Director of Public Prosecutions v Raine
[2017] VCC 1293
•11 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01799
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TROY ANTHONY RAINE |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 June and 11 September 2017 | |
DATE OF SENTENCE: | 11 September 2017 | |
CASE MAY BE CITED AS: | DPP v Raine | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1293 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms J. Warren | Office of Public Prosecutions |
| For the Accused | Mr P. Chadwick QC | Tait Lawyers |
HER HONOUR:
1 Troy Raine, you have pleaded guilty to one charge of intentionally causing injury. The victim of your offending is Meaghan Shaw. The maximum penalty applicable for this offence is ten years’ imprisonment.
2 This crime arises out of events which took place between yourself and the victim of your offending on 25 May 2016. It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case, in my opinion, are most serious and disturbing.
3 I turn to a brief summary.
4 The victim of your offending, Meaghan Shaw, at the time of your offending was 43 years of age and you were 45 years of age. You are 46 years of age at sentence.
5 Ms Shaw met you near Victoria Park Railway Station on 22 May 2016. She and you began talking and Ms Shaw accepted your invitation to have coffee.
6 Whilst you and she were together, you met Ms Shaw’s friend, Allan, and she invited Allan and you to her home for a meal.
7 Both Allan and yourself stayed the night at Ms Shaw’s home, which had two bedrooms. Allan slept in the spare bedroom, and you slept in her bed while Ms Shaw slept on the recliner in the lounge room.
8 Around mid-morning on 23 May 2016, Ms Shaw told you it was time for you to leave. You responded with, “I'll tell you when it’s time for me to fucking go.”
9 Both Allan and yourself also stayed at her home on Monday, 23 May.
10 On Tuesday, 24 May 2016, Allan left Ms Shaw’s house, however, you remained. Ms Shaw left the house and went to the Ringwood Chemist to collect her medication.
11 At the chemist shop, Ms Shaw spoke to the pharmacist, Stella Ten, and explained she had recently met you but that she could not get rid of you.
12 Ms Ten counselled Ms Shaw on the steps she could take.
13 Ms Shaw returned to her house at approximately 2.00pm and told you to leave. You said, “I’ll fuckin’ go when I’ve fuckin’ got your pay in my fuckin’ hand you little bitch.” You again slept at Ms Shaw’s home that night.
14 The next day, Wednesday, 25 May 2016, you and Ms Shaw went to an ATM. Ms Shaw gave you $310, expecting you would leave her alone once she had given you the money. However, you went with her to visit friends in a flat in Collingwood.
15 At the flat, an altercation occurred during which you were verbally and physically aggressive.
16 After Ms Shaw left that flat, you followed her. As she left the building you suddenly started yanking at her handbag, demanding “Give me the dope then, give me the dope.”
17 As Ms Shaw attempted to pull her handbag back, you punched her, causing her to fall to the ground. She screamed for help. As she lay on the ground, you repeatedly kicked her in her head. You stomped on her head on both sides of her face and temple. She heard a noise as you stomped on her left eye socket and after that, she could not see out of her left eye (Charge 1).
18 Two security guards heard loud screaming from a female calling for help and they ran towards the yelling. They saw Ms Shaw lying on the ground and you standing over her. Ms Shaw was bleeding from the head and had a swollen eye. Police were called. You continued yelling at Ms Shaw and she attempted to push you away. You responded by kicking her leg and slapping her swollen face, calling her names. You told the security guards that Ms Shaw had stolen from you. One of the security guards got between Ms Shaw and you and told you to step back. You left.
19 Ramazan Sak, the concierge at 253 Hoddle Street also heard Ms Shaw’s screams, went outside the building and saw several security guards helping her. You walked quickly towards Sak and asked him for a cigarette. Sak noticed you had blood on both hands. You told Sak that Ms Shaw had ripped you off.
20 Ms Shaw was taken to the Royal Melbourne Hospital where she presented with extensive swelling to her left eye, which was swollen shut. She also suffered a non-displaced nasal fracture which was treated conservatively. Photographs were tendered (Exhibit B).
21 Dr Sanjeev Gaya examined Ms Shaw at the Royal Melbourne Hospital at the request of police on 27 May 2016 and also provided a further report in 2017.
22 An eye specialist assessed Ms Shaw’s left eye soon after her admission. The specialist diagnosed orbital compartment syndrome of the left eye. A procedure was carried out to prevent permanent blindness in her left eye and a review eight hours after the procedure found visual acuity in her left eye had improved to 6/18. Further review five days after the procedure demonstrated visual acuity remained unchanged at 6/18.
23 No further material was before me at your initial plea hearing regarding any ongoing sequelae of your offending, and I have discussed that with counsel.
24 You were arrested on 28 May 2016 and interviewed by police the following morning.
25 You told police you met Ms Shaw near the Hoddle Street Flats on a Friday nine days earlier, had a good rapport with her and had gone back to her house in Box Hill. You said you stayed the night and that Ms Shaw said she would like to see if there could be a relationship with you, and invited you to stay for a couple of weeks.
26 You said Ms Shaw was behaving erratically without her medication. You said Ms Shaw returned from a pharmacy with her medication and you both went to a flat at 253 Hoddle Street to visit friends, Emma and her partner, Josh. You said that whilst inside the flat, Ms Shaw attacked you and that you asked Emma and Josh to call the police. However, they refused.
27 You said you told Ms Shaw you did not want to hit her, and asked her to leave you alone before you then defended yourself.
28 You said you only delivered a single straight jab with a semi-closed right fist as you were trying to get her away from you. You suggested her injuries were self-inflicted.
29 You maintained you had done nothing wrong, had acted in self-defence and that Ms Shaw had “belted the crap” out of you.
30 You could not remember security guards intervening. Anything you did, you said, was in retaliation. You denied you kicked and slapped her when her eye was already bleeding.
31 It is clear that at the time of the police interview, you were minimising your involvement in this offending and as recently as the filing of the defence response dated 8 March 2017, you denied responsibility for the injuries sustained by Ms Shaw, saying you were acting in self-defence and relying on your account in the record of interview. You no longer maintain you were acting in self-defence or that her injuries were self-inflicted.
32 I discussed with your counsel, Mr Chadwick, a number of inconsistencies in accounts given by you regarding the circumstances in which your offending occurred, including differences between the account given by you to Mr Healey and your instructions to Mr Chadwick regarding your drug use. For example, in your record of interview, you did not make any reference to heroin use that day.
33 There were also some aspects of the timeframe you provided to Mr Chadwick which was different from the timeframe provided by you to Mr Healey, relative to you leaving the flat and your offending occurring at the ground level.
34 There were differences in your instructions regarding what occurred. In the record of interview you referred to “hitting her in the nose” and then going home. You told Mr Healey you grabbed Ms Shaw by the arms, then went to a friend’s flat in the same block at the housing commission estate, then returning to the flat. The transcript will reveal that discussion.
35 Your instructions were you had no memory of assaulting Ms Shaw on the ground floor level of the housing commission estate, yet you had a very clear memory in relation to what you did some minutes prior to that. Your varying accounts to Mr Chadwick in your record of interview and to Mr Healey were not “convincing". Mr Chadwick agreed that that was an appropriate description.
36 You have pleaded guilty to this offending and you are entitled to have that fact taken into account in your favour, and I do so. Your plea of guilty has spared the time and cost of a trial and witnesses have not been required to give evidence at your trial. You were charged on 29 May 2016, with a committal on 14 October 2016. It was after the defence response was filed in March 2017 that you indicated your intention to plead guilty to this charge.
37 Mr Chadwick noted, as did I, a contested committal was conducted. However, I accept that contested committal occurred when there were further charges you were facing, and that the committal addressed not only those other charges, but also matters relevant to the injuries sustained by Ms Shaw. I accept, therefore, you pleaded guilty at the earliest opportunity to this charge despite that contested hearing.
38 Mr Chadwick conceded that beyond your plea of guilty to this charge, he could not make the submission you were remorseful for your offending. That, in my opinion, was an appropriate concession.
39 Mr Chadwick also conceded your explanation in the record of interview that Ms Shaw must have assaulted herself was "fanciful".
40 Further, Mr Chadwick conceded you had not mentioned your heroin use on the day of this offending until very, very recently, and that I would therefore be entitled to be highly sceptical of your claim you had consumed heroin that night.
41 He further conceded the half hour you submitted between you leaving the flat and the incident occurring on the ground floor was not consistent with your answers in the record of interview.
42 All this leaves me with a great deal of concern regarding your level of remorse, and impacts to a degree, when assessing your prospects of rehabilitation.
43 You have admitted an extensive prior criminal history, commencing in 1990. Various dispositions have been imposed over the time, including terms of imprisonment. You have breached court orders. There are a significant number of prior driving offences, also a number of dishonesty offences, property damage, breach of suspended sentence, intensive correction order and community-based order. I note no charges of intentionally causing injury or like charges as prior offences, although I do note an appearance at Melbourne Magistrates’ Court on 4 October 2012 on a charge of robbery. Initially, you were convicted and sentenced, as I understand it, to a community correction order. Upon a breach being proven, sentenced to two months’ imprisonment. Your history, nevertheless, is extensive and involving frequent appearances by you at court, many including re-sentencing following breaches of various orders, as I have previously said.
44 I was also advised you have served in total for this offending, at the time of the plea hearing a period of 217 days. You had also served an additional period of 17 days to that remand for this offence, for offences for which you were ultimately fined. The submission was made before me that I should take into account principles of R v Renzella[1] relevant to the additional 17 days.
[1][1997] 2 VR 88
45 You have previously served two sentences of imprisonment. Mr Chadwick submitted that in relation to the two month sentence referred to upon breach, you requested such a sentence with the intention of using it to dry out from drug use.
46 I was advised that you do not have any subsequent or outstanding matters.
47 Mr Chadwick submitted that any prior breaching of community correction orders by you was due to re-offending and not to other failures to comply. Mr Chadwick submitted that in the past, no conditions regarding assessment and treatment for drug use had been attached to such order.
48 I discussed with Mr Chadwick, and he agreed, you had not independently of any order sought to obtain counselling or treatment for your drug addiction.
49 Mr Chadwick submitted you were currently on methadone and had been for a number of years, although over the last few years, you had been using heroin as well as taking methadone.
50 Mr Chadwick provided a written outline of submissions and addressed those during the course of your plea hearing.
51 Regarding your background and history, you are as I have said, at sentence 46 years of age. You have been in receipt of a disability support pension since approximately 2005 due to an injury to your left knee. You are single with no dependents. You were born in Carlton and have one sister. As a result of your parents’ separation and remarrying, you have a number of step-siblings.
52 Your father is a car salesman, and your mother involved in sales.
53 Your parents separated when you were 7 years of age and your mother then returned to live with her parents. She and your grandparents brought you up until you were about 18 years of age.
54 When you were 18, your mother remarried and you moved with her to Westmeadows.
55 You attended Westbreen Primary School and were a good student, in particular at sport. You completed Year 12 at Hadfield High School, were a good student, and excelled at sports, including being captain of the football team.
56 You also trained with the Carlton Under-19s AFL team for 12 months and were selected for some games.
57 You completed a Student Tertiary Certificate majoring in Drama, Music and Art, and provided guitar assistance to Yooralla students for 12 months.
58 You commenced an apprenticeship as a fitter and turner, and also were enrolled at Preston TAFE for the formal part of that apprenticeship, however, discontinued it after approximately 18 months, as you found that work did not suit you.
59 Thereafter, you worked as a computer operator/at Ford for two years and Macquarie Trucks for one year. You moved to Roval Industrial store/forklift driving for four years until that company went into receivership.
60 You were unemployed for two years before you obtained a car sales position, which you held for two years. You also worked in men’s clothing sales for 18 months, then in casual employment in the hospitality industry for almost six years at various licensed premises across Melbourne.
61 You had also worked at government-sponsored work projects at Pentridge Prison and the MFB for six months each.
62 You told Mr Chadwick that whilst working at licensed premises, your alcohol consumption increased.
63 In 2003, you completed a Certificate III in Commercial Cookery at Sunshine TAFE over approximately eight months.
64 Following the six months you served in prison in 2006, you lived with your sister, and assisted in the care of another seriously-ill woman.
65 Mr Chadwick referred to your drug history. You commenced initially with cannabis when you were 15 years of age, and by 20, had built up to 1 gram per day habit. You continued to smoke cannabis until you were approximately 32 years of age. There was a break of some six years before you resumed cannabis use of 1 gram a day, between 38 to 42 years of age.
66 Your alcohol consumption began when you were 20 years of age and mainly involved binge drinking on weekends. After 2005, you had reduced your alcohol consumption.
67 In your mid-30s, you commenced abusing prescription medication, especially Xanax. At 37 you began to use heroin, describing using two to three caps per day until you were 42 years of age.
68 You commenced on a methadone program in 2015 and were, at your initial plea hearing, taking 80 milligrams of methadone daily. As I previously discussed with your counsel, however, whilst on the methadone program you were also on occasions using heroin.
69 Additional material was placed before me, including three reports from Bernard Healey, Clinical Psychologist. The first report dated 20 September 2012, was prepared relevant to an earlier court hearing for offending involving theft of an Apple iPhone (2011), which you then later sold to another to buy cannabis. At the time of that offending you were under the influence of Xanax and heroin.
70 Mr Healey referred to you smoking cannabis at age 19 and using “socially” to the age of 23, then in your late 20s injecting heroin. I note in Mr Chadwick’s written submissions, he referred to you at 37 years of age commencing use of heroin. You told Mr Healey that in your mid-30s, you began using prescription medication (Xanax), and it was in one of those phases you engaged in the offending of July 2011.
71 Details were provided of your background and history, much of which is in Mr Chadwick’s written submissions. You referred to always “clashing” with your stepfather, who you said abused alcohol. Since your stepfather abandoned alcohol consumption you related better with him.
72 You suffered severe asthma through your childhood and adolescence, with regular admissions to the Children’s Hospital.
73 Reference was made in that report to a number of injuries you sustained through various activities over the years. At the time of that report, you told Mr Healey you were firmly resolved to be drug free. As is apparent, however, that did not eventuate.
74 You were currently on a disability support pension due to a left knee injury and your history of drug addiction (see p4).
75 Intellectual testing by Mr Healey at that time indicated a full-scale IQ of 87, which he said was a decline in your intellectual functioning since assessment in 2005 of a full-scale IQ of 98. Mr Healey said it was then hoped that with ongoing detoxification, you might recover some level of cerebral functioning. At that stage, your personality testing was indicative of vulnerability and substance use, but no other major psychological or emotional disturbance.
76 There was a further report by Mr Healey dated 17 September 2016, and I discussed aspects of that with your counsel. That report was prepared by Mr Healey relevant to the charge currently before me. You, at that time, maintained your perception of events as per your record of interview of 29 May 2016. As at the date of that report you had not used illicit drugs since being on remand from 29 May 2016. Again your history of drug use was set out, and it was at this time you referred to heroin use from age 37.
77 At that interview, you told Mr Healey you remained shocked by the whole scenario, in particular the allegations made against you. Again, I note, broader allegations not proceeded with than the charge currently before me.
78 Reference was made by Mr Healey to an earlier breach of an intensive correction order and serving six months at Fulham Prison.
79 Further details were also provided in relation to your family, your health, education and employment. Mr Healey was of the opinion your drug use had hampered the prospect of you having meaningful relationships.
80 Intellectual testing revealed a full-scale IQ of 81, and Mr Healey noted previous IQ assessments of 98 in 2005, and 87 in 2012.
81 Your testing revealed reduced intellectual capacity, although no test evidence of psychological or emotional disturbance.
82 There was a further report provided by Mr Healey dated 29 May 2017 referable to your most recent time in the community after January 2017 following earlier remand for this offending. You were taking Ventolin and methadone. You were still in receipt of a disability support pension, although were looking for work in the hospitality industry, and work that would not place stress on your left knee. I was told by Mr Chadwick you were also wanting forklift work, however, that work was not easy to obtain due to competition for it.
83 Personality testing in 2016 was indicative of at least a mild level of depression but no evidence of any other pathology.
84 Mr Chadwick conceded he was not relying upon any of the principles in R v Verdins[2], and that on the material before me, was an appropriate concession.
[2](2007) 16 VR 269
85 There were a number of references before me and an additional one placed before me today.
86 From Cameron Marsh, who had known you for approximately 40 years since Primary School. He described you as a best friend, and that in the time you had known each other, you had not had any physical argument. He continued to have respect for you, and had never seen you being violent to anyone, including girls or your girlfriends.
87 There was a reference from Gwen Renwood, who had known you for five years. You helped her with odd jobs around her house. Your offending behaviour was out of character. You had always been very polite to she and her neighbours.
88 There was a reference from Emily Ahles, who has known you for approximately 20 years and regarded you as a great and dear friend. She described you as respectful. You had lived on and off with her, and helped her around her house. You were currently living with her she said. You assisted in cleaning her home and she cared deeply for you. You have never been disrespectful to women.
89 There was also correspondence from Mr Schneier, Pharmacist, dated 21 June 2017, confirming you had been a client of the pharmacotherapy program since 13 May 2017. You attended the pharmacy on a daily basis and your behaviour had always been polite and respectful, with attendance regular and consistent with the requirements of the program.
90 There was another reference, as you know, tendered from Danny Geard dated 21 August 2017 today, which I read.
91 Your counsel, Mr Chadwick, conceded your offending was a serious example of intentionally causing injury and it is.
92 The victim of your offending has suffered considerably as a result of it.
93 There were two victim impact statements before me.
94 A victim impact statement from Meaghan Louise Shaw, sworn 17 June 2017. Much of this was conceded by the prosecution to be inadmissible, and I discussed with counsel the lack of any update regarding the injury she sustained, and the transcript will reveal that discussion. The prosecution was going to endeavour to provide further information, but as you would be aware from this morning's hearing, nothing has been forthcoming. Turning to the admissible parts, Ms Shaw described that as a result of your offending, her general feelings of wellbeing were dramatically different compared with before this assault. She was previously an independent and motivated person, now reduced to being co-dependent and having to reassess what she could achieve.
95 She lost her will to live and her motivation. She had stopped seeing her friends and family, except her mother and her son.
96 She was embarrassed as a result of the injuries she sustained and had become a recluse in her own home.
97 She lacked trust in people’s intentions and kept everyone at arm’s length. She felt robbed of life and could not find motivation. She wondered why she was treated like a piece of meat.
98 She had nightmares as a result of your offending. She felt she had to put on a brave face and reassure her mother and son she was coping when, in fact, she was having a lot of trouble, "getting her head around it all."
99 She felt lonely and misunderstood.
100 She said her left eye came almost completely out of the socket. It was unbearably painful. Her left eye was very swollen as a result of it being stomped upon, and her face was distorted and swollen, and she was in excruciating pain.
101 For just over a year, she had to have Meals on Wheels as she could not see to be able to cook and her weight reduced as a result.
102 She was learning to meditate so she could sleep. She had to wear a patch over her eye as the wound made her eye watery. She was embarrassed by being stared at because she wore a patch.
103 She continuously suffered with nightmares.
104 She had to learn how to use her brain differently, because she could not see, she would panic and felt out of control. Her left eye had shrunk and was slowly going hard, which caused her pain and worry.
105 She had to cease her study and change her career, and she was depressed that there was no real chance of her being able to get a partner.
106 There had been a financial impact of your offending, including expenses to obtain Meals on Wheels, and her no longer being able to seek employment in her chosen career.
107 There was also a victim impact statement from Aileen Shaw, sworn 17 June 2017, Meaghan Shaw’s mother. She referred to being advised by police her daughter was in hospital and the panic she felt associated with that. She described seeing Meaghan in hospital with blood on her face, her black eye and swollen. She now found herself crying for no reason at all when she thought about what could have happened if her daughter had died. Her daughter was her only child and had been her whole world for over 40 years.
108 She referred to the pain of watching her daughter lying in bed in hospital. She felt helpless and frustrated. She described watching her daughter going downhill with depression and her now lack of independence as devastating. Her daughter lacked trust in humanity.
109 She questioned why this had happened to her daughter. The negative feelings she has have affected not only herself, but also for her daughter and would be for life.
110 The effects upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991). But I am conscious I must not allow the effects upon a victim to swamp the sentencing process.
111 Mr Chadwick conceded there was a need for general deterrence when sentencing you, and also the need for specific deterrence.
112 He submitted your prospects of rehabilitation, if you had appropriate treatment, would be "significant". I however, am less confident regarding your rehabilitation prospects and have, at best, guarded optimism. In particular, I note you have not previously sought treatment independently of being on any community correction order for your drug use, and I am particularly concerned your use of drugs on this occasion may have, according to you, led to you not remembering this offending occurring. I am also concerned when assessing your rehabilitation prospects, your lack of real remorse for your offending, other than your plea of guilty to it.
113 Mr Chadwick referred me to a number of authorities, which I have read. There are a number of significant differences in each compared with your offending. In DPP v Rivas[3], both offenders attracted principles in R v Mills[4]. I do, however, note there were two offenders in that case and a weapon was used. Not your case. The assault was also upon a male.
[3][2016] VCC 1072 at [18]-[19]
[4] (1998) 4 VR 235
114 In DPP v Bettenay & Spathis[5], priors were dated with lack of violence, in the case of Spathis since 1995, albeit a subsequent charge. The assault was upon a male.
[5] [2014] VCC 2081 at [7]
115 In DPP v Prasad[6], the assault was upon his wife and involved use of a knife. He did not have any priors, and the court referred to the "appalling violence to the victim", that being his wife.
[6][2014] VCC 1984
116 Mr Chadwick also referred me to the judicial website and summaries of decisions of the Court of Appeal, relevant to the offence of intentionally cause injury, although I note in many of those cases the offence of intentionally cause injury was in conjunction with other offending. I have read those summaries provided.
117 It is very difficult comparing cases factually, as facts vary enormously case to case, as do all matters in mitigation of sentence. Ultimately, I must impose a sentence appropriate in your case taking into account all relevant sentencing considerations and principles as stated by the courts relevant to this type of offending.
118 Mr Chadwick submitted that applying the principles stated in Boulton & Ors v The R[7], I could consider the imposition of a term of imprisonment of up to 12 months with a community correction order as being the appropriate disposition. He submitted conditions could be attached to the order to address your underlying issues. He urged such a disposition would, in all the circumstances, appropriately reflect all sentencing considerations.
[7](2014) 46 VR 308
119 Ms Warren, who appeared on behalf of the prosecution, submitted there were significant factual differences in relation to the offences in Bettenay and Rivas, and also in Prasad, and she is correct.
120 Ms Warren referred me to DPP v Haas[8], although I note Mr Haas had mental health issues referred to by Dr Ryan and Dr Deacon in reports then tendered, and other matters relevant in mitigation of that sentence not present in your case.
[8][2016] VCC 604
121 Ms Warren also referred me to the decision of Kerapa v The Queen[9], referable to a charge of recklessly causing injury. The Court of Appeal in that case referred to sentences for recklessly causing injury coalescing towards 12 months' imprisonment and the concern with that, and in combination, with a community correction order not being within the range of appropriate dispositions. By analogy, Ms Warren submitted the combined disposition urged upon me by Mr Chadwick for intentionally cause injury would not adequately reflect all sentencing considerations.
[9][2017] VSCA 56
122 Ms Warren submitted there was a need for general deterrence. I agree.
123 She also submitted there was a need for specific deterrence. I agree.
124 Ms Warren referred to the vicious and violent nature of this unprovoked attack. Further, that you did not have any insight or remorse for your offending. In her opinion, the nature of this assault required denunciation and that protection of the community was an important sentencing consideration. She urged the appropriate disposition would not be a term of imprisonment of up to 12 months together with a community correction order, as urged by Mr Chadwick. Rather, the prosecution submission was that a head sentence and a non-parole period was the only appropriate disposition.
125 I am of course aware of the decisions in Boulton and decisions that have been subsequently considered relevant to that.
126 A community corrections order has both a punitive and rehabilitative aspect to it, and in Boulton courts were urged to "rethink the conventional wisdom about whether prison is really the only option."
127 Community corrections orders have been referred to and addressed in a number of cases since, including DPP v Maxfield[10], Alam v The Queen[11], Marocchiniv The Queen[12], Hutchison v The Queen[13] and Gul v The Queen[14], of course being mindful of the different offending in those cases from yours.
[10] [2015] VSCA 95
[11] [2015] VSCA 48
[12] [2015] VSCA 29
[13] [2015] VSCA 115
[14] [2016] VSCA 82
128 I did not, however, understand Boulton to remove the requirement that a sentencing judge take into account all of s.5 Sentencing Act 1991. Nor did I understand Boulton to mean that sentencing principles stated by the Court of Appeal and other courts relevant to your offending now amounted to nought. Nor did I understand Boulton’s decision to remove the instinctive synthesis when sentencing.
129 I also did not understand Boulton to remove the need for me to be mindful of the maximum penalties applicable to your charge. Further, I note Court of Appeal Priest JA observed in Hutchison that:
“… it should not be thought that Boulton offers a ‘get out of jail free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed.” [17]
130 In my opinion, to impose the sentence urged upon me by Mr Chadwick would not adequately or appropriately address all relevant sentencing considerations in this case, including not only the gravity of your offending but also taking into account all matters personal to you and in mitigation of sentence.
131 As well as matters personal to you to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account the need for general deterrence, which is of importance in a case such as this.
132 There is also the need for specific deterrence when sentencing you, given your extensive criminal history, though only one that involves violence, being an offence of robbery, and certainly none of the nature of that before me.
133 There is also the need for me to protect the community from you, and there remains, in my opinion, a need for concern.
134 There is also the need for denunciation and just punishment.
135 In between your initial plea hearing and now, the prosecution was going to provide some further information if they had any in relation to updated medical condition and as you would be very much aware from today, no material has been forthcoming
136 I therefore sentence you as follows.
137 On Charge 1, convicted and sentenced to 3 years’ imprisonment, and I direct you serve a period of 2 years before you are eligible for parole.
138 I declare you have spent 297 days in custody by way of pre-sentence detention on this charge, and I also declare 10 days of the 17 day sentence served between 31 December 2016 and 16 January 2017, consistent with the principles in Renzella. That means I declare total pre-sentence detention of 307 days (up to and including yesterday, 10 September 2017), pursuant to s.18(4) Sentencing Act 1991 and I direct that that be entered into the records of the court.
139 Pursuant to s.6AAA Sentencing Act 1991, had you pleaded not guilty to this charge and been found guilty of it, I would have sentenced you to a term of imprisonment of 5 years with a non-parole period of 3 years, 6 months.
140 Have I missed anything? Were there any other orders?
141 MS WARREN: There were not, Your Honour.
142 HER HONOUR: Did not think so.
143 MS WARREN: No.
144 HER HONOUR: But I thought I had better check. The PSD is correct, yes?
145 MS WARREN: Yes.
146 MR CHADWICK: It is, Your Honour.
147 HER HONOUR: No? All right. Thank you. Thank you very much, Mr Raine. If you would not mind leaving there. Thank you.
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