Director of Public Prosecutions v Magele

[2015] VCC 1307

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 15-01172

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROLAND MAGELE

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Bendigo
DATE OF HEARING:	11 September 2015
DATE OF SENTENCE:	11 September 2015
CASE MAY BE CITED AS:	DPP v Magele
MEDIUM NEUTRAL CITATION:	[2015] VCC 1307

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy
For the Accused	Mr A. McLennan

HIS HONOUR: 

1Roland Magele, you have pleaded guilty to one charge of intentionally cause injury.  This charge has a maximum penalty of ten years' imprisonment. 

CIRCUMSTANCES OF OFFENDING

2You were born on 28 November 1996.  You were 18 at the time of the offence and you are 18 now.  Your victim, Benjamin Callaghan, was born in February of '94.  He was 21 at the time of this offence and the time of the hearing.  At the time of the incident, you and Mr Callaghan were both inmates of Malmsbury Youth Justice Centre.  You had only been in the Youth Justice Centre for two months when this offence occurred. 

3On Tuesday 24 March 2015, at approximately 12.22 pm, both you and the victim were attending a VCAL class at the education centre at Malmsbury.  You had been standing at the front of the room near the whiteboard completing a written task.  Students in the classroom were throwing paper around the room and it seems that you thought that the victim had thrown a screwed up piece of paper at you.           You then walked directly to the victim, who was seated at the desk.  You said to the victim, "You don't see me laughing".  The victim sat there and did not say anything.  You have then punched him in the left side of the face with a clenched fist.  He has fallen backwards and onto the ground.

4You then threw a second punch, directed at his head, and as he was falling you then used your right foot to kick him to the side of the body as he lay on the ground.  You picked him up, you threw him against the wall like a rag doll, used both feet and both fists to hit and kick the victim repeatedly.  You also stomped on him.  You had thrown at least 11 punches and four kicks to the victim in the course of this assault.  He remained motionless throughout the assault, which lasted approximately 16 seconds, from the first punch to the final kick.  Not unsurprisingly, the victim could not recall the assault. 

5A teacher, Christy Browning, witnessed the assault.  She did not hear you say anything to the victim throughout the assault.  She said that the assault appeared to be unprovoked. 

6This incident was captured on CCTV.  I have seen the video.  It is Exhibit B in this plea.  I think the teacher, Ms Browning, is correct.  It is an unprovoked assault.  Your attack on Callaghan was cowardly.  Whilst it only lasted for 16 seconds, you persisted with your attack when it would have been obvious to you he was defenceless and on the ground.  As I say, the attack was cowardly, vicious and prolonged beyond Callaghan's incapacitation. 

IMPACT ON YOUR VICTIM

7Not unsurprisingly, your victim has not filed a victim impact statement.  He cannot recall the assault.  However, the evidence of his injuries comes from the Royal Melbourne Hospital, where he was taken immediately after this assault.  He was treated for an underlying displaced fracture of the left zygoma, which is his cheekbone, his left maxilla, which is his upper jaw, extending through the floor and lateral wall of the left orbit, around the eyeball.  He was treated for associated facial swelling. He was provided with pain relief medication.  Fortunately for him, surgery was not required. 

PERSONAL CIRCUMSTANCES

8You are 18-years-old.  After this offence you were moved from Malmsbury Youth Justice Centre to adult prison.  You have been in adult custody since that time.

9You were born and raised in New Zealand.  At the age of ten your family moved to Australia.  You are the third child of nine children in the family.  Your education was limited to Year 8.  You commenced Year 9 but you were expelled from your school for behavioural reasons.  You have limited further education which you have undertaken whilst you have been in custody at Youth Justice Centres.  You have completed Year 11 in custody. 

10Unfortunately you have an abusive and a violent father.  He has inflicted violence on you and your siblings from a very young age.  You spent some time in foster care because of your father's violence.  Your foster care was managed and controlled by the Department of Human Services.  You have learnt violence is a way of life.  You have finally left the family home in 2014 after a number of years of couch surfing whilst running away from home and returning home since you were about 12-years-old. 

11You have a substantial criminal record for someone of your age.  In November 2010 at the Melbourne Children's Court you were dealt with for armed robbery and theft.  You were placed on probation.  In May of 2012, you were at the Dandenong Children's Court.  You were dealt with for robbery, burglary and theft, intentionally cause injury and threat to kill.  You were put on a supervision order. 

12In September 2012 you attended the Melbourne Children's Court.  You were there on charges of theft, dangerous driving and returned for the breach of the order that I have just referred to.  Again, you were put on a supervision order.  In June 2013 you were at the Melbourne Children's Court, again for a breach of supervision order.  In June 2013, you were there for theft of the car, recklessly endanger serious injury, burglary and theft and recklessly cause serious injury.  For that you were given 11 months Youth Training Centre detention. 

13In August 2013, at the Melbourne Children's Court, for armed robbery you were given a further term of six months Youth Justice Centre Order.  In January 2015, at the Dandenong Magistrates' Court, you were there for robbery and intentionally cause injury and unlawful assault.  You were given 12 months for the robbery and intentionally cause injury, and six months for the unlawful assault in a Youth Justice Centre.  That is the sentence you were undergoing when this offence occurred. 

14At the time of the offending in this case, you were only two months into your second time in YJC from three separate YJC orders.  Your criminal trademark is violence.

15

You have been assessed by Warren Simmonds, psychologist, for the purpose of this plea.  His report, dated 12 August 2015, was Exhibit 2 on the plea. 

Mr Simmonds took a history from you that you were provoked by Callaghan because he had called one of your brothers a “snitch”.  You ruminated about this statement and then set upon your victim without notice or mercy.  Mr Simmonds has assessed you in the average range of intellectual functioning.  Mr Simmonds assessed you as having a lack of impulse control, with evidence of both anti-social and borderline personality traits, although you do not qualify for the criteria of a personality disorder. 

16As a result of your offending you were transferred from Youth Justice Centre to the Metropolitan Remand Centre.  Whilst you have been at the Metropolitan Remand Centre there have been prison riots.  The result for you is that since June 2015 you have been in 23-hour per day prison lockdown.  In total you have been in adult prison for 170 days.  Your graduation to adult prison from YJC is a result of your own violent offending.

SENTENCING CONSIDERATIONS

17In sentencing you I must have regard to the range of factors such as the seriousness of your offence and your culpability for it, your personal circumstances and those of your victim, Callaghan.  I am required to balance those interests with the interests of the community in denouncing your criminal conduct, and the interests of the community, in seeking to ensure, as far as reasonably possible, that you as an offender are rehabilitated and reintegrated into society. 

18I am mindful of the provisions of the Sentencing Act, and in particular, ss.54(C), which directs a sentencing court to consider whether a Community Corrections Order can achieve the purpose for which this sentence is imposed.  I reviewed the case of Bolton in considering if a Community Corrections Order would be appropriate in your case.  I have had you assessed for a Community Corrections Order and you have been assessed as being suitable. 

19As part of the governing principles to be considered in sentencing, I must take into account the current sentencing practices.  That enquiry is directed particularly, but not exclusively, to the kinds of sentences imposed in comparable cases and the statistics of those sentences at the time.  I have considered these statistics in current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case, as indeed they are from one another.

20You have pleaded guilty to the charge.  Your plea of guilty has the utilitarian value of allowing the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offence.  Your plea also allows for the preservation of court and police resources to deal with other cases.  Your plea vindicates public confidence in a legal process set up to protect the community.  You have by your plea relieved your victim from giving evidence against you.  It facilitates some closure for him. 

21Your plea of guilty also indicates and demonstrates your remorse.  Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour in this case.  Your plea also recognises that you are willing to facilitate the course of justice in the community. 

22You are a young offender, 18 years at the time of offending and now at the time of sentence.  In Mills' case, reported at 1994 4VR 235, the following three propositions were set out in the sentencing of young offenders:

(a) Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court, where that matter properly arises

(b) In the case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on the rehabilitation is to be preferred. Rehabilitation, of course, benefits the community as well as you, the offender; and

(c) A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effects of his past criminality. The benchmark for what is serious, to justify adult imprisonment, may be quite high in the case of a youthful offender, and where the offender has not previously been incarcerated, a shorted period of imprisonment may be justified.

23It is a basic principle of sentencing law that when a young offender is to be sentenced, the sentencing disposition should be tailored, so far as possible, consistently with other applicable sentencing principles, to promote the offender, that is your, rehabilitation.  This serves the interests of both the individual and the community. 

24You are not a first time offender.  You have an extensive criminal history related to violent offending.  In your case the prospects of rehabilitation are uncertain but at your young age there must be some hope for rehabilitation.  On the assessment of Mr Simmons, there is no evidence of impairment of mental functioning which might attract sentencing considerations set out in Verdins case. 

25On Mr Simmon’s assessment of your personality deficits, nor your background disadvantage of an extremely violent father can alter the attribution to you of your criminal responsibility and of your conduct, or the assessment of your moral culpability for this offence.  You being a person of normal intelligence, the assumption that underpins the theory of specific deterrence, that is that punishment can and will deter a rational offender from similar conduct in the future, is appropriately applied to you. 

26What is, again, very troubling is that despite multiple appearances in the Children's Court for offences of violence, and periods of detention in the youth justice system, you have not only not refrained from violence but have on this occasion committed an act of extraordinary viciousness.  You have offended whilst in custody for violent offending. 

27I also take into account that whilst your time in adult prison is not pre-sentence detention for the purpose of this offence, it is appropriate to consider the total of your incarceration when fixing the term of imprisonment.  The prosecution submitted that the totality of your offending calls for an immediate term of imprisonment.  I have previously referred to the maximum penalty set out in for this offence by Parliament.  The prosecution submitted that the considerations of general and specific deterrence and denunciation were to be accorded full weight, given the circumstances of your case. 

28I accept that the considerations of specific and general deterrence, combined with denunciation of these offences, are very significant in sentencing you to imprisonment.  The assault was brutal and in the setting of a custody facility. 

29At this hearing the prosecution sought an order for retaining a forensic sample.  I will sign the order in respect of a forensic sample.  The reasons I am making the order for retention of forensic sample is that the seriousness of the offence warrants such a retention, and that as I understood it, it was made by consent and it is certainly made in the public interest. 

30Your counsel submitted that a sentence combining the term of imprisonment for punishment, and a CCO for rehabilitation of a young offender, was the appropriate sentence.  Would you stand please?

31On Charge 1, you are convicted and sentenced to serve six months' imprisonment.  You are also to serve a two year CCO with the following conditions.  The CCO commences upon your release from prison.  The conditions are:

32(i) That you be supervised;

33(ii) That you be assessed and treated for alcohol rehabilitation; and

34(iii) That you attend offender behaviour programs which, in this case, is anger management and control. 

35You are to report to the Dandenong Community Corrections Service within two days of your release from prison.  I declare that you have served three days pre-sentence detention which can be deducted administratively from this sentence. 

36Under s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to 12 months' imprisonment.  I order a forensic sample, as I have said, under s.464ZF. 

37MR CORDY:  Just in relation to that, Your Honour, it wasn't a retention order sought.

38HIS HONOUR:  My apologies.

39MR CORDY:  It was an actual order.

40HIS HONOUR:  Sorry.

41MR CORDY:  So Your Honour needs to explain that to the prisoner.

42HIS HONOUR:  Yes certainly, thanks.  In terms of the forensic sample order, I just want to explain to you.  First of all, I've made the order.  Secondly, that the authorities are authorised to take the sample from you.  It's usually done by a swab from inside your mouth.  If you don't comply they are allowed to use reasonable force to obtain the sample.  Do you understand what I've just said to you?

43OFFENDER:  Yeah.

44HIS HONOUR:  Yes.  Thanks, I've signed those orders.  Mr McLennan, you can approach your client in the back and explain to him the Community Corrections Order.

45MR MCLENNAN:  Thank you.  Mr Magele, you're a young man.  I've sentenced you to six months' imprisonment.  It means you get out early next year sometime.  It's up to you but try and stay out because you've got two years of a CCO after it.  If you mess up in that time, you'll come back.  I'll sentence you again.  If you can remove the prisoner, thanks.  Thanks for your assistance, Mr McLennan.

46MR MCLENNAN:  If Your Honour pleases.

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