in late December, asking her where her 'bitch arsed boyfriend' was. You went on to say '[w]here is he? If he’s at your house, we’ll do something. We don’t care where it is'.

6On 9 January 2021, Phelan and Shaw-Woods had gone out to pick up some food before returning to Shaw-Woods’ home to watch a movie. On the drive home, Shaw-Woods drove past your house, Mr Smart, and saw someone out the front.

7After arriving home, Phelan and Shaw-Woods remained in her car together. Shaw‑Woods was in the driver's seat and Phelan was in the front passenger seat. The car was reverse parked under the carport at the top of the driveway, near the side entrance to the home.

8Whilst they were seated there, you both arrived at Shaw-Woods’ home on foot. As Phelan got out of the car, Mr Smith, you yelled out to him. Shaw-Woods says she immediately recognised the two of you.

9One of you, it is not clear which, walked up the driveway armed with a large butcher’s knife and approached Phelan. Phelan braced himself for a confrontation and kicked the armed aggressor to the stomach or chest area, causing the latter to fall backwards onto the ground.

10Then one of you then got up off the ground and swung the knife towards Phelan’s neck and head region. Phelan raised his right arm in self-defence. The knife struck his raised forearm causing a significant slash wound.  This forms the basis of Charge 1 – intentionally cause injury. You both then left the house on foot.  

11The prosecution cannot prove which of you slashed the victim. In entering your pleas, you accept that you were each complicit in the offending because you had agreed to go to the premises to assault the victim and knew that it was likely an injury would be caused. Both of you knew the knife was being taken to the premises.

12Mr Phelan’s arm was slashed to the bone, requiring surgery to repair his right ulnar nerve and a skin graft. He required ongoing therapy. The plea is made on the basis that whilst his injury was significant, Mr Phelan has recovered and resumed work, albeit in a less physical capacity to that in which he was previously employed.

Sentencing Considerations

13Intentionally causing injury is an inherently serious offence as reflected by the maximum penalty of 10 years’ imprisonment.[1] This offence occurred at the home of the victim’s friend. There is no doubt that given the use of an edged weapon and the injuries sustained by Phelan, this is a very serious example of this offence type.

[1]Crimes Act 1958 s 18 (‘Crimes Act’).

14Whilst giving evidence at trial commenced on more serious charges, Phelan reportedly advised the prosecutor that he had made a 'full recovery'. Subsequently updated medical material was sought but not obtained from the victim’s treating doctors. The prosecutor on the plea read aloud Phelan’s victim impact statement dated 13 April 2021, made some three months after this offending. The victim described enduring eight surgeries with more to come, resulting in limited use of his right hand, scarring, ongoing pain and emotional and financial stress.

15In an updated victim impact statement, which appears to have been made more recently, the victim described the constant pain associated with physical work and how reduced strength in his dominant right hand has reduced his employment opportunities and caused him social anxiety. Whilst I have regard to these statements as required pursuant to section 5(2)(daa) of the Sentencing Act 1991,[2] I have cautious regard the extent of Mr Phelan’s injuries pursuant to section 5(2)(db), given the lack of any up to date medical material before the Court.

[2](‘Sentencing Act’).

Personal Circumstances – Mr Smart

16I will now turn to consider your personal circumstances, Mr Smart.

17Mr Smart, you were 23 years of age at the time of the offending. You are now 26 years of age and you were raised in the Gippsland area.

18You have one brother and half siblings from your parents’ other relationships. Your childhood was marred by parental drug use, family violence and housing instability.

19Despite these challenges, after moving to Morwell you found some stability and support through playing soccer. Your father coached your team, and training and games were a positive family experience.

20Ultimately, however, your parents separated, and you split your time between your parents’ homes. Your father stopped using hard drugs and continued volunteering at your school and soccer. He provided a more stable environment for you, whilst your mother’s drug use escalated. Your mother re-partnered with drug users and you experienced further family violence at her house. Your aunt played more of a mother figure than your own during this time.

21Schooling was problematic for you. You were first expelled from school at the age of four after you hit another child with a chair and attempted to hit a teacher.

22However you enjoyed playing sport and were a good student throughout primary school, being made school captain in year six.

23You began to 'get into trouble' in your early teenage years. When you were 14 years of age, you were involved in a serious car accident. You sustained a broken collarbone and had swelling on the brain.

24You started smoking cannabis and drinking alcohol at the age of 12.

25You began taking ice shortly after and your drug use quickly escalated into addiction.

26You returned to your mother’s home for a short period after this accident but at around 15 you left home after being expelled from school for fighting. You became homeless for a period, stopped playing sport, and your father cut off contact with you.

27At your aunt’s insistence you participated in a six month program for troubled kids at the Blackwood School. You enjoyed this program, which had a focus on anger management, and at the conclusion of the program you were able to re-enter mainstream schooling, however you were again expelled part-way through year nine for fighting.

28Through an adult education course, you were able to successfully complete year 10 and a Certificate II in metal induction.

29Despite your turbulent and deprived upbringing, you have had a positive work history. You started working casually at age of 14 in landscaping and maintenance. Then at age 16 you started a full-time apprenticeship at Gippsland Land Services. You held this employment for two and a half years until you were fired after returning a positive drug screen.

30At age 17, you reconnected with your mother after learning that she had been badly beaten by her partner. You moved back in with her and assisted to care for your younger half-sister. You moved out with your partner for a few months, and then moved with your partner to live with your mother and sister in a new home, which is where you resided at the time of this offending.

31You next worked as an apprentice baker for two years at a small bakery in Morwell but left the employment when the night shifts became too taxing.

32At age 18, your partner issued you an ultimatum, that you cease using drugs or she would end your relationship. You did cease using ice at this time however, were still using cannabis at the time of your remand.

33At age 20, you started working as a welder in Morwell. You were a good worker but your bail and court commitments interrupted your work and you were made redundant. You have also worked casually with your partner’s father in his concreting business.

34You are currently employed in custody in metal works. You have held this employment for two years and helped train other prisoners to make cattle crushes and you have completed numerous courses in custody.[3]

[3]Exhibit Smart 1 – Prisoner Education Summary Report.

35You have engaged in 35 sessions of alcohol and other drugs counselling[4] whilst in custody and have completed clean urine screens.[5]

[4]Exhibit Smart 7 – Letter from Caraniche dated 1 March 2023; Exhibit Smart 8 – Letter from Caraniche dated 5 May 2023.

[5]Exhibit Smart 2 – Assay results 17 September 2021 - 14 December 2022.

36You are currently in a relationship with Taylor who is a university graduate, working full-time in hospitality and who has no adult criminal history. You have re‑established contact with both parents and character references from Taylor and each of your parents demonstrate that you are well loved and supported.[6] They speak of your capacity for hard work and the plans you and Taylor share to get engaged, start a family and a business together.

[6]Exhibit Smart 6 – Reference from Taylor McGregor dated 15 May 2023; Exhibit Smart 5 – References from Scott McGregor dated 15 May 2023 (Exhibit Smart 5); Exhibit Smart 4 – Natasha Swallow dated 15 May 2023.

37Mr Smart, you have a relevant criminal history. You have both youth and adult convictions, two of which are for violent offending. I do not consider your Children’s Court offending relevant. 

38On 14 July 2023, you pleaded guilty to manslaughter before her Honour Justice Jane Dixon and were sentenced on 17 August 2023 to eight years and six months’ imprisonment with a non-parole period of five years. That offending occurred on 20 February 2021 which post-dates the offending before this court by some six weeks. That matter is therefore not technically a prior conviction but is relevant because it realistically limits the sentencing options available to this court. I am told your earliest release date will be in about two and a half years. You have four days of pre‑sentence detention attributable to this matter.

39In sentencing you, [7] Justice Jane Dixon accepted that the principles in Bugmy’s[8] case applied you. I similarly conclude your moral culpability is reduced to a moderate degree in this case.

[7]          R v Smart & Oths [2023] VSC 469.

[8]        Bugmy v The Queen [2013] HCA 37; 249 CLR 571.

40Her Honour also regarded your prospects of rehabilitation 'as good based on subjective matters such as the resilience you have shown in overcoming the adversity of your childhood, gaining employment and gaining the support of your partner and her family'. I agree with her Honour’s assessment.

41Mr McGlone on your behalf stressed the need for parity with sentence to be imposed upon your co-offender, Mr Smith. He conceded that the sentencing options were more limited for you than Mr Smith, given your current state of incarceration. Ultimately, he submitted that any sentence of imprisonment be either wholly or substantially concurrent with the sentence you are presently serving.

Personal Circumstances – Mr Smith

42I will now turn to consider your personal circumstances, Mr Smith.

43Mr Smith, you were 20 years of age at the time of this offending. You are now aged 23 years.

44You were born in Traralgon and raised in the Gippsland area.

45You are estranged from your mother and your maternal grandmother. Your paternal grandparents passed away when you were 17 years of age, with your father passing away shortly after.

46At the time of the offending, you lived with Mr Smart and his father. Since October 2021, you have lived with your partner on a dwelling on her family’s property.

47You completed year 10 at the Morwell Campus of Kurnai College. After secondary school you undertook a cookery apprenticeship at Gippsland TAFE.

48You completed your apprenticeship at the Churchill Hotel in 2023,[9]  where you have since risen to the position of head chef. You currently supervise 12 cooks and one apprentice.

[9]Exhibit Smith 3 – Certificate III in Commercial Cookery dated 27 July 2023.

49You are in good physical health and have no diagnosed mental health conditions.

50Mr Smith, you have no criminal history whatsoever and are of otherwise previously good character.

51The managing director of the Churchill Hotel, Guy Martin, speaks of your strong work ethic and great interpersonal skills.[10] He says that in speaking about the offending, you were ‘embarrassed but truthful’. It was this truthfulness that led Mr Martin to offer you the role of head chef at the Hotel.

[10]Exhibit Smith 1 – Reference from Guy Martin dated 24 October 2023.

52You gave a full record of interview to police and made full admissions to the offending. This reduces your otherwise high degree of moral culpability for this offending.

53Delay is relevant as a mitigatory sentencing factor in your case. You have lived with this matter hanging over your head for an extended period.

54You have been on bail since your release in January 2021 and no further offending of any type is alleged against you during that period. You successfully completed an episode of CISP in May 2021[11] and you have used this time on bail productively, to take advantage of the supports offered to you through CISP and to complete your apprenticeship and ultimately gain stable employment.

[11]Exhibit Smith 2 – CISP Final Progress Report dated 14 May 2021.

55Your excellent progress on bail and relative youth allows me to conclude that you have very good prospects of rehabilitation. For youthful offenders, rehabilitation is a far more important sentencing consideration than is general deterrence.[12]

[12]R v Mills [1998]4 VR 235, 241.

56The principle of parsimony requires that I be satisfied that no other sentence is appropriate before imposing a term of imprisonment. Whilst the need for general deterrence, denunciation and just punishment is high in your case, mitigating factors including delay, your youth and very good prospects of rehabilitation, coupled with your lack of prior convictions, militate against imposing a term of imprisonment upon you.

57Mr Oldham, on your behalf, submitted that a substantial fine could satisfy the sentencing objectives. I am not, however, satisfied that a fine is sufficiently punitive to address the gravity of your offending. In accordance with the principles in Boulton’s case,[13] however, I consider that a community corrections order is capable of providing substantial deterrence, can be highly punitive and can simultaneously promote your ongoing rehabilitation in the community. I accept that the conditions will be onerous given your demanding employment, but I propose to impose an order of sufficient duration to allow you to meet your commitments during your leisure and holiday time.

[13]Boulton v The Queen [2014] VSCA 342.

Common Sentencing Considerations

58I will now turn to consider some common sentencing considerations applicable to both of you.

59Offenders who are party to the same offence should, all things being equal, receive the same sanction. As Gibbs CJ in the case of Lowe v The Queen (1984) 154 CLR 606 stated, however, '…but other things are not always equal, and such matters as the age, background, previous criminal experience [sic] and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account'. 

60Accordingly, I must sentence each of you for same role played in offence, but I must account for the differences between the two of you and they include:

(a)   Mr Smith you have no criminal priors while Mr Smart you have relevant priors for violence;

(b)   at the time of this offending, Mr Smart you were older, at 23, while Mr Smith you were still technically a young offender at age 20;

(c)   Mr Smith you have used your time on bail productively to maximise your rehabilitation and reach a significant point of stability in your life, with good career and law-abiding life prospects ahead of you. Mr Smart, you have also used your time in custody productively, and your prospects of rehabilitation are good but they are much more limited than for Mr Smith, given the sentence you are undergoing for manslaughter;

(d)   the principles in Boulton’s case are extremely relevant for you Mr Smith; and

(e)   Mr Smart, your moral culpability is reduced in accordance with the principles in Bugmy's case.

61Mr Smart and Mr Smith you both exercised your right to contest this matter and a trial commenced on more serious charges earlier this year, before ultimately the prosecution sought to have that jury discharged. The matter was further listed for trial in the October 23 circuit, but proceeded by way of a sentencing indication hearing after the prosecution indicated that they would prefer one count of intentionally cause injury on a complicity basis. I accept that your decisions to accept my indication and plead to that charge have a substantial utilitarian benefit, and your pleas were entered at a stage where both parties were prepared to consider resolving the matter. In doing so, you avoided the need for a trial and saved witnesses the stress of giving evidence in court.

62Whilst the trial backlog in the County Court has now been reduced to pre‑COVID‑19 levels, I accept that your plea has contributed to assisting the justice system in recovering from the effects of the pandemic. Accordingly, you will receive a sentencing discount for your plea and also in accordance with the principles in Worboyes’ case,[14] in so far as they are relevant at this point in time.

[14]Worboyes v The Queen [2021] VSCA 169.

63In sentencing both of you, I must have regard to a range of matters such as the seriousness of your offending, your culpability for the offending and your personal circumstances. I must balance the interests of the community in denouncing criminal conduct and deterring you and others from engaging in similar offending, with the interests the community clearly has in seeking to ensure so far as is possible, that offenders are rehabilitated and reintegrated into society.[15] I must impose a sentence which is proportionate to the gravity of the offending considering the circumstances and the sentence must be no more than is necessary to satisfy those various sentencing objectives.

[15]In accordance with the purposes set out in Sentencing Act s 5.

64I have also taken into account current sentencing practices for the offence to which you have pleaded guilty and the important principles of parity as I have outlined.

Sentence

65I now sentence each of you as follows.

66Mr Smart you are convicted and sentenced to 12 months’ imprisonment. 3 months of this sentence is to be served cumulatively upon the sentence imposed by the Supreme Court on 17 August 2023, that being the sentence you are presently serving.

67Mr Smith you are convicted and sentenced to a community correction order which will commence today.

68The conditions of this order are that:

(a)   you must attend at the Morwell Community Corrections Service within 2 clear working days;

(b)   you are required to perform 200 hours of unpaid community work as directed, over the next 2 years;

(c)   you must not commit an offence punishable by imprisonment during this order;

(d)   you must not leave Victoria without permission of Community Corrections;

(e)   you must let your Community Corrections officer know within 2 clear days of changing an address or a job;

(f)    you must comply with any lawful direction given by a Community Corrections officer that is necessary to ensure you comply with this order; and

(g)   if you contravene this order by either committing further offences or by failing to comply with the conditions then you can be brought back before this court, fined and re-sentenced and that might mean, Mr Smith, that you go to jail for this offence.

69Mr Smith, do you have any questions about this order?

70OFFENDER SMITH:  No, Your Honour.

71HER HONOUR:  And do you consent to being placed on the community corrections order, Mr Smith?

72OFFENDER SMITH:  Yes, Your Honour.

73HER HONOUR:  Thank you. You have indicated your oral consent to the order, which I direct to be entered onto the court record.

Pre-Sentence Detention

74Pursuant to s 18 of the Sentencing Act, Mr Smart, the period of four days of pre‑sentence detention (not including today) 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

75Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been found guilty after trial, Mr Smart, I would have sentenced you to a term of 18 months' imprisonment with a non-parole period of 12 months, and you Mr Smith, to a term of 15 months' imprisonment with a non-parole period of 9 months.

- - -