Director of Public Prosecutions v Michelsson
[2015] VCC 1308
•16 September 2015 (In Melbourne)
––––
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00799
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GARY NATHAN MICHELSSON |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Latrobe Valley and Melbourne | |
DATE OF PLEA: | 18 June 2015 (Latrobe Valley) | |
DATE OF SENTENCE: | 16 September 2015 (In Melbourne) | |
CASE MAY BE CITED AS: | DPP V Michelsson | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1308 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – theft; recklessly causing serious injury
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic); Disability Act 2006;
Cases Cited: Boulton v R [2014] VSCA 342; R v Verdins (2007) 16 VR 269
Sentence: 12 months imprisonment followed by a 2 year Community Correction
Order with Justice Plan condition; 6AAA declaration – 18 months imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D O’Doherty | Solicitor for Office of Public Prosecution |
| For the Accused | Mr R Davis (solicitor) | Rod Davis Barrister & Solicitor |
HIS HONOUR:
1 Gary Nathan Michelsson, at the Latrobe Valley Court on 18 June 2015, you pleaded guilty to the following offences:
·Charge 1 - that you at Morwell in Victoria on 12 May 2014, stole a pair of headphones belonging to the Reject Shop.
The offence of theft is contrary to s74(1) of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
·Charge 2 – that you at Morwell in Victoria on 20 June 2014, without lawful excuse recklessly caused serious injury to Gurpreet Singh.
The offence of recklessly causing serious injury is contrary to s17 of the Crimes Act and carries a maximum penalty of 15 years’ imprisonment.
2 The prosecution has prepared a written summary of the circumstances surrounding the offending. Such summary has been marked as an exhibit (Exhibit 1), and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such summary are:
(a)That you are now 32 years of age (born 5 July 1983) and was aged 30 at the time of the offending;
(b)The complainant, Gurpreet Singh (“Singh”), was employed as a console operator at a service station situated at 271 Princess Drive, Morwell, and was 30 years old at the time of the offence. On Monday 12 May 2014 at 2.29pm, you entered the Reject store at Mid Valley Shopping Centre, Morwell, and left your backpack at the front entrance;
(c)You then went to the rear of the store where the audio section is located and removed a set of pink-coloured headphones valued at $5, took the headphones out from their packaging and put such headphones into your pocket. You left the empty packaging on a shelf;
(d)Another customer in the aisle observed your movements, as did a staff member. Your actions were captured on CCTV and made available to the police (Charge 1, theft);
(e)On Friday 20 June 2014 at approximately 2.40am, you attended at the United Service Station, Morwell, and lifted one of the fuel pumps activating an alarm within the store;
(f)Singh heard the alarm, but could not see anyone outside so he opened the front doors, after which he saw you and enquired if you needed fuel. You then started yelling at Singh, asking why he was “calling” him;
(g)Singh told you “you took the pump off, do you need any fuel?”, but you kept yelling at him angrily, trying to get up into his face;
(h)Singh then told you that he was calling the police, and went inside to do so. When the doors were closing behind Singh, you forced them open and followed Singh inside, who then pushed you out of the doors causing you to fall on the ground. You then got back up, again stopped the doors from closing, entered the store with Singh retreating behind the counter in the store. As Singh was walking you kicked him to the back;
(i)Singh got behind the counter and picked up a rod that was there while he pressed the duress button and backed away from you. You got in his face again. Singh tried to use the rod to push you away but you punched him in the face;
(j)You then got a meat cleaver, holding it in your right hand, and then used such meat cleaver on Singh. Blood is seen on the floor of the service station (Charge 1 – recklessly causing serious injury);
(k)Singh then went behind the counter and attended to his wound by wrapping paper towels over his arm and called an ambulance, after which you came over and assisted Singh, telling him that you were “sorry”.
(l)At 3.16am police arrived at the service station and spoke with both Singh and you. At that time, you told the police that you had only done it because Singh had “hit you first” in the head and “it wasn’t your fault”;
(m)An ambulance arrived at the scene and Singh was conveyed to the Latrobe Regional Hospital where he was treated for an 8 centimetre-deep laceration to his left forearm and a small laceration to the webbing of his thumb on his left hand. The third, fourth and fifth digits of the left hand had no movement and four tendons required repair;
(n)You were arrested and later interviewed by police. During the course of such interview you said, amongst other things that:
· (Q62) – that you had cracked the shits and had a go at Singh and that Singh had hit you on the head with a metal pole so he got cut
· (Q63) – that it wasn’t personal but you weren’t going to get hit in the head with a pole and not do something about it
· (Q72-8) – that you wanted to go in and ask for directions but you could not remember where to go and that you were just looking at shit, and Singh had tackled you first
· (Q91-108) – that you used a sharp object, an implement that you used to cut up meat and all that shit when you’re camping, and that should’ve been in your bag, but that you might’ve had it on you
· (Q116) – that it was an instant reaction and you pulled out the cleaver and actually went like that at him and got him by accident
· (Q126) – that it was only a little scratch on Singh’s arm
· (Q128-132) – that you were going to have a go at him because he pushed you on your arse and that you’d done nothing to him and that Singh had attacked you
· (Q135) – that you didn’t mean to do what you did
· (Q138-144) – that you picked up the pump as you thought you saw it leaking on the floor
· (Q153) – that you didn’t know where the cleaver went
· (Q199) – that the knife got Singh by accident, and that’s when you freaked out
· (Q204) – that the whole night’s been fucked, everything’s been fucked
· (Q210) – that it wasn’t personal, it was just fuckin’ dumb
· (Q243) – that in shops you just pick up things in shops, look at them and move them to another aisle
· (Q260) – that it’s bullshit that you put the earphones in your pocket
· (Q264) – that you didn’t say anything and didn’t know what they were on about.
3 Counsel for the prosecution tendered a video of CCTV footage of the offending at the service station (Exhibit 4). I observed the video during the course of the plea.
4 Counsel informed me that, as at the date of the plea, you had served 363 days in custody, up to but not including, 18 June 2015. You have been on remand since the date of your arrest on 20 June 2014. Counsel for the prosecution noted that you had served a sentence of three months’ imprisonment during that time and, in particular, that it extended for 91 days from 17 November 2014 to 6 February 2015.
Your criminal record
5 Your criminal record, the contents of which you agree were accurate, was tendered (“Exhibit 2”). I note the following:
(a)On 6 February 2001 at the Moe Magistrates’ Court you were sentenced to a Community-Based Order (“CBO”) for six months, without conviction, in respect of a theft of a motor vehicle and unlicensed driving;
(b)On 28 August 2001 at Moe Magistrates’ Court you were convicted and sentenced to a Community-Based Order for three months in relation to the offences of burglary, theft and going equipped to steal/cheat;
(c)On 22 October 2001 at Moe Magistrates’ Court it was proven that you had failed to comply with a Community-Based Order in relation to the offending on 6 February 2001. Also on that day, you were convicted and sentenced to a further Community-Based Order for three months in relation to the offences of theft from shop and failing to answer bail;
(d)On 19 May 2003 at the Moe Magistrates’ Court you were convicted and sentenced to a Community-Based Order for six months in relation to the offences of possessing and carrying a handgun without a licence and possessing an unregistered handgun;
(e)On 5 March 2007 at the Sale Magistrates’ Court you were convicted and sentenced to a six month Community-Based Order in relation to offences involving intentionally causing damage, using indecent language in a public place, drunk in a public place and acting in a disruptive manner;
(f)On 15 May 2007 at the Sale Magistrates’ Court you were convicted and sentenced to a Community-Based Order for 12 months with a variety of conditions in relation to offending involving reckless conduct endangering serious injury, recklessly causing serious injury, make threat to kill, unlawful assault and criminal damage, together with assault with weapon;
(g)On 9 May 2008 at the Latrobe Valley Magistrates’ Court it was found that you had failed to comply with the Community-Based Order in relation to the offending for which you were convicted on 15 May 2007. Such Order was cancelled and you were sentenced to three months’ imprisonment, suspended for 12 months under the then s27 of the Sentencing Act 1991. Furthermore, on that day, you were convicted of theft, escape from custody from a police member, burglary, theft from shop, criminal damage, recklessly causing injury, unlawful assault, failing to answer bail, entering building with intent to steal, intentionally damaging property and burglary, for which you were sentenced an aggregate
18 months’ imprisonment with a non-parole period fixed at six months;
(h)On 10 July 2009, at the Latrobe Valley Magistrates’ Court, it was found that you had breached the suspended sentence of three months made on 9 May 2008 and such sentence was restored. Also on that date you were convicted of theft and using threatening words in a public place and sentenced to an aggregate three months’ concurrent imprisonment. Furthermore, on that date you were convicted of theft from a shop and sentenced to a further one months’ imprisonment, directed to be served concurrently with the other sentence of imprisonment imposed that day;
(i)On 20 August 2010 at the Latrobe Valley Magistrates Court you were convicted and sentenced to three months’ imprisonment concurrent with other sentences in relation to the offence of recklessly cause injury;
(j)On 20 December 2010 at the Latrobe Valley Magistrates’ Court you were convicted of wilfully trespassing in a public place and the matter was adjourned for sentence for six months for you to comply with a Justice Plan dated 16 December 2010;
(k)On 6 September 2011 at the Latrobe Valley Magistrates’ Court you were convicted of unlawful assault, attempt to commit an indictable offence, carrying a dangerous article in a public place, without authority or excuse enter a private place, make threat to kill, contravene a Family Violence Intervention Order and four charges of intentionally damaging property, and was sentenced to 14 months’ imprisonment with a non-parole period fixed of eight months;
(l)On 20 August 2012 at Latrobe Valley Magistrates’ Court you were convicted and fined $300 for the offence of criminal damage by fire (arson);
(m)On 24 September 2012 at Latrobe Valley Magistrates’ Court you were convicted and sentenced to 180 days’ imprisonment, of which all were suspended save for 20 days over an operational period of 18 months for offences involving recklessly cause injury, criminal damage and unlawful assault;
(n)On 8 April 2013 at Latrobe Valley Magistrates’ Court you were convicted and sentenced to 12 months’ imprisonment with a non-parole period of six months in relation to the offences of stalking another person, contravening a Family Violence Intervention Order, threat to inflict serious injury, unlawful assault and wilfully damaging property. Also on that date, it was proven that you had breached the Suspended Sentence Order made on 24 September 2012 and the balance of the sentence of 160 days was restored;
(o)On 17 June 2013 at the Latrobe Valley Magistrates’ Court you were sentenced to six months’ imprisonment of which three months was suspended pursuant to the then s27 of the Sentencing Act 1991 for an operational period of 12 months in respect of the offences of contravening a Family Violence Order, aggravated assault on a female and criminal damage.
Victim Impact Statement
6 Counsel for the prosecution tendered a Victim Impact Statement of Singh declared 20 May 2015 (“Exhibit 3”).
7 In that statement, Singh describes the difficulties that he has with his left arm because of the injuries that he suffered. He describes his inability to perform heavy chores, or even carrying his son, as his arm is weak. He has been back to India where his family has farms and it is very difficult for him to perform any manual labour because of the injury.
8 After the offending he could not work for two months, during which time his partner was not working, as their baby had just had heart surgery. There are ongoing problems about paying rent, everyday living and taking care of his bills. Since he has been in India, he cannot work and cannot help his family financially.
9 He notes that the offending not only has affected him, it has affected his family as well as his partner, and he is always afraid that when he goes out something like the attack will happen again. He is particularly concerned that he has difficulties holding his son as any attempt to hold him for a couple of minutes causes his arm to go weak, and he is frightened that he will fall.
10 Counsel for the prosecution also tendered two folders of photographs of the injuries suffered by Singh. I have observed such photographs.
Material tendered by your counsel
11 Your counsel, in support of your plea in mitigation, tendered the following documents:
·
Exhibit A – reports of the psychologist, Dr Cunningham, dated
28 February 2013 and 14 June 2015;
·Exhibit B - Short report from Latrobe Regional Hospital with letter dated 28 February 2013;
·Exhibit C – Discharge summary from the Latrobe Regional Hospital dated 2 June 2011;
·Exhibit D- Sentencing snapshot dated June 2014 in relation to “causing serious injury recklessly”;
12 Based on some of the materials tendered and the submissions made by your counsel, I set out the following details in respect of your personal circumstances, your educational and vocational background.
13 Dr Cunningham initially examined you on 19 February 2013, when you were facing earlier charges. At that time, you informed Dr Cunningham that you were raised by your mother in Morwell and that you had only met your biological father “a couple of times” and described him as a “good bloke”.
14 You described that your mother was “wild” and “was around a lot of bikies” and that you were raised in the context of motor cycle clubs. During that time you observed a lot of violence and also suffered significant physical and sexual abuse when living with your mother.
15 When you were aged four you were placed by the Department of Human Services into care and you lived in boys’ homes to the age of 17. You referred to these homes as “kids jail” and that the time you spent there was “horrible”. In particular, you stated you did not understand why you were taken away from your mother and what you had done wrong to be placed in such homes. During your stay at such homes you were also subjected to violence from other children and staff.
16 You attended primary school in Morwell and later attended Kurnai College, but left school during Year 9 because you could not “take it” with regard to school work. At school you had a teaching aide during secondary school.
17 On leaving school you began gardening employment with an uncle and, thereafter, became bored with such work and gained employment in several different short-term labouring jobs.
18 You were placed on the Disability Support Pension in about 2011 in respect of Tourette’s Syndrome, Schizophrenia and Attention Deficit Hyperactivity Disorder.
19 From the age of 17 you “attempted” to live with your mother, but after an argument you moved into a refuge. Later still you moved in with a partner, Krystal, with whom you maintained a relationship for about five-and-a-half years and had two children, Harley now aged about 12 and Isabelle, now aged about nine.
20 In particular, you stated you could not function during that relationship due to the alcohol and drug abuse, and that you would become violent when abusing drugs and alcohol. After the relationship came to an end you stated that you effectively “died” in the absence of your children.
21 You described to Dr Cunningham that after that relationship breakdown you commenced to associate with negative peers and had various periods of homelessness. After a short attempt to reconcile with Krystal, that relationship broke down again and you had, what you described as an “emotional breakdown”, which involved an escalation of your drug abuse and negative peer associations.
22 You then formed a relationship with Caroline, during which time you both abused illicit substances which was continuing at the time that you were incarcerated in 2013. At that stage you had not spoken to your mother for one year.
23 At that first consultation with Dr Cunningham, you reported that you had suffered several head injuries from being beaten with baseball bats and also being hit by a car at the age of 26.
24 You commenced using cannabis at the age of 14 and reported regular use of cannabis to the age of 15, after which alcohol had become a “big problem”, with you drinking up to one slab of beer per day. You did note at that first consultation, that your use of alcohol through intervention of ACSO Coates, reduced your alcoholic intake. You also reported prior abuse of dexamphetamine and morphine.
25 On the day of the first consultation you described to Dr Cunningham that you are paranoid and do not trust people. You believe that you used to experience auditory and visual hallucinations and that sometimes you continue to talk to yourself.
26 You had, at that time, been prescribed Seroquel and Epilim and reported a history of suicidal and self-harm behaviour, in that you had overdosed and had attempted to run in front of trains. In particular you had been treated at the Flynn Ward of the Latrobe Valley Hospital and continued to report ongoing symptoms of anxiety and depression.
27 At that time, Dr Cunningham considered that you suffered a substance-induced Psychotic Disorder, presenting with significant paranoia and auditory hallucinations when abusing drugs and alcohol.
28 At that time you were assessed to have a slightly below-average range of intelligence.
29 At your second consultation with Mr Cunningham, you described that you continue to be medicated with Epilim and Seroquel, and that you saw your children on a sporadic basis. You stated that your support in the community is through your mother and an older Department of Human Services case manager.
30 You describe that your daughter was sexually abused by your ex-partner’s new partner and you do not know how to cope with this stress. You had been living in a boarding house in the community where you were surrounded by people using methylamphetamine, and that one of your neighbours had slit another person’s throat in the next room.
31 You stated that you could not cope with the stress and decided to camp in the bush for a few days in a place where you would go when you needed to clear your mind. You were returning from the bush at the time of the offence involving recklessly causing serious injury.
32 In his opinion, Dr Cunningham states, in part:
“In my opinion Mr Michelsson continues to present with a substance-induced psychotic disorder. In my opinion, Mr Michelsson was predisposed to the development of a psychotic disorder by the trauma and instability in his childhood home. He was placed into care at an early stage. He did not have stable and supportive role models and was exposed to violence and antisocial behaviour. He relied on drug and alcohol abuse as a form of coping with life stressors. In my opinion Mr Michelsson’s drug abuse contributed to the deterioration in his mental state. He developed paranoid delusions and increased deficits in adaptive behaviour. He has been unable to maintain stability with regard to employment, accommodation and relationships. He is homeless in the community, living in boarding houses and camping in the bush during the period of his offending. In the context of his delusions, Mr Michelsson is prone to over-perceiving threat and reacting in excess of what is appropriate. In my opinion, Mr Michelsson’s offence behaviour occurred in the context of his homelessness, lack of pro-social support and ongoing deterioration in his mental state.” [my emphasis]
33 Dr Cunningham did think you had some current protective factors in that you could live at your mother’s property and there would be stable accommodation.
34
I also refer to the Discharge Summary from the Latrobe Regional Hospital on
2 June 2011. You had been admitted to that hospital on 3 May 2011, with complaints of confusion, auditory hallucinations, suicidal ideation and feelings of hopelessness and helplessness. Furthermore, at that time you had been homeless for approximately a week and had been engaged in poly-substance use, including various inhalants. I also refer to an earlier Discharge Summary from that hospital when you were discharged on 4 September 2007, wherein it is recorded that you have a long history of alcohol and substance abuse.
35 I also refer to the letter dated 2 November 1998 from Dr T.K. MacLachlan, a child psychologist to the Department of Human Services. In that letter Dr MacLachlan diagnosed you to be suffering from an Adjustment Disorder with depression, Tourette’s Syndrome of a mild degree, Language Disorder and insecurity and mild paranoia, secondary to your earlier life experiences.
36 In support of your plea in mitigation, your counsel informed me that your instructions were consistent with what you stated in your record of interview, that you were first hit by Singh with a metal rod and you just retaliated. Of course, this is what not has been agreed to in the summary put by the prosecution. I might add that, on viewing the CCTV footage, it is not clear whether the rod was used by Singh as an offensive or defensive weapon.
37 Your counsel pointed out that the plea which had been entered into was negotiated in that, initially, you were charged with aggravated burglary and it was only when the charge was changed to recklessly causing serious injury that you pleaded, and this was at the earliest opportunity. I was informed that at no stage did Singh have to give evidence, and although there was a listing of a contested committal, no witnesses were called and Singh did not have to attend. Your counsel agrees that your lengthy criminal record was “horrendous” and involved various acts of violence.
38 Your counsel did point out that an appropriate disposition would be time served, together with a lengthy Community Correction Order or alternatively, a lengthy parole period. In this respect he noted that although you have breached some orders in the past you have also completed orders. Your counsel also informed me that, in the past, there have been Justice Plans attached to various orders and that, indeed, it would be appropriate to seek a Justice Plan in this matter.
39 Counsel referred to the contents of Mr Cunningham’s report and stressed the tragic upbringing that you have undergone. Since being in custody you have had some phone contact with your children and, of course, you are keen to have face-to-face contact with them on your release. Furthermore, as you stated to Dr Cunningham, you have had the support of your mother and on release from custody you could live with her on her property.
40 Your counsel also informed the Court that you appeared at the Latrobe Valley Magistrates’ Court on 17 November 2014 on unrelated matters. At that time you pleaded guilty to two counts of shop steal, one count of criminal damage, and one count of resisting arrest. The offending breached an earlier suspended sentence of three months, which was restored in full.
41 Counsel for the prosecution submitted that it was of some importance that you get appropriate assistance when you are released from custody, whether that be by way of a community correction order or through the Parole Board.
42 Counsel for the prosecution also confirmed that it was a negotiated plea and you are entitled to a "discount” for the guilty pleas.
43 After consideration, the matter was adjourned to seek a Justice Plan, pursuant to s80 of the Sentencing Act 1991. In a report dated 20 August 2015, the Department of Human and Health Services advised that a Justice Plan was appropriate under the relevant legislation. In particular, case management has the potential to assist you living independently in the community, addressing issues in order to spend more time with your two children and to access services and supports to help reduce your risk of re-offending. I do note that the authors of the Report note that your mother advises that it is not currently possible for you to reside with her.
44 I also requested that you be assessed for a Community Correction Order. In a report dated 1 September 2015, the Department of Justice and Regulation advised that you had been assessed as suitable for a Community Correction Order, together with the addition of the following conditions: treatment and rehabilitation in relation to drug and alcohol problems (s48D(3)(a) of the Sentencing Act 1991), treatment and rehabilitation in relation to mental health (s48D(3)(e) of the Sentencing Act 1991), treatment and rehabilitation in relation to programs reducing re-offending (s48D(3)(f) of the Sentencing Act 1991), supervision (pursuant to s48E of the Sentencing Act 1991), judicial monitoring (pursuant to s48K of the Sentencing Act 1991) and a Justice Plan pursuant to s80. In that report, you were assessed as being a high risk of re-offending according to the Level of Service Risk Assessment Tool. The Court notes that the conditions and requirements of such order have been explained to you and you agree to comply with those conditions.
Conclusion
45 The crime of recklessly causing serious injury is a serious offence, as is evidenced by the maximum penalty being 15 years’ imprisonment. Although you assert that you were provoked to some extent to commit the crime, it cannot be gainsaid that you brought the meat cleaver out of your bag and caused the injuries to Singh.
46 It must be borne in mind that you have pleaded guilty to that offence and must be dealt with according to relevant sentencing considerations.
47 The use of meat cleavers, or indeed knives, to injure people will not be tolerated in the community and, in normal circumstances, just punishment, general and specific deterrence become very important sentencing considerations and lead to a significant prison sentence.
48 It is also important to bear in mind the effects your offending has had on Singh in that he has ongoing difficulties with his arm as a result of your offending.
49 Further, your offending must be seen in the context of what can only be described as a horrendous criminal record including various crimes of violence. The offence of stealing the headphones belonging to the Reject Shop, although of a lesser nature, must also be seen in the context of earlier convictions for theft.
50 In mitigation, I do accept that you indicated that you would plead guilty as early as possible, given that initially you were charged with aggravated burglary but later, you pleaded to the lessor charge of recklessly causing injury following negotiations with the Director of Public Prosecutions. Furthermore, I do accept that there was no premeditation about the act, and the meat cleaver was in your bag to be used as a utensil when you camped in the bush.
51
More particularly, I accept the opinion of Dr Cunningham, that you suffer a psychotic disorder, most probably brought about by the trauma and instability of what can only be described as a tragic childhood. Furthermore, I also accept the opinion of Dr Cunningham that, in the context of the delusions suffered by you as a result of your psychotic disorder, you are prone to
over-perceiving threat and reacting in excess of what is appropriate.
52 Accordingly, based on well-established authority, I consider the sentencing considerations of just punishment and general and specific deterrence have to be significantly tempered given the diagnosis of a psychotic disorder brought about by trauma and instability in your childhood home (see Muldrock v R [2011] HCA 39, [53] – [54]; and R v Verdins & Ors [2007] VSCA 10, and in particular at [32]).
53 I refer to the guideline judgment given by the Court of Appeal in Boulton v R [2014] VSCA 342 pertaining to the operation of Community Correction Orders, which have been available in Victorian courts since January 2012. As the court stated:
“the community correction orders are a radical, new sentencing option with the potential to transform sentencing in this state.”
54 Although a non-custodial order, such order has certain mandatory conditions laid down by the legislature, and the sentencing court can attach to a Community Correction Order, a range of conditions which are variously “coercive, prohibitive, intrusive and rehabilitative”. As pointed out by the Court of Appeal, a Community Correction Order is a “flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously”.
55 I refer to s5(4) and (4)(c) of the Sentencing Act 1991 and note that the Court of Appeal has stated that s5(4)(c):
“… prohibits the imposition of a sentence of imprisonment, unless the sentencing court has paid specific and careful attention to:
(a) the purposes for which the sentence is to be imposed on the offender and
(b) where those purposes can be achieved by a CCO, to which one or more of the specified onerous conditions is attached.” (See Boulton, op cit, [120]).
56 I also refer to Appendix 1 to the Court of Appeal judgement which is headed “Community Correction Orders: Guidelines for Sentencing in Court”. Pursuant to that document, it is necessary that I assess the objective nature and gravity of the offence and moral culpability of the offender. As I have already recorded, although I consider the offence of recklessly causing serious injury objectively serious, your moral culpability is reduced by the principles I have referred to and, furthermore, general and specific deterrence do not have the same force. I am then called upon to consider whether:
(a)the crime is so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of just punishment; or
(b)a Community Correction Order, either alone or in conjunction with a sentence of imprisonment, would satisfy the requirements of just punishment.
57 After careful consideration, I consider the appropriate sentencing disposition should be a period of imprisonment, together with a Community Correction Order for a period of two years with various added conditions.
58 Mr Michelsson would you be upstanding, please? I order:
(a)In relation to Charge 2, recklessly causing serious injury to Singh, you are convicted and sentenced to a period of 11 months’ imprisonment. This is the base sentence on this indictment.
(b)In relation to Charge 1, involving theft, you are convicted and sentenced to two months’ imprisonment;
The Court directs that one month of the sentence imposed on Charge 1 be cumulated upon the sentence imposed on Charge 2. The total effective sentence is 12 months’ imprisonment.
59 I declare, pursuant to s6AAA of the Sentencing Act that, save for your plea of guilty in relation to each of the charges, I would have sentenced you to a period of 18 months’ imprisonment.
60 The Court declares that you have served a period of 362 days by way of presentence detention and such period of time is to be deducted administratively as time already served upon the sentence.
61 In relation to Charge 2 you are further sentenced to a Community Correction Order for a period of two years after your release from prison. I further order that the following conditions are to be added to the Community Correction Order:
(a)pursuant to s48D(3)(a) of the Sentencing Act 1991, you are to undergo any assessment and treatment (including testing) for drug abuse or dependency;
(b)pursuant to s48D(3)(b) you are to undergo any assessment and treatment (including testing) for alcohol abuse or dependency;
(c)pursuant to s48D(3)(e) of the Sentencing Act 1991, you are to undergo any mental health assessment and treatment that may include psychological, neuro-psychological, psychiatric or treatment in a hospital or residential facility;
(d)pursuant to s48E(3)(f) of the Sentencing Act 1991, you are to undergo any program that addresses factors related to your offending behaviour;
(e)pursuant to s48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary to the Department of Justice and Regulation;
(f)pursuant to s48K of the Sentencing Act 1991, you are to be judicially monitored every three months and will be required to report to this Court on Friday, 11 December 2015 at 10.00am before me.
(g)pursuant to s80 I direct that you participate in the services specified in the Justice Plan prepared pursuant to s80(3)(c) of the Sentencing Act 1991
62 Further, in relation to Charge 2, the Court orders that pursuant to s78(1) of the Confiscation Act 1997, the forfeiture to the State of the property referred to in the Schedule, and I further direct that it be placed in the custody of the Chief Commissioner of Police and held by him until 28 days from this date or the conclusion of any appeal proceedings.
63 Mr Michelsson, you might not have taken all that in, and I dare say it will be explained to you by your counsel in due course. The upshot of it means that you will be released subject to any other sentences you might have. In relation to this sentence, you effectively only have a couple more days to serve. The total sentence is 12 months and you are very close to that now, but thereafter you are based on what is called a Community Correction Order, and that also is a sentence, and it is very important that you comply with the conditions of that.
64 What I have to stress to you is that most of those conditions are to benefit you, to help you with your drug and alcohol problems, to help you with your psychological problems, to help you find accommodation and things like that. So it is very, very important that you try and comply or do comply with that order. But if you do not comply with it, the chances are you will be brought back for breaching that order and I will have to deal with you, and next time round, if you do not comply with that order, my options are very limited and prison would have to be a very real option for you.
65 Now you have a frightful record. You probably appreciate that more than anyone. You have got a chance now to perhaps do the things which are in that order, hopefully see more of your children and hopefully get your home life worked out to some degree. But it is up to you, because if you fall off again, you will be back before me. Do you understand all that?
66 OFFENDER: Yeah.
67 HIS HONOUR: As I say, look, it is quite a mouthful you have to take in, no doubt your counsel will explain it to you, and you will have to sign some documents before you leave now.
68 Anything to say by counsel?
69 MR DAVIS: No, Your Honour. If Your Honour please.
- - -
4
0