Director of Public Prosecutions v Semmens

[2019] VCC 446

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00346

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMIE SEMMENS

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	3 April 2019
CASE MAY BE CITED AS:	DPP v Semmens
MEDIUM NEUTRAL CITATION:	[2019] VCC 446

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms V. Gillis
For the Accused	Mr C. Thomson

HIS HONOUR:

1Jamie David Semmens, you have pleaded guilty to one charge of intentionally causing injury, contrary to s.18 of the Crimes Act.  The maximum penalty for that offence is ten years' imprisonment.

2On 4 April 2017, the victim in this matter was at home, and began consuming alcohol at approximately 9 am.  Over the next hour, he estimates he drank about 350 millimetres of a bottle of vodka mixed with Power Max.  He told investigators this was his usual routine, and that he was an alcoholic and had been for a number of years.

3At about 10 am, the victim rode his bicycle to a local shopping centre, and on his way home, decided to walk his bike, rather than ride it, as he was carrying some groceries.  He was walking down Papworth Place, in the direction of his premises, and as he did so, he saw you walking towards him, with a dog on a lead.  The victim recognised you as somebody he had seen before, but he had never spoken to you and he did not know who you were.

4As you got closer, you called the victim an, "arsehole", telling him that he had ‘lagged you in’ for pinching a bottle from the IGA.  The victim was unaware what you were talking about, and replied, "I beg your pardon?" to which you replied, "You dog rat cunt".  At this stage the victim noticed that you were doing something with your hands behind your back.  As the victim took a step back, you swung your fist at him, and as I indicated yesterday, I am satisfied that at this time, you had placed a knuckleduster across your fingers, and it was with this implement, that you struck the victim's face to the right cheek.

5The victim was knocked to the concrete path, and momentarily lost consciousness.  A number of teenagers were nearby and ran to his aid.  They were shouting at you while they helped the victim up from the ground.  They all then started chasing you, including the victim, who joined the chase on his bicycle.  Ultimately, the victim caught up to you, and was able to see you enter a house in Gilmore Court in Meadow Heights.  He yelled at you, "I know where you live".

6The victim then went to a local medical centre, where he sought assistance.  He was advised to immediately attend the hospital.  He attended at the Northern Hospital where he was examined and admitted overnight.  Upon discharge, he was told to attend the Eye and Ear Hospital, which he also did.  He suffered substantial bruising, and the extent of the injuries are depicted in the photographs which were tendered upon your plea.  The victim reports that he continues to have some problems in relation to pain.

7On 1 July 2017, the victim identified you by way of photo board.  On 22 August 2017, you were interviewed in relation to the matter, and it is fair to say that you were belligerent, denied the offending, and showed no remorse.

8I received a victim impact statement in relation to this matter.  The victim did not want the contents read aloud.  What is clear is that your offending had both short and longer term consequences for him.  The physical injury largely resolved with conservative treatment and pain relief.  The victim reports, however, that there are residual pain issues.  In his victim impact statement, he also describes the understandable psychological sequel.  He says he is constantly looking behind him and isn't comfortable in public places without his mother or friends.  He says before this incident, he was happy and largely kept to himself.

9The offence of intentionally causing injury, as I have said, carries a maximum penalty of ten years' imprisonment, and now covers a wide range of injuries and circumstances.  This was an unprovoked attack, on a person not known to you, in a public street, in broad daylight.  Your use of knuckledusters to inflict the injury is aggravating.  You were subject to a community corrections order at the relevant time.

10The injuries suffered by the victim could not be described as at the lower end of the range; the fact that it was able to be dealt with via conservative management is not decisive of this issue.  The victim was hospitalised overnight, the bruising was extreme.  He had to attend the Eye and Ear Hospital for specialist testing, and he reports continuing pain.

11This was a cowardly, disgraceful attack upon an innocent victim, going about his daily routine.  The message must be clear, that condoned punishment will result in appropriate circumstances. 

12You have admitted the contents of a criminal record, which discloses appearances before the criminal courts, dating back to March 2009.  You have a lengthy history for dishonesty and driving matters, including driving whilst disqualified and reckless conduct, endangering serious injury.  Numerous dispositions have been tried; you have been sentenced to numerous terms of imprisonment. 

13At the Broadmeadows Magistrates' Court on 25 September 2009, among other matters, you were convicted of robbery, recklessly causing injury.  You were sentenced to be imprisoned for an aggregate of six months, to be served by way of intensive correction order.

14On 1 February 2010 at the Melbourne Magistrates' Court, you were convicted of robbery, and three charges of intentionally causing injury, together with assault, and injurious imprisonment.  You were sentenced to an aggregate of 16 months' imprisonment.  On 12 August 2010, you were convicted of intentionally causing injury, and sentenced to be imprisoned for ten months.  At this court on 18 December of 2013, you were convicted of intentionally causing injury and Common Law assault, as well as dishonesty matters.  On the intentionally causing injury, you were sentenced to be imprisoned for
18 months.  On the Common Law assault, ten months.  Six months of that sentence was ordered to be served concurrently. 

15On 30 January 2015, amongst a number of dishonesty and driving matters, you were convicted of recklessly causing injury.  The matter was dealt with as part of an aggregate sentence of imprisonment of 11 months.

16Your most recent prior convictions, between 2015 and 2016, are largely matters of dishonesty and driving matters.  You were again sentenced to terms of imprisonment, combined with community corrections orders, which it seems, had very little impact.  Indeed, as I have noted, you were subject to a CCO at the relevant time, which had clearly not had the desired effect. 

17You have a difficult background.  Your parents were both drug addicts.  You have a number of siblings, you maintain ongoing contact with your mother.  DHS became involved at an early stage.  You had left home by the time you were 14.  You described yourself at that time as couch surfing, but despite this, you maintained at least some school attendance until the age of 16, which is to your credit.  You then moved to Queensland to reside with an uncle.  It was there that you qualified as a house painter.  You have utilised your trade at times when you have been in the community, and at the time of this offending, you were working in Hawthorn.

18You were living in a bungalow in Meadow Heights with your girlfriend, until about a week prior to this offending.  She, at that time, left due to your use of ICE.  You report being upset and concerned about not knowing where she had gone.  In more recent times, you have had some telephone contact with her, but you accept the relationship is over.

19Since being remanded, you report returning clean drug screens.  You attend the gymnasium, and you have concentrated on getting fit.  You are employed as a billet, and you have completed a course in anger management.  You are receiving methadone.  Upon your eventual release from custody, you plan to stay with a friend in Brunswick and resume your trade in house painting.

20You have now been in custody since your remand on this matter in August 2017.  You have served two sentences in the meantime, but totality remains relevant.  As to regards to your prospects of rehabilitation, unless and until you can demonstrate in the community, that you have both addressed the issues which underpin your offending, and demonstrated genuine remorse and motivation to change, then your prospects will remain poor.

21I take into account your plea of guilty, you offered to plead guilty on the current basis after the final directions hearing, approximately two months ago.  You are entitled to the discount applicable to a plea of guilty, having regard to its utilitarian benefits.  I am not, however, persuaded that your offer to plead demonstrates any real remorse.

22As well as the matters personal to you, to which I have referred, including your prospects of rehabilitation, I take into account other relevant sentencing considerations.  General deterrence is of considerable importance in matters such as this; I must seek to deter not only you, but others who would engage in like conduct.  The court and the community simply cannot and will not tolerate offending of this nature on our streets.  Your sentence must manifest the community's denunciation of your conduct and impose just punishment.

23Given your history and lack of real remorse, protection of the community must also be given weight, as must specific deterrence, given your history.  Your counsel quite properly conceded the only disposition open is an immediately servable term of imprisonment.  In this regard, the Crown concur.  Would you stand please.

24In my view, there is no disposition open other than an immediately servable term of imprisonment.  On the charge of intentionally causing injury, you are convicted and sentenced to be imprisoned for five years.  I order that you serve three years before becoming eligible for parole.  I direct that 438 days be reckoned as served.  I direct that it be noted in the record of the court, that but for your plea of guilty, I would have sentenced you to be imprisoned for
six years, with a non-parole period of four.

25Counsel is there any matter arising?

26MS GILLIS:  No, Your Honour.

27MR THOMSOM:  No, Your Honour.

28HER HONOUR:  Thank you, remove the prisoner, please.  Thank you, counsel are excused.

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