Director of Public Prosecutions v Pritchard

[2023] VCC 1665

IN THE COUNTY COURT OF VICTORIA

AT GEELONG

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00033

DIRECTOR OF PUBLIC PROSECUTIONS

v

NEFF PRITCHARD

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JUDGE:	HIS HONOUR JUDGE GAMBLE
WHERE HELD:	Geelong
DATE OF HEARING:	30 August 2023
DATE OF SENTENCE:	19 September 2023
CASE MAY BE CITED AS:	DPP v Pritchard
MEDIUM NEUTRAL CITATION:	[2023] VCC 1665

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.

Catchwords:              Causing Injury Intentionally – Offence captured by CCTV cameras – Offending against a custodial officer on duty – Category 1 offence and subject to mandatory term of imprisonment of not less than 6 months – Victim punched unconscious and then further assaulted – Significant victim impact – Early plea of guilty – Relevant criminal history.

Legislation Cited:      Crimes Act 1958, s 18; Sentencing Act 1991, ss 5(2G), 10AA(4).

Cases Cited:Gommers v The Queen [2021] VSCA 258; Shau v The Queen [2020] VSCA 252; Hards v The Queen [2013] VSCA 119; Hope v The Queen [2018] VSCA 230; R v Schneidas (No 1) (1980) 4 A Crim R 95; Director of Public Prosecutions vArvanitidis (2008) 202 A Crim R 300; Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 169.

Sentence:                  2 years and 3 months’ imprisonment with non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr R. Pirrie	Office of Public Prosecutions
For the Accused	Ms A. Addamo	Leanne Warren & Associates

HIS HONOUR:

Introduction

1Mr Pritchard, you have pleaded guilty to a single charge of causing injury intentionally, for which the maximum penalty is 10 years' imprisonment.[1] You committed that offence on 23 August 2022, at the Barwon Correctional Centre where you were a prisoner and the victim was a prison officer.

[1] Charge 1 on Indictment N12199790 laid pursuant to s 18 of the Crimes Act 1958.

2The sentence that you were then undergoing had been imposed on 7 June 2022, at the Heidelberg Magistrates' Court. You received an aggregate sentence of 20 months' imprisonment for affray, robbery (x2), commit indictable offence whilst on bail (x3), unlawful assault (x2), resist emergency worker on duty, behave in an offensive manner in public, possess prohibited weapon without exemption/approval, carjacking and unlicensed driving. A non-parole period of 14 months was fixed. A period of 506 days pre-sentence detention was declared. On the same day, you faced contravention proceedings in relation to a community correction order that you had received as part of a combination sentence on 19 December 2018. The breach was found proven and for the original offences of causing injury intentionally (x2), unlawful assault (x2), theft (x2), contravene condition of bail and criminal damage, you were sentenced afresh to an aggregate term of 4 months' imprisonment, to be served cumulatively upon the other sentence imposed on that day. A further period of 60 days pre-sentence detention was declared.

3I note that at the time you committed the offence for which you now fall to be sentenced, you were 24 years of age. You are now aged 25, having been born in January 1998.

Circumstances of the offending

4The circumstances in which you committed this offence are set out in the typed summary of prosecution opening for plea dated 5 June 2023,[2] which your counsel acknowledged could be treated as an agreed statement of facts for sentencing purposes. The basis on which you fall to be sentenced was also discussed during the course of the plea hearing. I have had regard to that opening and to those discussions when determining the appropriate sentence in your case.

[2] Exhibit A.

5On the morning of 23 August 2022, the victim, Mr Marendaz, was working a day shift at Barwon Correctional Centre. He had known you since he commenced working at that facility a few months earlier. There had never been any previous problems or issues between the two of you during that time.

6On that morning, Mr Marendaz was working as an acting senior prison officer. At 8:15 am, prison staff were in the process of handing out medication to prisoners. During this process, only one prisoner is allowed out of their cell at a time. Once that prisoner has received and taken their medication, they are returned to their cell before the next prisoner is released.

7Mr Marendaz believes that you were the second prisoner to be given their medication that morning. You were standing at the unit console where the medication is distributed. You were only a metre or so from Mr Marendaz who was standing in the doorway which separated A side from B side. He noticed that you were looking around the room.

8On the previous day, you had requested a printout of your 'emergency management days' and this printout was being obtained for you whilst you were being provided with your methadone.

9Then, without warning, you punched Mr Marendaz to his face. As a result, he was knocked to the ground and appeared unconscious. You continued to punch him approximately six more times whilst he was on the ground before stomping on his head. You then stopped and started to walk away as other prison officers came towards you. When you ignored their order to get onto the ground, those prison officers restrained and handcuffed you.

10The entire incident was captured on CCTV footage. A portion of that footage was played to the court at the plea hearing.[3]

[3] Exhibit D.

11When other prison officers attended to Mr Marendaz, they noticed that he was unconscious. The nurse who had been administering the medication attended to him until an ambulance arrived.

12Mr Marendaz does not recall being hit. He only remembers feeling dazed when people were around him and trying to get his attention. He recalls nothing further between this time and when he arrived at hospital.

13Mr Marendaz was transported by ambulance to a hospital in Geelong where he presented with the following symptoms:

·Loss of consciousness for an unknown amount of time;

·Retrograde amnesia and nil recall of the incident;

·Confusion;

·Headache;

·Nausea;

·Two mucosal wounds to his mouth/laceration on his top and bottom lips;

·Bruising under his left eye;

·Left upper arm tenderness with mild swelling; and

·Tenderness to the right side of his chest.

14Mr Marendaz was provided with pain and nausea medication. He underwent a CT scan of his brain, face and cervical spine and X-rays of his chest, shoulder and arm. The results were clear. When he was discharged from hospital at approximately 4 pm, he was given advice regarding concussion and told to follow up with a general practitioner in 48 hours. He was also advised that the injury may warrant a referral to the Barwon Health Brain Injury Service.

15As advised, Mr Marendaz attended at a general practitioner on 25 August 2022. In a police statement he made that afternoon, Mr Marendaz noted that he:

·Was experiencing headaches and head pain;

·Had swelling to his left, central and right side of his face;

·Had bruising to his left eye and right upper arm;

·Had soreness in his lower back;

·Was unable to eat properly, and

·Had a visible shoe print on his right cheek.

16To some extent, the police photographs taken of Mr Marendaz on that day depict his injuries, including the shoe print on his face.[4]

[4] Exhibit B.

Victim impact

17I have had regard to the contents of the victim impact statement of Mr Marendaz which was declared on 28 July 2023.[5]

[5] Exhibit C.

18In that statement, he clearly describes the impact that this offence has had on him. He has experienced stress and anxiety for which he has required medication and psychological treatment. He has had trouble sleeping. He has become untrusting and withdrawn and now lacks confidence when working in the same settings or going out in public. It has had a negative impact on his personal relationships, including his relationship with his partner. The aftereffects of his concussion included headaches, fatigue, confusion, mood swings, memory loss and difficulties with concentration. For several months, he was unable to work or attend the gym and leisure activities.

19Mr Marendaz has also been impacted financially as he was unable to work for a period and has not worked at the level or capacity that he was able to previously. He now fears that he will not have the same career opportunities that he would have had if he had not been assaulted in this way.

Charged and remanded

20Mr Pritchard, I note that you were arrested, charged and remanded in custody for this offence on 23 August 2022.

21For completeness sake, I also note that you were not interviewed by the police in respect of that offending.

Period spent in custody

22The sentence imposed on you by the Heidelberg Magistrates' Court on 7 June 2022 lapsed on 28 October 2022. Since that time, you have been held on remand solely in relation to this offending. As a result, you have spent a total of 326 days in pre-sentence detention for this matter, not including today's date. That period will be the subject of a formal pre-sentence detention declaration shortly.

Resolution and guilty plea

23I note that this matter resolved at an early stage of the proceedings, namely at the committal mention hearing. As it came to this court by way of a straight hand‑up brief committal hearing, no witnesses were required to give evidence or be cross-examined, including the victim, Mr Marendaz.

Prior criminal history

24Mr Pritchard, you have a very relevant and concerning prior criminal history for someone of your age.

25Over the course of an eight year period between July 2014 and June 2022, you have been sentenced for some 42 offences. In particular, you have been sentenced for two offences of causing injury intentionally, six offences of unlawful assault, two offences of resisting an emergency worker on duty and one offence of threatening to inflict serious injury. At the time of your current offending, you were serving a sentence imposed for not just two offences of causing injury intentionally, four of unlawful assault and one of resisting an emergency worker on duty, but also for an offence of affray and another of robbery.

26It is clear from your criminal record that you have not seized past opportunities. The community correction order you received on 19 December 2018, included a condition that you complete a Men’s Behaviour Change Program. You commenced but did not complete that program.[6] You have breached probation on two occasions and a community correction order on two occasions. Each of those community correction orders had been imposed as part of a combination sentence. Your previous experiences of custody appear not to have deterred you from committing the current offence.

[6] On the plea, defence counsel explained that was due to a contravention of the CCO by way of non-compliance and further offending.

Personal circumstances

27I now turn to consider your personal circumstances, Mr Pritchard.

28You were 24 years of age when you committed this offence. You are now 25, having been born in January 1998.

29You are the eldest of five children in your family. Your parents separated when you were 17 and you have had no contact with your father since about 2020. Your mother is now in a new relationship and her and her current partner have a young child. You have maintained regular contact with your mother and siblings whilst you have been in custody.

30After completing Year 11 at a Technical College, you were employed in various trades including plasterboard delivery and powder coating. You have also performed manual labour at various Metro Tunnel sites.

31You started to drink alcohol and smoke cannabis on weekends at age 13. Once you entered the workforce, you were doing so daily. When you were 17, you were introduced to the drug methylamphetamine and soon became addicted. Within a short period, you were using that drug on a daily basis. You attribute your previous offending to your problematic use of alcohol and drugs.

Matters in mitigation

32Your counsel relied on the following matters in mitigation, Mr Pritchard.

33You pleaded guilty to this offence at an early stage. That plea has a utilitarian benefit which is of increased significance due to it having been entered at a time when this court is still facing pandemic related case backlogs.[7] Thus, it is appropriate to give you a greater discount for your plea on account of that fact. Furthermore, it is important to acknowledge that by pleading as and when you did, the victim and his work colleagues have been spared the ordeal of having to give evidence and be cross-examined.

[7] See Worboyes v The Queen (‘Worboyes’) (2021) 96 MVR 344; [2021] VSCA 169.

34In all of the circumstances, I am prepared to accept that you are remorseful for your offending based on your early plea and the sentiments that you express in the very recent handwritten letter you wrote to this court. In that letter, you take responsibility for your actions, which you describe as 'shameful', and for the pain and suffering that it has caused to Mr Marendaz. You acknowledge your past wrongdoings and express a hope that you can learn from them and do better in the future. To the extent that you refer to having battled with depression, I trust and hope that the Adult Parole Board will offer you professional assistance if and when you are released on parole.

35As to the reason for your offending, Ms Addamo indicated that you had told her you were feeling frustrated and overwhelmed about not knowing your exact date of release for the sentence that you were then serving. You had earlier requested a record of the emergency management days for which you would be credited but had not yet received it. Whilst this may explain why you acted as you did, it provides no lawful excuse or justification. It does, however, tend to suggest that you only decided to assault the victim a relatively short time beforehand and that you have a very serious anger management problem.

36The entirety of your time spent on remand has been more onerous than it normally would be on account of the measures that the prison authorities have had to put in place during the course of the COVID-19 pandemic and it is appropriate to take that fact into account.[8] I will also have regard to the fact that such conditions will likely continue in some shape or form as you serve the remainder of your sentence.

[8] Worboyes.

37Your counsel also sought to rely on the fact that you were placed in isolation for a period of two weeks immediately following this offending, at which time you had a limited ability to make professional and personal phone calls. In addition, you have since been housed in a management unit at the Melbourne Remand Centre with limited access to therapeutic and educational programs. As put by your counsel, those matters have made and will continue to make your time spent in custody more burdensome. In my view such matters are of only limited significance and ought to be given fairly minimal weight. The first period no doubt came about as a direct result of this offending and appears to have been a not unreasonable response on the part of the authorities. As for the second period, there is a paucity of information before the court as to your behaviour during that time, the reason or reasons for you being kept in a management unit, and as to the extent of any impact over and above that already occurring as a result of the ongoing pandemic.

38You have continuing support from your mother and siblings, including by way of accommodation on your eventual release from custody. None of your family have been in trouble with the law and I have been told that you want to set a better example for your brothers in the future.

39You have an established work history up until 2019 and a current offer of employment as a concreter which you intend to take up once you are released from custody.[9]

[9] The job offer is from a friend of the family who owns and runs the Northern Concreting Company.

40At age 25, you are still a relatively young man for whom some allowance must be made in terms of future maturation.

Gravity of the offending

41As reflected by the relatively high maximum penalty, the offence of causing injury intentionally is an inherently serious one. 

42This fact is further illustrated by the combined effect of ss 5(2G) and 10AA(4) of the Sentencing Act 1991. Where, as here, an offender falls to be sentenced for a Category 1 offence of causing injury intentionally to a custodial officer on duty,[10] the court is mandated to impose a term of immediate imprisonment of not less than 6 months. Whilst this mandatory sentencing regime is subject to an exception if the court finds under s 10A that 'a special reason exists', it has not been suggested by either party in this case that such a reason exists and I can see no basis for coming to any contrary view.

[10] A Category 1 offence is defined in s 3 of the Sentencing Act 1991 and includes, inter alia, an offence against s 18 of the Crimes Act 1958 (causing injury intentionally or recklessly).

43This minimum term of imprisonment was introduced in this State in 2014 in order to 'recognise the very special role played by Victoria's emergency workers, and the need to ensure that they receive the full protection of the law when treating, caring for and protecting Victorians at times of emergency'.[11]

[11] Victoria, Parliamentary Debates, Legislative Assembly, 26 June 2014, 2397 (Robert Clarke MP, Attorney-General).

44In the relevant Second Reading Speech, the Attorney-General said:

The longer sentences reflect the opprobrium that the community attaches to acts of violence against emergency workers who put themselves on the line in emergency situations on behalf of the community. It sends a clear message to perpetrators of these acts that violence against emergency workers will not be tolerated and will be met with strong penalties.[12]

[12] Ibid.

45In assessing the seriousness of any offence of causing injury, whether it be intentionally or recklessly, the court must consider the type, severity and extent of the injury caused. As was noted in Shau v The Queen,[13] 'the physical and mental consequences of the offender's conduct on the victim will generally assume significance in any assessment of the gravity of the offending'.[14] Although that case involved a charge of recklessly causing injury, I can see no logical basis for any different approach when dealing with an offence of intentionally causing injury.

[13] [2020] VSCA 252.

[14] Ibid, [42] (Niall JA) .

46Whilst not falling at or towards the higher end of the spectrum of seriousness, the physical and mental consequences that Mr Pritchard's offending caused to the victim were quite significant. The first punch was delivered with sufficient force to immediately render the victim unconscious. And, he remained unconscious for a significant period rather than just momentarily. The victim endured ongoing concussion related problems, including retrograde amnesia. He also suffered an injury to his left eye and both lips. Unsurprisingly, the psychological impact of this offence on him has been substantial and is ongoing.  

47It is, however, also important to remember that any assessment of the seriousness of an offence of causing injury, whether intentionally or recklessly, is not to be gauged only by reference to the injury itself. The circumstances and method or manner by which it was inflicted is another important consideration. The correctness of this approach has been made clear in a number of recent Court of Appeal cases, including Phillips,[15] Milson,[16] Shau,[17] and Gommers.[18]

[15] Phillips v The Queen [2017] VSCA 313, [54] (Osborn and Priest JJA).

[16] DPP v Milson [2019] VSCA 55, [62] (Priest and Weinberg JJA).

[17] Shau v The Queen (‘Shau’) [2020] VSCA 252, [44] (Niall JA).

[18] Gommers v The Queen [2021] VSCA 258, [44] (Priest and Kaye JJA).

48Mr Pritchard, the CCTV footage shows you standing a short distance away from the victim who was facing you with his hands down at his sides. You then started turning to your right, away from the victim, before then delivering a powerful roundhouse type punch with your right fist to his face. It was done without warning and caught the victim completely unawares. He was therefore unable to block or deflect that blow. Accordingly, he received the full force of that punch and was immediately rendered unconscious. Not content with knocking your victim out cold, you persisted in your attack with evident determination. As the victim lay prone on a hard concrete surface, you delivered at least three further forceful punches to his face and head before then using your foot to stomp on his face with sufficient force to leave an imprint of the sole of your shoe. In short, it was a gratuitous, vicious, frenzied and cowardly attack on a completely defenceless man who had done nothing to antagonise or provoke you.

49As the former President of the Court of Appeal once noted, there is something particularly shocking about an attack which persists after the victim has been rendered unconscious and this fact pushes it into a higher level of gravity.[19]

[19] Hards v The Queen [2013] VSCA 119, [13] (Maxwell ACJ).

50It was by sheer good fortune that the victim was not even more seriously injured.

51The fact that this offence was committed against a prison officer who was performing his duty in an entirely appropriate manner is an aggravating feature of this offending.[20] In Hope v The Queen,[21] the Court of Appeal observed that what it had earlier said in Director of Public Prosecutions v Arvanitidis (‘Arvanitidis’)[22] in relation to assaults on police officers while performing their duty applied with equal force in respect of prison officers performing the essential public duties that they perform.

[20] See for example, R v Schneidas (No 1) (1980) 4 A Crim R 95, 100; Hope v The Queen [2018] VSCA 230, [73]-[74] (The Court, comprising Priest, Beach and Kaye JJA).

[21] [2018] VSCA 230, [73]-[74].

[22] (2008) 202 A Crim R 300, 314 [50].

52In my view, this is a serious example of the offence of causing injury intentionally for which you bear a high level of moral culpability. In coming to those conclusions, I have been very mindful not to over-react to the CCTV footage of this incident. Whilst it clearly captures and depicts what is, on any view, a sickening assault, the following cautionary observations of Niall JA in Shau appear to me to be apposite to this case:

The CCTV footage is confronting. However, the attack is not made worse because it was filmed, and it is important that the images are not given undue weight. Nevertheless, they allow an appreciation of the severity of the attack and the vulnerable position in which Lee [the victim] was placed.[23]

[23] [2020] VSCA 252, [45].

Current sentencing practices

53I have had regard to current sentencing practice in relation to the offence of causing injury intentionally. As the High Court has noted, this is not determinative but rather only one of a number of sentencing considerations that a sentencing court needs to take into account when determining the appropriate sentence.[24]

[24] DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428.

54In this context, I have had regard to the following resources while noting their inherent limitations:

·The Victorian Sentencing Advisory Council's ('SAC') Sentencing Snapshot No 265 for causing injury intentionally published in December 2021;

·The SACStat Higher Courts – Causing injury intentionally; and

·The Judicial College of Victoria's Sentencing Manual Case Summaries for this type of offence.[25]

[25] Judicial College of Victoria, VSM Case Summaries–04–Causing Injury Offences, 4.5.1 (online).

55To varying degrees, such resources are limited in the information that they contain, including in relation to the circumstances of any given offence and of any given offender. Their utility is, accordingly, limited.

56It is important to bear in mind that individualised justice is what is ultimately called for, a decision which is informed by the particular circumstances of the subject offending and offender.

Relevant sentencing principles

57In a case such as this, denunciation is an important sentencing consideration.  

58So too is general deterrence. To adopt and adapt the observations made in Arvanitidis, which the Court later found to apply with equal force in respect of custodial officers, it is a serious offence to assault custodial officers performing their duty and ordinarily requires a significant element of deterrence in the sentence to be imposed.[26] The purpose of sentencing offenders is to deter others and thereby protect custodial officers.[27]

[26] Arvanitidis, at [50] (Redlich JA).

[27] Ibid, at [4] (Buchanan JA).

59In your case, Mr Pritchard, specific deterrence is another important consideration. That is so not just because of the gratuitous and disturbing nature of this offending, but also because of your very relevant criminal history for offences of violence. The sentence in this case must play a meaningful role in discouraging you from re-offending in this or any similar fashion.

60You must be justly and fairly punished for this criminal conduct. In my view, the nature and seriousness of this offence warrants a punishment of some significance.

61Protection of the community from you is a relevant factor in this case.

62Your prospects of rehabilitation must be taken into account and are an important sentencing consideration. As I have noted already, you have a troubling and significant criminal history for someone of your age. You have not taken full advantage of more lenient court sentences in the past and gaol does not seem to have deterred you to date. That history does not bode well for the future. However, you are still a relatively young man who has a demonstrated work ethic and continuing family support. You are in the fortunate position of having stable accommodation and work available to you once you are released from custody. Although neither alcohol nor drugs played any role in this offending, your future prospects will very much hinge on you refraining from drinking to excess and abstaining from any form of drug use. In light of the circumstances of this offence, and other past offences involving violence, you would be very well advised to seek and obtain professional counselling and treatment for what is obviously a very serious anger management problem. On the available material, I have concluded that your prospects of rehabilitation are guarded at best.

Sentencing submissions

63In the course of her well prepared plea on your behalf, Ms Addamo appropriately acknowledged the serious nature of your offending, the importance of such sentencing principles as denunciation and deterrence, both general and specific, and the need for an immediate custodial sentence. However, she urged the court not to impose a crushing sentence and to give full weight to all of the matters in mitigation, including your relatively young age and early plea.

64For their part, the prosecution submitted that this was a serious example of causing injury intentionally, for which denunciation, deterrence and community protection assumed some significance. In their submission, stern punishment was required.

Sentence

65After considering, balancing and weighing all relevant matters, I have decided to sentence you as follows, Mr Pritchard.

66On the charge of causing injury intentionally, you will be convicted and sentenced to a term of 2 years and 3 months' imprisonment, for which I fix a non-parole period of 18 months.

Pre-sentence detention

67Pursuant to s 18 of the Sentencing Act 1991, I declare that you have served a total of 326 days' pre-sentence detention, not including today's date, in respect of this sentence. I order that such period is to be reckoned as already served under this sentence, and I further order that the declaration and its details be entered in the records of this court.

Section 6AAA indication

68Pursuant to s 6AAA of the Sentencing Act1991, I indicate that but for your plea of guilty, you would have been sentenced to a term of 3 ½ years' imprisonment with a non-parole period of 2 years and 3 months.

Other matters

69Are there any matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons, starting with you, Ms Addamo?

70MS ADDAMO: No, Your Honour.

71HIS HONOUR: Mr Pirrie?

72MR PIRRIE: No, Your Honour.

73HIS HONOUR: Ms Addamo, you will be permitted to have a brief conversation with your client utilising the current video link, if you wish.

74MS ADDAMO: Thank you, Your Honour.

75HIS HONOUR: Very well. Adjourn the court please Mr Tipstaff.

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