Director of Public Prosecutions v Maddocks

[2020] VCC 1446

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01982

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID MADDOCKS

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JUDGE:	HER HONOUR JUDGE LEWITAN
WHERE HELD:	Melbourne
DATE OF HEARING:	20 August 2020
DATE OF SENTENCE:	17 September 2020
CASE MAY BE CITED AS:	DPP v Maddocks
MEDIUM NEUTRAL CITATION:	[2020] VCC 1446

REASONS FOR SENTENCE
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Subject:  Intentionally cause serious injury

Legislation Cited:      Bugmy [2013] 249 CLR 571 (Bugmy); R v Verdins [2007] 16 VR 269
  (Verdins): DPP V O'Neill [2015] VSCA 325 (O'Neill).
Cases Cited: B

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Abbey Hogan Solicitor for Public Prosecutions
For the Accused	Mr S. Ranjit

HER HONOUR:

1David Hayden Maddocks, you have pleaded guilty before me to one charge of causing serious injury intentionally.  The maximum penalty for this offence is
20 years' imprisonment.

Circumstances of Offending

2The victim is Phillip Payet (Payet).  At the time of the offending against him he was 39 years old and resided in Wynden Drive, Frankston.  Payet was previously known to you.  You had issues with Payet in the past.  The prosecution referred to a letter you wrote to Payet stating, '…I just want you to know I am going to get you one way or the other and I will wait 10 years if I have to.'[1]

[1] Depositions pp 287 - 288.

3In December 2016 Payet purchased an unregistered Holden Clubsport Sedan (the Holden) with the intention of fixing it up.  On 26 December 2016 Payet had been working on the Holden.  The Holden was parked on the nature strip outside his house.  Payet was still outside at 12.30 am and fell asleep in the car. 

4About this time you were being driven in a car by your girlfriend, Hope Borg, (Borg).  You received a phone call from a third person about someone being in a car and became very excited.  At your direction, Borg drove the car past the victim, asleep in his car.  You told Borg to park the car near a milk bar in Lindrum Drive while he called the co-offender, Clinton Richard Phillips (Phillips) by mobile telephone.  Phillips arrived in a car driven by his girlfriend, Donna Garth, (Garth) about 2.20 am.  Garth also parked outside the milk bar and Phillips left the vehicle to speak to you.  After this discussion Phillips returned to the car and then followed your car into Wynden Drive.  You directed Borg to park further down the street, keep the car in neutral and leave the lights off.  Phillips drove to the same place as you.

5Phillips left the car and told Garth to get into the driver’s seat.  You went to the boot of Phillips’ car and removed a jerry can.  You and Phillips then walked towards the car in which the victim was asleep.  You poured an accelerant through the window of the car where the victim was sleeping.  The victim woke, feeling cold and wet. You then lit the accelerant at 2.29 am.

6Payet opened the car door and stumbled out onto the street, screaming; he was engulfed in flames.    He was then helped by neighbours and family.

7You and Phillips ran to your cars and told your girlfriends to drive away.  Phillips went to his house, while you and Borg went to Borg’s mother’s house in Skye.  You warned Borg never to talk about the incident.

Injuries to the victim

8Payet suffered extensive deep burns to 68% of his body, predominately to his upper torso.  He also sustained a severe inhalation injury.  Payet underwent multiple surgical procedures for his injuries between 28 December 2016 and
16 March 2017, before being discharged into in-patient rehabilitation, which took place until 17 May 2017.

9The accelerant fire completely destroyed Payet’s car, the fire being put out by the CFA after attempts by neighbours were unsuccessful.

10Police attempted to interview you and Phillips.  Both of you were in custody for unrelated matters at the time and each of you declined to be interviewed.

11The facts in this case are horrific.  Your behaviour was despicable and cruel. The victims of your crime have suffered considerably.  A victim impact statement filed by Payet speaks of the excruciating pain he suffered when he was engulfed by flames and could not open the doors of the car.[2]  Once he came out of the coma he was on suicide watch every day because he could not come to terms with what was happening.  He said that he looks like a, 'freak show', and feels that he is a burden on everyone.

[2] Exhibit B.

12A victim impact statement was also filed by Payet’s partner, Liz Lewis. [3]  She said that she watched her partner fight for his life day in, day out, attached to so many tubes and machines keeping him alive.  She said that she sat for hours and hours every day, seven days a week for two months by his side while he was in intensive care, in a coma, being told continually that he would not make it and to prepare for his death.  She said that she saw Payet suffer every single day and dwindle from 120kgs to 67kgs.  She watched Payet go in and out of surgery and then have his burns bandaged.  Wrapping his wounds would take three to six hours at a time.  Once Payet came home she was the one who had to massage his scars to break them down, an hour at a time, up to three times a day.  She had to bathe, dry, moisturize and feed him and take him to specialist appointments and emergency departments when he came down with an infection or fever.  She said that the stress and anxiety were unbearable at times.  She has been diagnosed with severe anxiety and post-traumatic stress disorder.   Ms Lewis also spoke of the financial strain on her family.  She said, 'We will never be the same, Phil will never be employable again'.

[3] Exhibit C.

13As has been pointed out by your counsel, there are, however, some mitigating factors.  You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial.       You entered a plea at the committal hearing on 2 October 2019, but only after Borg was subjected to a compulsory examination.  Borg provided further evidence against you.

Remorse

14Your counsel submitted that you rely on your plea of guilty as evidence of remorse.  Your counsel also refers to the letter written to the Court as further evidence of your remorse.[4]  In that letter you acknowledged the impact to Payet and on his family.  Your counsel submitted that you rely on that letter as an expression of your remorse and your willingness to accept responsibility.  Some, 'spontaneous', expressions of remorse were noted by Warren Simmons, psychologist, in his second report dated 29 July 2020.[5]

[4] Exhibit 1.

[5] Exhibit 15, [22].

15The prosecution submits that the demonstrated remorse by you is limited.  The prosecution submitted that this Court should be sceptical about the true depth of the remorse because it was only offered at the time of plea, some four years after the offending.

16In all the circumstances I consider that your plea of guilty indicates some insight and remorse for what you did.

Gravity of Offending

17The defence concedes that your offending was extremely serious.  The injuries inflicted on Payet were extremely grave and the effects are lifelong for Payet and his family.  Payet suffered severe, permanent, physical and mental injuries.  He is now dependent for support from his partner.  The objective gravity of your actions means that this offending is at the upper end of the range of seriousness for offences of intentionally causing serious injury.

18I have been told something of your personal history and your circumstances.  You were born in Clayton on 23 January 1988 and are 32 years old.  At the time of offending you were 28 years old and resided at 8 Joffre Parade, Cockatoo.

19You identify as an indigenous person via your maternal family.  You are a member of the Yorta Yorta community.  You have two older sisters, one older brother and one younger sister.  You grew up with your family in Moorabbin, Seaford, Tasmania and Frankston North. 

20Your father was a high-ranking member of a chapter of the Hells Angels who was murdered by a number of his fellow club members in front of you and your family when you were four years old.

21Your mother had difficulty with the fallout from your father’s death and turned to alcohol and other substance abuse.  This led to all of her children being removed and placed into foster care.  You were sexually abused in care from the ages of four to seven.  You were again sexually abused at the age of 13 when you were on camp.

22Your mother re-partnered with Mr Carnes, who then regularly assaulted her and her children.  You suffered serious and sustained family violence at the hands of Mr Carnes.  Mr Carnes was an alcoholic and would bash you with a poker or cricket stumps on an almost daily basis.  You were on the streets by the age
of 12.

23You commenced a relationship with Breanne when you were 18 years old and have an 11 year old son, Tyler.  You had regular contact with your son before the COVID-19 pandemic.[6]

Schooling

[6] Exhibit 4.

24Your anti-social behaviour made your school life difficult.  You were disruptive and violent to other students and teachers.  You were expelled from almost every school you attended and did not progress past Year 10.

Employment

25You commenced an apprenticeship in mechanics but failed to complete it after Mr Carnes broke your arm in two places.  You eventually completed a bricklaying apprenticeship in 2007 and worked as a bricklayer and mechanic through your adult years.

Substance abuse

26You were diagnosed with ADHD as a result of your behaviour at school and were prescribed dexamphetamine.  This accustomed you to taking amphetamine class drugs and caused weight loss.

27You have long-term polysubstance addiction issues.  You were introduced to cannabis while at school in Year 7 and began smoking methamphetamine at the age of 16, developing an up to a gram a day habit.  You also abused alcohol, cocaine and ecstasy.  You were admitted to the psychiatric unit at the Frankston Hospital in 2008 for three and a half weeks with a drug-induced psychosis.  You also suffer from asthma.

28You have admitted before me to prior convictions. There are 155 such convictions,  involving 17 court appearances between 2005 and 2013.  They include two charges of reckless conduct endangering serious injury and one charge of reckless conduct endangering life.  You have also been charged and dealt with for recklessly causing injury and threat to kill.

29This offence was committed prior to the offence which was the subject of the sentence imposed by Judge Stuart on 22 February 2019 (Judge Stuart’s sentence).  In that case you pleaded guilty to one charge of arson for burning down a shed in reaction to a dispute that your sister had with her neighbour over a horse.  You were sentenced to a term of imprisonment of six years with a non-parole period of four years. 

30I take into account the material that has been tendered on your behalf.    I refer to the letter you wrote to the Court,[7] the letter by your mother Susan Carnes,[8] the letter by Cassandra Moore,[9] the letter dated 18 August 2020 by Alannah Tsakos,[10]  and the email dated 19 August 2020 by the Aboriginal wellbeing officer, Herbert Goonan.[11]

Rehabilitation

[7] Exhibit 1.

[8] Exhibit 3.

[9] Exhibit 4.

[10] Exhibit 5.

[11] Exhibit 10.

31Your mother, Susan Carnes, and sister, Wendy Maddocks, attended the hearing to support you.

32You have been involved in the drug and alcohol programs being offered by Caraniche Drug and Alcohol Services at Barwon and have attended three sessions of individual counselling.[12]  You provided a urine drug screen dated
20 July 2020, which indicated negative results.[13]  A letter dated 19 August 2020 by Claire Mills, clinical psychologist, indicates that you were booked for a suitability assessment with Forensicare on 19 August 2020 via zoom.[14]  On

[12] Exhibit 6.

[13] Exhibit 7.

[14] Exhibit 8.

[15] Exhibit 9.

20 March 2020 the University of Southern Queensland confirmed your enrolment for a communication course.[15]

33You are an artist and sell your art, the proceeds of which goes to your son.  You set aside some of the art for the Royal Children’s Hospital and The Smith Family Charity.

34In a report dated 4 February 2019 Dr Cunningham stated:

'Mr Maddocks’ path to rehabilitation will be difficult.  He has never had periods of stability or long-term support and has never been vulnerable enough to open himself to treatment.  Motivation towards continuing long-term engagement with treatment and rehabilitative supports would improve his prospects for rehabilitation'.[16]

[16] Exhibit 13, p 4.

35Having regard to all these matters, your potential, in my view, for rehabilitation remains guarded.

Parity

36I am bound and do take into account parity of sentence with your co-offender, Phillips.  Phillips was born on 14 October 1978 and is 41 years old.  At the time of offending he was 38 years old and resided at 21/2 Spray Street, Frankston.  Phillips pleaded guilty to recklessly causing a serious injury and was sentenced by Her Honour Judge Gaynor on 12 May 2020 to a term of imprisonment of seven years with a non-parole period of five years.  The defence submits that Phillips was sentenced on moral culpability at its highest.

37I sentence you as the principal offender.  The commission of the crime was your idea.  You poured the accelerant through the window of the car where Payet was sleeping.  You lit the accelerant which set him on fire.

COVID-19 Pandemic

38Your counsel submitted that your Aboriginality and the fact that you suffer from chronic asthma increases the effects of contracting the virus.  Your counsel submitted that there is ongoing anxiety for prisoners as they are essentially helpless and awaiting the high likelihood of penetration of COVID-19 into the gaol system.

39You have experienced lockdowns of 23 and a half hours per day.  You have not received visits in custody and are unlikely to do so over the course of this pandemic.  You have not been able to see your family, especially your son who is 12 years old.  You are not in contact with your mother or sister.  You have had telephone contact with two friends, including Courtney Clifford, but they live interstate.

40In Glen Brown (aka James Davis) v The Queen[17]  the Court of Appeal (Priest and Weinberg JJA) accepted that the COVID-19 pandemic is, 'causing additional stress and concern for prisoners and their families'.   It is a matter I take into account in your favour in mitigation of sentence.

[17] [2020] VSCA 60, [48].

41As well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this.  I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending.  I am called upon by the Sentencing Act 1991 (Sentencing Act) to manifest the community's denunciation of your conduct and generally to impose a just punishment.

Bugmy v The Queen[18]

[18] (2013) 249 CLR 571.

42Your counsel submitted that your background of abuse, hardship, deprivation and social disadvantage enliven the principles outlined by the High Court in Bugmy and the Court of Appeal in Marrah v The Queen[19] (Marrah) where the Court said:

'Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice.  The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences.  The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behaviour.  The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account.  Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.  That is not to say that an offender’s social disadvantage has the same mitigatory relevance for all of the purposes of punishment.  It may so explain the offender’s conduct that the offender’s moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender.  It will not diminish the need for the sentence to vindicate the dignity of a victim and reflect the community’s disapproval of the offending'.

[19] [2014] VSCA 119, [16] (citations omitted).

43Your counsel submitted that your background should reduce your moral culpability for the offending.  Your counsel also submitted that your background reduces the necessity of general deterrence on the basis that you are not an appropriate vehicle for the full exercise of general deterrence.  The submission is not that general deterrence is extinguished but that it is significantly reduced.  Your counsel also relied on Marrah in support of the submission that your background also mitigates specific deterrence. 

44The prosecution conceded that the principles stated by the High Court in Bugmy[20]were relevant to the evaluation of your moral culpability for the offending in this case.  The prosecution submitted that while general and specific deterrence may be moderated in circumstances of childhood deprivation, the current offending is so serious and your criminal history so substantial that general and specific deterrence, just punishment and denunciation will be of particular importance.

[20] (2013) 249 CLR 571.

45I accept the defence submissions that your moral culpability is reduced as a result of your deprived background and that the principles of general and specific deterrence should be sensibly moderated.

The Application of the Principles in R v Verdins[21]

[21] [2007] 16 VR 269.

46Your counsel submitted that you are entitled to a further mitigation of your sentence because you have been diagnosed as suffering from post-traumatic stress disorder (PTSD) and borderline personality disorder.

47The defence submits that the effects PTSD and borderline personality disorder on your cognition, emotional regulation and  capacity to properly reason would enliven limbs 1,3 and 4 of Verdins.   Your counsel conceded that this submission is complicated by your acceptance that you were affected by methylamphetamine at the time of the offending.  The defence relies on the following reports to demonstrate that your cognition was fundamentally compromised resulting from the horrific trauma that you endured as a child:

(1)Report dated 16 May 2012 by Dr Tony Marshall;[22]

(2)Report dated 21 November 2012 by Warren Simmons;[23]

(3)Report dated 4 February 2019 by Dr Aaron Cunningham;[24]

(4)Report dated 14 July 2020 by Mr Staios, clinical neuropsychologist (Staios neuropsychological report);[25]

(5)Report dated 29 July 2020 by Warren Simmons (Simmons second report).[26]

[22] Exhibit 11.

[23] Exhibit 12.

[24] Exhibit 13.

[25] Exhibit 14.

[26] Exhibit 15.

48The prosecution submitted that on an evidentiary basis there is no causal connection between the diagnosis of PTSD and borderline personality disorder and the commission of this offence.  The prosecution submitted that neither of the reports which have been prepared for the purpose of the current plea hearing, (being Simmons second report or Staios neuropsychological report) provide any indication of a connection between the current offending and your mental health.

49In O’Neill[27] the Court of Appeal stated:

'…in order for the first, second, third and fourth principles enunciated in Verdins to have application to the sentencing task, there must be a connection between the impairment to mental functioning and the appellant’s moral culpability or the need for general and specific deterrence.  If the mental impairment existed at the time of the offending, it must have some ‘realistic connection’ with the offending; or have ‘caused or contributed’ to the offending; or be ‘causally linked’ to the offending.  For example, Vincent and Weinberg JJA and Mandie AJA said in DPP v Weidlich,[28] in a passage subsequently quoted with approval in DPP v Eli[29] and R v Safati:[30] 

Generally, the measure of culpability of an offender under the criminal law rests upon the extent to which the individual can be seen to be personally responsible for both the prohibited acts and their consequences.  Little thought is required to appreciate that the greater the level of insight and understanding possessed by him or her concerning the act and its potential harm, the higher becomes the level of culpability for then deliberately engaging in the conduct involved.  The Court in Tsiaras and Verdins recognised that sometimes as a consequence of the contribution made to the commission of an offence by a mental disorder from which a perpetrator was suffering at the time, it would be unjust to attribute to the offender a full measure of personal responsibility.  The presence of the disorder could bear upon the sentencing judge’s assessment of the individual’s motivation and level of culpability, prospects of rehabilitation, the need for specific deterrence and the appropriateness of giving full effect to the principle of general deterrence.  However, it follows, when addressing the question of the significance of the disorder for these purposes, that the nature and extent of its possible effect upon the offender’s behaviour must be carefully explored' (emphasis mine).

[27] [2015] VSCA 325, [74] (citations omitted).

[28] [2008] VSCA 203, [17] (citations omitted).

[29] [2008] VSCA 209, [28].

[30] [2008] VSCA 232, [15].

50Dr Cunningham diagnosed that you were suffering from post-traumatic stress disorder but was unable to connect your diagnoses to the arson offence the subject of Judge Stuart’s sentence.  In his opinion:

'…Mr Maddocks presents with complex post-traumatic stress disorder.  His trauma stems from the violence and sexual abuse he suffered.  He suffers distressing recollections of childhood trauma.  He was raised in an unstable environment and has not been able to source or maintain his own stability since this time.  He has largely been homeless when not supported by family or partners.  Many of his driving offences occur when he is living and working out of his car.  He has not engaged with long-term mental health intervention or case management in the community.  His inability to manage his symptoms of trauma leads to ongoing relapses into drug abuse.  He is paranoid, on edge and hypervigilant.  He is prone to blowing events out of proportion and becoming hopeless.  His arson offence appears to have occurred in the context of perceiving that he was defending and/or supporting his sister.  He has a long history of defending his sister dating back to primary school.  It is difficult to connect specific symptoms of trauma to Mr Maddock’s arson offence. He presents with drug and alcohol abuse, negative peer associations and antisocial attitudes that are all contributing factors.  However, in my opinion,

[31] Exhibit 13, [6].

Mr Maddocks’ trauma has contributed to his drug abuse and his inability to maintain stability in the community'[31] (emphasis mine).

51In relation to the current offence Warren Simmons commented in his second report:

'Mr Maddocks stated that he is pleading guilty to the current charges and agreed that the summary is essentially correct.  He indicated that he had been substance affected at the time of the offence, although did not use this to justify his actions.  However it would have impeded his thought processes at the time[32] (emphasis mine)'.

[32] Exhibit 15, [22].

52In Warren Simmons' opinion:

'Mr Maddock’s childhood, particularly his stepfather modelling excessive substance use as well as the traumatic events he experienced and subsequent development of post-traumatic stress disorder, would have left him vulnerable to substance abuse.  Mr Maddocks has used cannabis, methylamphetamine, alcohol and at times would have met the criteria for substance use disorder with all three substances.'[33]

[33] Exhibit 15, [26].

53Having considered the whole of the evidence and the submissions made by counsel, I am not satisfied on a balance of probabilities that Principles 1, 3 and 4 of Verdins have been enlivened.  As previously stated, I am, however, satisfied that many of the matters giving rise to the diagnosis of post-traumatic stress disorder form part of your deprived background.  As I have previously stated,  I take the matters forming part of your deprived background into account in reducing your moral capability and in moderating the need for general and specific deterrence.

Verdins Principles 5 and 6

54As I have stated, Dr Cunningham diagnosed that you are suffering from complex post-traumatic stress disorder and in his opinion:

'…incarceration will continue to aggravate his trauma. Mr Maddocks is exposed to ongoing trauma in gaol and is currently housed around sex offenders.  He has expressed suicidal ideation during his current incarceration and to his mother'.[34]

[34] Exhibit 13, pp 3 4.

55I am satisfied on a balance of probabilities that a sentence of imprisonment would weigh more heavily upon you than it would on a person in normal health and would lead to further deterioration of your mental health. I take these matters into account in your favour in mitigation of sentence.

Serious Violent Offender

56You fall to be sentenced as a serious violent offender. On 15 February 2013 you were convicted of threat to kill and other offences. You were sentenced to an aggregate term of imprisonment of 24 months. Threat to kill is a serious violent offence for the purpose of s.6B of the Sentencing Act. 

57For sentencing purposes that means that if I consider that a sentence of imprisonment is justified, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed.  I may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in light of the objective circumstances.

58The prosecution does not urge that a disproportionate sentence is warranted. 

59However, every term of imprisonment imposed on a serious offender for a relevant offence must, unless otherwise ordered, be served cumulatively on any uncompleted sentence imposed on that offender, whether before or at the same time as that term (Sentencing Act s.6E). The fact that you were sentenced as a serious offender must be entered in the records of the Court (Sentencing Act s.6F).

Sentencing Submissions

60The prosecution referred to the decision by the Court of Appeal in Kilic v The Queen.[35]   This decision was considered by the High Court (Bell, Gageler, Keane, Nettle and Gordon JJ) in The Queen v Kilic.[36]

[35] [2015] VSCA 331.

[36] [2016] HCA 48.

61Your counsel conceded that you accept that this offending will deservedly result in a lengthy term of imprisonment.  Your counsel referred to the sentence imposed by Judge Stuart in DPP v Maddocks.[37]  Your counsel submitted that your offending in this case lacks the type of planning that was seen in the sentence imposed by Judge Stuart on 13 March 2020 in which Judge Stuart noted that there were four days of planning.  Your counsel submitted that this was very much a spur of the moment crime committed late at night and fuelled by methylamphetamine, anger and a toxic relationship between you and Payet.  However your counsel conceded that once you were there you did what you did.  The prosecutor referred to the letter you wrote to Payet prior to the commission of this offence and submitted that your crime was premeditated.  In my view, the commission of this crime did involve some degree of planning.  You telephoned the co-offender and planned to meet him before you committed this crime.

[37] [2019] VCC 188.

62You are currently serving the sentence imposed by Judge Stuart on
22 February 2019 – a total effective sentence of six years with a non-parole period of four years.  Judge Stuart declared that you had served 324 days by way of pre-sentence detention.  The sentence was imposed for offending post-dating the offending informing the present charge.  The offending was committed on 4 April 2018.  There is therefore no pre-sentence detention referable to this sentence.

63Your counsel submitted that the Court must consider the issue of totality and what orders for cumulation upon the existing sentence should be made, and what the new non-parole period should be.   Your counsel submitted that the order for cumulation will be made upon an already sizeable term of imprisonment imposed by Judge Stuart on 4 April 2018.  The sentence imposed by Judge Stuart was confirmed by the Court of Appeal.[38]  Your counsel submitted that the Court of Appeal noted that, 'The sentence imposed by the judge [Judge Stuart] was towards the upper end of the appropriate range'.  However, in that case you were not sentenced as a serious offender. Your counsel submitted that any order made in relation to the current offending, and particularly the order for cumulation and the non-parole period, should take into account that you are already serving six years for other offending.  Your counsel referred to Azzopardi v The Queen[39] and submitted that as sentences increase in length, they are exponentially more burdensome.

“The severity of the sentence increases exponentially as it increases in length.  Once the sentence satisfies the punitive and mitigatory sentencing objectives for the offender’s overall conduct, the sentence is then proportionate to the offender’s criminality.  No justification then exists for a more severe sentence, proportionality and just deserts defining the outer limits of punishment.”

[38]David Hayden Maddocks v The Queen [2020] VSCA 47, [51].

[39] (2011) 35 VR 43, [62].

64The prosecutor submitted that despite there being an appeal, the Court of Appeal did not vary Judge Stuart's sentence.  The prosecutor submitted that you committed these offences and have to be sentenced appropriately for them, bearing in mind just punishment, general and specific deterrence and denunciation.  The prosecutor submitted that this court must consider your status as a serious violent offender and must give effect to its cumulation provisions.  This offence is an extremely serious upper end offence of intentionally causing serious injury.

65In R v Taylor[40] the Court of Appeal stated that the provisions of s.6D and s.6E of the Sentencing Act do not mean that I am required to ignore principles of totality and proportionality in imposing a sentence.  For practical reasons in this case it would not be possible to make the sentence imposed in this case cumulative without breaching the well-entrenched principles of totality.  Consequently, there will be a measure of concurrency to avoid producing a sentence that would offend against the totality principle.

[40] (2004) 8 VR 213, 226-227 (per Winneke P).

66This is without doubt a serious offence.  In all the circumstances I have no alternative to the imposition of a custodial sentence.  I propose to record a conviction and  sentence you to a term of imprisonment of 10 years.

67I direct that eight years of the sentence imposed this day be served cumulatively on the sentence of imprisonment imposed by Judge Stuart on
22 February 2019.

68I must, pursuant to s.14 of the Sentencing Act, fix a new single non-parole period.  I fix a new single non-parole period of seven years and six months which will commence this day. There is no pre-sentence detention declaration required in this case.

69I direct that the fact that you were sentenced as a serious violent offender for the offence of intentionally cause serious injury (Charge 1) be entered in the records of the Court.

70Section 6AAA of the Sentencing Act requires me to state the sentence and non-parole period that I would have imposed but for that plea of guilty.  Your plea has saved time, expense, and the need for witnesses to give evidence. But for your plea of guilty, I would have sentenced you to a term of imprisonment of
15 years.   I would have directed that you serve a minimum term of 10 years before being eligible for parole.

71Are there any further matters?

72MR PICKERING:  No, Your Honour.

73HER HONOUR:  Very well.  Please adjourn the court.

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