Director of Public Prosecutions v Magee
[2022] VCC 2108
•25 November 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-21-00508
Indictment No. L10517649.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICKY MAGEE |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 September and 22 November 2022 | |
DATE OF SENTENCE: | 25 November 2022 | |
CASE MAY BE CITED AS: | DPP v Magee | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2108 | |
REASONS FOR SENTENCE
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Catchwords: Intentionally Causing Injury (x2) Two separate victims. Assaults weeks apart. First assault a female victim in own home. Second a nasty surprise attack including with improvised weapon. Hospital stay and surgery and ongoing impact some years later. Summary offences: commit indictable offence on bail and breach of condition of bail - 34 years old – treated as early guilty Plea – limited remorse; Some criminal history - Worboyes v The Queen [2021] VSCA 169 – disadvantage Bugmy v The Queen [2013] HCA 37; 249 CLR 571 - COVID-19 increased burden.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D. Shivakumar | Office of Public Prosecutions |
| For the Accused | Ms A. Sharpley | Slades & Parsons Criminal Lawyers |
HIS HONOUR:
1 Ricky Magee, you have pleaded guilty to two charges of intentionally causing injury and to one summary offence of committing an indictable offence whilst on bail and one of breaching the residential conditions of a bail undertaking. You have recently turned 34 years of age and have a criminal history of some relevance to my task. You have been in custody for two periods in relation to this matter. The first period was from your arrest on 28 February 2020 until 28 April 2021, at which point you entered bail which had been granted earlier in March of that year. There had been a surety which you could not raise and so a bail variation then led to your ultimate release on that date, 28 April 2021.
2 A second period in custody was from 14 January 2022 to today's date once bail had been revoked. That revocation arose as a result of fresh offending as well as the loss of a bail residential address owing to an intervention order taken out relating to your grandfather. All up then, the pre-sentence detention stood at a period of 737 days as of the plea being conducted earlier this week. It has risen by three days since, of course.
3 The maximum penalties are correctly set out in the summary. Intentionally causing injury has a 10-year maximum term of imprisonment. The summary offences each have a three-month maximum prison term.
4 There was a summary in this matter dated 18 July 2022 and it was marked as Exhibit A. Your counsel told me it was an agreed summary. From memory, that summary was read aloud on the course of the plea. I see no need to set out the full sentencing facts in these, my reasons, as whether it was read out or not, I will sentence pursuant to that agreed summary.
Facts
5
By way of only a very brief summary, Terrie Armstrong was, at the time of the assault upon her, in a relationship with a man named Bradley Hooper. They started living together in a second-floor unit in Edwin Street,
Heidelberg Heights, shortly before these events. Mr Hooper had at some point in the distant past been in a relationship with your mother. That was more than 20 years before. On Saturday, 2 November 2019, at around
7.40 am, you arrived at the unit and entered it but were told by Ms Armstrong that you were not allowed to visit that day as she had family members who were visiting as well as a technician coming in to fix a heater. You did not take kindly to this. You became angry and said: 'Why are you always being a smart arse to me'?
6 You grabbed her, put her in a headlock and then punched her three times to the head and temple area, causing a bloodied nose, a cut lip and bruising. Mr Hooper intervened and told you to leave.
7 This was a totally unprovoked and violent attack upon a female in her own home. Before leaving, you threatened Ms Armstrong that you would return if she called the police. That is before me only as to context. You do not fall to be sentenced for that conduct. Police were called and attended, and they observed her blood nose and bloodied lip. An ambulance also attended but she declined to go to hospital. See the photographs at pp88-89 of the depositions. They are part of Exhibit B in these proceedings.
8 A second incident involving her partner, Mr Hooper, occurred 18 days later, on 20 November 2019. By that time, you had moved into that unit. That move had taken place the week or so before. You were at this stage, their guest. On the evening of 20 November at around 6.30 pm, Mr Hooper went downstairs from the unit to collect some washing that was down on the clothesline. As he walked back up the stairs, he was struck a forceful blow to the head from behind and fell face-first into the stairs. It was you who had struck him. He was dazed. He could feel blood coming from the wound at the back of his head. As he lay face down on the steps he heard you say:
'You thought you would get away with calling my mum a slut'.
9 You then assaulted him further as he lay exposed on the steps. He had, by then, turned over. You had an improvised weapon. It was a hockey stick with sharpened nails protruding from the end and you then swung that back and forth to poke at him. You stuck the nails into his left leg, causing him severe pain and you then dragged or raked the stick and nails down his leg on three occasions. You left him screaming in pain and bleeding profusely in the stairwell of those premises.
10 The photographs of the stairwell show a large amount of blood. See pages 118‑119 of the depositions. People came to his assistance and provided first aid and then awaited the arrival of the ambulance. These injuries were photographed and those photographs are relied upon. They were marked as part of that same exhibit. Also, they are found in the depositional materials. They disclose pretty dreadful large gaping leg wounds. See Exhibit B, photographs 94 to 97, also 99.
11 He had a significant enough laceration to his scalp from that first blow to the back of his head. He had a laceration to his right eyebrow and bruising around that eye and the three leg lacerations described in the summary and captured in those photographs. He was admitted to hospital. Investigations had to be carried out for obvious reasons. He had no underlying skull injuries. There was a large collection of blood around his hamstring, but the major arteries remained intact. He was operated on a few days later on 23 November and discharged home on the 24th. As injuries go, these were relatively high-end and that is conceded to be the position by your counsel. He has been left with some residual pain and, obviously, some scarring.
12 You were arrested on 28 February 2020 and made a no comment interview as was your right. You were on bail at the time of this serious offending. That bail undertaking related to some possession of drug matters arising from conduct on 12 October 2019, so in this same sort of time frame. Those charges were subsequently dealt with by way of a fine. I have already described the time that you have served in custody, broken down into those two periods. The summary sets out the very lengthy chronology of the matter before the court and the reasons for that and your counsel's written submissions also have a chronology as well.
13 So much then for really what is only a brief summary of the more complete summary. I will sentence pursuant to the more detailed agreed statement which is marked as Exhibit A on the plea and also, of course, those photographs that I have referred to. The Crown also placed before me, the 2013 sentencing remarks of Her Honour Judge Sexton when she dealt with you for negligently driving causing serious injury offences.
Impact
14 I turn then to the impact of your crimes. There is an impact statement in this case from only one of your victims. That is from Mr Hooper. There had been an issue in relation to the loss of teeth mentioned within that document and that necessitated the adjournment of the plea from 7 September this year to earlier this week. Two notices of additional evidence were served relating to that issue. Ultimately, the Crown advised me on Tuesday of this week, that they were not in any way relying on the loss of teeth as part of the injury in this case. That issue has been put to bed completely. I have no regard to the loss of the teeth or the impact from that loss as is spoken of in the impact statement. Indeed, that portion of the impact statement was not read aloud on Tuesday and that is appropriate and I have no regard to that portion in the written document.
15 This, however, was a frightening and confusing event and one that had immediate as well as residual impact upon your victim, Mr Hooper. It really could not be described as a fight. It was not. He was felled without any warning and he relives the event and has nightmares about it still all these years later. This is clear from the admissible portions of his impact statement. He will never forget this frightening assault. It has altered his life to a degree. He will carry the scars as a reminder of it. He still experiences issues with his leg and also head and we are three years distant from the assault upon him. I take into account the impact as I am required to. It has been significant.
16 As to Ms Armstrong, for whatever reason, she has decided not to make an impact statement so there is no impact statement in her case. There was obvious immediate impact physically in her case and it was no doubt a pretty shocking thing to have arisen completely out of the blue as it did. Your action bore no relationship to anything that had been said or done. No medical treatment was required and there is nothing suggesting any lasting impact in her case.
Plea in Mitigation
17 Your counsel, Ms Sharpley, relied upon some written plea submissions that were dated 1 September 2022, but labelled as submissions for a sentencing indication. There had previously been such a hearing and the submissions had been adapted to the plea and that label had been left on by mistake. That is a matter of no importance at all. She relied upon a report from Ms Lechner, a letter from the Gippsland Aboriginal Co-Operative and a range of course completion documents. Either by way of the written submissions or her oral presentation on the plea or for that matter the detailed contained within Ms Lechner's report, the court has been informed of your family background as well your educational and employment history.
18 She took me to some of your past offending though she told me you had little recollection of the circumstances of the various assaults. I have been told very little about your past offending. She made submissions about the relative objective gravity of the offending before me and your prospects or rehabilitation. She made submissions as to the relevant sentencing purposes in play in this case. She conceded the seriousness of the offending and the many features of aggravation, especially in the setting of Charge 2, relating to Mr Hooper.
19 In an excellent plea conducted on your behalf, Ms Sharpley relied upon the following matters in mitigation:
· Your guilty plea in the midst of the global pandemic and one that should be treated as an early plea given the earlier plea offers which had been made by you and rejected by the prosecution.
· The presence of some remorse;
· the impact of COVID-19 upon your custodial experience; and
· your disadvantaged background.
20 She did not challenge the prosecutor's submission as to the gravity of the intentionally causing injury against Mr Hooper and the man features of aggravation which existed. She abandoned the submission that had been contained in the written document as to the availability of a combination type order with a prison term equating to existing pre-sentence detention with release onto a Community Corrections Order. Indeed, she abandoned any submission as to the availability of a Community Corrections Order altogether. Evidently, there were still issues in terms of any firm residential address in your case. She conceded that a term of imprisonment was the only available disposition here.
Prosecution
21 The prosecution had challenged the availability of a combination disposition in their written submissions but that was no longer an issue on this plea given the concession made by your counsel. The prosecution argued that a head sentence and a non-parole period was called for here and I believe your counsel, ultimately, was really not disagreeing with that submission. I see no need then to traverse the prosecution written submissions in detail now in my reasons as they were not contentious in their coverage of the nature of the assaults and the aggravating features that were present. I have regard to those submissions.
22 As to the attack upon Mr Hooper, they argued it was premeditated, unprovoked and serious. A weapon was used and your victim was helpless at the time of the most serious of the components of that attack. You had a long enough history and had not complied with past orders and you had, at best, very limited or qualified remorse given the account that you provided to Ms Lechner in relation to how each assault commenced. You claimed to her that you had been attacked by each. Of course, that was not so.
23 About the only matter in issue was the prosecution contention that the Bugmy[1] principles that you heard discussed in the course of the plea had no application and the significance that could be taken from the fact that these principles were seemingly not relied upon before Judge Sexton in 2013. Your counsel, Ms Sharpley, was going to raise an issue in relation to that prosecution submission but I got there ahead of her really. What Judge Sexton found or did not find in 2013 is in no way binding upon me. I do not know if those principles from Bugmy's case was even pressed on the plea. But I know that some level of disadvantage plainly was. That decision was also a very recent decision back then.
[1]Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (“Bugmy”)
24 In any event, whether it was or was not relied upon or whether it was found to apply or not to apply, does not in any way inform my decision. I have to exercise my sentencing discretion on the materials placed before me. I will deal with the various submissions in one moment.
Background
25 I will turn firstly to your background. I will do that quite briefly.
26 I have no particular reason not to accept much of what I have been told as to your family background. Much of it is set out in the psychologist's report. It is true, it is based on your self-report, but that is very often the position and there is some consistency when regard is had to what Judge Sexton was told, as well as Ms White from the Gippsland Aboriginal Co-Operative in her letter marked as Exhibit 3.
27 You were born in November 1988 and so you are 34 years of age. You were brought up by your mother as a single parent as your parents separated when you were a child. You have a twin brother. You are Aboriginal through your biological father but had no real connection to your culture, or to him really. You had very limited contact with your father as a child and you have not seen him for many years. You are close to your mother. Your mother re‑partnered when you were in primary school and you were, it is said, exposed to some family violence from your stepfather at that time. That stepfather was Mr Hooper. Well, this is your account of that relationship. But of course, I am hearing only one side of it. There is not much to support it, other than perhaps your comments made during the actual attack itself. By the way, that was not a complaint about your treatment or about any physical treatment of your mother. But rather with what Mr Hooper had allegedly called your mother some 20 years ago.
28 You were raised in West Heidelberg, but when you reached secondary school you relocated as a family up to Lakes Entrance. You report that you were the victim of some sexual offending at that stage. You disengaged from school and started using drugs and engaged in criminal behaviour. You were educated to Year 9 level with a number of issues at school and you have had quite limited employment since. Housing has been an issue and there have been mainly short-term casual jobs as I understand it.
29 You have an extensive and long-standing drug history and that is referred to in Ms Lechner's report at page 4. You have no dependents and you have had pretty unsatisfactory intimate relationships characterised by your drug use. Homelessness has been an issue from time to time. You have a criminal history. It is not the longest of criminal histories, but you have certainly been before the court often enough over the years and you have not taken your chances. The record speaks for itself, and I am not going to set it out in these reasons. There are six prior convictions for assault and one for affray and a range of other offending, including dishonesty offending.
30
You were on bail at the time of this offending that I am dealing with for minor drug offences occurring in October 2019. There are also some subsequent offences committed in January of this year, namely a Bail Act offence and two resists, a going equipped to steal and a false name and address. Those were the matters for which you received an eight-day prison sentence earlier this year. There was also an earlier dishonesty offence committed in
mid-July 2021 for which you were fined. See the defence submissions at p2.
31 I have mentioned your past and your subsequent criminal history. I must pass proportionate sentences here and I need you to understand that you do not fall to be sentenced a second time for any of that past or subsequent offending. That history does not aggravate the offending I am dealing with. You received those other sentences and you served them. Those matters do, however, have some relevance to my task and that is because I have to make judgements about your risk of re-offence and your prospects of rehabilitation. There are some violence offences lurking in that criminal history - a number of them.
32 I have to make judgments about the need to deter you from future offending as well as the need to protect the community from you. The longest sentence you received was that received in this court back in 2013 for the serious driving offences I mentioned, being two charges of negligently causing serious injury. The reasons for sentence have been placed before me. I was told by your counsel that you were released on parole but parole was then cancelled. Apparently, you reapplied, and you were then granted parole afresh and stayed clean then for a number of years.
33 I was told that your second effort on parole saw you return to live with your grandparents and mother up near Lakes Entrance and I was told that you remained drug-free and also did some paid work at that point. Your grandmother died in September 2019. This was a big loss for you, and you then relapsed. You returned to Melbourne and you were living what was described by Ms Sharpley as a haphazard lifestyle with daily ice use and that was the essential lead-in to this offending. I have already mentioned bail being granted and the reasons why it was ultimately revoked.
34 You have done many courses and programs whilst in custody. Exhibit 4 is a bundle of course certificates and completion documents. I am not going to work my way through them. It is a positive that you have done those things ‑ a real positive actually. You have been exploring your culture through the Torch Program that is running in prison as well. You are also working in a position of some responsibility in the laundry. That is also a positive. I was told that the relationships in your family are quite complicated and that you are rebuilding relationships with your family, though there is not yet any realistic accommodation option for you. I was told that you will need to try to obtain some form of rental accommodation down the track, but that your initial release, whenever that takes place, is likely to be into a pretty unsatisfactory style of temporary accommodation. No doubt that played some role in your counsel's decision to abandon any submission as to the availability of a combination type order with release onto a Community Corrections Order.
Guilty
35 I turn then to consider the other matters that have been raised on your behalf by your counsel. The first of those matters is your guilty plea. You have pleaded guilty and that is always important, whatever the stage. Chronologically, it looks to be a relatively late plea with offending in November 2019 and the resolution of the matter only in late June of this year. But it actually must not be treated in that way. It would really be quite unfair to treat this as a late plea and the Crown agree that that is the position.
36 This offending occurred, as I say, in November 2019. On 8 March 2020, you made an offer to plead guilty to intentionally causing injury in relation to Mr Hooper. Also to recklessly causing injury in relation to Ms Armstrong. That was prior to the committal. The offers were rejected. I just interrupt these reasons. It occurs to me there is one matter I did not inquire of and I should have. I am assuming that those offers were - there were no strings attached to them, Ms Sharpley. It was not based on some suggestion that the matter should be dealt with summarily in the Magistrates' Court, was it or was it?
37 MS SHARPLEY: Your Honour, I'd have to check my written plea offer to check what exactly was put. But those offers were made a number of times.
38 HIS HONOUR: The fact is you offered to plead guilty to intentionally causing injury upon Mr Hooper at an early stage. There is no question about that. That offer was rejected. But ultimately it was accepted earlier this year. You had, it must be said, by then increased your offer in relation to the crime committed upon Ms Armstrong. Your earlier offer of recklessly causing injury had been rejected and you offered to plead to the intentionally causing injury upon her only in mid-2022. There had clearly been a process of negotiation but I am confident that that matter was not the stumbling block here. Serious injury to Mr Hooper plainly was.
39 There is much more detail to the listing chronology set out in each of the written submissions including reference to a sentence indication hearing in October of last year relating to a possible plea to recklessly causing serious injury. But I see no need to set out the full listing chronology chapter and verse. For at the end of the day, in all the circumstances, as a matter of fairness, I must treat the plea here as an early one. As a result, the time, the cost and the effort of a trial in this court before a jury has been avoided. Witnesses have not been required to give evidence at a trial. You have spared your victims that experience altogether.
40 The committal was one you were entitled to run and one that, obviously produced some benefits and that cannot be held against you. You have then, in these various ways facilitated the course of justice. Your guilty plea is worth of extra weight for the many reasons set out in the Court of Appeal decision of Worboyes[2]. A large backlog of cases has developed in the course of the global pandemic over the last few years. That has just been unavoidable. Your case was one of them, but your stance was, obviously, justified given the ultimate withdrawal of the most serious of the charges.
[2]Worboyes v The Queen [2021] VSCA 169
41 You get the heightened benefit of pleading guilty amidst the global pandemic. I take these various matters into account in mitigation. Whilst no specific submission was made to me as to delay and the mitigatory features of delay, I, obviously, do not lose sight of the fact that the matter has been over your head for a very long period. That is not easy and I take that into account. Given the terms of the ultimate resolution this year, it is a bit of a shame for all concerned, not just you, but also for your victims, that it was not settled in similar terms back in March 2020.
42 You were admitted to bail and, of course, you slipped up a bit by re-offending in July 2021 and again earlier this year. You also made efforts to engage as Ms White's letter makes plain enough. In the period of delay, whilst you have been in custody, you have been doing your best to enhance your rehabilitative prospects. I take these matters into account as well. I take into account the delay in this matter in your favour as well.
Remorse
43 I turn then to the issue of remorse. Your counsel submitted that there was some remorse in this case. Well, I have your guilty plea but really not much else besides. Your counsel recognised the serious issues thrown up by what you had told Ms Lechner about the circumstances of each offence. If I may say so it is not to the point that you do not persist with those matters on the plea. You could not, as it would involve to some extent, a traversal of your guilty plea itself. The fact is though, you have said those things recently and that is what is troubling.
44 Having made the offers that I have described which were rejected, you were then actually going to run a trial where you were denying presence at the scene at the time of Mr Hooper's injuries. That was the nature of the defence. That was a bit odd. Far more significantly though, there are your many statements in these recent discussions with Ms Lectner where you really completely misrepresented the reasons for the assaults, levelling some blame upon your victims. See pages 2, 5, 7 and 8 of that report.
45 You said that each of these people struck you first. Well, that was not true at all. You describe 'losing it' after you had been hit first. See p7, paragraph 4. Ms Lechner commented on the extent of your 'response' to that first act of Mr Hooper. See 5.2 on p7. There was not a response to any act of his. His only act was to be struck to the back of the head and rendered senseless on the ground by you. He was struck from behind without any warning and did not know what hit him. You misrepresented the event in each case and also claimed to have limited recollection. Neither of these things are suggestive of a person with much, if any, remorse. Ms Lechner's statements as to your deep regret and empathy and shame must be seen in this light. I do not accept those opinions at all. It is a bit surprising that she would even make those statements in light of your description of the events and the plain misrepresentation involved in those descriptions.
46 In any event, I am not satisfied on the balance of probabilities that there is much remorse in this case at all. I am prepared to treat your guilty plea and some of your statements to Ms Lechner about the consequences to Ms Hooper as indicative of some limited remorse. But that is all it is. I take the existence of this limited remorse into account in your favour.
Bugmy
47 I have mentioned your personal background and gone into some level of detail. It was not the best background but by no means was it the worst. Your counsel argued that the case of Bugmy are engaged here. You heard some discussion about that the other day. The Crown challenged that submission.
48 That Bugmy line of authority seems to have had something of a resurgence in recent times and what seems to be forgotten is the extent of the disadvantage actually required, how rarely the Bugmy principles are actually engaged and the need for adequate evidence in support of them. Here, I pretty much have your account. It is not substantiated by medical or Department of Health and Human Services records or contemporaneous reports from doctors or counsellors or schools, or by way of evidence before me.
49 The fact is there is some consistency as to what has been said before either to another court or to Ms White, that is not the critical issue. I need no convincing that you did not have an ideal background. Few prisoners do. There was the separation of your parents. That is not uncommon at all. Then there was very little connection between you and your father. I am prepared to accept some level of domestic disharmony in your mother's new relationship with Mr Hooper. Well, that is not too uncommon either regrettably. Your description of being struck on the backside harder than necessary at paragraph 2 of page 3 is hardly a matter of any great weight.
50 I am prepared to accept that home life was not the best. But that is not an uncommon thing for a person who sits in the dock of this Court. There were serious issues at school for you and movement from Melbourne to Lakes Entrance and that heralded in the sexual abuse that occurred a good deal later. Now, of course, that is not something that I ignore. It was a serious matter and I accept that it took place and I accept that it had deep impact upon you. The fact is I would not ignore any of your personal circumstances or any aspect of your background, whether I have regard to these Bugmy principles or not. I think it was an unenviable background you had which really, by only the barest of margins, enlivens these principles. I apply them to my task in the way contemplated by the case law in this area as described in Bugmy and the decision of Marrah[3].
[3]Marrah v The Queen [2014] VSCA 119
51 An offender's circumstances and their experience during their childhood and formative years must be considered in sentencing. That is not just out of some historical curiosity but because, of course, the effect of social disadvantage does not diminish with time. They are likely to have profound and lasting consequences, and, in some cases, they can explain but not excuse the offending. They don't do that here in this case. It is always a matter of the weight to attribute to the evidence of a significantly disadvantaged background. Disadvantage does not attract the same weight in every case or in the same way. Sometimes it might lead to a very substantial reduction in moral culpability and also a sizeable reduction in the weight to be given to general and specific deterrence. That is not the position in this case at all.
52 Sometimes it might be enough to take into account in a general way without any of these sizeable reductions and that is what your counsel is asking me to do and I will. I do take into account your background in a mitigatory fashion in the way urged upon me. In that sense, I am giving full weight to your background n the way that phrase is employed in these cases.
Rehabilitation
53 I turn now then to your prospects of rehabilitation. Your counsel submitted that you had reasonable or some prospects. The prosecution seemingly disagreed with that submission and argued that they could only be viewed as quite guarded. I threw into the mix in the course of the plea the adjective ‘realistic’. On reflection, it is hard to say that any of those adjectives is wide of the mark. One does not exclude the other. They are probably all correct actually. You engaged quite well whilst you were on bail despite the hiccup represented by the fresh offending that I have described. It seems that you have some developing insight as mentioned by Ms Lechner in her report. Ms White's letter is also of use to me in terms of your level of engagement.
54 You were, though, on bail at the time of this serious offending. You have long‑term issues with various drugs and that must cast something of a shadow over your future prospects of rehabilitation. You have a pretty modest work history. You still have some family support though it is complicated and comes with no certainty of accommodation. You have not taken the chances offered to you by the courts over the years. Violence does not arise that frequently in your criminal history, certainly not at the level represented by the attack upon Mr Hooper. There are also some decent gaps along the way in terms of your offending.
55 There was undoubtedly a level of pre-meditation in relation to the attack upon Mr Hooper and that is quite disturbing. It was a violent and nasty attack and you do not have youth on your side. Your attack on Ms Armstrong was also pretty extraordinary. It just bore no relationship to anything that was happening. You have, however, spent a very decent time in custody and much of that has been in a difficult COVID-19 setting. Unlike some prisoners, you have actually used your time usefully whilst you have been in custody. You have done many courses whilst you have been there and that is impressive. You are also working. You are trying to reduce your reliance on methadone. It seems to me that you are making real efforts to actually prepare yourself for your ultimate release.
56 The time you have served already and the sentence I will impose I am sure will serve to deter you to a degree. The test will come, as it always does, upon your ultimate release into the community. It is difficult to know what lies ahead for you. You probably have the same uncertainties in your own mind as to what lies ahead. Of course, I hope you can find stable, suitable accommodation and I hope that you can find employment. Those things are important. I hope you can leave drugs behind you. If you could do only that, your prospects would be greatly enhanced. But that has been a major issue for many years for you. If not now, well, when? Your life is passing you by. You are 34 years of age. It is not too late for you at all.
57 You are putting in the work now whilst in custody and you will need to put in much more work upon your ultimate release. Ms Lechner has some treatment suggestions which make good sense. I accept that you wish to alter the trajectory of your life and that is at least a start. I am certainly not going to write you off and say that you have no prospects at all. If I thought that, I would say it. But I do not. I do not think that is the position at all. Ultimately, I accept your counsel's submission. I believe that you have quite reasonable or realistic prospects if you can abstain from drugs. If you cannot abstain from illegal drug use, then your prospects of rehabilitation will plummet.
COVID-19
58 I turn to the issue of COVID-19 and its impact upon you, a prisoner, held in the course of the global pandemic. I accept that the COVID-19 virus and the response to it by those who run the prisons has increased your burden of imprisonment. Prison has undoubtedly been a more stressful environment in the time that you have been there. You have the two periods in custody and each were COVID-19 affected, the first more than the second as things started to free up to an extent earlier this year.
59 No doubt there has been worry about catching the virus in such a setting, where, unlike someone out in the community, there is no level of autonomy or control. There have been some lockdowns and you would also have experienced the increased burden of quarantine or lockdown on occasions. There undoubtedly would have been the suspension to visiting and to the full range of courses and programs in a decent amount of the period in which you have been held. Things have looked up this year both in the community and also in a prison setting and personal visits resumed from about March of this year, though you seem not to be receiving any visitors.
60 As to what lies ahead in the future on the pandemic front for prisoners, your counsel recognise that that really is impossible for me to determine. I am not free to speculate or guess about that. Those whose job it is to run the prisons will be able to reflect on the actual impact of any past and ongoing limitations on a case-by-case basis. I am sure you will know they will have the power to address any actual increased burden in your case by way of conferring emergency management days in relation to the sentence that I am shortly to impose. I cannot know if that will take place or not and I certainly do not proceed on the assumption that it will. To take into account in advance in that way would involve me contemplating a future executive action and that is prohibited.
61 It is though, not that unreasonable for me to think that prisoners may yet have some issues thrown up by COVID-19 in the coming months. From my experience to date in the course of the pandemic, I observe that the prisons have tended to lag a bit behind the community in terms of restrictions being eased or lifted. They also tend to bring restrictions back in more rapidly and that is for good reason. It is pretty plain to me that we are nowhere near out of the woods in terms of COVID-19 and its ramifications, both in the general community and in terms of the impact that will be felt by prisoners. There is, for instance, a bit of a surge of infections and hospitalisations in the community presently. No doubt lockdowns will still occur in a prison setting from time to time and these things have impacts. I take into account the increased burden posed by the response to COVID-19 in the manner urged upon me by Ms Sharpley.
Ms Lechner
62
I have mentioned Ms Lechner's report. I see no need to descend to the detail of that report. I have read it and I take it into account. It is not in any way relied upon as enlivening any of the principles from the case of
Verdins[4]. It sets out much useful background, which, to an extent, founds my Bugmy finding that I have pronounced upon. It sets out her treatment considerations and I mentioned those earlier. They are pretty sensible. You need long-term alcohol and drug counselling. You need counselling in relation to the sexual abuse that occurred to you when you were a youngster and also the other matters of disadvantage from your early years.
[4]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (“Verdins”)
63 There is also, it would seem, some developing insight into what has been your self-defeating and self-destructive patterns of behaviour. I take into account the report. I also take into account that letter of Ms White which suggest that you have the capacity to develop skills and appropriately engage.
General
64 I turn then to some general matters now. I am required to take into account a large range of matters when I exercise my sentencing discretion. Those matters include the maximum penalties and the nature and the gravity as well as the impact of any crimes committed by you. It is conceded by your counsel that this was serious offending. Plainly, Charge 2, the intentionally causing injury of Mr Hooper is the most serious charge by a mile. You were on bail at the time of this offending. Charge 2 is a serious example of intentionally causing injury for the reasons conceded by your counsel and raised by the prosecutor in his written submissions.
65 As I mentioned earlier, this could not in any way be described as a fight. It was not a fight. It was an ambush. It was unprovoked and it involved, as ambushes do, a surprise attack and this one from behind. Your victim, Mr Hooper, was completely exposed and vulnerable. He was not expecting any force. He had no idea you were even there. That was the setting for the first blow to the back of the head. He was felled from behind and he was rendered incapable. Whether by hand or by weapon matters not one jot. I cannot determine what he was struck with. It does not matter. That first blow was serious enough, delivered as it was, to the back of the head of someone who was not expecting any impact and a blow that sent him face-first to the ground.
66 That first blow caused a sizeable laceration to the back of his head. Whilst he was face down on the steps you then mentioned this notion of him thinking he had got away with calling your mother a slut. You then set about a pretty dreadful attack upon him as he lay in that exposed and vulnerable state. You used an improvised weapon repeatedly. He was defenceless. There is no other reason for you to have had that weapon in the stairwell other than to use it in this attack. This attack was plainly motivated by thoughts of revenge for an actual or perceived slight from decades before.
67 You clearly had planned this attack to some extent and regrettably caused him injuries that are removed from low-level injuries which can be embraced by this offence. ‘Injury’, as it is defined in the Crimes Act 1958 (Vic), need not even require medical attention. Well, he needed medical attention. He had gaping wounds which bled profusely. There were these multiple blows. He was hospitalised and he was operated upon. He spent four days in hospital. He has had ongoing impact including the scarring. He was in the vicinity of his own home and you were a guest at the time. The manner in which you inflicted the leg injuries to a man who lay helpless before you really was quite calculated and quite chilling. Your culpability was high.
68 The attack upon Ms Armstrong was, obviously, far less serious in terms both of mechanism and outcome. But it was still serious enough. It seemingly arose in the moment, but why did it? What on earth had she done to you to deserve that? There is nothing in any deep and dark family history which gives any explanation or motivation for attacking her in the way that you did. You assaulted her by fist - repeated blows in her own home. Multiple strikes to her head and you were intending to cause her injury and over what? Over nothing. You were, as your counsel says, just out of control in this time frame. Well, the fact that you were not in a great place; the fact that you were likely abusing ice and disinhibited by that drug is not in any way mitigatory. Your offending does not fall at the very highest level of intentionally causing injury, but I can tell you the instance of the offence against Mr Hooper, in particular, is a mile from the lowest level of offending captured by this charge. There are a number of aggravating features present as is conceded. It represents, in my view, a serious example of the offence of intentionally causing injury and that too is conceded by Ms Sharpley.
69 I am required to consider a number of purposes of sentencing. I must pay regard to your prospects of rehabilitation. That is one of the purposes. As I say, I believe that there are quite reasonable or realistic prospects if you make the effort; if you can abstain from drugs. Well, that is a big if, but I hope that you can. I am required to punish you for your crimes but to do that justly and proportionately. I must also denounce your conduct. This really was outrageous offending and I do strongly denounce your conduct.
70 I must pay appropriate weight to specific deterrence. That purpose relates to the need to deter or dissuade you from offending into the future. Of course, that is of importance here. You must be deterred. General deterrence is also an important purpose of sentencing in this sort of case. This court must send a very clear message to others in the community who may consider committing crimes of wanton violence such as these. The courts must convey that message loud and clear from the sentences imposed that those who commit crimes such as your will be dealt with seriously when brought before a court. Community protection also has an obvious role to play in my task. It is one of the purposes of sentencing. I must protect the community from you.
71 I mentioned already I have to regard to the maximum penalty and to the impacts of your crimes. I also have to pay regard to current sentencing practices. That is not a single controlling factor. I have looked at the relevant sentencing snapshot for intentionally causing injury (No. 265 of 2021) published by the Sentencing Advisory Council of Victoria. As well as the overview of cases from the Judicial College of Victoria Sentencing Manual. I have looked also at the more up-to-date online statistics that are held. I am sentencing you for your crimes and no amount of looking at other cases or statistics will ever provide the answer to the court. Other cases are not precedents and statistics have inherent limitations. Nor is there even any such thing as one correct sentence, in this case or any other.
Totality
72 I am required to take into account the principle of totality of sentence. I have taken a last look at the effect of the sentences imposed by the court to ensure that it is commensurate with your overall criminality. Your culpability ‑ your criminality was high here. I have two quite separate crimes of violence committed on different dates upon different victims and really with no relationship between the two crimes. They occurred within weeks of each other at a point in time when you were not travelling well. That is about the only connection. There obviously must be meaningful cumulation in this case.
73 I also have the breach of bail and the commission of an indictable offence whilst on bail. Prison is always a disposition of last resort. Your counsel conceded that a prison term is the only option open here and one not in combination with a Community Corrections Order. It is plain that I must send you to prison for a substantial period and fix a non-parole period in your case. I am sorry to have taken so long to get to this point, Mr Magee. I would ask if you would stand up, please, now and I will pass sentence upon you. You will not really understand the full nature of this sentence until I get to the end of it and I will explain the structure of it and what it all means to you.
Sentence
74
On Charge 1, that is the charge of intentionally causing injury relating to the attack upon Terrie Armstrong, you are convicted and sentenced to
16 months imprisonment.
75 On Charge 2, that is the intentionally causing injury relating to the attack upon Mr Hooper, I convict and sentence you to three years, nine months imprisonment. That will be the base sentence.
76 On each of the summary offences, I convict and sentence you to seven days imprisonment on each. The base sentence is the three years, nine months that I have imposed on Charge 2.
Cumulation
77 Now, six months of the sentence imposed on Charge 1 will be served cumulatively - that is on top - of that base sentence. I have taken the view that it is an aggravating feature that you are on bail and I do not want to then doubly punish you in relation to the charge of committing an indictable offence whilst on bail. In fact, I will run those two seven-day sentences concurrently upon each other as well as concurrently with the base and other part concurrent sentence. To that extent, then, I otherwise direct under the provisions of s16(3C) of the Sentencing Act.
Total Effective Sentence
78
Those orders then result in a total effective sentence of 51 months or
four years and three months imprisonment. Now, with a sentence of that dimension, I am required by law to fix a non-parole period. I can make no assumptions as to whether you will or will not be released on parole. In fact, I am prohibited from even speculating about that fact. That will be entirely in the hands of the Adult Parole Board. It will be really between you and them. For what it is worth though, it seems to me that a level of structure upon your ultimate release would surely be a good thing not just for you but also for the community. I will make my reasons available to the Adult Parole Board.
Non-Parole Period
79 In this case, I fix a period of 30 months or two and a half years during which you will not be eligible for release on parole.
Section 18
80 Now, you have been in custody already for a period of 740 days and, of course, you get credit for that period. You have already served that period pursuant to this sentence and that s18 declaration is entered into the records of the court.
6AAA
81
I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have sent you to prison for six and a half years. I would have fixed a non-parole period of
four years and nine months in that setting and that declaration under s6AAA of the Sentencing Act is also to be entered into the records of the court. Just grab a seat for a moment. I will see if there are any other matters. Any other matters I need to deal with from either of your perspectives?
82 MS SHIVAKUMAR: No, Your Honour.
83 MS SHARPLEY: No, Your Honour.
84 HIS HONOUR: That completes the matter then. You will go downstairs and have a chat with your client about what has occurred here and his rights in relation to it?
85 MS SHARPLEY: I will. Yes, Your Honour, I will be.
86 HIS HONOUR: Now, of course, I've mentioned emergency management days and at least the possibility of those but I have not taken those things into account in passing sentence. He will be doing the calculations himself in his own mind presumably. He’s got a non-parole period of two and a half years. He's already served more than two years. Of course, there's a possibility - I don't act on it and I haven't, but there's a possibility that he may get allowance, maybe even a substantial allowance by way of emergency management days. That would be something he'll need to explore.
87
MS SHARPLEY: Yes, Your Honour. I'll speak to him about that.
HIS HONOUR: That's a matter really for him. It's not something that I've taken into account. Well, that completes the matter then. Mr Magee, Ms Sharpley will come down and have a chat to you downstairs about what's happened and your rights in relation to this sentence.
88 OFFENDER: Yes, Your Honour.
89 HIS HONOUR: Yes. All right. Mr Magee can be removed then. Thank you.
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