Director of Public Prosecutions v Moore
[2019] VCC 685
•15 May 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-19-00042
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ASHLEY MOORE |
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| JUDGE: | HIS HONOUR JUDGE JOHNS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 April 2019 |
| DATE OF SENTENCE: | 15 May 2019 |
| CASE MAY BE CITED AS: | DPP v Moore |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 685 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW SENTENCE
Catchwords: Intentionally cause injury – Commit an indictable offence whilst on bail – serious example of offence – Relevant priors – Verdins principles – Imprisonment – Combination – Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr L Cameron at plea Ms V. Worrell at sentence | Office of Public Prosecutions |
| For Accused | Ms H. Anderson Ms A. Scroop at sentence | Leanne Warren and Associates |
HIS HONOUR:
The maximum penalty for intentionally causing injury is ten years’ imprisonment and the maximum penalty for committing an indictable offence whilst on bail is three months’ imprisonment.
The facts of your offending were outlined in the prosecution summary which was Exhibit A on your plea. These form part of my reasons for sentence.
In brief, on 25 August 2018, the victim Mr Broadbent organised to stay the night at your house as he was feeling lonely. The victim has previously been diagnosed with depression and post-traumatic stress disorder.
The victim arrived at your house with his dog at around 9:30 pm. He had consumed around six or seven beers during the course of the day, and also consumed some marijuana.
After placing his belongings in a spare room, the victim joined you in the lounge room. During the course of conversation you became aggressive and abusive towards the victim. You pushed him in the ribs, where you knew that he had sustained an injury, and called him a, 'Fucking girl.' You bullied him.
At some point you told the victim to leave. The victim had become uncomfortable with your behaviour and agreed to leave.
The victim got up from the couch and went to the front door. As he was unlocking the door you approached him from behind and punched him to the right cheekbone. The victim reports that he felt his 'face mash and a sound of something crushing.' You then punched the victim to the right cheekbone a second time. This is the basis for Charge 1 – intentionally causing injury.
After the blows you inflicted, the victim ended up on the ground and you continued to poke and prod his ribs. The victim pleaded with you to stop as you were causing him pain. During the course of this struggle the victim wet himself from fear.
The victim was bleeding from his face. The two of you moved into the lounge room where the victim sat on the couch. You offered the victim some ice in a tea towel and pressed this against his face. The victim protested as this was causing him pain. The victim then attempted to leave, but you refused stating that you wanted to, 'Fix him up'; as in provide medical assistance.
The victim ran to the street when you left the lounge to collect his dog from the spare room. Once the victim was outside, you returned his belongings and his dog.
The victim caught a taxi to the Rosebud Hospital but was subsequently transferred to the Alfred Hospital in Melbourne due to the extent of his injuries. On arrival at the Alfred, the victim required immediate surgery.
Examination of the victim determined that he had sustained a ruptured eyeball and a fractured cheek, nose and upper jaw.
The victim underwent two surgeries and ultimately spent five days in hospital. On 3 September 2018 he underwent further surgery on his right eye. He was on a soft food diet for six weeks. If not for prompt medical attention he would have lost sight in his eye.
At the time of the offending you were on bail for unrelated matters at the Frankston Magistrates’ Court. This is the basis for the related summary charge – commit an indictable offence whilst on bail.
You were arrested and interviewed at the Frankston Police Station. During the interview you claimed that Mr Broadbent was drunk and stoned and that he had been verbally abusing you. You said that Mr Broadbent had refused to leave when asked. You denied punching Mr Broadbent and stated that you must have hit him while you were pushing him out the door, and that you offered him assistance afterwards. You described the incident as a disagreement between two old friends and that it was self-defence in your own home. Of course, you conceded otherwise through your counsel on the plea.
You were remanded into custody on that day and have remained in custody since.
Personal Circumstances
You were born on 27 April 1971 and are 48 years old. You were 47 years old at the time of this offending. You were born and raised in Victoria and completed Year 9.
You worked in the installation of insulation for a period from the age of 15 years until an emotional breakdown in around 1998. You have been on the Disability Support Pension since this date.
Your mother passed away in 2003 from lung cancer, which is still a source of grief for you. You had no contact with your father since the age of 15, but have recently reconnected with him whilst you have been in custody.
You experienced a period of homelessness after the loss of your mother, but have had stable accommodation since 2009. I note that your current accommodation will remain available to you until 4 August 2019.
You have a significant history of drug use, which commenced with you using cannabis at the age of 12. Your use of cannabis escalated to seven grams a day. Your recent period of incarceration is the longest period of abstinence you have had from cannabis for a significant period of time. You also commenced using amphetamines at the age of 13 until 1993. You relapsed and commenced using methylamphetamine after the break down of your relationship in 2005. You report that you and your ex-partner used heroin together. You report that you were not on an opiate replacement therapy in gaol.
You have two children aged 21 and 18 years. I received letters from both of your children and accept that you have a supportive relationship with both of your children and that your time in custody has had a significant impact on each of them in different ways. As indicated at your plea, whilst I take this into account, it is not a significant matter in sentencing you today. Your relationship with your children’s mother ended in 2005, although you remained in contact. Unfortunately, she took her own life in March 2018 and this still has a significant impact upon you and your children of course. It also places some strain on you in custody, as you want to be supportive of your children and it was put on your behalf during your plea that the trauma you experienced as a result of the loss of the child's mother in the circumstances had an impact on you also triggering further the unresolved grief from the loss of your own mother and that these matters occurred not long before the offending in this matter. I accept that and take that into account.
On your plea you admitted your criminal history, which includes a number of convictions for violent offending including intentionally causing injury, recklessly causing injury, affray and assault. I accept that save for the matter of affray in 2016 these matters are reasonably dated. There is a gap in your offending between 2011 and 2016, which is worthy of note. I also note that you have not been in custody, save for this matter, since 2006 and relevant assault priors date back to that time.
Victim Impact Statement
As outlined above, the injuries that you inflicted upon the victim were significant. Unsurprisingly, in his victim impact statement, Mr Broadbent outlines that your offending has had a profound and lasting effect upon him.
Most obvious is the physical impact of your offending, which has included ongoing pain and issues with vision. Had he not received medical attention when he did he may have lost his eye.
Mr Broadbent describes the financial impact as including the loss of his business, reliance upon Centrelink payments and becoming homeless.
The psychological impact on your victim is also profound.
Assessment of the impact of your offending on your victim is an important consideration in assessing the gravity of your offending, which I will now turn to.
Gravity of Offending
Intentionally causing injury is a serious offence, as is reflected by the maximum penalty of ten years’ imprisonment.
On your behalf, it was submitted that the gravity of your offending should be assessed in the context that you had perceived a threat from the victim and that this perception was based upon your underlying mental health issues. As I indicated at your plea, I do not accept that you perceived a threat from Mr Broadbent. This view is largely premised upon the fact that Mr Broadbent was seeking to leave your house at the time of your offending and had his back turned. Nonetheless I accept that your underlying mental health issues as described by Dr Cunningham can form part of the context for your offending and your over-reaction.
The prosecution submitted that this is a serious example of the offence. Underpinning this submission was that the victim was in a vulnerable position, in a corner with his back turned when the assault occurred. The prosecution further contend that the attack, when considered objectively, was unprovoked, and even if you had perceived provocation, the response was entirely disproportionate.
The prosecution also referenced the extent of the injury, whilst not being charged as a serious injury in a legal sense, it was severe and had a lasting impact upon the victim.
Appropriately, it was conceded that the matters in mitigation include that the offending was not planned, was of short duration, did not include the use of a weapon, and that you provided some assistance to Mr Broadbent following the attack.
Overall, taking all of the circumstances into account, I am satisfied that this is a relatively serious example of the offence of intentionally causing injury. I am largely satisfied of this on the basis of the extent of the injury inflicted upon Mr Broadbent and the unprovoked nature of the attack.
Report of Dr Cunningham
A report of Dr Cunningham dated 12 April 2019 was tendered on your plea. I do not propose to reproduce the contents of Dr Cunningham’s report in detail.
Dr Cunningham does however conclude that the results of your mental state assessment were consistent with your prior diagnoses of schizophrenia and bipolar disorder. Dr Cunningham opined that you meet the criteria for post-traumatic stress disorder.
Dr Cunningham further opined that your perception of a threat was consistent with your PTSD, which causes you to have 'A lower threshold for perceiving threat and [be] prone to overreacting'.[1]
[1] Page 5 Dr Cunningham’s report.
Overall, it was the opinion of Dr Cunningham that your PTSD in combination with your drug use contributed to your offending.
Application of Verdins
Your counsel, relying upon the report of Dr Cunningham, submitted that all six limbs of Verdins are applicable in your case. The prosecution conceded that limbs one to five are applicable to varying degrees and accordingly I have concurred.
The contents of Dr Cunningham’s report satisfy me that the Verdins principles are engaged and that moderation is appropriate in relation to moral culpability and even general deterrence, along with other factors, however only a modest degree of moderation can be justified in all of the circumstances. I am also satisfied that your experience of incarceration will be more onerous than it would otherwise be if you did not have your conditions, although I do note and accept the submission made by the prosecution that you appear to be progressing well in custody.
Sentencing Considerations
The application of Verdins, in my view, whilst affording you some moderation, does not expunge your moral culpability which I still consider to be high. As outlined above, this is a serious example of the offence of intentionally causing injury. Whilst I accept that you probably did not intend to cause the injury that you did, the reality of your circumstances are that you fall to be sentenced on causing a significant and ongoing injury.
The principle of community protection is a significant consideration. Whilst conceding some moderation due to Verdins principles the prosecution pointed out that your difficulty in exercising control over your actions when presented with a perceived threat and your lack of insight into your illness pose a danger to the community. I note the assessment of Corrections that you are a high risk of further generalised offending.
Also relevant, with some moderation indicated above, are the considerations of just punishment and both specific and general deterrence. Whilst the passage of time has diminished the relevance of your prior convictions, you have very relevant prior convictions for similar offending. Further, whilst your offending did not occur in a public place, it was a largely unprovoked attack in circumstances where the victim should have been entitled to feel safe.
I was referred to three recent cases by your counsel, I take these and the overall current sentencing practices into account when sentencing you.
Prospects of Rehabilitation
It was submitted on your behalf that you have good prospects of rehabilitation. I was referred to the numerous courses you have completed in custody, your abstinence from drugs, the availability of housing when you are ultimately released, and the dated nature of your relevant prior convictions.
In determining your prospects of rehabilitation, I also take into account the nature of your drug habit and the observations of Dr Cunningham. In this sense, your prospects of rehabilitation are largely dependent upon your efforts to abstain from drug use.
I also note the previously referred to gap in your offending in your committal history. Ultimately, I find that you do have some prospects of rehabilitation.
Community Corrections Order Assessment
On 26 April 2019 you were assessed as suitable for a corrections order. You have previously successfully completed two out of three community-based orders.
There was discussion on your plea as to whether it was available to me to impose a sentence of greater than twelve months overall in combination with a CCO, or whether I was confined to a twelve month period including your PSD. In other words, if I imposed 15 months imprisonment in addition to a community corrections order, was that permissible within the operation of s.44(1) of the Sentencing Act 1991 ,given that the deduction of PSD would render the period of imprisonment as less than twelve months from today’s date.
Subsequent to the hearing I received a helpful further submission from Mr Cameron for the prosecution referring the court to the cases of Younger v The Queen[2] and Boulton.[3] The submission confirmed the prosecution position that s 44 (1) allows for a combination sentence, to include a term of imprisonment comprising time served up to the sentence date, which is formally declared, as well as up to a further 12 months imprisonment from the date of sentence. Put in terms more commensurate with s 44(1), I can impose a sentence greater than 12 months imprisonment in combination with a CCO provided the PSD would serve to make the period to be served from the date of sentence equal to or less than 12 months.
[2] [2017] VSCA 199 at [65]-[67].
[3] [2014] VSCA 342 at [236]-[238].
I accept that I have the power to do so and have noted that fact herein in order to resolve a position that was unclear at the time of the plea hearing. It is a moot point however, as I have determined that the appropriate sentence in your case Mr Moore, is a sentence of 12 months imprisonment in combination with a community corrections order.
Sentence
Can you please stand Mr Moore. In the circumstances I am satisfied that a community corrections order in combination with a term of imprisonment is appropriate.
In relation to the charge of intentionally causing injury, I sentence you to a term of imprisonment of 12 months, to be followed by a CCO of two years duration. The conditions attached to the CCO will include the following conditions.
Unpaid community work. You must perform a hundred hours of unpaid community work over a period of two years.
I order that 50 hours of treatment and rehabilitation satisfactorily undertaken, are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
There will be a condition of supervision. Also treatment and rehabilitation conditions. You must undergo assessment and treatment including testing for drug abuse or dependencies directed by the regional manager. You must undergo assessment and treatment including testing for alcohol abuse or dependencies directed by the regional manager.
You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in the hospital or residential facility as directed by the regional manager.
You must participate in programs and/or courses that address factors relating to your offending behaviour as directed by the regional manager.
In relation to the charge of committing an indictable offence whilst on bail, you are sentenced to one month's imprisonment which is to be served wholly concurrently with the period of imprisonment imposed on Charge 1.
Pursuant to s.18 of the Sentencing Act, I declare that you have served 257 days of pre-sentence detention.
Were it not for your plea of guilty, pursuant to s.6AAA, I declare that I would have imposed a sentence of three years imprisonment, with a non-parole period of 18 months.
I make the disposal order that is sought.
HIS HONOUR: Mr Moore, the effect of the sentence is that you've still got some imprisonment to serve before you'll be released on a community corrections order. The community corrections order is not an entirely therapeutic order. What I mean by that is it does have some hours of community work, so it still has a specific punishment aspect to it, although substantially it is designed for your rehabilitation, because I consider that the period of 12 months substantially covers the just punishment and denunciation required. Now the other thing I've been mindful of is what I was told about your accommodation. I know that the period of imprisonment that I've imposed less the 257 days probably won't see you out prior to 4 August 2019. I have determined that 12 months was the appropriate time and I sincerely hope that communications with the relevant department can see that when you are released your housing is still available. I just wanted you to know that I hadn't overlooked that fact, I've just determined that 12 months was the appropriate period.
ACCUSED:Thank you Your Honour.
HIS HONOUR: All right. I wish you well in your rehabilitation, Mr Moore. He can be taken out now. Thank you.
ACCUSED:Thank you Your Honour.
HIS HONOUR: And we'll adjourn the court until 10.30.
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