Director of Public Prosecutions v Main
[2017] VCC 156
•28 February 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00072
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JEDIDIAH MAIN |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2017 | |
DATE OF SENTENCE: | 28 February 2017 | |
CASE MAY BE CITED AS: | DPP v Main | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 156 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr A. Albert | Office of Public Prosecutions |
| For the Accused | Mr A. Purcell | Pica Criminal Lawyers |
HER HONOUR:
1 Jedidiah Main, you have pleaded guilty to one charge of recklessly causing serious injury. The maximum penalty for that offence is 15 years’ imprisonment. You have also pleaded guilty to one charge of assault, with the maximum penalty applicable to that offence, five years’ imprisonment.
2 These crimes arise out of events which took place on 27 November 2015. The victim of your offending in Charge 1 was Mitchell Lee Allsopp, and the victim in Charge 2, Monica Mary Christopher.
3 It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say that I regard the facts in your case as most serious and disturbing. In addition, you have an extensive and relevant criminal history, to which I shall later refer.
4 I turn to a summary of your offending.
5 An end of year function was organised by students from a range of high schools for the evening of 27 November 2015 at a restaurant in Heathmont. The function was advertised on Facebook.
6 There was a $10 entry fee at the door and names were ticked off and wrist bands given as tickets for entry. The two victims of your offending, Mitchell Allsopp and Monica Christopher were friends and were both 17 years of age at the time. They attended the function at the invitation of their friends who had arranged it.
7 At the time of this offending, you were 19 years of age. You and your girlfriend, Hope McCamley, attended the function.
8 Monica Christopher and Hope McCamley knew each other and were friendly when they first spoke at the function. During the evening, Mitchell Allsopp was briefly introduced to Teira Bennett, who in turn introduced him to you.
9 At about 9.30 pm, Christopher saw two of her friends, Lauren Rawson and Lachlan Matthews leave hurriedly, heading towards the train station. She ran after them. Rawson told Christopher that she had had a fight with McCamley (your girlfriend). Christopher feared McCamley and her associates might follow Rawson and Matthews to the station. She told them to run and hide.
10 Christopher returned to the function and another friend, Lesley Bower, approached her. Allsopp approached both of them a short time later. Bower told Christopher that McCamley was after her. Christopher said that they all needed to leave and McCamley and the others appeared.
11 McCamley put her fist up to fight Bower. Bower hid behind Christopher, crying. Christopher attempted to calm McCamley, however McCamley approached aggressively. Christopher put her arms around McCamley’s head. Christopher was then pushed by someone to the back of the head and she released McCamley.
12 Allsopp stepped in between Christopher and McCamley to separate them. McCamley swung a number of punches to Allsopp’s head, but any contact did not harm Allsopp.
13 Allsopp pushed McCamley away and, as he did this, he overheard Bennett say words to the effect, “Jed will kill you”.
14 Christopher took hold of Bower and they ran back into the restaurant. Allsopp went to the front of the restaurant. Soon after that, police attended and the managers of the restaurant directed patrons inside. Allsopp went inside. As I discussed with counsel, the only actions of Allsopp before police arrived that first time have been set out above (paragraphs 12 and 13).
15 After returning to the restaurant, Christopher searched for Rawson and Matthews to check that they were safe. She found them and then went to find Allsopp, who was in the function room. As I discussed with counsel, Allsopp was not doing anything aggressive at this time.
16 Christopher told him that they needed to leave. McCamley approached them, abused Christopher and demanded to know where Rawson and Matthews were. Christopher ignored her and McCamley punched Christopher to the back of her head. Christopher spun around and, as she did so hit McCamley. She then kicked McCamley to get her away.
17 At this point, you punched Allsopp to the side of his head. As I have said, this was well after the earlier incident prior to police arrival. Allsopp was not doing anything aggressive at the time you punched him to the side of his head. This was witnessed by Christopher. Allsopp did not see you and did not know it was you who punched him. The punch knocked him unconscious.
18 Christopher grabbed Allsopp as he was falling after the punch to prevent his head from hitting the floor. They both fell to the floor.
19 Allsopp was bleeding and unconscious for approximately five seconds.
20 While on the ground, you kicked Allsopp in the jaw. Christopher hugged Allsopp’s head to protect him. You then kicked Christopher to her face. Christopher buried her head into Allsopp to protect herself. You persisted in your violence. You kicked Christopher twice in the ribs. Yours was violent, thuggish behaviour.
21 Bystanders yelled at you to stop. You ran away like a coward. You were well aware of your offending.
22 Christopher moved Allsopp outside to police. Allsopp was spitting blood and there was blood over both he and Christopher.
23 An ambulance was called and conveyed Allsopp to hospital.
24 Allsopp was discharged from hospital two days later on 29 November 2016. His jaw had been broken in two places, with nerve damage resulting from those breaks. Three plates were screwed into his jawbone to hold it in place. Significant dental work was required, including removal of some teeth. Plates and screws will remain in his jaw permanently.
25
He also had grazes and cuts to his face and could only take food through
a straw for the first six weeks after your violent assault upon him.
26 As a result of his injuries, he missed a week of his apprenticeship and six weeks work as a lifeguard. He had numbness and sharp pains in his jaw for about six months.
27 Christopher had bruising to her ribs on the right side and left hip and a chipped front left tooth. A front right tooth was loosened and required dental treatment. It will become dark in time and will eventually die.
28 Police were unable to locate you after the incident. You did not return phone calls or SMSs.
29 You were ultimately found by police on 16 January 2016 at Ringwood railway station and arrested. You were interviewed, and although the prosecution referred to you making a ‘no comment’ interview, you did in fact answer a number of questions relevant to the incident on 27 November and I discussed these with your counsel, specifically Questions 76, 91 and following and 117. You denied assaulting the victims. To answer, of course, some of the questions with ‘no comment’ was your right.
30 The victims of your offending, Mitchell Allsopp and Monica Christopher, have suffered considerably as a result of your offending and I shall return to pass some remarks on that subject shortly.
31 You have a relevant and extensive prior criminal history, which includes several charges involving injury offences, threats to kill and inflict serious injury. Not surprisingly, as noted in the prosecution opening, your sentencing dispositions have become more "severe", as you have continued your offending.
32 I turn to your prior criminal history. In doing so I stress you are not being re-sentenced for that offending. Such, however, is a relevant sentencing consideration.
33 Your first appeared at Ringwood Children’s Court on 6 April 2011 on injury charges, amongst others, specifically, intentionally cause injury, unlawful assault and recklessly cause injury. You were, without conviction, placed on probation for a period of 12 months.
34 You next appeared at Ringwood Children’s Court on 28 September 2011, on attempted robbery, intentionally damaging property, recklessly causing serious injury, three charges of inflict serious injury, amongst other dishonesty type offences. You were, without conviction, placed on a youth supervision order for a period of 12 months.
35
On that same day you were also dealt with for breaching the earlier probation order and, without conviction, were released on a youth supervision order for
a period of nine months to engage in programs related to drug and alcohol counselling and general counselling.
36 You were dealt with for breaching that youth supervision order on 18 April 2012. The order was cancelled and you received a short period of detention in a Youth Justice Centre, a total of about six months.
37
In addition to the breach of youth supervision orders dealt with on that date and being re-sentenced for the charges dealt with on 28 September 2011, you were also before the court on two charges of harassing a witness, six charges of unlawful assault, a charge of intentionally cause injury, one of threat to kill and one of recklessly causing injury, unlawful assault, amongst other charges. As
I have said, in total, it seems you received about six months in a Youth Justice Centre.
38 Two months later, on 19 June 2012, you appeared at Melbourne County Court, having appealed the sentence imposed on 18 April 2012. Your appeal was allowed.
39 You then appeared at Ringwood Children’s Court on 8 August 2012 on a dishonesty charge, theft from a shop and the matter was adjourned with you being placed on a good behaviour bond.
40 On 8 February 2013, you appeared at Melbourne Children’s Court on a number of offences including dishonesty, intentionally damage property, unlicensed driving, theft, burglary and also a charge of unlawful assault. You were sentenced to 240 days in a Youth Justice Centre, with an order made against your licence for a period of six months from 8 February 2013.
41 You next appeared at Melbourne Children’s Court on 3 April 2013 for dishonesty offences, convicted and ordered to be detained in a Youth Justice Centre for seven days.
42 You next appeared at Melbourne Children’s Court on 5 February 2014 on dishonesty offences, two charges of reckless conduct endangering serious injury, intentionally damaging property and driving offences. You were sentenced to an effective total term of 12 months in a Youth Justice Centre.
43
You next appeared at Melbourne Children’s Court on 26 March 2014 on drug and dishonesty charges, and were detained in a Youth Justice Centre for
14 days.
44 You next appeared at Ringwood Children's Court on 21 May 2014 on dishonesty offences, intentionally damage property, assault with a weapon and possess a dangerous article in a public place. You were, without conviction, released on a youth supervision order for a period of seven months until 20 December 2014.
45 You then appeared at Melbourne Children's Court on 16 January 2015 for breach of the supervision order imposed on 21 May 2014. You were sentenced to an effective term of two months in a Youth Justice Centre and also on that day, you were dealt with for offences of intentionally damaging property, criminal damage, four charges of unlawful assault and drug offences. A Youth Justice Centre disposition was imposed.
46 You then appeared at Castlemaine Magistrates’ Court on 20 March 2015 on unlawful assault and criminal damage charges. You were sentenced to one month’s imprisonment. I note that one month was served in adult custody. Your offending before me occurred just seven to eight months approximately after that sentence was imposed and after your release from custody. It would appear imprisonment did not deter you from this offending.
47 I was also told you would be pleading guilty to a number of offences committed subsequent to that before me and yet to be dealt with in the Magistrates’ Court. Those offences having occurred on 9 March 2016, 12 March 2016, 28 April 2016, 5 July 2016, 22 and 31 August 2016. The offences of 28 April 2016 involved offences of criminal damage and assault. Those matters are yet to be dealt with and are pending. I note that there are no subsequent court appearances actually recorded on the LEAP report.
48 Your criminal history, to say the least, is appalling, in particular your violent offending. You have had various sentencing dispositions and none have deterred you. You are a violent person with a violent disposition. Mr Purcell also conceded that on two of the prior offending occasions you had punched your victims to the face, as you did here. You engage in high risk violent behaviour.
49 Further, your offending reflects a degree of escalation.
50 An aggravating feature of this offending is your previous violence offending, having occurred in the context of your alcohol and/or drug use, as did your offending before me. Mr Purcell, who appeared on your behalf, conceded your offending on 27 November occurred again while you were under the influence of alcohol and/or drugs, and agreed that much of your prior offending occurred in the same context. He conceded you would have known from your extensive prior criminal history, alcohol was likely to lead to violent offending by you and that such was an aggravating feature of this offending. It is.
51 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour and I do so. The community, by your pleas of guilty, have been spared the time and cost of a trial and witnesses spared the need to give evidence upon your trial, in particular I refer to the two victims of your offending. I accept your pleas of guilty are an indication of some remorse, however have concerns regarding the extent and genuineness of your remorse. That is not to say I find you are not remorseful.
52 I take into account in your favour, you intimated early your intention to plead guilty to these charges, and relevant to that is the chronology provided (Exhibit A).
53
On 27 November 2015, police were unable to locate you until
16 January 2016. Bail was refused from 9 September 2016 and the charges before me resolved to pleas of guilty on 21 October 2016. Thereafter, an adjournment was sought by those representing you to obtain a report. That was not opposed. I was told by Mr Purcell that a report had been obtained, however it was not going to be placed before me for the reasons that were given to me by him.
54 On 20 January 2017 an application for summary jurisdiction was refused, and this matter then proceeded by way of straight hand-up brief with guilty pleas being entered to the indictable offences.
55 I accept that this matter resolved relatively soon after you had been charged with these offences, and the timing of that is relevant also to the sentence. I note, however, that at the time of the record of interview, as conceded by Mr Purcell on your behalf, you were denying this offending (and I refer again, Questions 76, 91 and following and question 117).
56 As at your plea hearing, you had spent 161 days in custody on remand.
57 I discussed with Mr Purcell the circumstances of this offending and he did not attempt to dissuade me from a description of it as appalling behaviour involving gratuitous violence by you. I discussed this at some length with him and the transcript of the plea hearing should be read in conjunction with these sentencing remarks.
58 I discussed with Mr Purcell the possible ‘reason’ for your offending. Allsopp, immediately prior to you punching him to the face, did not in any way offer you any ‘provocation’. Your behaviour, I was told, occurred because apparently your girlfriend had been hit in a previous altercation with Christopher. That incident had however ended and the police having been called. It was after that that Allsopp was assaulted by you.
59 Not only did Allsopp fall to the ground unconscious as a result of being punched to his face by you, you then kicked him to the head. Christopher, in her attempt to protect Allsopp, went to the ground with him and while she was holding his head, you kicked her to her face and ribs.
60 Your counsel, Mr Purcell, provided a written outline of submissions for your plea hearing and addressed those during the course of it. He sensibly conceded your offending was serious and that a custodial disposition was warranted in all the circumstances. He urged that any confinement be in a Youth Justice Centre, and to this end, relied heavily upon your background and history contained within a number of earlier reports that were tendered before me.
61 You are currently 20 years of age and at the time of this offending were 19.
62 You are the second child of Linda Kake and Michael Main. You have two siblings, 21 and 18 years of age, with whom you have little contact.
63 You come from an indigenous background on your father’s side, although you have limited insight into Aboriginal background or culture, despite some engagement with support services, referred to in pre-sentence reports to which I shall shortly refer.
64 Mr Purcell submitted your upbringing was a sad one. That your mother left the family home when you were 1 year old and you were raised by your father and siblings. In recent times, there had been attempts to reconnect you with your mother, although that was described by Mr Purcell as “awkward”.
65 Your home environment as a child was chaotic. Child Protection agencies had involvement with the family since you were 2 years of age, with a gap in their involvement between approximately 2002 and 2008. While Child Protection were involved, there were reports received by them concerning high risk behaviours of the siblings, drug and alcohol abuse by your father and physical and verbal abuse by him towards you. I was told your father was currently in prison serving a term of eight years' imprisonment.
66 Not surprisingly, your schooling was affected by your exposure to criminality, drugs, alcohol and violence, although you successfully completed Year 7 at mainstream school. Thereafter your education was at other venues, as discussed with Mr Purcell. A number of courses were not completed by you for various reasons.
67 You were homeless in 2011 when 14 years of age and were, at one stage, in out-of-home care. You attempted to live with your grandmother in Ringwood, but that did not work out.
68 You had made attempts in the past to find employment, but found that difficult. Any employment you had, had been of short duration.
69 A number of documents, albeit somewhat dated, were placed before me. A number of aspects of these reports concern me.
70 There were two pre-sentence reports prepared by Laura La Rose, Case Manager, Department of Health Services, the first dated 29 January 2014, prepared for a hearing in the Melbourne Children’s Court on 30 January 2014. You were then being dealt with for offences that had occurred in December 2013 involving, amongst others dishonesty, driving offences and injury offences. You said that offending had occurred whilst you were under the influence of ice, GHB and alcohol.
71 You were high on drugs at the time and it seems, attempting to get away from the police. You were also under the influence of alcohol and/or drugs, you said, in your offending before me.
72
It was noted you were initially resistant to discuss those offences with the author of the report, however eventually explained the incident in as much detail as you could remember. The author thought you demonstrated insight into the severity of your offending, acknowledged that you would most likely receive
a custodial sentence for the charges. I discussed my concern regarding your apparent insight, given your offending yet again before me.
73 Further details were provided in that report regarding your background. As previously stated, you spent three months in out-of-home care and then in 2012 lived with your paternal grandmother for three months, however were asked to leave that home, it seems, after you failed to return home for three days. You said from October 2012 you were homeless and ‘couch surfing’. Child Protection involvement ceased in February 2013.
74 As at the date of this report, substance use had been a contributing factor of your offending behaviour. The author noted you had a history of becoming aggressive while intoxicated. You used cannabis to relax and escape from your issues. You also reported using prescription medication, ecstasy and amphetamines. In May 2013, you were referred to the Youth Support and Advisory Service and allocated to worker, Ms Tammy Nguyen. In July 2013, your case was closed, as it was considered you did not require ongoing drug and alcohol support.
75 The author noted at that time, you presented with anger issues which had contributed to your offending and that you used violence in a way of dealing with issues and confrontations. That conclusion is very troubling, given your offending before me.
76 In February 2013, you began engaging with Ms Sarah Russo from the Adolescent Forensic Health Service and attended 15 sessions over a four month period. That is, I note, that you have previously received counselling assistance, nevertheless you have re-offended in this way before me.
77
You successfully completed Year 7, as I said. In August 2012, you commenced a Certificate II in Automotive Studies at Swinburne TAFE, but failed to complete the course. You enrolled in another full-time course in August 2013, however because of the mathematics involved in the casework, you ceased attending. You obtained employment in September 2013 as a sales representative with
a company which sold car services for Midas, however quit that job in December 2013. You did not say why.
78 At the time of that report, the author observed you had previously been sentenced to four community-based orders, remanded a total of ten times and also sentenced to two Youth Justice Centre orders, with one cancelled due to re-offending.
79 At the time of this report, you presented with a range of risks, including serious offending and substance use issues. That continues to concern me. At that time, you expressed to the author an awareness that your actions put the community and yourself at risk. I add that did not deter you from your offending before me.
80 There was an earlier Children’s Court Clinic report ordered on 24 August 2011, relevant to offending then committed by you between July 2010 and July 2011, when you were 14 years old. A number of informants (briefs of evidence) were involved. Reference was made to you at one stage re-offending whilst on probation and, as a result, being remanded on 20 June 2011 for eight days.
81
There was a further court report before me relevant to offending between July 2010 and August 2011. Amongst the many charges for which you were then before the court, were violent threats, including threats to stab and kill
a policeman in February 2011 and an attempted robbery in May 2011. Further, you were then involved in a violent incident in June 2011, when with several associates. You and they outnumbered a victim who was struck to the head by you with a black torch, causing a laceration to that victim’s ear. As I have stated, you are not to be re-sentenced for this offending by me, however your criminal history, including specifically that for violence, is a relevant sentencing consideration.
82 At that stage, you were also reported as presenting with some clear indications of insight, particularly in the capacity to track shifts in your feeling states and respond to those adaptively. It would, however it seems to me, be that your insight is not to the extent that you do not re-offend in a violent manner before me.
83 Further details were provided regarding your background and history. Reference was made to an allegation by you of having been sexually abused when living in New South Wales when you were approximately 18 months of age, although the nature of your claims were unclear. It was noted your problematic behaviour had escalated as you moved into adolescence.
84 You described having a temper to the author. That is an understatement.
85 In Year 7, she has described an escalation of your problematic behaviour and at secondary school you were frequently suspended. You were often fighting with the other boys. Reference was made to you having witnessed extreme violence between your mother and her husband (not your father) for 15 years. The author referred to the offences relevant to the preparation of that report, having included you hitting someone when you were on Xanax and alcohol. You also referred to being ‘off your face’ for some of your offending.
86 At that stage, you said you would not offend again. Unfortunately you have. The author noted you had made promises to reform on prior occasions, and that you said “I’m not going stuff up again. I know I’ve said it once or twice before, I don’t want to stuff up. I want to be like every other kid”. Yet here we are again.
87 The author of that report of 21 September 2011, Dr Stephen Mihailides, thought you were one of the most insightful young people he had met. He thought you were good at tracing changes in your mental state, such as rising agitation. If that is correct, then it is short lived. He said you experienced some capacity for empathy and perspective taking, however the author noted, as do I, once released, the permanence and durability of your means of self-management would be tested. The author noted, as do I, you have had several lapses of judgment after prior promises to reform.
88 There was a further pre-sentence report, dated 21 March 2014, referable to offending of use and traffic cannabis, dishonesty and criminal damage offences, having occurred in October and November 2013. That offending occurred when you were living at your girlfriend’s house. It was also noted you had been involved in numerous incidents in custody, including assaults on other ‘clients’ and an incident involving a female staff member. The author noted, regarding that offending, you displayed some insight into the impact of your offending, however, your responses did not appear to indicate genuine remorse.
89 Again, reference was made to your family circumstances. Also, according to the report, you had engaged in a number of programs. That is, there have been attempts to rehabilitate you. It seems to date, to little effect.
90
Since you were sentenced to a 12 month Youth Justice Centre order on
5 February 2014, the author noted you had displayed opportunistic, impulsive and manipulating behaviour and presented as violent and difficult to manage.
91 There was further court report, dated 19 May 2014, relevant to dishonesty offending and assault with a weapon, having occurred on 7 November 2013. The author, Ms La Rosa, concluded you presented with a range of risks, including serious offending and difficult behaviours. As at the date of that report, you were continuing to exhibit opportunistic, manipulative and at times violent behaviours.
92 All these reports provide assistance to me when assessing your prospects of rehabilitation.
93 Mr Purcell said you were currently in a relationship with Hope McCamley, with a son of that relationship born in mid-2016. Mr Purcell submitted you wanted to establish a connection with your son and play a part in his life. Time will tell. Mr Purcell submitted that relationship was ongoing and intervention orders previously in place had lapsed. Department of Health and Human Services were currently involved in relation to your son.
94 The victims of your offending have suffered considerably in the manner described in their victim impact statements. I received a victim impact statement from Mitchell Allsopp, sworn 5 September 2016. He said he was just trying to stop trouble and trying to leave. As a result of the punch and kicks to his head, his jaw was broken in two places. He had grazes and cuts to his face and nerve damage. He had surgery to repair the breaks and there was also the removal of teeth. He could not eat anything, unless through a straw for six weeks. He was unable to exercise for very long, including over Christmas and New Year holidays. He missed a week of his apprenticeship and six weeks of his job as a lifeguard as a result of the injuries inflicted by you. He also had numbness and sharp pains in his jaw for about six months after the incident and only recently, that is since 5 September 2016, had been able to eat solid food.
95
There was also a victim impact statement from Monica Christopher, sworn
5 September 2016, and read into the transcript.
96 There had been a significant emotional impact upon her as a result of your offending. She had lost weight, lost confidence, was fearful of going to parties. She was scared to be alone, scared in case she saw the people who had hurt her that night. She had a lack of confidence, in particular relating to the loss of colour in her tooth. She suffered from a lack of sleep and had been unable to work some shifts. She felt insecure, had mood swings and had lost her friends. Since this offending, her school attendances had been low, due to her anxiety and being tearful and having headaches.
97 She had constant nightmares about your offending and was financially stressed. She was unable to pay for her tooth repair.
98 She referred to constant pain, as at 5 September 2016, through her tooth. Her tooth was darker, hurt her every day, especially when she ate hot and cold food. The tooth would eventually die. She had a brace on it for three months. She no longer smiled confidently, which affected her work, school and personal life.
99 Prior to your offending, she described herself as being an outgoing and confident person. Your offending had changed her physical appearance and her mental state. She was now uncomfortable, anxious and fearful, lacking confidence. She believed she would never forget the night of your offending.
100 Also relevant is the notion of social rehabilitation. Whilst in DPP v Toomey[1], his Honour Justice Vincent was there referring to victims of sexual offending, the principles then stated at paragraphs 17 and 18 also apply in this case (of course making the allowances for the different type of offending involved).
[1] [2006] VSCA 9
101 The effects upon a victim are a relevant sentencing consideration (s5 Sentencing Act 1991), but I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.
102 Mr Purcell relied also upon your disadvantaged background and the importance of rehabilitation, in making his submissions regarding the appropriateness of a Youth Justice Centre disposition.
103 Turning to your disadvantaged background, such is relevant to sentence. In Hogarth[2], the court referred to disadvantaged background and the likely lifelong impact of it. See also Bugmy v The Queen[3], Scott v The Queen[4], DPP v Terrick & Ors[5] and recently in Ellis v The Queen[6].
[2] (2012) 37 VR 658
[3] [2013] HCA 37 at [43]
[4] [2013] VSCA 347
[5] [2009] VSCA 220 at [45]-[47]
[6] [2015] VSCA 320
104 Mr Purcell also urged your age at the time of your offending (19) and at sentence (20 nearly 21) was relevant and it is. Such is clear from decisions including R v Mills[7]. In R v JED[8], Justice Kellan referred to the decision of Court of Appeal Batt JA in Mills, in which his Honour expressed his approval of the proposition that:
[7] [1998] 4 VR 235
[8] (2007) VSC 348
"The youth of an offender should be a primary consideration for
a sentencing court and that usually rehabilitation is far more important than general deterrence."
His Honour pointed out, however, that that was particularly so in circumstances where a youthful offender is a first offender, which is not the case with you.
105 As Kellan J noted, referring to R v Bell[9] and Court of Appeal Batt JA who said:
"The general propositions accepted in Mills are just that, general propositions. They are, as their terms show, not of universal or automatic application. True it is that they may apply not infrequently, but each case depends upon its own circumstances, including, it is to be noted, the circumstances of the offence as well as those of the offender.”
[9] [1999] VSCA 223
106 In Connolly[10]¸Coldrey J referred to Mills and stated that:
“No doubt a sentencing court will endeavour to implement these principles as far as is possible in sentencing a youthful offender, but they are not to be regarded as immutable. In the context of the variety of fact situations and offenders with which courts have to deal, such factors as the seriousness of the offence or offences committed and the just punishment therefore, the need for deterrence, specific and general, the offender's prospects of rehabilitation and the need to protect the community, may need to be reflected in the sentence imposed.”
[10] [2004] VSCA 24
107 That was confirmed in Gosland and McDonald v The Queen[11]
“It is apparent from His Honour’s sentencing remarks that he paid close attention to the principles essayed in R v Mills. As His Honour observed, however, the premium which is placed on the rehabilitation of youthful offenders must be balanced against other sentencing considerations, such as general and specific deterrence, denunciation and community protection. More specifically, as Batt JA explained in R v Lawrence, the general propositions enunciated in R v Mills are just that, general propositions and are not to be treated as if they were of usual or automatic application. Each case depends on its own circumstances, including the circumstances of the offence, as well as of the offender. That is particularly so where a sentencing judge is required to deal with a case of gratuitously violent offending in a public place by youthful offenders under the influence of alcohol or drugs, especially whereas here, the offender has had previous opportunities to rehabilitate through community-based orders and Youth Justice Centre orders and effect has thumbed his nose to those chances. Additionally, as Batt JA said, the benefits that flow to youthful offenders diminish the older they become.”
[11] [2013] VSCA 269
108 In R v Tran[12], Court of Appeal Callaway JA said:
“The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that, in the case of a youthful offender, that rehabilitation is usually far more important than general deterrence. But the word I have italicized, and that is the word "usually", is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important.”
[12] (2002) 4 VR 457 at [462]
109 Mr Purcell submitted, taking into account all matters in mitigation of your sentence and the seriousness of your offending, the appropriate disposition would be Youth Justice Centre detention.
110 Mr Purcell urged that you were still impressionable, immature, and likely to be subjected to undesirable influences in an adult prison. He further urged that from a therapeutic perspective, the various issues you had could be addressed through services provided by Youth Justice and also the youth parole system.
111 Mr Purcell referred to you having been in protection whilst in adult prison, due to a number of incidents between yourself and other prisoners, in which you have apparently been assaulted. I have taken that into account.
112 Beyond date of sentence, of course, I am unable to predict whether you will remain in protective custody or be in mainstream prison. In R v Males[13], Court of Appeal Whelan J stated where a prisoner is being held in protective custody, that is a factor relevant to sentence:
“The extent to which it is to be taken into account in the person’s favour, depends upon the source of the need for protection and upon the particular circumstances and likely duration of the protection.”
[13] [2007] VSCA 302
113 Further, his Honour Court of Appeal Kellam J in Males stated:
“The circumstances of protective custody can vary significantly. There are prisoners in protective custody in high security prisons … . There are prisoners in protective custody which cater entirely for prisoners with
a protected status. It is incumbent upon counsel for both the prosecution and defence to provide such information as is available, as to the true circumstances of the protective custody and the actual hardship such custody is likely to cause, if a submission is made before a sentencing judge that such a matter is relevant to the sentencing task faced by that judge.”
114 Whilst you are currently in protection whilst on remand and a matter I take into account, it is unclear what your status will be following sentence. It may be that you are managed in the prison with prisoners with similar offending. Whilst protective custody, as I have said, is a relevant sentence consideration as to sentence, your future status as following sentence, your future status is unknown.
115 The authorities will no doubt be aware of the need or otherwise for you to remain a protection prisoner. That is out of my hands, but I urge the authorities to be aware of your age and vulnerability.
116 Whilst there are, as we know, ‘youth units’ in adult prison, I want to make it clear I do not know where you will be sent within the prison system to serve your sentence, and I do not assume you would even be in a ‘youth unit’. Such decisions are not mine to make or encourage, and are ultimately matters solely for the prison authorities.
117 Regarding your rehabilitation prospects, given the past attempts to assist your rehabilitation through various court dispositions and counselling, there has been little, if any, success. I am mindful you are still relatively young and that your rehabilitation remains important. Whilst I have real concerns about your rehabilitation prospects, when sentencing you however, I must seek to maximise your chances of rehabilitation, as they may be.
118 Mr Albert, who appeared on behalf of the prosecution, referred me to Kalepo v The Queen[14]. That involved an offender who punched the victim to the face in similar circumstances (although not identical) to that before me. That is,a punch to the head, the victim falling to the ground, being unconscious for a time with a fracture to the jaw. Kalepo had a ‘limited prior criminal’ history. He was 20 years of age at the time.
[14] [2016] VSCA 220 at [34]
119 In referring to Kalepo, Mr Albert submitted this recent authority concerned offending such as yours, involving young men engaged in violent offending, in particular, random street violence. The need for deterrence would moderate the principles in Mills, he urged.
120 In Kalepo Mr Albert referred to paragraph 34 and the reference to DPP v Lawrence[15], in which Court of Appeal Batt J, made it clear:
[15] [2004] VSCA 154
"That youth rehabilitation must take a 'back seat' to specific and general deterrence, where there are crimes of wanton and unprovoked viciousness involved. That is particularly so, because offending of this nature, which is characteristic of youthful offenders, is so prevalent.”
That, in my opinion, has been very much your way of your life for the past few years.
121 Mr Albert also provided a list of comparable cases, which I have read, and I discussed those briefly with him. He also provided sentencing snapshots, relevant to Charge 1. It is very difficult, as I discussed with Mr Albert, comparing cases factually, as facts vary enormously case to case, as do all matters in mitigating of sentence and personal to an offender. Also, the sentencing snapshots, while they clearly have a place within the sentencing regime, there are limitations to them.
122 Mr Albert submitted the only appropriate disposition was that of imprisonment.
123 I also raised with both counsel, the recent decision of The Queen v Kilic[16] and asked for some brief written submissions relevant to current sentencing practices.
[16] [2016] HCA 48
124 In Kilic, and I discussed this with counsel this morning, the court in having regard to current sentencing practices, reiterated that comparable cases are a broad guide and do not limit the sentencing discretion. Sentencing practices for a particular offence or type of offence may change over time, reflecting changes in community attitudes to some forms of offending. The range of sentences imposed in the past does not fix the boundaries with which future sentences must be passed. No submissions were filed by Mr Purcell in that regard, although nothing further was said either, except Mr Albert referred me to Sherwani v The Queen[17], particularly paragraphs 26 to 27, which also includes annexed, a table of cases relevant to the offence of recklessly cause serious injury.
[17] [2017] VSCA 26 [26]-[27]
125 I turn to the offence of recklessly causing serious injury. Such is regarded as serious offending by the courts, particularly in circumstances similar to your offending, as stated in Kalepo. See also DPP v Purcell[18] and those referred to in the Comparable Cases chart tendered by the prosecution and those annexed to Sherwani. Again, of course, allowing for factual differences between the facts and the offenders in that case and your case and the case facts and matters in mitigation and personal to offenders.
[18] [2014] VSCA 308
126 As well as matters personal to you, including your prospects of rehabilitation as I find them to be, I must also take into account such matters as deterrence, especially general deterrence, which of considerable importance in a case such as this, as the authorities have made clear.
127 There is also the need for specific deterrence when sentencing you, given your extensive and relevant criminal history, i.e. involving offences of violence and violent type offences. You have spent numerous periods of time in detention and also some time in prison. Nothing has deterred you from further offending.
128 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 have little confidence that you will not re-offend. However hope you will be rehabilitated and thus reduce the need to be concerned about the protection the community.
129 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
130 In my opinion, detention in a Youth Justice Centre is not appropriate in all the circumstances of this offending, having considered the gravity of your offending and all matters personal to you and in mitigation of sentence.
131 I sentence you as follows.
132 On Charge 1, you are convicted and sentenced to 4 year’s imprisonment.
133 On Charge 2, convicted and sentenced to 10 months’ imprisonment.
134 I direct that 4 months of the sentence on Charge 2 be served cumulatively upon Charge 1.
135 That results in a total effective sentence of 4 years and 4 months’ imprisonment, and I direct that you serve a period of 2 years and 6 months in gaol, before you are eligible for parole.
136 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to a term of imprisonment of 6 years and 6 months' imprisonment, with a non-parole period of 5 years.
137 Pursuant to s18(4) Sentencing Act 1991, I direct you have spent 172 days in custody, up to and including yesterday, 27 February 2017, by way of pre-sentence detention for these offences and I direct that that be entered into the records of the court.
138 Now, are there any other orders?
139 MR ALBERT: No, Your Honour.
140 MR PURCELL: No.
141 HER HONOUR: So there was no 464s, none of that?
142 MR ALBERT: No, Your Honour, there wasn't.
143 HER HONOUR: That is fine. Now what about the PSD, was that correct.
144 MR ALBERT: Yes, Your Honour.
145 HER HONOUR: Does anyone want help with the maths? It is all pretty straightforward, isn't it?
146 MR ALBERT: Yes.
147 HER HONOUR: So yes, it is - just to make - 172 days up to and including yesterday, 27 February. All right, anything further in the matter?
148 MR PURCELL: No, Your Honour.
149 HER HONOUR: No? Remove the prisoner. Thank you.
150 MR PURCELL: As Your Honour pleases.
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