Director of Public Prosecutions v Persoons
[2024] VCC 1010
•28 June 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-22-00654
CR-23-00555
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN PERSOONS |
---
JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 June 2024 | |
DATE OF SENTENCE: | 28 June 2024 | |
CASE MAY BE CITED AS: | DPP v Persoons | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1010 | |
REASONS FOR SENTENCE
---
Subject:Plea - sentencing
Catchwords: Affray - causing serious injury recklessly - kidnapping - handling stolen goods - possess drug of dependence
Legislation Cited:
Cases Cited:Bugmy v The Queen [2013] HCA 37
Sentence:2 years and 9 months' imprisonment, non-parole period 21 months
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. de Vietri | Office of Public Prosecutions |
| For the Accused | Mr J. Lavery | Emma Turnbull Lawyers |
HIS HONOUR:
1 John Persoons, you have pleaded guilty to two indictments. The first is indictment number C2114424.B.1. The offences to which you pleaded guilty on that indictment are affray, for which the maximum term of imprisonment is five years; causing serious injury recklessly, for which the maximum term of imprisonment is 15 years; and kidnapping, for which the maximum term of imprisonment is 25 years.
2 You have also pleaded guilty to indictment number M11019675, on which Charge 1 is an offence of handling stolen goods, for which the maximum term of imprisonment is 15 years; and Charge 2, possession of a drug of dependence, for which the maximum sentence is a fine of 5 penalty units.
3 You have also admitted your criminal record, which contains a large number of offences going back several years. Many of those involve the misuse of drugs and offences of dishonesty. There is an element of violence that emerges in a number of the convictions.
4
In particular, in 2007 at the Frankston Magistrates' Court you were convicted of an offence of recklessly causing serious injury and you received a sentence of a community correction order, which suggests that although the offence was a similar offence to that on Charge 2 on the first indictment to which I have referred, it was not regarded as a particularly serious example of that otherwise serious offence. And I note that you breached the community correction order. You appeared at the Dandenong Magistrates' Court on 28 August 2008 and for failing to comply with that order received a fine of $700. Again, that suggests that the nature of the offence of recklessly causing serious injury was not in the most serious category. Nevertheless, it is a serious record and I need to take that into account in imposing sentence.
5 There is no victim impact statement. The prosecution tendered and read to the court a summary of the prosecution case during the sentence indication hearing. That document is dated 19 June 2024.
6 I do not propose to read it again but in short summary, on 19 March 2021, you and your then 22-year-old son Corey Hughes, in company with your son's then 18-year-old girlfriend, attacked an associate of your son in a shopping centre carpark. Your son was wielding a weapon which has been described as either a truncheon or a small baseball bat and used it to strike your victim a number of times in front of bystanders in the shopping centre carpark with your assistance. You were not only present and encouraging him, you also held the victim whilst some of the attack was taking place.
7 Ultimately, you told your son, 'not to hit him any further'. But the two of you then manoeuvred your victim to the vehicle that was being driven by your son's then girlfriend. Your victim was placed in the back seat with you and your son either side of him and driven to your home address. During the journey your son used the same baseball bat to continue the attack upon your victim.
8 The attack in the carpark in front of bystanders is dealt with by way of the charge of affray, which is Charge 1 on the indictment. Your victim suffered severe injuries which have been debilitating. The extent to which he has recovered from those injuries is unclear, but it is possible that they will affect him for the rest of his life.
9 The charge of kidnapping arises from your action in placing your victim in the vehicle, driving him to your home and keeping him in your home for a period of time against his will. Ultimately, he left your home.
10 Later you were arrested by police. You did not admit your conduct. You told the police lies. A search warrant was executed at your home. There police found the two motor vehicles, the Toyota Hiace and the Suzuki motorcycle, which were both stolen and which are the subject of the charge of handling stolen goods, to which you had already pleaded guilty. At the time of your arrest, you were found to be in possession of a small quantity of cannabis L.
11 Turning to matters personal to you. Your counsel provided me with an outline of submissions, Exhibit 1, a report dated 12 June 2024 from Mr Warren Simmons and a letter on the letterhead of Fruit To Work, signed off by an administrator of that organisation, indicating that you had been employed as a delivery driver by them between May 2023 and September 2023, two or three days a week. Finally, there is a letter from Linda Lewis, your ex-partner.
12 I have taken all of those matters into account. The report of Mr Simmons sets out information about your background. It is common ground between prosecution and defence that the background as revealed in the report indicates that you were the subject of considerable violence from your father who was clearly an alcoholic and a violent man. You were also the subject of a series of sexual assaults by a teacher at your school during your teenage years. When your father found out about that, rather than deal with it in a supporting way he derided you for the conduct and called you a ‘faggot’.
13 I sentenced your son in October of last year to a total effective sentence of four years and six months, which was quite lenient. It reflected the plea on his behalf that he came from a deprived background. You also had a deprived background and perhaps your conduct in relation to your son is history repeating itself.
14 You are not to be sentenced for that conduct towards your son, but you are to be the subject of amelioration of sentence as a result of the violence that you suffered as a young person and the recognition by the courts that people who suffer from that kind of treatment as a child are much more likely to engage in similar conduct in later life. It is clear that from age 15 you became heavily involved in abuse of drugs and alcohol arising from your difficult upbringing and to some extent the encouragement that you received at home.
15 For those reasons it was submitted on your behalf that principles known generally as the Bugmy principles apply to reduce moral culpability for your conduct.[1] It is common ground that the balancing factor that I need to consider is the degree to which the principle of public protection needs to be given proper weight in the sentencing exercise.
[1]Bugmy v The Queen [2013] HCA 37.
16 Your offending was serious. You were not the one who wielded the weapon. You were not the one who struck the blows. You are to be commended for encouraging your son to stop the assault in the carpark. Your moral culpability is quite significantly lower than that of your son. He was charged with the offence of intentionally causing serious injury, which in itself is a much more serious offence.
17 You have some physical injuries dating back to birth and other injuries that you received in your life. They affect you. You are quite capable of working and it may be that if you can get on top of your drinking and drug abuse, you will be a better candidate to hold down a steady job.
18 I cannot conclude that you have good prospects of rehabilitation but you are at an age now when it must be getting harder for you to do your time. Not infrequently people at your age find that getting a job and avoiding imprisonment is a better option than continuing with the pattern of behaviour that has led you to imprisonment in the past.
19
You have been in custody on and off now for 348 days. It is necessary for me to punish you adequately for your offending, to denounce your offending conduct and to pay proper regard to the need to deter others from committing offences of this kind. You also need to be deterred to some extent. Those are sentencing considerations to which I need to give proper weight, as well as the need to give value to public protection.
20 Your offending conduct in the carpark and in the subsequent assault and kidnapping of your victim in March 2021 was less serious than that of your son. Your other co-offender, the 18-year-old female, is yet to be dealt with. It may be that she will go to trial and the outcome of her charges may not be known for some time.
21 I need to consider the question of parity with the sentence imposed upon your son, to encouraging your further rehabilitation and to temper the sentence upon you with an appropriate degree of mercy.
22 Doing the best I can to give proper effect to all of those considerations, on indictment C2114424.B.1:
- on Charge 1 of affray you are convicted and sentenced to imprisonment for 12 months;
- on Charge 2 of causing serious injury recklessly you are convicted and sentenced to imprisonment for two years and two months;
- on Charge 3 of kidnapping you are convicted and sentenced to imprisonment for two years.
23 On the other indictment M11019675:
- on Charge 1 of handling stolen goods you are convicted and sentenced to imprisonment for 14 months;
- on Charge 2 of possession of a drug of dependence you are convicted and discharged.
24
On the first of those indictments the sentence of two years and two months on Charge 2 is the base. I order that one month of the sentence on Charge 1 and four months of the sentence on Charge 3, be served cumulatively upon one another and upon the sentence of two years and two months.
25 The total effective sentence on that indictment is therefore two years and seven months, and I set a notional non-parole period of 20 months.
26 In respect of the other indictment charging you with handling stolen goods, I order that two months of the sentence on that charge be served cumulatively upon the sentence of two years and seven months on the first indictment, making an overall total effective sentence of two years and nine months.
27 I fix a non-parole period in respect of both indictments of 21 months imprisonment.
28 I declare pre-sentence detention of 348 days to be reckoned as time served on the sentences that I have imposed and to be deducted administratively from the sentence of two years and nine months.
29
But for your pleas of guilty I would have sentenced you to imprisonment for three years and nine months with a non-parole period of two years and
six months.
30 Are there any other matters?
31 MR de VIETRI: Your Honour, the only matter that remains is a summary charge of commit indictable offence whilst on bail in relation to the offending on 18 May, which was transferred.
32 HIS HONOUR: Right.
33 MR de VIETRI: And it remains before the court.
34 HIS HONOUR: Yes.
35 MR de VIETRI: The accused is on bail for that offence.
36 HIS HONOUR: He has pleaded guilty to that already, has he not?
37 MR de VIETRI: No. He has pleaded guilty to substantive charges on the indictment.
38 HIS HONOUR: I see.
39 MR de VIETRI: Because it's only a summary charge it's just carried along.
40 HIS HONOUR: Yes.
41 MR de VIETRI: In the usual course, the prosecution doesn't intend to proceed with that charge.
42 HIS HONOUR: Right.
43 MR de VIETRI: It is no longer an offence in fact, under the new Bail Act.
44 HIS HONOUR: Yes.
45 MR de VIETRI: It was at the time. So, there has been no written notice filed as is usually the case just because of the short timeframe in which this matter was resolved.
46 HIS HONOUR: Yes.
47 MR de VIETRI: But I indicate in open court the prosecution withdraws that summary charge.
48 HIS HONOUR: Thank you, and I'm sure you don't have anything to say about that, Mr Lavery.
49 MR LAVERY: No, Your Honour.
50 MR de VIETRI: Those are the matters, as the court pleases.
51 HIS HONOUR: Mr Persoons, I hope that you can build up some Brownie points whilst you are serving your time, that you can make yourself a good candidate for an application for parole when the minimum non-parole period is completed and that you can move on from this and lead a more productive life.
52 OFFENDER: Yes, Your Honour.
53 HIS HONOUR: Thank you.
- - -
0