Director of Public Prosecutions v Paseka
[2022] VCC 1164
•20 July 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-00321
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SIOPE PASEKA |
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JUDGE: | Karapanagiotidis |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 July 2022 |
DATE OF SENTENCE: | 20 July 2022 |
CASE MAY BE CITED AS: | DPP v Paseka |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1164 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCING
Catchwords: Intentionally cause serious injury – early plea of guilty – youth – application of s 5(2H) of the Sentencing Act 1991 (Vic), guarded prospects of rehabilitation – COVID-19 pandemic.
Legislation Cited: ss 5, 5(2H), 5(2H)(e), 6AAA, 18 Sentencing Act 1991 (Vic).
Cases Cited:Azzopardi v The Queen (2011) 35 VR 43; Bolton v The Queen [2019] VSCA 21; Buckley v The Queen [2022] VSCA 138; Fariah v The Queen [2021] VSCA 213; Farmers v The Queen [2020] VSCA 140; Jawahiri v The Queen [2021] VSCA 287; Lukudu v The Queen [2019] VSCA 248; R v Mills [1998] 4 VR 235; R v Renzella [1999] VSCA 85; R v Rose [2020] QCA 234; R v Verdins & Ors [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169.
Sentence:Three years and six months’ imprisonment with a
non-parole period of two years and two months’ imprisonment---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Brennan | Office of Public Prosecutions |
For the Accused | Mr A. Marshall | Chris McLennan & Co. |
HER HONOUR:
1 Siope Paseka, you have pleaded guilty to one charge of intentionally cause serious injury. The maximum sentence for this charge is 20 years' imprisonment and it is a Category 2 offence.
Circumstances of the offending
2 The full circumstances of your offending are set out in the summary of prosecution opening of 22 June 2022, marked as Exhibit A.
3 In brief, you were 19 years of age at the time of your offending.
4 On 6 July 2021 in the late evening the victim of your offending
Mr Mohammad Mohammad walked to the supermarket at the Sunshine Market Shopping Centre. He purchased some items and then began to walk home towards the Sunshine Railway Station.
5 Just after midnight he crossed at the intersection of Dickson Street and Clarke Street Sunshine when he heard an unknown male call out, 'oi'. He turned around and an unknown male approached him and asked him for the time.
Mr Mohammad also saw another male, that is you, the unknown male asked
Mr Mohammad if he was ‘BDK’? And there was a hostile exchange as outlined in paragraphs [10] and [11] of the prosecution opening. After this exchange you asked Mr Mohammad if he was ‘BDK’ and if he wanted to go to an alley way with you. By this stage he was very concerned and wanted to leave but you grabbed his collar with one hand and started pushing him onto the road.
6 Mr Mohammad planted his feet and tried to prevent you from pushing him. You approached him, pushed him and then grabbed his collar. You produced a knife and stabbed him four times; once to the upper back, once to the neck, once to the left arm and once to the back. You and the unknown male then walked away, got into a parked car and drove off.
7 Mr Mohammad soon realised that he'd been stabbed and managed to seek some help at the Sunshine Railway Station where officers called 000 and an ambulance. Mr Mohammad ended up lying on the ground with blood on his clothing and protective service officers commenced providing first aid until the ambulance arrived.
8 Police soon attended and commenced an investigation which involved obtaining and viewing CCTV footage of the incident which ultimately led to you being identified as one of the males involved. In the early morning on 8 July 2021 police attended your home with a warrant and arrested you.
9 Mr Mohammad was conveyed to the Royal Melbourne Hospital where he remained until 10 July 2021. He suffered lacerations ranging from
2 centimetres to 6 centimetres to the following areas: his upper lower neck, near or just next to the spine, over the left scapula or shoulder blade, over the left pectoral muscle of the chest and to the left upper arm near the elbow.
10 Further examination revealed additional internal injuries including, a small left sided punctured lung and a ‘through and through’ wound to the left arm with entry and exit wounds causing a 90 per cent division of the ulnar nerve which was sutured and repaired. Upon hospital discharge he was advised to wear an elbow splint for at least three weeks. Some five weeks post the offending he also continued to experience some limited movement to his left elbow, little finger and ring finger and some pain in his left hand.
Gravity of the offending
11 The seriousness of your offending is reflected in the maximum sentence set by Parliament. As properly conceded by your Counsel Mr Marshall, this is serious offending. Your attack on Mr Mohammad was completely unprovoked. He was unknown to you, walking home at night alone. While you didn't instigate the initial verbal exchange, you did initiate the physical exchange. You used a dangerous weapon to assault him and you stabbed him four times as outlined in the opening.
12 While the unknown males do not appear to have joined in the assault, I note that you were in company at the time. This also occurred in a public place where, as submitted by Mr Brennan on behalf of the prosecution,
Mr Mohammad and the public were entitled to feel safe and should not have been exposed to such violence.
13 Clearly the injuries sustained by Mr Mohammad were serious. As discussed at the plea hearing in some ways he's probably fortunate that the injuries were not a greater threat to his life or wellbeing.
14 Your Counsel submitted that the offending occurred in the context of your mental health struggles and your intoxication at the time. I accept this but it does not excuse your conduct in any way or moderate your moral culpability for your offending.
15 I also accept that there was little, if any, planning or sophistication to your offending. Without detracting from the seriousness of this incident or its impact on Mr Mohammad, I also accept that the injuries sustained sit at the lower to mid-range of serious injury. In cases of intentionally cause serious injury, injuries can vary from gross and permanently disabling, to injuries that barely cross the high serious injury threshold.
16 While there's no victim impact statement that's been received by the Court. I have already referred to the physical injuries Mr Mohammad sustained. And I take into account that your unprovoked violent attack would have no doubt been confronting.
Plea of guilty and remorse
17 Your case Mr Paseka resolved at committal mention and is clearly an early plea which entitles you to a significant sentencing discount. I accept that your plea represents an acceptance of responsibility on your part and is indicative of remorse. Your plea of guilty has significant utilitarian value particularly in circumstances where there this is a still large backlog of cases in the court.[1] I recognise the utilitarian benefit of the plea. I accept your Counsel's submission that a real and tangible sentencing discount must follow.
Personal circumstances
[1]Worboyes v The Queen [2021] VSCA 169.
18 In terms of your background it was canvassed in detail in the report of Mr Ian McKinnon of 30 June 2022 and also by Mr Marshall. Briefly you are now 20 years of age, you were born in Australia and your parents are of Tongan background. You are the youngest of three and grew up in the western suburbs of Melbourne. Your family moved around a lot and also shared a house with another family for several years.
19 While your childhood was relatively unremarkable, you did experience a fair degree of instability caused by the constant moves. Your parents along with your siblings currently live in Deer Park. Your father works at a meat packing company and your mother works at Woolworths. It is hoped that upon your return, or it is intended that upon your release from custody, you will return to live with them.
20 As for your education, you attended Bayside Secondary College and then a flexible learning program at St Joseph's College up until 2021 which was sometime in Year 10. You only have basic literacy skills and you identify your greatest strength to be in music. You write songs and you rap and play instruments. You do not really have a history of paid employment. You are interested in pursuing an apprenticeship of some kind. You possess a traffic control qualification and a white card construction industry certificate.
21 You fractured a knee in 2017 and you started suffering with gout 18 months ago. Otherwise you have enjoyed reasonable physical health. In custody you were prescribed medication to treat your gout. You have over a long period of time struggled with obesity and associated body image problems. I was told that in custody you have in fact lost over 30 kilograms and are feeling healthy.
22 You report having, 'a big problem’ with alcohol and you started drinking alcohol with other young people when you were about 15. Your drinking got progressively worse over the last four or five years and you would drink whatever was available at the time, usually beer or spirits.
Prior criminal history
23 You have a limited but relevant prior criminal history commencing in the Children's Court on 7 May 2020. You were sentenced to a without conviction undertaking for several charges including, recklessly cause injury. On 11 March 2021 you were sentenced to six months’ imprisonment. Followed by an 18 month Community Correction Order (‘CCO’) with conditions on charges that included, affray, common law assault and intentionally cause injury. You were released on this order on 26 April 2021.
24 You were then received back into custody on 21 May 2001 until
30 June 2001 when you were convicted and fined on one charge of theft. As I have already noted, you were then arrested and remanded on 8 July in 2021 in respect to the current matter.
25 I note that you were on a CCO at the time of your offending. I was told that this order has been subsequently breached and dealt with. Also, as discussed with the parties at your plea hearing, I intend to take into account under the Renzella[2] discretion the time that you spent in custody 21 May 2021 to 30 June 2021, which was not declared by the sentencing court on 30 June 2021.
Section 5(2H)
[2]R v Renzella [1999] VSCA 85.
26 As I have already noted Mr Paseka, the charge of intentionally cause serious injury is a Category 2 offence. Therefore, the provisions of s 5(2H) of the Sentencing Act 1991 (Vic) apply. This means, the court is prohibited from making a non-custodial order even as part of a combination sentence with a term of imprisonment unless a relevant exception applies.
27 In your case Mr Marshall argued that s 5(2H)(e) applies. That is, there are substantial and compelling circumstances that are exceptional and rare that justify not making orders under the relevant division. He relied upon an accumulation of factors, including the offending itself and in particular, the nature of the injuries, the effect of COVID-19 both on the value of your plea and conditions in custody. Your lack of substantial prior history, your youth, rehabilitation and your mental health.
28 Whether there are substantial and compelling circumstances in your case is an evaluative judgment for the court to make once the relevant underlying facts have been established in accordance with settled principle.
29 Each case turns on its facts. In Farmers v The Queen[3] the Court considered that case ‘most unusual’ given ‘the physical disfigurement from which the applicant suffer[ed] and the profound impact which it had had on his life’. In that case the court also observed, ‘in many cases given the type of offences within Category 2, a term of imprisonment will be inevitable. In some cases the operation of s 52H will be harsh…To a degree, paragraph (2H)(e) guards against the risk of injustice. But the stringency of the test cannot be avoided’.
[3]Farmers v The Queen [2020] VSCA 140.
30 As the court stated in Fariah v The Queen[4] every case will necessarily depend on its particular facts. ‘The mere fact that some individuals circumstances may commonly be encountered by sentencing judges in the County Court will not by that fact alone necessarily deprive them of their character as substantial and compelling and exceptional and rare’.
[4]Fariah v The Queen [2021] VSCA 213.
31 In that case the Court considered that the applicant's appalling childhood experiences, coupled with his youth and other factors relied upon, were sufficient to engage the exception.
32 In the recent case of Buckley v The Queen[5] the Court dealt with similar mandatory sentencing provisions. The Court confirmed the stringent test set intended by Parliament and the implications of the terms, ‘substantial and compelling’ and ‘exceptional and rare’. The Court also reflected upon the injustice caused by mandatory minimum sentences. In that case the applicant had just turned 18 years of age and the evidence indicated he was exceptionally immature and would be vulnerable in an adult gaol. In refusing leave to appeal the Court called for legislative reform.
[5]Buckley v The Queen [2022] VSCA 138.
33 I have carefully considered the submissions made on your behalf and also the report of Mr McKinnon. In relation to your mental health, he states that at the time of the assessment, that is on 20 June 2022, you were suffering with symptoms that met the clinical criteria for the following major diagnosable psychological disorder, clinical depression. Based on what you had reported to him, contributors to the development of your depression appear to have included: the negative influence of peers in your home neighbourhood; a probable dyslexia that led to you being enrolled in a special learning stream; and low self esteem arising in the context of living in ever changing circumstances during your formative years. He also diagnoses you with substance abuse disorder currently in remission.
34 Mr McKinnon also opines that at the time of your offending you were suffering with symptoms of both clinical depression and substance abuse disorder. He states that, both disorders made significant contributions to your offending by degrading your ability to reason and make sound judgment, distorting your perception and cognition, fuelling impulsivity and eroding your sense of morality and community responsibilities. You reported to him at the time of the offences you were heavily intoxicated and you didn't remember the event too clearly.
35 As discussed during the plea hearing I am prepared to accept that you suffer from longstanding depression and a history of alcoholism. I will take these matters into account in sentencing you.
36 On the evidence however it is unclear on what basis Mr McKinnon diagnoses you with suffering from clinical depression at the time of the offending. It is unclear what symptoms you were presenting with at the time and also what contribution any such clinical depression directly made to the offending, separate to your intoxication. In his opinion your heavy intoxication at the time significantly contributed to your offending.
37 The factors referred to by your Counsel are relevant and will be taken into account and reflected in the sentence I impose.. However, in all the circumstances, I do not consider that in your case the exception is enlivened. I also consider, taking into account all relevant matters, that the only appropriate sentence in your case is one attracting a minimum non-parole period.
Factors in mitigation
38 I take into account Mr Paseka the additional factors in mitigation that were advanced on your behalf by Mr Marshall.
Youth
39 There are well established principles that apply in your case, given your youth. They include the following:
a) The youth of an offender should be a primary consideration for a Sentencing Court where that matter properly arises.[6]
[6]R v Mills [1998] 4 VR 235.
b) Young offenders are immature, may not fully appreciate the nature, seriousness and consequences of their criminal conduct.
c) Courts recognise the increased potential for young offenders to be rehabilitated. Rehabilitation of young offenders is one of the great objectives of the criminal law and in the public interest.
d) Incarceration is more likely to impair rather than enhance a young offenders prospects of rehabilitation.[7]
[7]Azzopardi v The Queen (2011) 35 VR 43, [34].
40 I note that in your case prison has in fact appeared to benefit you in some respects. You have lost of 30 kilograms, you are working and you have generally been able to cope well enough in the prison environment. However, as Mr McKinnon cautions, given your youth, your continued incarceration may place you at risk of becoming more deeply inculcated into the criminal milieu thus jeopardising your rehabilitative prospects.
41 As the Court of Appeal stated in R v Rose[8] the reality is that 'imprisonment harms people. It does not foster maturity and sensitivity to others'. I also note as relevant the serious disadvantages of a term of adult imprisonment for a young person as were discussed by the court in Bolton v The Queen[9].
Time in custody
[8]R v Rose [2020] QCA 234.
[9]Bolton v The Queen [2019] VSCA 21.
42 While I recognise that the offending here is serious, in all the circumstances I consider that significant weight should attach to your youth. The sentencing objectives of deterrence, denunciation, just punishment, protection of the community however, do remain relevant and important.
43 You have been in custody since your arrest which is now over a year. You have served your time in custody during the currency of the pandemic. I accept there have been greater restrictions within the prison system which have made your time on remand more onerous. I also take into account that you are anxious about your health as you are currently unvaccinated and in a relatively confined and controlled environment.
44 Fortunately, you have been able to participate in some work and programs in custody. You worked in the metal industry program and most recently in the horticultural program. You have completed educative and rehabilitative programs including barista and drug and alcohol seminars. You are using the fitness centre and applying yourself to losing weight and improving your general health and fitness.
Mental health
45 I have already referred to the report of Mr McKinnon and have indicated that I accept the diagnosis he makes that you suffer from longstanding depression and a history of alcoholism. I take into account the opinions he provides and the mental health issues identified. I do not consider that the report provides an appropriate evidentiary basis to enliven any of the Verdins[10] principles.
[10]R v Verdins & Ors [2007] VSCA 102.
46 Also, there is no suggestion in the report that as a result of your diagnosis, a different kind of sentence should be imposed, or that it may cause imprisonment to weigh more heavily on you. In fact Mr McKinnon states that, 'notwithstanding your ongoing challenges you appear well enough to cope with custody'. Although, he cautions that your continued incarceration may jeopardise your future rehabilitative prospects given your young age, as I have already referred to.
Prospections of rehabilitation
47 In all the circumstances, your prospects of rehabilitation are guarded and largely depend on you engaging in structured supports and treatment and not abusing alcohol or other substances. Mr McKinnon assesses you as, 'posing significant risk of further violent offending if you relapse into alcohol or substance abuse’. In your case positive protective factors include: the remorse that you have indicated for your offending; the continuing support you have from your family; your interest and talent in music; your current focus on improving your health and your abstinence from alcohol..
Sentencing principles
48 The basic purposes for sentencing, as I have already referred, are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. I take into account the sentencing guidelines referred to in s 5 of the Sentencing Act 1991 (Vic) where relevant to your case.
49 I have also had regard to the current sentencing practices for intentionally cause serious injury. Given the variability of the circumstances surrounding the commission of this offence, there are limitations to using current sentencing practices as an aide in the sentencing exercise.[11]
[11]Jawahiri v The Queen [2021] VSCA 287; Lukudu v The Queen [2019] VSCA 248.
50 Also, I have had regard to the principles of parsimony, totality and proportionality in your case. There was no dispute between the parties that a term of imprisonment is warranted for your offending. The prosecution submit that it ought to be structured by way of a head sentence and non-parole period. Your counsel, Mr Marshall submits that a combination sentence was open.
51 Given my earlier findings Mr Paseka, a combined sentence is not an available option. In the alternative, Mr Marshall submits that any term imposed by the Court should be moderated by the factors relied upon, particularly your youth, and that you should be allowed a substantial period of supervised and supported interventions in the community on parole.
52 In light of the nature and the gravity of your offending, I consider that a substantial term of imprisonment is the only appropriate sentence. The mitigatory factors referred to when combined, in particular with your youth, will result in a sentence that is far less than would have been the case were you an older person. I will also provide for a substantial period on parole to reflect your youth and the other mitigatory factors.. Also, I consider that that will help facilitate your rehabilitation which is ultimately in your interest and in the best interest of the community.
53 On the charge of intentionally cause serious injury Mr Paseka, you are convicted and sentenced to three years and six months’ imprisonment. With a non-parole period of two years and two months’ imprisonment.
54 Pursuant to s 6AAA, but for the plea of guilty I would have imposed a total effective sentence of five years and four months’ imprisonment. With a non-parole period of three years and seven months’ imprisonment.
55 I declare pursuant to s 18 that you have served, 377 days. And I also make the disposal order which I note was unopposed in the terms sought.
56 Is there anything further that is required of me Mr Brennan, Mr Marshall?
57 MR MARSHALL: I don't believe so Your Honour.
58 MR BRENNAN: No Your Honour.
59 HER HONOUR: All right, Mr Brennan, Mr Marshall, thanks very much for your assistance in this matter we'll adjourn the court.
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