Director of Public Prosecutions v Morin

[2018] VCC 2175

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01789

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE MORIN

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November and 13 December 2018
DATE OF SENTENCE:	19 December 2018
CASE MAY BE CITED AS:	DPP v Morin
MEDIUM NEUTRAL CITATION:	[2018] VCC 2175

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Pleas of guilty – Prohibited person using firearm – Intentionally cause injury – Reckless conduct endangering life – Serious, brazen and pre-meditated offending committed in the presence of other people, including children, in front driveway of private home – Relevant criminal record – Suffered acquired brain injury sustained post offending – Significant resultant injuries to frontal lobe and right eye from accidental self-inflicted gun-shot wound – Loss of right eye, weakened vision in left eye, hearing impairment and now subject to epileptic seizures – Has sustained cognitive impairment and suffers from lack of motivation, inability to perform complex tasks and some personality changes – Continuing medical, surgical and rehabilitation issues relating to acquired brain injury – Recovery not hampered by imprisonment – Satisfied Department of Corrections and Justice Health can cater for specific needs whilst in custody

Sentence:Convicted and sentenced to Total Effective Sentence of 5 years’ imprisonment with a non-parole period of 2 years 10 months’ imprisonment – 334 days’ imprisonment declared as having already been served – s.6AAA Sentencing Act 1991 declaration – Ancillary orders Forfeiture and Disposal Orders

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Fisher Ms R. Yousuff (Sentence)	Solicitor for Public Prosecutions
For the Accused	Mr M. Pena-Rees	Armour Legal

HER HONOUR: 

1Luke Morin, you have pleaded guilty to the following offences:

2Prohibited person using a firearm, intentionally causing injury, and reckless conduct endangering life.

3Each of these offences have a maximum penalty of ten years' imprisonment.

4The maximum penalty for each of the offences is one of the matters which
I must take into account in sentencing you, as they reflect the seriousness with which Parliament regards each of these offences.

5Your offending took place in the morning of 12 November 2017.  You were 26 years old at the time and the victim, Michael Egel, was 29.

6The residents of the address in Dunblane Road, Noble Park (which I will refer to as "the address" from time to time)- so the residents of that address where you committed the offences, were hosting a birthday party for an eight year old. A number of people were at the address on this day.  Eight adults were nominated in the prosecution opening, although two of these were only 18 years old.  Also at the house was a seven year old and an eight year old child.

7Shortly after 9 am, you and an unknown accused arrived at the address in a black Audi sedan.  You parked outside a house two doors down and as you approached the address, you encountered a Scott Watson, who was with two children aged about eight years.  You spoke briefly with Mr Watson, then followed he and the children into the property.  You had a nine millimetre Norinco semi-automatic handgun hidden in the waistband of your pants.  You were a prohibited person in respect of weapons, so your possession of the firearm gives rise to Charge 1.

8You and your co-accused approached the victim as he sat in a car in the driveway.  You pointed the gun at his head and punched him in the head twice with your other hand.  You then pointed the gun at the victim’s legs and shot him in the leg.  You pointed the gun to the victim’s head again, whilst your
co-offender punched him to the head.  Both you and your co-offender menaced the victim while he sat injured in the car.  The victim managed to get out of the car, but your co-offender punched and kicked him numerous times.  As the victim tried to escape, you pointed the gun at the victim and fired it again, resulting in another injury to the leg.

9This conduct, together with the resultant injuries, gives rise to Charge 2, intentionally causing injury.

10The victim then managed to escape to the back yard of a neighbouring house. You collected some of the discharged bullet casings on the ground- no doubt, in a bid to avoid detection by police.

11A "shootout" then occurred where shots were fired from the address towards you and the co-accused.  You took cover behind a car and fired a number of shots at the house.  In doing so, you endangered the lives of adults and children at the property, albeit that your conduct was in response to shooting emanating from the property towards you and your co-accused.  Having said that, you were the one who created the situation in the first place.

12Your conduct in relation to the shootout gives rise to Charge 3, reckless conduct endangering life.

13The incident was captured on CCTV footage.  Neighbours witnessed some aspects of the offending itself and the aftermath and called 000.  Some residents also helped the victim. after finding him in their backyard.

14At about 10.30 am, police and paramedics arrived and the victim was treated at the scene, then taken to hospital, where he was treated for a bullet entry and exit wound to the upper right thigh, a bullet entry wound to the lower left leg and for fractures to several of his teeth, as well as cuts and bruising to his face.  He underwent surgery to both of his legs, during which the surgeon removed a nine millimetre bullet from his left leg.  The victim discharged himself after two days in hospital.

15Police found some empty cartridge cases at the crime scene and took blood swabs from the scene, as well as the CCTV footage.

16The victim and others at the address refused to assist police with their investigation.

17About six days after the shooting, you went to an address in Cairnes Grove, Bentleigh at about 5.30 pm.  Shortly after arriving, while sitting on the couch, you held the same weapon that you had previously used, placing it against your temple and apparently accidentally discharged the weapon.  The bullet entered your right temple and exited through your forehead above your left eye.

18You were taken to hospital by a resident of the Bentleigh address who saw you shoot yourself.  You suffered a brain injury, comprising significant injury to your frontal lobe and the loss of your right eye.

19Police subsequently attended the address at Bentleigh and seized the gun, an empty cartridge case, a cartridge case which had been removed from the gun and a magazine containing a cartridge which had also been removed.

20You remained in hospital for some time, then received further treatment at a rehabilitation centre.

21You were discharged from the rehabilitation centre on 19 January this year and police arrested you.  Although deemed fit for interview by a forensic medical officer, this was to be done in the presence of an independent third person.  As police were unable to secure the services of an independent third person, no interview was conducted.

22You were charged and remanded in custody, where you have remained.

23Mr Morin, your offending is most serious and is deserving of a punishment which is just in all of the circumstances.  Your conduct must be firmly denounced.  Your offending, insofar as Charge 2 is concerned, was premeditated and brazen.  You attended an address in broad daylight on a Sunday morning, when it might be expected that members of the community would be going about their weekend activities.  You had a lethal weapon concealed on your person.  You attended with a co-offender, where a number of people were assembled for a child’s birthday party and saw fit to shoot the victim twice at close range and to assault the victim who was helpless to defend himself.  To make matters worse, some of the people present at the premises were children, which is something that you must have appreciated at the relevant time, as you followed some children up the driveway as you approached the victim.  You behaved in a most brazen and terrifying manner. The CCTV footage makes for the most frightening viewing, Mr Morin.

24I regard the intentionally causing injury that you committed as a most serious example of this offence, factoring in that you used a firearm on two occasions in the course of this offending.  You are very lucky that you are not facing a more serious charge in my view, but I put this observation aside in sentencing you.

25I was told by your counsel that due to your injuries, you have no memory of the incident, or the reason for it, although, as was apparent when you gave evidence, it seems that your memory of occurrences in the fairly recent past can come back to you.  However, you gave sworn evidence that your memory of the offending has not come back to you and you regard yourself as a different person to the one who committed the offences.

26I have no idea as to the reason for your offending, but it concerns me a great deal that you were prepared to act in this most frightening and brazen way, without any apparent regard for people in the vicinity, over and above your target.

27As counsel said, the consequent "shootout", as it was termed, was like something out of the wild west, but the fact of the matter is, Mr Morin, you were in a suburban street in Melbourne with innocents in the vicinity and what is more, you were a person who knew very well that you were prohibited from having a firearm.  It seems to me that you were of the view that you could do whatever you liked.  The lack of cooperation from the victim and his group and your brazen behaviour, gives me a good deal of disquiet as to what the full picture was, insofar as your offending was concerned.  I cannot and do not speculate about this, but your conduct was intolerable.  Strong weight must attach to general deterrence in a bid to deter others from behaving as you have.

28In sentencing you, I take into account your criminal history, which is a lengthy and most relevant one.  The history relied on by the prosecution and admitted by you, commences in 2009 in the Children's Court and you have come before the courts on numerous occasions since that time and in nearly every year since.  You have prior matters for violence, including recklessly causing serious injury, intentionally causing injury, recklessly causing injury, robbery, assault with a weapon and assault police.  On 30 August 2016, you were dealt with in the Melbourne Magistrates' Court for reckless conduct endangering serious injury, possessing a cartridge ammunition without a permit or authorisation, trafficking methylamphetamine, possessing cannabis, criminal damage, unlawful assault, as well as some driving matters and retaining stolen goods. You were sentenced to an aggregate term of 253 days' imprisonment, being time served and received the benefit of a community corrections order for 15 months with drug treatment, offending behaviour and judicial monitoring conditions.  I understand from your evidence at the plea hearing, that the reckless conduct charge involved the use of a gun in a suburban street.

29On 8 December 2016 in the Moorabbin Magistrates' Court, you were convicted of carrying an unregistered category handgun, possessing ammunition without a permit or authority, possessing ecstasy, possessing cannabis, prohibited person carrying a firearm, burglary, theft and contravening a conduct condition of bail.  You received the benefit of yet another community corrections order, this time for 24 months with unpaid community work, treatment and rehabilitative conditions.

30Therefore, it appears to me that you were subject to two community corrections orders at the time you committed the offences for which I now sentence you. Further, you have recently been dealt with for firearms offences and conduct relating to these, which is of further concern.  When cross examined by
Mr Fisher at the plea hearing, it appeared to me that you had a good deal of fascination and enthusiasm for firearms.

31I note that in the past, you have had the benefit of community corrections orders, although you also have a history of having breached these.  You have also been dealt with for breaching a suspended sentence.

32The complicating factor in your case, is that you have suffered a serious injury yourself.  I have seen the brain scans and the other material tendered, which clearly indicates significant injury.  Your counsel says that you are a different person to the person you had been and that in all of the circumstances, the sentence which would otherwise be appropriate ought be significantly impacted by what has befallen you and your current condition and prognosis.  A good deal was said about this at the plea hearing and I have considered material which was tendered in respect of your medical condition and events which have occurred whilst you have been on remand.

33You were fortunate to have been attended to for your head injury by Mr Bob Homapour, consultant Neurosurgeon.  He had a background in treating soldiers with gunshot head and facial wounds in overseas conflicts, so his experience was invaluable to your care.  He provided three reports, the first of those being dated 29 January 2018.  In that report, after detailing your presentation upon arriving at hospital on 19 November last year, he said that you were taken to theatre immediately for a life-saving operation.  He referred to the surgery that was performed and said that the shattered pieces of bone at the frontal part of the cranium and the skull base were removed to avoid the risk of infection.  He also removed small bullet fragments and referred to dealing with injury that he observed to each of your eyes.  You were taken to intensive care for treatment for severe and life-threatening brain swelling.  

34He inserted a lumbar drain to drain cerebrospinal fluid from your spine, as you were suffering profuse leakage of the fluid, due to your head injuries.  He did this, as he was concerned to minimise the risk of infection and meningitis.  He said that you made good progress over time and that eventually you were moved to a high dependency ward.  He said that you had sustained a significant injury to both frontal lobes and had significant cognitive impairment.  He said that such injury usually resulted in problems with memory, performing complex tasks, motivation and drive and some personality changes.  He said that your behaviour while under his care was slightly erratic, but that you were never aggressive and that you cooperated with rehabilitation tasks.  He said that other injuries included the loss of your right eye and that you had a prosthetic eye inserted, with the possibility of surgery to the orbit in the future.

35I understand that vision in your left eye is weakened due to the frontal lobe damage and that your eyesight is deteriorating overall.  I also understand that after your admission to hospital, you fell into a coma due to the extent of your head injuries and that you underwent a series of operations in about November to December 2017.

36Mr Homapour said that your main risk was infection leading to meningitis, which exposed you to the risk of severe neurological impairment or death.  He said that you required 24-hour medical supervision in a hospital setting with access to emergency treatment and the neurosurgical team at Monash Hospital, if necessary.  

37At that time, he was concerned about the vulnerability of the scar tissue which served as a barrier to infection, in the event of erosion from infection or a fall or injury.  He said that you would require further surgery to repair the skull base and spoke of the future treatment and care that would be necessary in your case, including the creation of a plate to restore your facial contours.  He spoke of the significant risks associated with your condition as at that time and risks associated with surgery, as well as his concern of your mother’s report that you had suffered falls and a seizure whilst in custody.  He also expressed concern that you had been discharged from the rehabilitation unit without consultation from him.  He said that no account had been taken of the high risk of infection in discharging you and he was also concerned about medications which you had been prescribed.  Mr Homapour indicated that he would be very grateful if his detailed report could be presented to the court, (to quote him), "again".
I understand that this report was obtained in support of a bail application earlier this year.

38I have been told that a plate, or I understand that a plate that was subsequently created for the front of your skull- the first one did not fit and a further one had to be created, which has now recently been installed, albeit somewhat belatedly.

39Ahead of the further plea hearing, I received another report from
Mr Homapour, dated 25 November 2018.  He had last seen you in July this year.

40In that report, generally speaking, Mr Homapour was of the view that you were doing quite well.  He said that your memory was patchy and that you could only take in information slowly and spoke about the further surgery and treatment that was needed, but overall, he appeared to be of the view that you had progressed well, in terms of your recovery, as at that time.  

41A further and more recent report was provided from Mr Homapour, who said that the first 18 months to two years after a brain injury such as yours, is the most crucial time in which to maximise the brain’s recovery through appropriate treatment and stimulation.  He also said that the recent operation you had was a most positive step in your recovery.  Your counsel submitted that I ought factor this in when sentencing you, as the sooner you could receive necessary treatment and stimulation in the community, the better.  However, as Mr Fisher pointed out, you had made remarkable progress whilst in custody and the relevant authorities have done a good deal to assist you in your recovery overall.  Therefore, I do not see your recovery as being hampered by being in gaol.

42I should add that I understand that you have suffered at least one seizure since the accident.  You told Mr Homapour that you had suffered several seizures, however, there does not appear to be independent documentation in respect of these.  Certainly, the material discloses that you suffered a seizure in April this year and that the following day, you were prescribed anti-seizure medication, albeit at a dose which was lower than that prescribed.  However, contrary to your counsel’s assertion, there is no evidence that you suffered another seizure after this medication was administered.

43In a neuropsychological report dated 28 August this year, Mr Staios gave his opinion in respect of your cognitive function and fitness to stand trial.

44He said that you had suffered cognitive changes which were consistent with frontal lobe injury.  He said that behavioural support was recommended.

45He noted that you had first consumed alcohol when 14 years old, drinking socially.  You then moved onto cannabis when 16 to 18 years of age, again using this on a social basis.  You recommenced cannabis when you were 21, using this drug frequently up until the time of incarceration.  You started using methamphetamine from when you were 18 and developed an addiction to this drug.  You reported using half a gram daily prior to your incarceration.  I take it from this that you were using methamphetamine at this level at the time of the offending for which I now sentence you.  You reported having also periodically used cocaine and Xanax.  You had not engaged in any drug rehabilitation.  

46Mr Staios said that he saw you over two sessions at the Metropolitan Remand Centre, being 5 and 6 August this year, that communication occurred with no difficulties and that you comprehended and expressed yourself appropriately. He said that no cognitive or perceptual disturbance was noted.  He said that your functional memory was intact and that you appeared to be a reliable historian.  However, he said that functional memory for recent events was less reliable.  He said that you reported a period of post-traumatic amnesia following your initial recovery and treatment.  However, he said that you were able to recall the last few months more reliably.  He said that you appeared to become fatigued easily, but you were able to follow instructions, although you became confused at times, requiring repetition of these.

47Mr Staios conducted a number of neuropsychological tests.

48He found that your premorbid intellectual functioning fell within the low/average to average range.

49He said that your verbal abstract reasoning skills fell within the borderline range and that your comprehension of social rule conventions and vocab knowledge came within the average range.  He made a number of other findings based on the tests, which I will not repeat, but I have taken these into account in sentencing you.

50When assessing your fitness to stand trial, you were found to have adequately understood the nature of the charges against you and you denied your role in all of the offences.  You were able to explain the roles of various people in a trial and had an appreciation of the trial process, to some extent, but you exhibited an inefficient and unreliable memory and slowness at processing information.  Mr Staios said that these problems would present a moderate degree of difficulty in following the course of a trial, but referred to strategies that could be adopted in order to help you with this.

51At another stage of the assessment, you referred to your hand being tested for gunshot residue and seemed to have an appreciation of what evidence was and what might happen if you were to be found guilty.

52You were able to recall meeting with your lawyer on a number of occasions and discussing your case.

53Mr Staios found that you were fit to stand trial, but said that at the stage of the recovery you were at when he examined you, you continued to display mild to moderate reduction in your cognitive function and would need help to ensure that you had the time to take in material presented in Court, so as to be able to engage with your lawyer.

54Mr Staios concluded that you had a good understanding of the court process and your role in it and that you were capable of giving instructions to your legal counsel.

55In summary, Mr Staios said that your "current neuropsychology profile indicated mild to moderate reductions in the areas of speed of information processing, abstract verbal and non-verbal reasoning, visual memory and verbal memory tasks that were not structured, meaningful or contextual in nature".  He said that your cognitive defects were consistent with the location and nature of your frontal lobe injury and that it was important to remember that you had suffered a severe penetrating brain injury and were still in the early stages of recovery. He said that you performed within expected ranges on a number of other tasks, behaving in accordance with your level of low to average intellectual functioning.

56Mr Staios said:

"Measures of comprehension of social rules conventions, verbal fluency skills, attention and working memory, divided attention and verbal memory for information presented in a meaningful story format was intact and commensurate with his level of intellect".

57He went on to speak about your difficulties with retaining new information, which was further impacted by your vision impairment and mildly reduced capacity for abstract thought.

58He said that if a trial were to proceed within the next six months, you might well need someone to assist you with effectively engaging in the process and was concerned about your inefficient and unreliable memory.  However, as I said, he found you fit to stand trial, suggesting ways in which a trial might be conducted to maximise your ability to take part in the process.

59I have gone into some detail with each of the medical reports, as they were relied on by your counsel and I wanted to understand what the experts have said about your medical condition and prognosis.  I have borne in mind that the purpose of the neuropsychological report was to see if you were fit to stand trial, rather than to give an opinion on your medical condition and prognosis as such.

60Also, some material was tendered from Austin Health and from the Department of Justice and Regulation and your counsel outlined in his submissions some other matters, pointing out that you had undergone a number of operations since your injury was sustained.  He said that, "The permanent effect of (your) injuries resulted in a prognosis of significant cognitive impairment, resulting in the following problems:

(a) Memory;

(b) Performing complex tasks;

(c) Motivation and Drive;

(d) Personality changes".

61In relation to the assertion that your personality has changed, your sister gave evidence at the further plea hearing that you were "child-like" and that you were now calm and placid.  She said that before the accident, you were an angry person, which she appeared to attribute to your drug use.  When
cross-examined by Mr Fisher, she accepted that you were now in a custodial environment and not on drugs.  Your counsel spoke of your inability to feel emotions such as anger, for instance, but I am unable to find the medical foundation for this submission.  In the end, I accept that there have been some changes in your personality, perhaps for the better in some ways, as your sister seemed to say.  However, it is unclear as to whether you will remain this way, or the extent to which the changes are attributable to your brain injury, as opposed to your abstinence from drugs in a custodial environment.

62You gave evidence in this case where your memory was somewhat tested.  You were able to recall a number of things in relation to your criminal history and some more recent events, although you said that you had no memory of the offending itself.  I must say I was impressed by your ability to understand the questions and to appropriately reply.  As Mr Fisher said, you were quite articulate and you were certainly coherent.  You appeared to have retained a good deal of knowledge about firearms, in terms of your criminal history.

63Your counsel said that your short-term memory could come and go.

64It is of concern that you were admitted to hospital whilst on remand earlier this year because you had been accidentally given a toxic dose of anti-seizure medication.  I was told at the original plea hearing that this occurred over a number of months, but according to the affidavit of Ms Redpath, Acting Executive Director, Justice Health Unit, Department of Justice and Regulation, this occurred over a period of 17 days.  In any event, you had complained of symptoms of dizziness repeatedly and ultimately you received hospital attention.  You spent about two days in late June in St Vincent’s Hospital and you were then discharged and returned to remand.  I was told that you were not visited by a doctor to tell you what the effects of this episode might be on your damaged brain tissue.  I will return to this aspect in a moment.

65I was further told that Dr Homapour was initially refused entry to the MRC in order to examine you, with Corrections citing policy as the reason.  He was eventually permitted to see you on 17 July 2018, after your legal representatives obtained a court order.  I must say that I am rather concerned about this approach being taken by Corrections.  There may well be a policy in place of which I am not aware, so I cannot be unduly critical, but it seems to me that in order to have a treater visit you in gaol, it is not appropriate to refuse him entry until a court order has been obtained and that gave me some disquiet about how you were treated in that respect.

66I was also told that Mr Homapour was unable to say whether there would be lasting effects from the toxic overdose that you suffered.  Having said this, it appears that you made a recovery in the order of two days, to the point where you were discharged from hospital, back on remand.

67Mr Penna-Rees said that your appeal to the Supreme Court against a bail refusal in the Magistrates' Court was only abandoned after Corrections assured you that they had the facility to deal with you as a high risk medical patient.  He expressed dismay that the toxic overdose episode occurred only several months later.

68Your vulnerability to injury and infection had meant that until recently, you have had to wear a protective helmet whilst on remand in order to avoid the effects of accidental or deliberate impact caused to your head.  Until November this year, there was no bone area to the front of your skull, only a flap of skin which protected the brain.  Mr Penna-Rees complained about the delay in having this operation whilst on remand, in view of the emergent need for it, although he further explained that the plate that had originally been constructed did not fit, which contributed to the delay.

69I was also told that you have had to use a wheelchair whilst in custody at one stage, which appears to have been related to your symptoms from the toxic overdose of anti-seizure medication.  The use of the helmet and wheelchair drew attention to you, in an environment which can be most hostile, although
I did not hear that there were any untoward incidents in this respect.  However, as at the time of the further plea hearing, you had undergone a second round of operations and a plate was fitted at the frontal area of your skull, which has meant that you no longer need to wear the helmet.  This surgery went well.  You had 60 staples inserted in your head from one side of it to the other, but most of these have recently been removed.

70I was told that you have not received any feedback from medical staff in respect of metal fragments that might still be in your brain and that there is the prospect of further complications.  I was further told that there has been ongoing difficulty in obtaining information from Corrections in relation to your condition and treatment and that it took a Freedom of Information application to obtain the material which was referred to and tendered at the plea hearing.  Some aspects of these complaints were covered in the affidavit material that I have now received, insofar as feedback to your family is concerned.  

71As far as feedback to you is concerned, it may be that this has occurred but you have forgotten, or that it has not occurred.  In any event, in future, I ask that those treating you bear in mind your memory problems and provide any feedback in writing, additional to any other internal requirement of the relevant prison authorities. You would need to sign an authority in order for your family to be advised of such matters.  But as I say, it would assist you and your knowledge of how you are going, and your family, if you sign the relevant authority for the treaters involved in your care to provide some written feedback as to your progress.

72I was told that your current complications are as follows:

(a) Loss of balance and requires assistance walking;

(b) Complete loss of vision in the right eye and limited vision to the left eye;

(c) Slurring of speech;

(d) Delayed reaction to completing simple tasks;

(e) Impaired hearing capacity; and

(f) Lack of display of emotion.

73In his written submissions, Mr Penna-Rees said that in view of your injuries and various alleged shortcomings with your care, Corrections was not able to adequately accommodate you.  He went on to submit that Corrections had failed in their duty of care by negligently causing further serious injury, a reference to the toxic dose of anti-seizure medication.  Your counsel did not repeat these assertions in terms at the first plea hearing, but I indicated that
I would have the prosecution request affidavit material from representatives from the relevant authorities to address the alleged failures and your counsel’s submissions in this regard.

74I then received affidavits sworn by Mr Money, Assistant Commissioner, Sentence Management Division, Corrections Victoria and from Ms Redpath, Acting Executive Director, Justice Health Unit, Department of Justice and Regulation.  I have also been provided with an affidavit from a solicitor from the OPP, although this was prepared in anticipation of bail proceedings in February this year and does not deal with custody concerns, as such.

75The other affidavits set out in great detail your various movements within the prison system, your classification at various times, after careful consideration by a management team and the reasons for these classifications.  They also refer to your various trips to hospital whilst you have been in custody and the significant level of surgery and medical treatment administered to you whilst on remand.  There is also reference to the accidental overdose of prescription medication that you were administered, but according to Ms Redpath’s affidavit, this occurred from 4 June to 26 June, rather than over a period of months.

76On a number of occasions, you have given Corrections cause for concern, in terms of disciplinary matters.  For example, you were not where you should be on a number of occasions, or on one occasion, you were present when another prisoner was assaulted.  However, it may well be that your memory problems contributed to at least some of this conduct.  In any event, you have been dealt with by Corrections for these matters and I have not taken these into account in an adverse way against you.

77I accept that it is most regrettable that you received the wrong dose of
anti-seizure medication and suffered the ill effects of this, with hospital treatment being somewhat delayed.  In allowing for custody hardship, I have taken this into account.

78However, the affidavits from Mr Money and Ms Redpath make it very clear that Corrections are ready, willing and able to cater for your specific needs whilst in gaol and that they have been doing so for a significant period.  When necessary, you have been taken to hospital and they are very much aware as to the need to closely monitor your medical needs.  I am satisfied that you are being appropriately treated and cared for by Corrections, in league with Justice Health and that they have been doing so, as best they can, for the time that you have been with them.  I am also assured that they will continue to do so whilst you are with them.  

79At the further plea hearing, Mr Penna-Rees conceded that there was the capacity for you to be cared for whilst in gaol, but focused on the optimal period during which your recovery could be achieved, which I will deal with in due course.  In any event, I reject the suggestion that your needs are too complex, or that the relevant authorities are too inept to appropriately manage you in prison.  There was one short-lived, albeit unfortunate incident where your treatment was compromised and you were ultimately appropriately treated, apparently making a fairly swift recovery from your symptoms.  Further, the expert evidence reveals that you are making a remarkable recovery in view of the catastrophic nature of your injury.

80I was told that you had no memory of committing the offences for which
I sentence you and that you do not associate yourself with the individual who committed them.  You accept that the individual involved was you, which is evident from your plea, although as was ventilated at the first plea hearing, you had intended to run a contested committal hearing at one stage and you denied the offending when speaking with Mr Staios.  Mr Penna-Rees responded that you were unable to provide instructions in order to defend proceedings, notwithstanding that at an earlier stage, this was the course you had wished to take.

81At the end of the day, as your counsel said, it is unclear as to the degree to which you will recover from your brain injury.  However, it seems to me that you have made some very good progress since the injury was sustained and having been treated for the toxic dose of medication.  It is not clear to me that you are a completely different individual to the person who committed the offences.  
I do accept that you have suffered some devastating injuries, but as to whether you are now someone who would not and could not behave criminally in future, is not clear.  Certainly, you now have some physical obstacles to slow you down and certainly you have suffered a serious brain injury, with deficits to your memory and cognitive capacity, but whether this all translates to you being someone who will never re-offend is far from clear.  Indeed, your own counsel said that you were an unknown quantity, both medically and psychologically.

82I do not accept that you have been so adversely impacted by your injuries or by your treatment whilst in custody that you ought not face the appropriate consequences of your offending against the victim in this matter.  However, in sentencing you, I accept that time in gaol has been and will be somewhat harder for you because of the serious injury you have suffered.  It was further put that time in gaol has been and will be harder because you have a cell to yourself. This measure was taken in order to take proper care of you and prevent the possibility of injury being suffered at the hands of another prisoner.  In circumstances where you are not prevented from associating with other prisoners during the day and have said that this is what you do, I do not accept that time in gaol will be and has been harder because of this measure.

83In your favour, I take into account your plea of guilty and the stage at which you entered it.  This was entered at the committal hearing stage, but no witnesses were subjected to cross-examination, as the matter resolved.  This means that ultimately you saved the witnesses the time and trauma of giving evidence at committal, although they would have had the apprehension of being called, but also you have saved them from giving evidence at trial in the same way and you saved the community the time and expense of contested proceedings.  Therefore, in this case, I have allowed for a not insignificant discount in sentencing you.  

84I have also taken into account your personal circumstances:

85You are now 27 years old.  You enjoy the full support of your mother, sister and step-father. Prior to the offending before me, you lived with your step-father, who is now separated from your mother.  Your mother and biological father separated when you were a baby and you have never met your biological father.  You have no dependents.

86You attended school until Year 10, then completed three years of a carpentry apprenticeship.  You have held semi-stable employment and have worked as a tradesman.  Your counsel told me that due to your injuries, it was unlikely that you could ever work again in any labouring position.  He said that it was also doubtful as to whether you could drive.

87On the basis of all that is known about you at the present time, including your criminal history and the seriousness of your offending before me, but also taking into account your physical limitations and the effects of your brain injury insofar as I can, I am of the view that you have guardedly fairly good prospects of rehabilitation and I place less than moderate weight on specific deterrence and the need to protect the community.  In the absence of your injuries, I would have placed far stronger weight on these principles and I would have assessed your prospects of rehabilitation as poor.  As I said, I have to place strong weight on general deterrence in a bid to deter others from offending as you have.

88In giving appropriate weight to all sentencing principles, I am afraid that the only sentencing option available to me is a sentence of imprisonment, with a
non-parole period.  However, I am persuaded that in your particular circumstances, a slightly shorter than usual non-parole period is warranted.

89Could you please stand up.

90You are convicted of each of the offences.

Ancillary orders

91I make an order for forfeiture and disposal in the terms of the draft orders provided by the Crown - these orders are not opposed by you.

92You are sentenced to the following terms of imprisonment:

93Charge 1, two years;

94Charge 2, four  years;

95Charge 3, two and a half years.

96I direct that four months of the sentence on Charge 1 and eight months of the sentence on Charge 3, be served cumulatively with each other and the sentence on Charge 2, producing a total effective sentence of five years' imprisonment and I direct that you serve two years', ten months' imprisonment before becoming eligible for parole.

97If not for your pleas of guilty, I would have sentenced you to a total effective sentence of eight years' imprisonment, with a non-parole period of five years.

98I declare that you have already served 334 days by way of pre-sentence detention, which will be reckoned as already served.

99Take a seat for a moment please, Sir. 

100Is there anything arising, Counsel?

101COUNSEL:  No, Your Honour.

102HER HONOUR:  All right.  Yes, thank you, you can remove Mr Morin. 

103Yes, thank you. 

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