Director of Public Prosecutions v Luke
[2020] VCC 358
•27 March 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONKOORI COURT DIVISION
CR-19-02109
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYE MAURICE LUKE |
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 March 2020 |
| DATE OF SENTENCE: | 27 March 2020 |
| CASE MAY BE CITED AS: | DPP v LUKE |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 358 |
REASONS FOR SENTENCE
---Subject: SENTENCING
Catchwords: Plea of guilty; Koori court sentencing conversation; genuine remorse; serious violence in company; victim’s injuries long-lasting; victim “understanding” of causes of offender’s conduct; offender with underlying paranoid schizophrenic disorder, and long history of substance abuse and offending; complicated totality issues; rehabilitation prospects guarded despite current intentions; recent medical developments including respiratory conditions; impact of Covid-19 pandemic causing heightened concern to offender suffering lung lesions and pneumonia at time of sentencing; non-parole period significantly reduced due to totality and present health conditions.
Legislation Cited: Sentencing Act 1991 ss 6D,6E,6F, 6AAA, 14 & 15
Cases Cited:R v Morgan [2010] VSCA 15; Honeysett v R [2018] 24 VR 230; DPP v Hefron [2019] VSCA 130; Brown v The Queen [2020] VSCA 60; R v Robertson [2006] VSCA 71; R v Bradley [2010] VSCA 70
Sentence: TES: 3 years imprisonment; non-parole period 5 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Maguire | Office of Public Prosecutions |
| For the Accused | Mr B.J. Newton | Robyn Greensilll & Associates |
HER HONOUR:
1Tye Maurice Luke, you have pleaded guilty to one charge each of intentionally causing injury, making a threat to kill, reckless conduct endangering a person, and possession of a drug of dependence. You have also agreed to have heard in this court, and have pleaded guilty, to a summary charge of committing an indictable offence while on bail.
2You have also admitted a substantial criminal history to which I shall refer later.
3These charges all arise out of a violent incident on 26 February 2017, in which you, with co-offenders, assaulted and threatened Mr David Gargano. I shall refer to that incident in more detail shortly.
4You chose to have your case heard in the Koori Court division of this Court, and in doing that, you consented to participate in its processes including a sentencing conversation. The Court of Appeal of this state has recognised that meaningful participation in such a conversation may operate as a mitigating circumstance in a number of ways[1]. I shall discuss those and how they apply to your case a little later.
[1]R v Morgan [2010] VSCA 15; Honeysett v R [2018] 24 VR 230; DPP v Hefron [2019] VSCA 130 at [67]- [68]
5The charges against you arise out of a violent incident on 26 February 2017. That day, you went to a unit in Box Hill, where an acquaintance, Ms Meghan Shaw lived. Another acquaintance of hers, Mr David Hamilton, was also present, as was a man named David Gargano, whom she had been allowing to live in her spare bedroom over the preceding week or so, as he was homeless at the time. All present were drug users and Mr Gargano had been sharing some drugs he had acquired with Ms Shaw, as repayment for letting him stay.
6Ms Shaw had complained to Mr Gargano that some of her belongings had gone missing, including her laptop computer. Ms Shaw was upset and had a disagreement with Mr Gargano in front of Mr Hamilton when he arrived at
Ms Shaw's unit earlier that morning. At that stage, Mr Gargano did not admit that he had given the laptop to his drug dealer as collateral for a drug debt. He then went to sleep in his bedroom.7When you arrived a few hours later, you were told of the belongings going missing since Mr Gargano had moved in. You and Ms Shaw then entered Mr Gargano's bedroom while he was still sleeping, woke him, and proceeded to assault him physically and threaten him. You held a flick knife to his throat, asking if he took the laptop, and saying that you were going to stab him in the heart. You held him in a headlock, and pierced the skin next to his left eye with the blade of the knife, also piercing the eyeball. That injury could have caused a loss of sight (but did not), and your actions doing that are the basis of Charge 3 of reckless conduct endangering serious injury.
8Ms Shaw punched Mr Gargano a number of times to the head, causing bleeding, and you kept holding the knife to his throat, and then slashed his cheeks and nose with the knife. With him bleeding, Ms Shaw was yelling at him, and she and you then dragged him by his hair out of the bedroom into the hallway where Mr Hamilton was standing. You and Ms Shaw started trying to get Mr Gargano down the stairs with Mr Hamilton standing watching. You dragged Mr Gargano, and at the bottom of the stairs, you used both hands to try to choke him. He struggled with you, managing to remove your hands from his neck, and you then held him in a headlock, with Ms Shaw telling you to choke him out. Mr Gargano bit your forearm and you let him go and Ms Shaw then started punching him to the face.
9You then picked up a baseball bat from the lounge room, and started hitting
Mr Gargano, striking him on the forearm, approximately 10 times while calling him names. You picked up the flick knife you had used on him earlier and threatened to cut off his ear, with Ms Shaw urging you to cut it off.10You then went and sat in the lounge room. Ms Shaw started cleaning the blood off the walls, and Mr Gargano said to her that it was his fault about the laptop. You then returned and dragged Mr Gargano by his hair into the lounge room, placing him on a bath towel on the floor. You and Ms Shaw kept telling him that you had enough chemicals to get rid of his body. Whilst in the lounge room, all three offenders, that is you, Ms Shaw and Mr Hamilton, were taunting
Mr Gargano, threatening to inject him with heroin to kill him, and you personally said it would not take much to kill him.11Ms Shaw then gave Mr Gargano his mobile phone and told him to call his dealer to ask when he would be coming to return her laptop and deliver more drugs. Mr Gargano spoke to that man and said he was about twenty minutes away. You and Ms Shaw then went into another room, where you smoked cannabis, while Mr Hamilton, holding the baseball bat, kept watch over Mr Gargano. He did, however, let Mr Gargano go to the toilet, at which stage Mr Gargano saw that you and Ms Shaw were dropping off to sleep. When Mr Hamilton went into the backyard as the dogs were barking, Mr Gargano used the opportunity to escape from the property. He ran down the street, and turned back seeing you and Ms Shaw chasing him, however, you then gave up and walked back to her address. Mr Gargano was then assisted by someone in the street who contacted Emergency Services.
12Charge 1, of intentionally causing Mr Gargano injury, consists of the cutting of his cheek and nose with the knife; cutting the right side of his face with the knife; choking him; hitting him multiple times with the baseball bat on his forearm area, and dragging him by the hair. You were also party to Ms Shaw punching him in the face.
13Charge 2, of making a threat to kill, according to the prosecution summary is based on the threat to inject him with heroin to kill him, and saying it would not take much to do that. It seems to me that saying that there was enough chemical to get rid of his body would also amount to such a threat, as would saying that you were going to stab him in the heart, while holding a knife to his throat. However, those are not relied on by the prosecution in its summary as part of the basis for that charge.
14As I have said, the pressing of the knife to the corner of his eye, piercing his eyeball, is the basis of Charge 3 of reckless conduct endangering serious injury.
15When Emergency Services were called, Mr Gargano was taken to hospital. Photographs showing his injuries at the time disclose how brutal a physical attack there had been on him, with his face severely swollen and cut in multiple places. He was hospitalised and required facial surgery for a fractured nose, and suturing and surgery to repair cuts to his face - that is on his cheeks, nose, right ear and temple. Photographs taken a couple of months later, and indeed his appearance at the hearing, indicate that he has been left with significant scarring from cuts to his face.
16Mr Gargano came to your plea hearing and asked to be heard. In contrast to what is often contained in a victim impact statement, he did not detail his injuries or their impact on him, although he did say that seeing the scars on his face are a reminder to him each day when he looks in the mirror of what occurred. He is using that reminder to motivate himself in his own rehabilitation. He spoke candidly of his own struggles, and understanding of your circumstances – including that you were both living the same type of life and lifestyle and abusing drugs at the time.
17Your first words to Mr Gargano at the hearing were that “it should never had happened”, and that you were ashamed of what you had done. You asked for his forgiveness. He responded to you, essentially saying that he understood the state and situation you were in, because he was in similar himself. He expressed it that he was “part of the same firm”. He was generous enough to talk of both of you moving on in the future, and suggested that he remain in contact with you.
18I found the conversation between you and Mr Gargano quite powerful, and I accept that you both were genuine in what you said to each other. I accept that it was difficult for you and that you were genuine in your apology and remorse. Despite him not describing the impacts of his injuries on him, however, I take into account that he was badly beaten by you and your co-offenders, and has been left with scarring on his face as an ongoing reminder.
19Charge 4 is of possession of a drug of dependence, arising from a small amount of cannabis that was found when you were arrested, and you admitted to having a quarter of cannabis on your person at that time. The prosecution accepts that the amount you had was for your own use, and not for a purpose connected with trafficking.
20I must assess the seriousness of the offending and your personal role in it.
21Charge 1 is of intentionally causing Mr Gargano injury. The maximum penalty for this offence is 10 years imprisonment. I regard this as a serious instance of this offence, including that there were multiple acts causing injury by you, and by at least one of your co-offenders, that the assaults were sustained over some time and resumed in different rooms of the premises, were committed by more than one offender, injuring several parts of his body, were inflicted with a knife and a bat, and caused injuries especially to his face.
22Making a threat to kill, that is Charge 2, has a maximum penalty of 10 years imprisonment which is again relevant to its objective seriousness. The threat to kill Mr Gargano was opportunistic, and I accept that Ms Shaw was encouraging you in this, and all these threats, and the object was to get her laptop back. The threat, and I confine it here to the specific one relied on by the prosecution to kill him by injecting heroin, was intimidation, and more likely to be believed over the course of what occurred that day because of the physical injuries and weapons, that is knife and baseball bat, being used as other means of injuring him.
23To threaten to kill him by injecting heroin, in my view, was very cruel, and although I accept that it was a spur of the moment threat, you and two co-offenders were making that threat. It seems that you and at least Ms Shaw were so out of control under the influence of drugs, that the threat must have appeared likely to Mr Gargano to be carried out, although that is not a necessary element of the charge. It was far from an incidental threat, but in context, I do take into account that it was part of intimidation of Mr Gargano to frighten him into admitting he knew what had happened to Ms Shaw's laptop and to try to get it back.
24The separate charge of reckless conduct endangering serious injury was also a part of the overall intimidatory conduct against Mr Gargano, and I accept that it was also a spontaneous act, but you were so out of control that you pressed a knife close enough to his eyeball, to cause damage and potentially damage his sight permanently. The maximum penalty for this offence is five years imprisonment, which reflects this being objectively a less serious offence than the first two. I also take into account that it was part of a series of acts during the same overall conduct that day, that also included causing him injury and threatening to kill him. For that reason, there will be considerable concurrency with the other sentences, especially for Charge 1.
25At the time of this offending, you had ceased taking prescribed medication for your long established mental health disorders, the most prominent of which is paranoid schizophrenia. Instead you were using methylamphetamine, known as “Ice”, which had an even more adverse effect on your behaviour. Being heavily affected by drugs at the time cannot excuse this offending, but it puts into some context how the brutality of the assault committed by you and
Ms Shaw occurred and continued for the period it did. I shall shortly say more about your psychiatric condition and its relevance to your culpability for this offending.26I turn now to your personal circumstances. You are now aged 48 and were 46 at the time of this offending.
27You are proud of your GunaiKurnai heritage. I understand that both of your parents were GunaiKurnai, and that that tradition was mainly passed to you by your father.
28In other respects, you are not proud of your father, as he was apparently an abuser of both alcohol and drugs, and violent, especially towards your mother, exposing her to threats, including if she were to leave him.
29In contrast, I am told that you have always been close to and proud of your mother. She was the backbone of the family. She worked hard in employment, as well as bringing up you and your two sisters, and holding the household together. I accept that the only reason she was not in court to support you during the plea hearing was that she was in hospital after a fall, and that you were worried for her, as well as upset that she could not be there to support you, as she has apparently always done. I have been updated today that she is still in a rehabilitation facility, but that you are in touch with her by phone. I accept that you have been concerned about her condition and your inability to see her. As I have said, you have two sisters and I am told they also remain supportive of you.
30I am told that your parents eventually separated when you were aged 27, but about six months later, your father died from a heroin overdose. You said during the conversation that you hate what your father was, and fear that you take after him.
31Going back to your own personal circumstances, you were born in outer-eastern Melbourne, then the family moved to Queensland for about three years, where your mother worked in a meatworks, but your father did not work. Then the family returned to Melbourne. There were frequent moves during your childhood and those interrupted and disrupted your schooling. Then, in your first year of secondary school, which was at St Joseph's in Ferntree Gully, you were sexually abused and that precipitated your leaving that school. It also caused a great undermining of your ability to cope generally, which is so often heard from victims of such assaults, and you turned to markedly aberrant behaviour. You moved to another high school, but by Year 8 you were in Turana. You did continue some schooling there and finished at Year 10 level. I should add I am also told that whilst at Turana, you were the victim of further sexual abuse.
32You then undertook a plumbing apprenticeship, and I am told that you almost completed the RMIT course work, except that you were in custody at the time of the final exam. You have since achieved qualification in roof plumbing and gas fitting, and have had employment in these fields at various times. Unfortunately, those were often interrupted by both your decline into drug abuse and also by terms of imprisonment. I am told that unfortunately now your health would preclude you from returning to work as a roof plumber.
33Your father apparently involved you from your early teens in meeting his drug dealing contacts, and in some of their other criminal activities. You spent time at Turana Training Centre and as I have said, I was told that you also experienced sexual abuse there.
34I am told you left home when about 17. Over the years, you have had a number of relationships, the longest of which was about nine years, ending in the late 1990s, with the mother of your two children.
35You have a son and a daughter, both now in their 20s. Your daughter apparently has established for herself a stable and productive life, and stayed out of trouble. You fear that your son is on his way to following your path, both in drug abuse and offending. You say you are determined to protect and put him on a better path, but the offending that took you before Judge Meredith, as I will come to later, shows that you went about that in a very wrong way. With his own criminal history, your son is not permitted to visit you in prison, but you are in touch by telephone.
36During the sentencing conversation, you continued to say that your aim is to help your son, but it is not clear how you can achieve that without first stabilising your own life, and addressing the problems that undermine your life and have led you, again and again, back into trouble and, unfortunately, into prison.
37It was pointed out in the sentencing conversation that you do not seem to talk about your daughter's achievements in her life.
38I am told that your most recent personal romantic relationship has recently ended. From that I take it that when you are released from custody, you will not be returning to that partner.
39You have a long and substantial criminal history and I must take that into account. You were obviously in trouble in your teens, as I have already said, detained in Turana Youth Training Centre, although I do not know the details. As an adult, over the last 30 years, you have been before numerous courts, including in New South Wales and South Australia between 2001 and 2004. As well as non-custodial sentences, most of which forms of sentence I add you breached, you have also served several significant terms of actual imprisonment. Prior to your present incarceration, you were sentenced in 2011 to a total of five years imprisonment, with a non-parole period of three years and three months.
40Your offending has ranged from driving offences to dishonesty offences, including robbery, burglaries, thefts and handling stolen goods, to drug offences relating to heroin and cannabis. In 2011, you were sentenced for trafficking amphetamines. Although violence has not been foremost, you do have prior offences of assaults in New South Wales, and recklessly threatening serious injury in 2006, recklessly causing serious injury in 2008, and most relevantly for my sentencing of you, intentionally causing injury and making a threat to kill for which you were sentenced, along with other serious offences, in March 2011.
41Much of your criminal history arises from your abuse of drugs over many years, and also from your long-standing condition of paranoid schizophrenia and your frequent cessation of taking medication for it.
42From the extensive psychiatric reports eventually tendered for you, the details of which I shall not set out, but all of which I have now read, it is clear that you have a very longstanding serious mental health history. In 1989, you retrospectively reported symptoms of auditory hallucinations and paranoid delusions and I infer that the diagnosis of paranoid schizophrenia dates from that time, if not earlier. You have had many admissions to mental health wards in the community and in the prison system. As well as being managed by mental health services in the community and in prison. Unfortunately, you also have a history of being non-compliant with prescribed medication for your psychiatric conditions, in particular, for antipsychotic medication. That is, you choose to cease taking that medication, or actively refuse to do so. I understand that it is an acknowledged symptom of some such disorders, that although knowing that ceasing medication will be destabilising, patients like you, nevertheless rationalise to themselves as I accept you probably have done, that you can manage without the medications, especially disliking some of the effects of those medications on you. It is also clear that you have at times been diagnosed with other mental health disorders, including adjustment disorders featuring depression.
43In a report by Dr Metter[2] of Forensicare Services at Ravenhall, she states that you have also been diagnosed with personality vulnerabilities, for which you were undertaking an intensive DBT program while there in Moroka Unit as an inpatient.
[2]Exhibit 6
44In a report of May 2017, to which I refer because of its timing being less than three months after this offending, you were being treated by Dr Saraf of The Alfred, who described your antipsychotic medication, but that you continued to experience some symptoms, such as persecutory and grandiose delusions, as well as some auditory hallucinations. Dr Saraf also explained that your history and condition was complicated by your longstanding polysubstance abuse, for which at that time you were being treated at Galiamble, and I will come to that shortly. It was said that your mental state would remain manageable, so long as you remained on the depot medication and abstinent from using substances[3]. Although this report does not give an opinion as to your mental health at the time of the offending I am dealing with, or its contribution to that offending, I understand that you had ceased your antipsychotic medication, and were abusing other substances, and that your thought processes and conduct were as a result unmanaged.
[3]Exhibit 5
45I accept that your thinking processes were disturbed at the time of this offending, by a combination of being off your prescribed medication, and instead, abusing other substances, particularly it turns out ice and cannabis. However, notwithstanding your long entrenched serious psychiatric conditions, I do not consider your condition of paranoid schizophrenia should be seen to significantly lower your culpability, that is your personal blame for the present offending, because it was your own decisions in ceasing prescribed medication and instead, using other drugs, that seems to have led you to a state with your thinking somewhat disordered, and conduct enhanced by the effects of ice, and in which you committed this serious offending. I do regard that condition as giving context to how it came about that you were not taking your prescribed medication, and were abusing drugs, and I also regard it as giving context to how you acted in the offending. I have allowed some moderation to your sentence, but to a much lesser extent than I would otherwise have were you medication compliant at the time, under Verdins principles.
46You also have some serious physical health issues. In 2013, you were diagnosed with bowel cancer. You have apparently come through that and treatment successfully, but I accept that it is an illness of a nature that is serious enough in most people's minds and would also have undermined your already vulnerable mental outlook, both at that time, and would continue to do so. There was also an issue about a lesion on your lung, that was reported as being stable or not having progressed in October 2018, and as I am told this morning, apparently again in October 2019.
47I accept that your physical conditions of the prior cancer, and of the lung, over the period you have been in prison, and while you continue to be, would have been of concern to you and therefore making your experience of imprisonment weigh more heavily on you than it would for someone without those conditions.
48The day after the events that give rise to this offending, you were arrested, interviewed and charged. During the interview, an independent third person was present and confirmed that you understood your rights. You largely gave a “no comment” interview, but did admit that you had been at Ms Shaw's property the previous day. You said you had helped to clean up her house, as there was a mess.
49Following being charged, you were bailed on these matters to appear before Ringwood Magistrates' Court. Soon afterwards, you went into Galiamble, a men's Aboriginal drug and alcohol residential rehabilitation facility, which runs a 16-week program with provision to extend if necessary. A letter from
Mark Hammersley[4], manager of that Centre, confirms that you attended the program from 15 March to 13 July 2017 and completed it. He notes, however, that unfortunately soon after leaving that program, you offended again, when you took a firearm into a shop and made threats to the shopkeeper. That incident occurred on 4 August 2017, which I calculate to be barely three weeks after you left Galiamble. You were arrested and remanded for it, on and from 14 August 2017.[4]Exhibit 9
50There then followed a period, while you were remanded in custody, during which your mental health was so unstable that you were for an extended time considered unfit to plead or stand trial. You were admitted to Thomas Embling Hospital on three occasions, the last of which was for a four month period in mid-2018. There were a series of psychiatric assessments of you over that period, as well of course as treatment, although I gather through much of it, you were resistant to taking medication.
51In late November 2018, Dr Anthony Cidoni, a psychiatrist, gave the opinion that your mental state had significantly improved from previous assessments and at that stage he was of the opinion that you were fit to be tried. On that basis, your trial for the offending of August 2017 was listed in this court, but before the trial began, you indicated a plea of guilty. That was in July 2019. On 11 October 2019, you were sentenced by His Honour Judge Meredith on one charge of making a threat to inflict serious injury, and one of being a prohibited person possessing a firearm. You were also sentenced for cultivating a narcotic plant, but it was accepted that that was for your own use, and not for the purpose of trafficking. The sentence imposed was a total of two years and 10 months imprisonment, with a non-parole period fixed of 22 months. That meant that you had served by the time it was imposed served your minimum term, however because the matters now before me were still pending, the Parole Board did not proceed to grant parole.
52Meanwhile, also awaiting your mental fitness, were the charges for which you were on bail at the time of the offences I am dealing with. They proceeded in the Magistrates' Court, and you were sentenced in June 2019 to 90 days imprisonment. Some of your total time in custody from August 2017 was declared as pre-sentence detention for that sentence. As you were not then sentenced by Judge Meredith until October that year, the net effect was that the 90 day sentence and the sentence imposed by Judge Meredith were wholy cumulative on each other.
53The principle of totality requires me to consider the total time you will spend in prison, while taking into account the total offending for which this will occur. Some moderation is warranted to allow for what might have been some degree of concurrency of sentences had all matters been dealt with at about the same time. I am referring to the matters before the Magistrates' Court that were dealt with in June 2019, the matters before Judge Meredith for which sentence was imposed in October 2019, and the matters for which I am imposing sentence.
54Another consequence of your circumstances of imprisonment is that at the time of the pleas hearing, you had only just learned that as you will be sentenced by me as a serious violent offender, and I will come to why that is shortly. The Parole Board has in place requirements that you complete a program for serious violent offenders. That was expected to last seven months, once commenced, and then it was said some two months was usual for a report on completion, and then time for the Parole Board to consider it. I was told that usually this whole process, in practical terms, would mean that it would be at least 10 months before you could be granted parole, assuming satisfactory completion and that parole was granted on your first application.
55I have been updated a little about that this morning. Under the present and rapidly developing corona virus crisis, in this state, and worldwide, that program, as conducted in the prisons, has apparently been suspended. You have been told that, and it is understandable that such programs have been suspended for an uncertain but likely extended period. I am told that you have written asking the Parole Board if you could do that program after release on parole, but understandably given how recently this has arisen you have received no answer yet.
56I am not permitted to speculate as to any decisions which the Parole Board might make, or any of the administrative decisions within the prison system. Even were it permissible, it would be impossible at present to form any expectation as to what the answer to your query might be, or indeed when programs might come available, inside or outside prison, or how any of the Parole Board's policies may be varied, at present or in the foreseeable future, to take into account the current consequences due to the COVID-19 pandemic and how they impact on the whole functioning of the Parole Board's processes and decisions. I take into account that that is all simply an unknown.
57In practical terms, I have to decide on a non-parole period irrespective of what the Parole Board might eventually decide in your circumstances about whether or not to require that program to be completed, and when and under what circumstances.
58Another relevant factor is that since your mental health situation was stabilised about the middle of last year, you have been showing very good application to treatment and rehabilitation, whilst still in custody. Most of that information was from what had been happening at Ravenhall, from which you had only just been moved when I heard your plea. A letter in support from Dr Metter sets out that you were an active and keen participant in the program there, showing enthusiasm and motivation to understand and change your behaviours. It was said that staff there were reporting that you were the best they have seen you in 20 years, obviously a reflection of many of them having seen you previously there. I also accept that you were engaging very well with Narcotics Anonymous. Do you want to pause for a bit Mr Luke?
59OFFENDER: No thank you, Your Honour.
60HER HONOUR: If you want to pause, just say. I understand having all this repeated yet again is challenging for you and I understand why. I am not saying it to upset you, but I need to go through the ‑ ‑ ‑
61OFFENDER: It's okay.
62HER HONOUR: ‑ ‑ ‑ various matters I have had to take into account.
63OFFENDER: Yep.
64HER HONOUR: I was saying you had been engaging very well with Narcotics Anonymous and your sponsor. I am told you are still in touch by telephone. I am told that there are no Narcotics Anonymous meetings in Port Phillip Prison where you are now, but you have been going to AA meetings instead, which have the same basis to their program.
65Another significant part of your present life, and your life over the period since your condition stabilised, and hopefully for the future, is your truly impressive art-work. A number of photos of examples of it were provided, and I can confidently say that everyone connected with this case who saw them was hugely impressed. I certainly was. Recently, you had also been able through the Torch organisation to sell some of those, which was obviously encouraging to your morale, and also provides the prospects of some income while in prison.
66The fact that I have left it so late in summarising your personal circumstances to mention your art, is not an indication that I do not think it impressive and important. I think it is very impressive and very important. I think it reveals a talent in you, and a side of you that must provide some real hope for your rehabilitation. However, it cannot overshadow all other sentencing considerations.
67By the time of the hearing, you had been transferred to Port Phillip Prison, and made clear that you were not enjoying that, especially as there had been a very recent disturbing incident of the death of a prisoner, which not only was emotionally disturbing to you, and no doubt others, but had led to lockdown conditions.
68Then, at short notice, you were to have surgery on a hernia - that was surgery you had been awaiting for some time. From what I am told, you have considerable bloating and discomfort in the upper abdomen. The court was notified and asked to move your sentence to a later date because of the date for which the surgery was booked. I am told today that on the day before that surgery was to be conducted, a preliminary X-ray of your lungs was taken. You were told that it showed some change in the existing lesion known in your left lung. Also, you were told that you were suffering mild pneumonia, and as a result of those two conditions, your oxygen levels were not sufficient for the surgery to safely proceed.
69The result of all of that development is, first, that you are still experiencing all the discomfort and symptoms from the hernia, and the re-scheduling of that operation is most uncertain, not only under normal prison treatment conditions, but because of the coronavirus crisis that has emerged and heightened even in the last few weeks. I accept that the physical side of that will be making your experience of imprisonment harder to bear. Also, your respiratory condition I am told has led to you coughing discoloured phlegm, and you have been put on medication which requires daily preventative medication in the mornings and also use of an inhaler during the days. I accept that you therefore are experiencing respiratory discomfort as well, also be making experience of ongoing imprisonment at this stage more difficult.
70Further, as I have already alluded to, the crisis that has continued to rapidly evolve throughout the world, and certainly in the Victorian community due to the COVID-19 pandemic, impacts particularly on you. I mentioned this morning that the Court of Appeal on Monday of this week[5], mentioned that it is inevitable that it will impact by heightening the concern of prisoners and their families, but matters are so uncertain at present that no general principles could be set out. However, each individual case must be looked at.
[5]Brown v The Queen [2020] VSCA 60 at [48]
71I accept that you are now experiencing considerably greater concern about the potential of that pandemic and its impact on you, than would be the general population in the prison who do not have lung disorders. I accept that it renders you more vulnerable to likely serious, if not severe, consequences were you to contract that virus. I have no information as to the risk of that occurring. As I said this morning, at the moment there is no information available that I know of that there has yet been any person within the Victorian prison system diagnosed with that virus. However, with what is happening in the community, that is a constantly changing situation. I have also no information as to whether there is extra separation, other than what is involved in the community, of keeping so=called “social distance” from other people.
72[ To defence counsel: You are going to interrupt me now and tell me there is?
73MR NEWTON: They're going into lockdown, effective Monday.
74HER HONOUR: Well how can I know that at this point - Mr Newton, I gave you a lot of opportunity earlier.
75MR NEWTON: I just apologise, Your Honour, but I rise to my feet to convey that during the break, before Your Honour came back on to sentence, my client did say to me that they were going into lockdown, into their cells, effective Monday is the current strategy. At Swallow Unit at Port Phillip Prison. I apologise for interrupting your sentence.][6]
[6]Between day of sentence and receipt of unrevised transcript, no such lock-down was confirmed. The court was notified of Corrections imposing isolation on all new entrants into custody.
76HER HONOUR: What I was saying was that I assume that the precautions being taken in the community of what has been called social distancing, keeping distance from other people, has been implemented in the prisons. I have no information about other particular measures. Your counsel now tells me that there is said to be a lockdown imminent starting Monday. Today is Friday. Indeed, the whole population is in anticipation of expecting total lockdown in the community. I am not belittling how lockdown would impact on someone in prison, but frankly the whole community at the moment is having to endure much more isolation than usual, and is concerned about such restrictions. I am talking about the community not presently in lockdown as a result of being in contact with people who have been diagnosed with this virus. However, I do accept that in the context of a prison, lockdown is particularly isolating.
77I take into account that both your physical health and mental health are likely to lead to the whole situation of the COVID-19 pandemic weighing more heavily on you than on other prisoners who do not have the conditions that you do have. I want to make clear, that in hearing of the developments about your physical health today, and thinking about the likely impact of that, has led me to considerably moderate your sentence, from what I had anticipated I would impose before today.
78I hear you say you are scared that you will not see your children again. I am not unsympathetic to that fear, but I must apply these various principles I am talking about, and I have. I can assure you, Mr Luke, I have taken into account that you feel much more vulnerable at present than even the rest of the population in general, who do not have respiratory vulnerability as you do.
79I already mentioned several of the sentencing considerations that I have taken into account, but I turn now to some others.
80You have pleaded guilty to these charges and agreed to have them heard in the Koori Court division. A plea of guilty generally attracts an entitlement to some leniency for its utilitarian value of saving the community the time and cost of disputed hearings, and witnesses having to attend court and give evidence. It also reflects acceptance of responsibility and in some cases, is an indication of remorse. In this case, all of those aspects are present to a considerable degree and I have taken them into account in reducing your sentence.
81Your participation in the processes of the Koori Court also can be mitigatory, as the Court of Appeal has recognised. The reasons for that include that the processes of the Koori Court are designed to further reformation of an Aboriginal offender, incorporate an element of “shaming” of the offender, can be a more burdensome process because it requires the offender to speak for himself or herself, rather than leave it to counsel to speak and some would say, “hide behind counsel”, and it gives an opportunity to demonstrate genuine remorse, insight into the reasons for offending and resolve to reform[7]. Much of that applies in your case.
[7]R v Morgan [2010] VSCA 15; Honeysett v R [2018] 24 VR 230; DPP v Hefron [2019] VSCA 130 at [67]-[68]
82That hearing was held on 2 March 2020, and although that was earlier this month, as I have been saying, a lot has happened since,. You were represented by counsel, and you personally participated in the conversation. During that conversation, Uncle Wally Harrison, an elder and respected person, spoke directly to you and asked you pressing questions about your past and about your priorities. I also asked you questions, and the Koori Court officer, Ms Shirley Annersley, also spoke to you and challenged you about some of your stated goals and your intentions for the future. As I have already described, the conversation included some comments between the victim of your offending, Mr Gargano, and you.
83Now aged 48, this was your first time before the Koori Court division of this court, although I am told you have been once before that division of the Melbourne Magistrates' Court. I accept that you chose this process knowing that it would challenge you. My impression was that you did indeed find the conversation challenging, and at times very emotional. My impression was that you participated as genuinely and openly as you were able to do. I took your expressions of remorse to be genuine and spontaneous. I also accept that you have thought about how you want to change your future, and not repeat past mistakes.
84Some of your hopes expressed during the conversation appeared rather unrealistic, and your chances of engaging in some of the programs you specifically mentioned are unrealistic with your history, and at your age and with your mental health medical needs.
85I cannot find that your prospects of successfully doing all of that are strong, given your history and also that even at the time of the conversation, you spoke of trying to reduce your anti-psychotic medications. At best I consider your prospects of rehabilitation to be guarded, but certainly far from hopeless.
86I have already discussed the relative seriousness of each of the offences, and mitigatory factors. Sentencing purposes of general deterrence, just punishment and specific deterrence are all important in this case. Protection of the public is to be the principal sentencing purpose for charge 2. Your serious underlying mental health disorders, and indeed physical health issues, have also, as I have explained, been taken into account.
87Charge 2 of making a threat to kill, falls into a particular category that effects the structure of your sentence. It falls into the category of what is called “serious violent offences” and as you have one prior conviction for a similar offence, you fall to be sentenced on Charge 2 as a serious violent offender and I will be declaring that[8].
[8]Section 6F
88The law requires[9] that in sentencing on that charge, the principal purpose of the sentence be protection of the public. It was not suggested by the prosecution, and I do not regard that purpose as requiring a disproportionate sentence. Further, the sentence on that charge would fall to be served cumulatively on other sentences, except to the extent that is ordered otherwise[10]. As I have already said, due not only to the fact that these matters all arise out of the one overall incident, but as I regard charge 2 as being part of the intimidation of the victim additional to rather than standing alone from charge 1, I have considerably moderated the cumulation on charge 2. However, I do not overlook that the provisions about serious offenders significantly moderate the principle of totality. I have also said I will be ordering some cumulation on the separate charge of reckless conduct endangering serious injury because it is about a specific act, the pressing of the knife very close to Mr Gargano's eyeball, even though that could have been part of charge 1 of intentionally causing injury. I gather this was a way to avoid the charges covering the same conduct.
[9]Section 6D
[10]Section 6E
89It follows from all of this, and was conceded on your behalf, that the nature of the offending and your prior criminal history mean that no sentence other than a term of imprisonment would be appropriate. I will not ask you to stand up, given we are doing this by video link, but I now intend to impose your sentence.
90Tye Maurice Luke, on Charge 1 of intentionally causing injury, you are convicted and sentenced to two years and six months imprisonment. That is the base sentence. On Charge 2, of making a threat to kill, you are convicted and sentenced to 18 months imprisonment. On Charge 3, of reckless conduct endangering serious injury, you are convicted and sentenced to 10 months imprisonment. On Charge 4, that is possession of cannabis, the charge is found proven, but no further order is made. On the summary charge of committing an indictable offence while on bail, you are convicted and sentenced to five days imprisonment.
91I direct that 14 months of the sentence on Charge 2 be served concurrently with all the other sentences, that is, on Charges 1, 3, 4 and the summary charge. So four months will be cumulative. I direct that two months of the sentence on Charge 3 be served cumulatively on the sentences on Charges 1 and 2. The sentence on the summary charge will be served totally concurrently.
92That makes a total effective sentence of three years imprisonment. It must start today, and as I have already said, I have moderated it to take into account the three weeks since the hearing, as well as inevitable lack of concurrency with previous sentences.
93I have this morning had drawn to my attention that this is not a case for a new single non-parole period to be imposed[11], because although you are still serving a sentence imposed previously, its non-parole period has expired. The parole period I set will be served before the balance of that previous sentence.[12] simply set a non-parole period for the total sentences I have imposed, but have taken into account the totality issues I have mentioned, namely that you have been in custody continuously serving other sentences for more than 2 years and 7 months now, and the medical issues raised today and the impact especially in light of those of the covid-19 situation.
[11]Section 14 Sentencing Act 1991; R v Robertson [2006] VSCA 71 at [7]
[12]Section 15; R v Bradley [2010] VSCA 70 at [16]
94The non-parole period I fix is five months imprisonment. That commences today. I cannot speculate about what changes of policy or requirements or procedures the Parole Board might adopt under current circumstances, but I would hope that consideration of your parole is not so long delayed as to require the SVO program to resume in the prison system after the pandemic, and then a further process of 10 months to take its previous course before consideration of your parole.
95I declare that on Charge 2, you were sentenced as a serious violent offender[13].
[13]Section 6F
96I was asked to make a disposal order for the cannabis, and I am going to make that.
97I am required under s.6AAA of the Sentencing Act to state what your sentence would have been if you had not pleaded guilty. That is always somewhat artificial, and it seems to me to be particularly so in the context of a case in the Koori Court division, because a case cannot be heard in this division unless there is to be a plea of guilty, and there are the other mitigatory aspects of the sentencing conversation to which I have referred.
98All I can do in making the s 6AAA statement is have regard to the effect of the plea of guilty, but as I say, the sentencing conversation in the Koori Court process could not have occurred had you not pleaded guilty. That is the extra artificiality. In any event, I state under this section that if you had not pleaded guilty but been convicted of the same charges at trial, I would have imposed on the charges on the indictment, a total effective sentence on Charges 1 to 3, of six years imprisonment and in the same timeframe as has occurred here, I would have fixed a non-parole period commencing today of two years and three months.
99Now I just need to check that technically I did not fall into error in the arithmetic - does it add up to what I have said I intended?
100MS MAGUIRE: I think so, Your Honour.
101HER HONOUR: Do you want to take a couple of minutes ‑ ‑ ‑
102MS MAGUIRE: Yes, I'll just take a minute.
103HER HONOUR: Given that availability to correct sentences is also going to be constrained in the next few weeks, I do not want to enter the wrong sentence.
104MR NEWTON: Two years and six months, plus four months equals two years and ten months, plus two months equals two years. Twelve months which is three years and five days is ‑ ‑ ‑
105HER HONOUR: All right, it has got to be structured to order concurrency for Charge 2 because of the ‑ ‑ ‑
106MR NEWTON: And Your Honour, the mathematics appears correct to me.
107HER HONOUR: That is helpful, thank you. What I intend to do is, because of the arrangement by video link, complete the matter and adjourn the court and let you remain Mr Newton. I think my tipstaff has to remain to work the equipment.
108MR NEWTON: Yes.
109HER HONOUR: But do you want that opportunity to ‑ ‑ ‑
110MR NEWTON: Most certainly.
111HER HONOUR: ‑ ‑ ‑ speak with your client?
112MR NEWTON: I'd be grateful for the opportunity.
113HER HONOUR: All right.
114MR NEWTON: I'll only be five - three minutes.
115HER HONOUR: All right, it's already twenty past one. We have had a very full day, but it did seem to me that it should be given priority to be completed if possible. I do not know how long it will take for the unrevised transcript of that to come through, or for me to revise it, but I will revise it as soon as I can, is all I can say about that at the moment.
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