Director of Public Prosecutions v May-Jordan
[2016] VCC 1236
•19 August 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL DIVISION
CR-16-01186
Indictment No.G10756982
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Jeremy MAY-JORDAN |
---
JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 August 2016 | |
DATE OF SENTENCE: | 19 August 2016 | |
CASE MAY BE CITED AS: | DPP v May-Jordan | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1236 | |
REASONS FOR SENTENCE
---
Catchwords: Intentionally cause serious injury, theft.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Triandos | Office of Public Prosecutions |
| For the Accused | Ms McCrickard | VLA |
HIS HONOUR:
1.
Jeremy May-Jordan, you have pleaded guilty to one charge of intentionally causing serious injury and one charge of theft. The first offence carries a
20 year maximum term of imprisonment. The other charge a ten year maximum term.
2. You are only 19 years of age and you have a short criminal history but it is undoubtedly relevant to my task.
Facts
3.
The details of your offending are set out in Exhibit A, which is the written summary of prosecution opening dated 17 August 2016. Your counsel,
Ms McCrickard, told me that this was an agreed statement of facts. So I am going to incorporate that agreed summary into my reasons for sentence and that exhibit, Exhibit A, will be on the court file and available for inspection. In those circumstances then I see no need to fully restate the sentencing facts here.
4. On any reading of the summary, it is clear that you were involved in a very serious attack. You know that. You saw your victim and some of his friends and you were angry as you believed they had spread some rumours about your girlfriend. You believed that one of them had tried to, as you said, ‘pick her up’ some weeks earlier. You followed them through the plaza and into the McDonalds. Your girlfriend left you after the two of you had had a disagreement. As you say in your letter to the Court, and these are your words, “she tried to stop me. I wouldn’t listen.” That is Exhibit 3.
5. You stayed in the McDonald's, you observed the other group who remained within that outlet. You were seen to take out a knife whilst seated in the restaurant, at one point actually secreting it up your sleeve before then putting it back into your left back pocket. You kept observation of the other group and ultimately you followed them out of the restaurant when they left. It was broad daylight. 3.35 pm, and you approached the group, asking for the time. They told you the time. You then addressed your victim, asking him what his name was. You knew his name. The complainant shook the hand that you held out to him and you then produced the knife and without saying another word, you stabbed him to the right, upper arm. You then ran from the scene.
6. Not a word had been spoken by you of there being any grievance. The summary sets out the nature of the injuries, and that is at paragraph 13. This was a serious injury caused by the use of a knife, a knife you should not have been carrying and certainly should never have produced, far less used in the way that you did. You severed an artery causing major blood loss and nerve and muscle damage. So serious was your victim's condition that he was airlifted to Melbourne for surgery to repair the brachial nerve that had been severed as well as to deal with various nerve and muscle damage. There are some still images that have been taken from the CCTV cameras in the area. They are contained in the depositions and no-one needed them tendered on the plea. They show your movements. You were spoken to by police on the day and you did make detailed admissions to the police and you have been in custody since.
Victim impact
7.
Your victim has made a victim impact statement and that was marked as
Exhibit B on the plea. I have read it again since yesterday. He is a 16 year old boy, that is the starting point, one who was attacked and attacked in this startling fashion without any notice, without any warning, without any sense that what was about to happen would happen. How could he possibly think that that would happen? He went from probably, as 16 year old boys tend to have, not having a care in the world to thinking he was going to die. Indeed, it is clear enough that there was some serious concern held as to whether he would lose his arm. That was raised in the interview with you when you were interviewed that very day. Here we are, now five months post-offence and what is his position now?
8. Well, he still cannot go to his work placement, something that is important for him he cannot do. He cannot play football any more, something he enjoyed doing he can no longer do. He cannot ride a motorbike, he cannot camp, he cannot deliver newspapers. All because of you. It was not his dominant arm. There has been very significant impact. He is finding it hard at school and did not expect that it would have the sort of impact it has had in terms of just simple things, even something as simple as tying up shoelaces. That is because his fine motor skills have been compromised.
9. What else do 16 year old boys look forward to? They look forward to driving and getting their L plates and learning to drive. He cannot drive. He was on his L plates. He speaks of weekly hand therapy and attendance upon a physiotherapist and counsellors. He is understandably worried that his injury may impact upon his job opportunities. How could he not have that concern in his mind? He does not know what his ultimate level of functioning will be. He gets angry, he gets frustrated, he no longer feels safe and of course he would like to be back in the position he was in prior to your crime. I am sure you would as well actually, and the fact is neither of you can be. He did not choose to be your victim but you chose to make him one.
10. The updated report (Exhibit C) speaks of fortnightly physiotherapy and weekly occupational therapy. He is still very young. He cannot know with any real precision now how this crime will continue to impact into the future. He will certainly never forget this day and this crime and I am required to take into account the significant impact of the crime that you have chosen to commit upon him.
Submissions in mitigation
11. Ms McCrickard, who appeared for you on the plea, raised a number of matters in mitigation. She relied upon:
· your co-operation with police, your guilty plea and the early stage at which your plea was entered;
· the presence of remorse;
· your relatively short history before the Courts;
· the presence of family support and your completion already of some courses and programs in a youth unit in prison, suggesting that you had strong prospects of rehabilitation;
· she made some submissions as to your motivation behind the offending but conceded that it was an unprovoked assault occurring without any warning in a public location with a weapon.
She conceded the serious nature of the offending and the inevitability of a substantial term of confinement but argued that it might be open to impose a substantial prison term and then have you released in due course onto a community corrections order, or failing that, either a term of detention in a Youth Justice Centre or a term of imprisonment and a non-parole period. There is a seeming inconsistency in those submissions in that her principal submission was for this Court to impose an adult term of imprisonment in conjunction with a community corrections order. She told me that you had been in a Youth Justice Centre before under sentence, and you did not wish to return to one, that you are currently housed in the youth unit or the Penhyn Unit at Port Phillip Prison, that you are doing well there and you would wish to actually remain there.
Crown Submissions
12. Given the concessions that were made by your counsel, Mr Triandos, did not really have much cause to make submissions on behalf of the Director of Public Prosecutions. He submitted that which was obvious, that the offending was serious and with many aggravating features including, but not limited to, your being on bail at the time of the offending, but he, on behalf of the Director, submitted that it would be open either to impose a prison term and a lengthy community corrections order or deal with you by way of a head sentence and the fixing of a non-parole period.
Background
13. I will turn briefly to your background. I have got no reason not to accept what I was told of it by Ms McCrickard so see no need to restate it all now to you. You know what your background is. She provided some detail in her written outline, which has been marked as Exhibit 1, and that is supplemented with much detail in the report of the psychologist, Jeremy Parker.
14. You are now 19 years of age, so born on 23 May 1997. So you were only 18 at the time. Very young. You grew up in Traralgon. Your parents separated when you were very young and your mother re-partnered. You moved out some years later to live with your father but that was not a success. You had a falling out at one point at least in 2013 and left home and I was told that it was from that period that you were involved in some serious enough criminal offending.
15. You were educated to the start of Year 11. Your criminal record is not as bad as it would suggest as for some reason various alternative charges were not withdrawn in the Children's Court and you certainly pleaded guilty to all of them. Undoubtedly though your criminal record is relevant. You have on one occasion, so not two, as the record would suggest, you have on one occasion caused serious injury to another in a criminal setting in what was a nasty joint attack and you have been involved in a robbery and armed robbery. The summary of that offending, and I am talking about the offending that was dealt with at the Children's Court back in June 2014, that is marked as Exhibit 6. It makes for pretty sobering reading.
16. You have also previously been dealt with for robbery on an earlier occasion, and there has been one earlier appearance still but for a different style of offence. In any event, in June 2014 you received a 12 month term of detention for that serious offending and you were subsequently released on youth parole. That offending occurred in the context of, it would seem, disengagement from school and from your family and association with negative peer influences. Drugs have been a big problem for many years though I am told that you have detoxed whilst in custody. Youth Parole was not a great success I am told and that you got back onto the drugs reasonably swiftly. There are some offences outstanding. I have been told about those but I pay no regard to them at all. It is firstly not yet clear whether you are pleading guilty or not guilty, so it Is not right for me to take them into account in that setting anyway. The only reason I mention them is that you were on bail on the day you committed the offences for which I must pass sentence, and that is something of worry that you have committed this serious offence or intentionally caused serious injury whilst on bail having been previously detained for causing serious injury in the past.
Psychological report
17. Your counsel relied upon the report of Jeremy Parker, which is Exhibit 2. She made plain she was in no way relying upon any of the principles from the case of Verdins v R. There is nothing in that material that realistically explains your offending or reduces your moral culpability. You speak to Mr Parker of your anxiety and feelings of being overwhelmed and reacting with anger and loss of control. This is your report to Parker and he reaches a diagnosis of anxiety disorder.
18. It is not suggested that I can find that this is what occurred on this day or that the offending has any realistic connection to any mental health condition commented upon by Parker. The report is still of value. You have had, obviously, some issues in the past. It is not clear to me what they are or whether they are produced by drug use or have existed independently of drug use or if there is some interplay between the two, as is often the case. You are on medication now.
19. I have no doubt at all that you knew what you were doing was serious and that you knew what you were doing. Of course you did. You pleaded guilty to intentionally causing serious injury. You intended to cause serious injury and you did.
Guilty plea
20. I turn to the matters raised in mitigation and the first of those is your guilty plea. You spoke to the police, you made, as I say, quite full admissions and you pleaded guilty at what I will treat as the earliest opportunity. Witnesses, including, of course, your young victim have been spared the experience of coming to court to give evidence and be cross-examined. That can be a traumatic event for any person. It can be more traumatic for a youngster and at least you have spared your victim and his family that experience. So by your guilty plea the community has been spared the time, the cost and the effort of a contested hearing, either in this court or, for that matter, in the Magistrates’ Court. So there is a strong utilitarian benefit that applies to a person pleading guilty. You have taken responsibility for your crimes and you have in these ways then facilitated the course of justice. So I will pass a lesser penalty because of your co-operation, because of your guilty plea and the early stage it was entered.
Remorse
21. Your counsel argued that you were remorseful. She pointed to some admissions made by you in the interview as well as your own letter of apology. You have also pleaded guilty and at the earliest stage. I can tell you not every plea is indicative of remorse. Some are and some are not. Ultimately, I am prepared in fact to find the existence of remorse here. There is really not much more you could do than you have done, having committed the crime, and you committed it, you have then done about all you can do to bring the matter to an end. You have made admissions to the police, you have pleaded at very early stage, the earliest in my judgment, and there is that letter that you have written, and it is a letter that I do not believe is written entirely out of self-interest at all actually. In fact, in my judgment, it is quite an impressive letter, both in what it says about the offence but also your insight into the event and the hopes that you have for the future. So I do not scoff at it by any stretch of the imagination. In any event, in that letter you are apologising for your crime. You were coming very close to that even on the very day of the event when dealing with the police, talking about how it just got out of hand, and I believe you actually mean it. So I do take your remorse into account in mitigation.
Youth
I turn then now to your youth. As I say, you were only 18 when you committed these crimes. You were, and are still, a young offender, as that is defined. I do not lose sight of that fact. As I have said in another case earlier today, youth is ordinarily a very important factor in the sentencing exercise, and for good reason. Young people are more likely to commit errors of judgment or to be impulsive, they are more likely to be rash and they do not always, or even often, consider the consequences. They are not fully developed, even if they think they are, even if they appear to be, they are not. They can lack insight, they can lack judgment and the law says they are less culpable as a result and, importantly, because they are young, they are far more capable of being rehabilitated, far more amenable to change and generally less entrenched in their ways.
So rehabilitation is a very important matter ordinarily in any case, not just in relation to a young offender, but it has a tangible and strong added emphasis in the case of a young offender, especially a first offender. Well, you are by no description a first offender but you are young and you have a relatively short, though undoubtedly serious, criminal record. The fact is that rehabilitation of a young person serves also to protect the community. Those in these courts know that prison can and does often enough derail that whole process. It can corrupt and does corrupt rather than rehabilitate, and so it is as plain as day that when it can be avoided, well, of course it must be. The benchmark for sending a young offender, especially a first offender, but any young offender, to prison is a high one indeed and for very good reason. Young people can be impressionable, they can fall under some most unfortunate and undesirable influences in an adult prison.
So it is for these and very many other reasons that youth is ordinarily a very powerful factor indeed in the sentencing process, and though the popular press may not recognise this fact too often, they generally do not, the community does in fact have a sizeable stake in the rehabilitation of any young offender and so do the courts. So ordinarily then, less weight is attached to general deterrence, less weight is attached to punishment, less weight to specific deterrence and a greater emphasis placed on rehabilitation.
These principles that are set out in very many cases, including the cases of Mills, including the case of Azzopardi, they do not apply equally in every case coming before the court where there is a young or youthful offender. Some cases involving a young or youthful offender, even a youthful first offender, involves such a person being sent to prison. The weight to be given to youth must necessarily vary from case to case, from crime to crime. The more serious the crime, the more likely it is that greater prominence will be given to deterrence, to protection of the community, to denunciation and punishment. As the level of seriousness of the criminality increases, there is a corresponding reduction in the mitigating effect of youth. It is a rare case indeed where youth as a consideration is extinguished, and this is certainly not such a case.
Your youth is not unimportant, I do not ignore it, I bear it constantly in mind. However, you have committed a serious offence, intentionally causing serious injury, and you have done so in the context of having a relevant criminal history and I must necessarily attach less weight to your youth and rehabilitation in all of the circumstances of this case. Other sentencing factors must also be given greater weight and your counsel concedes that. She concedes the prevalence of the carriage of knives by young people in this community, and you both carried and used one in a most startling fashion. I do not lose sight of your youth but I am afraid it is not the only matter that I have to consider. Far from it.
Rehabilitation
22. I turn now to your prospects of rehabilitation. Your criminal history is, as I say, relatively brief but it is a real worry. The matters dealt with in June 2014 involved a consolidation of a variety of unrelated offending occurring on a number of different dates and most of it serious. You have at a young age been involved in some very serious criminal conduct. The joint attack giving rise to the prior for serious injury was very nasty indeed. Another unusual feature is, it would seem, that most of your prior conduct occurred in the very same area where this offence occurred. Your history is undoubtedly relevant though of course you do not fall to be sentenced by me for any of that conduct a second time. You do have some family support and a girlfriend. You are spending your first time in an adult prison and I am pleased to see that you have the good fortune to be in the Youth Unit and you are doing well there. You are doing the equivalent of Year 11 by way of the VCAL and also working in prison and you have spoken in your letter, Exhibit 3, of your hopes upon release. Going to TAFE, getting a job, having a family at some stage, and upon release you will return to your mother's. You have also demonstrated some insight in your dealings with Mr Parker and you have done some courses and programs whilst in custody, as Exhibit 5 attests.
23. You are also young, as I have said already, and young people can actually change. You can change. It will take a lot of work but you can. It is hard to assess you prospects, sitting where I am sitting now, as to where you might end up and as to your prospects of rehabilitation, but I can tell you it is certainly far too soon to even consider writing you off as a lost cause. You are not. Again, though, it is a worry that neither bail nor a past custodial sentence or release with the structure of youth parole seems to have impeded your commission of this serious offence. I hasten to add that you were not on parole at the time, but there is no suggestion that you were in any way significantly affected by drugs or alcohol and unlike the other offences committed by you, it can have nothing to do with peer dynamics. You were on your own. It was a startlingly use of a weapon, a knife, an attack that was in no way signalled to the victim. I believe you have quite realistic prospects of rehabilitation but it will require some considerable work by you now in custody and before your ultimate release and then into the future upon your release, and it will be conditional upon you abstaining from drugs and obviously from negative peer influences. If you continue using drugs as you did upon your last release from custody you will have no hope at all, it is that simple. You will have no prospects of rehabilitation. I am prepared to find that you have quite realistic prospects of rehabilitation.
Current sentencing practice
24. I must take into account current sentencing practices, and I have considered, amongst other things, the Sentencing Advisory Council’s Snapshot for the crime of intentionally causing serious injury, that is Snapshot 187 of 2016. It discloses a median sentence of four and a half years, a most common sentence of between four to five years and an average of five years and two months in the most recent year of that snapshot, 2014/15.
25. I have looked also at the Judicial College of Victoria sentencing manual cases dealing with intentionally causing serious injury. Ms McCrickard referred me to a case of Sianas 2016 VSCA 84 as providing an example of an offender dealt with by way of a combination order for crimes of intentionally causing serious injury. Well, that is all it is. It is an example of that having occurred. I do not believe that that person had a prior appearance for having caused serious injury, nor do I believe that he had been previously detained under sentence. He clearly had a significant history, but that case is not a precedent and the Court of Appeal in that case commented themselves on the moderate nature of the prison term actually selected by the judge, and the appropriateness of selecting adult imprisonment over youth justice detention. In any event, there is never one right or correct sentence. One could as easily find cases where a young offender has received a substantial term of imprisonment, especially in a setting where a knife was employed and where the prevalence of such carriage amongst young people is a serious factor, as your counsel concedes it is here.
26. This sort of statistical material has inherent limitations and so too do other cases. Parliament has spelt out the seriousness of the offence of intentionally causing serious injury. It has got the maximum that you have heard described.
27. Sentences imposed in other cases, they are not authorities, they do not provide any answer to the sentence to be imposed in this case. No two offences are ever the same, nor any two offenders but I have to pass an appropriate sentence in this case, your case.
Offence gravity
28. I must pay regard to the gravity of the offences before the Court. I have scarcely uttered a word about the theft and barely will. I will simply say it was not a crime of any great seriousness and is before me purely as a result of the other matter on the indictment. I will say nothing more about it.
29. Your counsel conceded at the outset though that the intentionally causing serious injury was extremely serious offending. She was right. She spent a bit of time, maybe too much, in my view, trying to place before me your motivation for the offending. She prefaced the remarks by saying that nothing she would say would be to in any way attack the victim. She then spent a considerable amount of time raising matters as to his behaviour, his claimed behaviour, and the behaviour of members of his group. Well, the prosecution summary spoke of your beliefs in paragraph 6, the things that motivated you. Your belief, whether it is right or whether it is wrong, your belief that they had been spreading rumours about your girlfriend and your belief that one of the group had tried to, as you put it, pick her up. However, your counsel in the course of the plea, expanded that to at one point suggest that it was your direct victim who had posted something on Facebook and who was the instigator of some untoward remarks and that there was some sense of threat in your mind. There was simply no material before me as to that fact and, indeed, that is not what you said on the day of the police the interview. You were plainly raising your reasons for acting in the way that you did, raising your concerns with the police but you were speaking of someone other than the direct victim being the person you had the major gripe with. This became a distracting and, to my way of thinking, an unhelpful portion of the plea. Far better to have said very little as to this matter, in my view, but I suppose it is just my view. Unquestionably you felt there was some issue or you would not have acted to follow and then to seek out the group. Who knows what had actually been said or actually written if anything and by whom? At worst, some comments about your girlfriend or someone else expressing some views or having some wish to team up with her? Big deal.
30. Your counsel went on to suggest that this offence occurred without any premeditation at all. That cannot be right when one looks at your acts and the lead-up and the actual claimed motivation. The fact that your girlfriend, as you put it, tried to stop you but you would not listen. Far from exploding, you sat back and watched the other group. If your motivation was as described, that is concern about some remarks or comments, well, of course you would have been angry when you saw them, and you say that you were, but you did not confront them. You followed them. You had a knife. Heaven knows why but you had one. You got it out and at one point you put it up your sleeve. You followed them when they left the restaurant. They left. You left. You approached them after they left and there was nothing occurring at the approach to send you off the deep end or to cause any escalation. You connected with the group with the pretext of asking for the time. You then asked the name of the victim. You knew his name, Mr May-Jordan. You said as much in the interview and you nominated him as not being the person you were angry with.
31. Having asked his name you held out your hand to shake hands. Why? Well, the answer is provided by your action then. You immediately stabbed him. Not one word about your feelings or any grievance. So you observed, you followed, you approached, you engaged. The engagement was with a knife and with no event immediately preceding its use explaining the production or the use of the weapon by you. It is plain enough, as plain as day, that there was a desire to confront them. It is inescapable that you have had some plan to use the knife in some way. I am satisfied of that beyond reasonable doubt. That is not to say this was all precisely mapped out. Of course it was not. I am not suggesting that you had it in advance to seek some person out, or that you went to the restaurant with it prior to that day you put it in your pocket to commit a crime, that is not what I am suggesting at all. I am not suggesting you were carrying it on the day for this purpose, or that there is anything resembling long term planning but at the scene there was some plan afoot to confront once you fell into step. I have no doubt about that at all.
32. The fact is even without any planning, if I was to take the view being raised by your counsel, and I do not, even on that view you must have got out the knife and why, given the conversation or the events at the scene as I have described? "Have you got the time? What's your name?" Shake hand, stab. The point I am making is you used the weapon in the way that you used it. You had to have it out, you had to have it available. You did, and it was an attack that was totally unannounced, one without any warning, and a highly dangerous one at that, one where you intended to cause serious injury and you succeeded. You could have killed this young man. You could have killed him. This offence of intentionally causing serious injury was not, in my judgment, totally spontaneous. I am satisfied of that beyond reasonable doubt. Your victim was unarmed, he would not have had the slightest hint of any attack, much less an armed attack, about to take place and, as you know, your crime has had a sizeable impact upon him.
33. Now, as serious as the physical attack was, as serious as the impact is upon him, the extent of serious injury, though obviously serious enough here, of course it is, is nowhere near the worst category of injury seen by the Court. Your victim has not been left with the catastrophic, truly life altering disabilities that are seen, I am afraid, all too commonly, such as, for instance, paraplegia or brain injury. Those impacts are, I regret to say, seen often enough by the courts, and they lead to a lifetime of dependence upon others often. That is not the nature of the serious injury inflicted by you, but you intended to cause him serious injury. You used a knife to do so and there has been very significant impact from the serious injury caused by you and no disconnect at all between the intention and the serious injury actually caused. You stabbed him. You had a knife. You used it and it is very hard to judge to a nicety the nature of injuries likely to be caused when such a weapon is wielded. So this ranks as a relatively serious example of what is always a serious crime by a young man with recent and relevant past criminal history.
Sentencing considerations
34.
I have taken into account all the submissions made and the exhibits tendered by your counsel. I have not referred to every document that has been tendered but I have had regard to them, including the letter from the prison mentor,
Mr Patterson. As I said earlier today in another case, sentencing is never an easy task. It is always more complicated when dealing with a youthful offender or young offender. There are very many matters which the court has to take into account, including the maximum penalties and current sentencing practices. I have to pay regard to the impacts of your crime and there are a host of other matters that must take into account. I must punish you justly and proportionately and I must denounce your conduct. It really was quite extraordinary violence directed at this boy and you really should be quite ashamed of yourself.
35. I must pay some regard to community protection. I cannot ignore your prospects of rehabilitation. Of course I have to give them some weight, and I do, and I believe, as I say, that you have realistic prospects of rehabilitation, but I must deter you as well, and that is an important feature here, given the nature of this crime and the past offending before the Court and the fact that you were on bail at the time. Specific deterrence, that is deterring you, is a significant purpose of sentencing here, given the nature of this attack and your criminal history. You really must get it into your head that you just not free to engage in acts of violence. Courts have tried to deter you with limited success. I will try again.
36. This court also has to deter others, not just you, but others who might be minded to commit this type of serious offence. That is a highly relevant consideration here given the nature of the attack, the use of the weapon and the setting. The Court must send a very loud message to those who may think that the carriage and use of weapons is somehow open.
37. The Court must make plain to others that conduct such as yours will be dealt with sternly by the courts. It just is not conduct that can or will be tolerated in a civilised society. The court must send the message - and people must understand that serious violent conduct committed with a knife in a public place will be met with substantial immediate imprisonment. That is the message that must be sent to all would be perpetrators of such violence.
Compensation
38. Application was made for a compensation order relating to the second charge on the indictment, which is the theft of the couple of bottles of the Smirnoff vodka and there's no issue taken with the making of this order in favour of Liquorland and pursuant to the provisions of s.86 of the Sentencing Act I am satisfied that there has been conviction for the offence of theft, that Liquorland have suffered loss and that I order that you pay to Liquorland the sum of $60 by way of compensation. I have signed that order.
Boulton
39. Your counsel was arguing that it was open to impose a term of imprisonment and to place you on a community corrections order at the end of the sentence. Sending any person to prison is a matter of last resort for any court. That has always been the position. I must not confine any person unless the purposes for which sentence is imposed cannot be achieved by a lesser penalty. For instance here, a community corrections order either on its own or in conjunction with a prison term of up to two years.
30. Yet again I have been referred to the case of Boulton & Ors v The Queen [2014], a Court of Appeal decision that speaks of the change in the sentencing landscape brought about by this available disposition, that is a community corrections order that is now open in conjunction with a significant term of imprisonment being imposed at the same time. These dispositions are not some get out of gaol free card to be employed willy nilly for every crime committed by every offender.
31. That decision directs judges to re-examine their thoughts and wisdom as to when it is appropriate to actually gaol an individual. The Court of Appeal tells us the sentencing landscape has changed dramatically by virtue of this enactment and they say that it sometimes open to place a person on such an order, even for offending that might have been met previously with a substantial (medium) term of imprisonment, but there is a rider there, and the rider is this: if it is appropriate in the particular circumstances of the particular case.
32.
I have said more than once since that decision was delivered, indeed, I have said it now twice today, that the guideline judgment seems to have been misunderstood by many in the legal profession. I am not saying that
Ms McCrickard misunderstands it. She does not, but there has scarcely been a plea conducted in this court since the decision of Boulton was published where that decision has not been raised either directly or by implication, as though that decision somehow limits the court's discretion in the individual case before the court. It does no such thing. The reasons in Boulton were of a general nature. There is nothing in that case or in the guideline portion of it compelling a judge to reach a particular conclusion in a particular case. The Court of Appeal made that very plain enough in the decision itself, and made it plainer still in very many cases since, including the cases of Hutchinson, Scammel and McGrath and also a case of Thorpe 2016 VSCA 158, more recently earlier this year.
33. It is blindingly obvious that not every offender for every crime can or should be admitted to such an order. There are some crimes where the purpose of sentencing cannot be given adequate weight by the use of such an order.
34. There are some tensions existing in most cases really between the various purposes of sentencing. In this case the issue of your youth and rehabilitation, but also the serious nature of the offending, of the intentionally causing serious injury. There is obviously a need to adequately reflect denunciation, general and specific deterrence and punishment in any sentence selected by the court. So too community protection.
35. The Court of Appeal say that these orders can provide substantial general deterrent effect, they are able to provide specific deterrent effect and they are able to provide punishment. They can be punitive, and I do not doubt any of that.
36. There is a provision within the Sentencing Act s.5(4C) which prohibits the imposition of a sentence of confinement unless the Court concludes that the various purposes of sentencing cannot be achieved by a Community Corrections Order to which specified conditions are attached. So obviously a court has to pay careful attention to the purposes for which sentence is to be imposed and consider really whether they can actually be achieved by a Community Corrections Order, either on a stand-alone basis or one imposed in combination with a prison term of up to two years.
37. They have suggested that Judges ask a question, and that is a question we find ourselves posing frequently in this day and age. It is this:
"Given that a community corrections order could be imposed for a period of years with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence or the offender which requires the conclusion that imprisonment with all its disadvantages is the only option?"
38. Let me say I am entirely confident in the answer to that question. It would not be permissible merely to place you on a community corrections order for offending such as this.
39. There is just no question in my mind as to that fact. The first charge on the indictment is obviously just far too serious. I do not believe that such a disposition on its own could come even close to meeting all the relevant sentencing purposes and, indeed, your counsel concedes the inevitability of an immediate term. I regret to say that the offending demands that you serve a sizeable term of actual imprisonment. She concedes that to be the position.
40. General deterrence, specific deterrence, community protection and punishment are significant purposes here, and so too is there a need to denounce your conduct. I take the view that there is no alternative at all other than to impose a term of actual confinement. I do not believe that it is open to me in the circumstances to impose a term of detention in a Youth Justice facility given the particular nature of the crime and your past background before the Courts. In addition, there is a ceiling of three years and with no ability to fix any minimum term. Even if I was satisfied of the matters referred to in s.32(1)( a) and (b) of the Sentencing Act in relation to youth justice, the three year ceiling rules out this option. Nor is it at all clear that you are particularly impressionable, immature or likely to be subjected to undesirable influences in prison. You are there already. You have been there for 156 days and in fact you do not want to even go to a Youth Justice Centre. You have previously been held under sentence at such a facility and prefer your current adult prison setting. In all of the circumstances I do not believe that a Youth Justice Centre disposition is available to me here.
41. The question then is whether it is open to me to structure a sentence that would permit the use of a combination type sentence. There is a ceiling of up to two years' imprisonment and I have answered that question a moment ago in setting out one of my reasons for not selecting youth justice as a disposition.
42. I am left in no doubt at all that it would not be open in the sound exercise of my discretion to pass such a sentence in combination with a community corrections order. In my view, there must be a sizeable prison sentence to actually serve and one the dimension of which necessarily precludes the imposition of a community corrections order combined with a term of imprisonment. Even had that not been the case, there would have been very serious doubts in my mind as to combining such a lengthy sentence with a community corrections order in your case given the very long gap which would exist between the sentence being imposed and your ultimate entry into the community corrections order. The Adult Parole Board would be in a far better position to make judgments as to your then needs and the community's needs in terms of the structure of any potential release back into the community. They, the Adult Parole Board, would have a far more direct and immediate role in terms of your supervision and very swift powers in terms of reclaiming you if needs be, if you are released on parole.
43. Ultimately, I have no doubt at all that the actual sentence required in this case puts a community corrections order out of consideration altogether as a matter of law. I simply do not accept that a community corrections order in conjunction with a prison sentence of up to two years can pay sufficient weight to the need to denounce, to punish and to deter both specifically and generally. Nor can it pay adequate weight to the need to protect the community from you.
40. Sending a person to prison is, as I say, always a matter of last resort for any court. I have no choice here, as your counsel correctly concedes, but I am going to reflect your youth and what I judge to be your realistic prospects of rehabilitation, both in the selection of the sentence that I impose for the intentionally cause serious injury offence and the relatively modest non-parole period, which will hopefully give you some real hope and foster your rehabilitation. I make plain that I cannot factor in your possible release on parole. I must proceed on the basis that you will serve every day of the head sentence that I will soon pronounce. Whether you will be released on parole is entirely in the hands of the Adult Parole Board and I cannot speculate about that at all. However, the non-parole period provides for your possible release once you have served a little over half the head sentence and the reason for that is to reflect your youth in this exercise.
Sentence
41. Yes, would you stand up, please, Mr May-Jordan?
42. On Charge 1, which is the charge of intentionally causing serious injury, I convict and sentence you to 46 months or three years and ten months' imprisonment.
43. On Charge 2, theft, I am convicting and sentencing you to seven days' imprisonment.
44. The base sentence is that imposed on the intentionally cause serious injury charge. I obviously have to pay regard to the principles of totality of sentence. I have looked at the overall effect of the orders that I am pronouncing and the seven day term will be served concurrently with the base sentence.
Total Effective Sentence
45. So this results in a total effective sentence of 46 months or three years and ten months' imprisonment.
Non-Parole Period
46. I fix a period of two years during which you will not be eligible for any release on parole.
Pre-Sentence Detention
47. It is 156 days, is it not?
48. MR TRIANDOS: Yes, Your Honour.
49. HIS HONOUR: I declare that the period of 156 days is to be reckoned as a period of imprisonment already served under this sentence and that declaration made pursuant to s.18 of the Sentencing Act is noted in the records of the court.
Section 6AAA
50. Had you run a trial and pleaded not guilty and run and been found guilty by a jury, I would have sentenced you to six and a half years' imprisonment. I would have fixed a non-parole period of four and a half years. That statement, made under s.6AAA of the Sentencing Act, is to be noted in the records of the court.
51. Have a seat, please. Look, are there any other matters that I need to deal with at all? Ms McCrickard?
52. MS McCRICKARD: No, Your Honour.
53. HIS HONOUR: No, all right. I will sign that order and then that will complete the matter.
54. MS McCRICKARD: Your Honour, might I briefly approach the dock?
55. HIS HONOUR: Of course you can, yes. Yes, all right, I will just sign that order once it is presented and then Mr May-Jordan can be removed. Yes, all right, I have signed that order then. Yes, all right, Mr May-Jordan can be removed then, thank you.
0
0
0