Director of Public Prosecutions v Shane Day
[2022] VCC 2105
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00186
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Shane Day |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 November 2022 | |
DATE OF SENTENCE: | 28 November 2022 | |
CASE MAY BE CITED AS: | DPP v Shane Day | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2105 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Intentionally Cause Injury – Related Summary Charges – Guilty Plea – Delay – Mid-Range Example of Offence – Mental Health – Moderate/High Risk of Violent Reoffending – Moderate Prospects of Rehabilitation – General and Specific Deterrence – Community Protection – Combination Sentence – Consent to Community Correction Order
Legislation Cited: Crimes Act 1958 (Vic); Control of Weapons Act 1990 (Vic); Criminal Procedure Act 2009 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: Harvey v The Queen [2021] VSCA 84; Baroch v The Queen [2022] VSCA 90; Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen [2013] HCA 37; Boulton v The Queen (2014) 46 VR 308; R v Verdins [2007] VSCA 102; Director of Public Prosecutions v Dalgliesh [2017] HCA 41; Rivera v The Queen [2020] VSCA 5; Byrne v The Queen [2020] VSCA 289; Baroch v The Queen [2022] VSCA 90
Sentence: 2 years and 6 months’ imprisonment – non-parole period of 1 year and 8 months’ – Disposal Order – s 6AAA declaration – 3 years and 3 months’ imprisonment with a non-parole period of 2 years and 2 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Keks | Office of Public Prosecutions |
| For the Accused | Ms E. Strugnell | Slades & Parsons |
HIS HONOUR:
Shane Day you have pleaded guilty to one charge of causing injury intentionally contrary to s 18 of the Crimes Act 1958 (Vic) (Charge 1). The offence carries a maximum penalty of 10 years’ imprisonment.
In addition, you have pleaded guilty to the following summary charges which you agree may be determined by this court:
a.Possession of prohibited weapon (laser pointer) contrary to s 5AA of the Control of Weapons Act 1990 (Vic) which carries a maximum penalty of 240 penalty units or 2 years’ imprisonment (Summary Charge 4);
b.Possession of prohibited weapon (taser) contrary to s 5AA of the Control of Weapons Act 1990 (Vic) (Summary Charge 5); and
c.Failure to comply with direction contrary to s 465AAA(4) of the Crimes Act 1958 (Vic) which carries a maximum penalty of 2 years’ imprisonment (Summary Charge 6).
You pleaded guilty to these offences on the first listed day of trial, 2 August 2022, after a contested committal hearing, several directions hearings, and a case conference.
The resolution of these matters has been unusually protracted, stemming predominantly from the Covid-19 Pandemic. It is necessary to briefly examine the chronology of the matter.
Charge 1 was committed on 14 February 2018. Summary Charges 4, 5, and 6 were not committed until 8 February 2019 during the execution of a search warrant at your address.
The first and second contested committal were administratively adjourned for reasons beyond anyone’s control. After the committal on 3 February 2021, the matter was listed for several directions hearings, a number of which were administratively adjourned.
On 5 June 2021, you applied for a sentence indication which was rejected. At the time, the Prosecution’s consent was a requirement for a sentence indication.[1]
[1] Criminal Procedure Act 2009 (Vic) s 208(2) as at 5 June 2021.
Circumstances of your Offending
I sentence you based on the Summary of Prosecution Opening dated 15 June 2021.[2] The following summary of your offending is drawn from the opening.
[2] Ex P1.
In September 2018 you were homeless and living in your car. The victim of your offending, Russell Anderson, was 62 years old at the time of the offending and was not known to you. Mr Anderson worked at a car wash located at Gap Road, Sunbury.
10.At approximately 6:35AM on 14 September 2018 Mr Anderson was at the car wash to wash his wife’s car. As he exited the car wash via a neighbouring business’ carpark towards Horne Street, he saw you drop what he believed was rubbish into the garden bed.
11.Whilst still inside his car Mr Anderson said to you “I saw what you did,” before getting out of his car and approaching you. He then called you a “dirtbag” and a “scum bucket”. The incident is captured on poor quality CCTV footage without sound.
12.You then turned around and moved back towards Mr Anderson. He moved approximately 5 metres towards you and you walked a similar distance towards him.
13.A short struggle ensued between you and Mr Anderson, which resulted in your glasses falling off.
14.You then swung your arm backwards and then punched Mr Anderson in a roundhouse sweeping action striking him to the left side of his neck with an unknown sharp metal implement that was not located. Mr Anderson immediately felt pain and said ‘Are you for real?’
15.Mr Anderson then returned to his car. He applied pressure to his neck and noticed he was bleeding. He then drove past you as you were walking away and out of the car wash.
16.Mr Anderson drove himself to the Sunbury Police station and received first aid care from a pharmacist who was buying a coffee from a nearby vendor. The pharmacist applied pressure to the wound using a crepe bandage.
17.Paramedics arrived and Mr Anderson was taken to the Royal Melbourne Hospital. The paramedics did not remove the dressing as it was providing effective haemorrhage control.
18.At hospital, Mr Anderson was examined and found to have suffered a penetrating injury through the soft tissues and muscles of the left side of his neck. He had lost a lot of blood and required surgery to explore, wash out and close the wound.
19.During the surgery, Mr Anderson’s external jugular vein (EJV) on the left side was ligated (that is, tied off and taken out of function).
20.He was discharged home on 15 September 2018. There is no evidence before the court that Mr Anderson has suffered any ongoing effects of the injury.
21.That is Charge 1, causing injury intentionally.
22.I turn now to the circumstances of Summary Charges 4, 5, and 6, all of which arose out of the investigation of Charge 1.
23.On 8 February 2019 police attended your home in Sunbury, execute a search warrant and arrested you. Under the warrant, police seized:
a.A laser pointer (Summary Charge 4);
b.A home-made taser (Summary Charge 5); and
c.A Huawei mobile phone.
24.During the course of the search, you were provided with a copy of the search warrant and authority to give a direction under s 465AAA(2) of the Crimes Act 1958 (Vic). This authorised the officer executing the warrant to direct you to provide the officer with any information s/he needed to access data on your mobile phone. Contrary to such a direction, you refused to provide to police the passcode to your mobile phone (Summary Charge 6).
25.You were interviewed on 8 February 2019 during which you denied involvement in the incident at the car wash.
26.On 19 February 2019 Mr Anderson viewed a photo board and positively identified you as the offender.
Objective seriousness of your offending
27.As the Court of Appeal has observed, the offence of intentionally causing injury captures conduct that ranges from minor injury to something just falling short of serious injury.[3] Matters to consider in assessing the objective seriousness of a given example of the offence include the offender’s proven intent, the seriousness of the injury caused, the duration of the attack and whether the offender acted alone or in company.[4]
[3] Harvey v The Queen [2021] VSCA 84 at [39].
[4] Baroch v The Queen [2022] VSCA 90 at [16].
28.The prosecution here submitted that yours was a ‘very serious example of intentionally causing injury, toward the upper end of the range of objective seriousness’.[5]
[5] Crown submissions for Plea dated 6 November 2022 at [3].
29.Your counsel submitted that ‘there is an element of “excessive self-defence” which should properly be regarded as a mitigating factor’.[6]
[6] Defence Submissions on the Plea dated 1 November 2022 at [4], emphasis in the original.
30.The defence of self-defence applies where two matters are present. First, the person claiming self-defence must believe that the conduct they engaged in was necessary to defend themselves. Secondly, the conduct must be a ‘reasonable response in the circumstances as the person believes them’.[7] I do not accept that excessive self-defence is relevant in sentencing you. The victim was unarmed and much older than you. There is no evidence before me that you believed you needed to defend yourself. Even if there was, I consider that your response was manifestly unreasonable.
[7] Crimes Act 1958 (Vic), s 322K.
31.Whatever it was that you had in your hand was clearly sharp enough to cause a significant injury to Mr Anderson. I sentence you on the basis that you knew or ought to have known that the item was sharp and that punching Mr Anderson with the hand that was holding the sharp metal implement meant that injury to him was the likely outcome.
32.The injury you caused was significant. Given the blood loss, but for the quick action of the pharmacist, the outcome could have been far worse for Mr Anderson. He required surgery to repair the damage.
33.Having regard to the factors identified by the Court of Appeal, I consider yours to be a mid-range example of the offence of intentionally causing injury. You acted alone, it was a brief altercation and although I consider the injury to have been grave, fortunately there have been no long term effects of the injury sustained by Mr Anderson.
34.Turning to the summary offences, there is no suggestion that you used either the taser or the laser pointer. As for summary charge 6, while a failure to comply with such a direction can obstruct police investigative work, there is no suggestion that was the effect in your case.
Personal circumstances
General
35.I now turn to a consideration of your personal circumstances. You are now 35 years old. At the time of the offending, you were 31 years old and living with your parents in Sunbury.
36.Your childhood and adolescence were characterised by instability, dysfunction and disruption. You described to Ms Lechner, clinical psychologist, that you were the victim of physical, verbal and emotional abuse at the hands of both of your parents and lived out of home from the age of 14.[8]
[8] Exhibit B - Report of Ms Carla Lechner dated 26 April 2021, p 1.
37.In recent years, you have often been homeless and you have taken a wide range of drugs including Speed, Ecstasy and LSD. Your drug use commenced when you were about 15.
38.Owing to your limited education and criminal history you have found it difficult to obtain consistent employment. You have worked in construction and as a general labourer and in 2017 you began working with a labour hire company.
39.Your criminal record, while not extensive, dates back to 2006. It is concerning that you have been before the courts on four occasions for possessing controlled or prohibited weapons. I note that you have no prior convictions for crimes of violence. You have also been sentenced to suspended terms of imprisonment and community correction orders.
Mental Health
40.You were assessed by a clinical psychologist, Ms Lechner, for the purposes of the plea. Ms Lechner prepared a report dated 26 April 2021 and an updated one dated 16 October 2022.[9]
[9] Exhibit C.
41.For the purposes of preparing her first report, Ms Lechner administered the Historical Clinical Risk, 3rd edition to assess your risk of re-offending. She concluded that you fall into the ‘moderate/high risk level for future violent offending compared with the average violent offender’.[10]
[10] Exhibit B, p 5.
42.Ms Lechner concluded that you present with symptoms of complex PTSD, anti-social personality traits and a clinical level of depression. You fulfil the criteria of Persistent Depressive Disorder. However, Ms Lechner noted that you do not like to admit to any psychological problems.[11] As a result, she concludes you are likely to be reluctant to acknowledge the need for any assistance, particularly with respect to your mental health.[12]
[11] Ibid, p 6.
[12] Ibid, p 7.
43.Ms Lechner concluded that you are hyper-vigilant to situations of real or perceived threats and are prone to over-react. I consider that this is relevant to your offending in this case.
44.Ms Lechner concluded that your mood would further decline in a custodial offending.
45.In her second report, Ms Lechner noted that you are ‘regretful’ of the injuries you caused to Mr Anderson. Ms Lechner concluded that although you continue to have a moderate/high risk of violent reoffending, you do not ‘present with specifically violent attitudes’ and your actions are ‘mostly reactive in nature’.[13]
[13] Exhibit C, p 5
46.Ms Lechner noted that you have not re-offended while on bail. She opined that you have stable housing and employment and that ‘an immediate jail sentence would jeopardise these significant gains that [you] have made’.[14] Further, she anticipated a ‘marked decline in [your] mental health’ if you are imprisoned.[15]
[14] Exhibit C, p. 5
[15] Ibid, p. 7.
Prospects of rehabilitation
47.The evidence is mixed. Positive aspects include your long period of not offending since you were bailed as well as your stable accommodation and employment. On the other hand, there is your prior offending, lack of acceptance of your mental health concerns and resistance to treatment, as well as your lack of any real remorse for this offending and your future risk of violent re-offending. I can’t assess your prospects of rehabilitation as any better than moderate.
Submissions of the Parties
48.Your counsel submitted in written submissions that all of the applicable sentencing considerations can be addressed by a suitably tailored Community Correction Order despite the offending being serious. She referred to the need to consider imprisonment to be a last resort and the need to moderate your sentence having regard to your lengthy period on bail without re-offending and your personal circumstances both historical and present. At the hearing, for reasons discussed later, she submitted that a straight sentence was appropriate.
49.The prosecution submitted that the seriousness of your offending means that a term of imprisonment comprising a head sentence and a non-parole period is required.
Consideration
50.The applicable purposes for which sentence is to be imposed in your case are general and specific deterrence, community protection and just punishment. It is also necessary to promote your rehabilitation to the greatest extent possible.
51.I must take into account both the objective seriousness of your offending, discussed earlier, as well as the applicable matters of mitigation. Of these, the most important is your plea of guilty which, although made after a contested committal and on the first day of your trial, has a significant utilitarian value especially as the court continues to struggle with the delays caused by the pandemic.[16]
[16] Worboyes v The Queen [2021] VSCA 169.
52.Your counsel submitted that your background ‘is such that Bugmy considerations are enlivened’.[17] This is a reference to the High Court’s decision in R v Bugmy[18] in which the court concluded that the circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence ‘may mitigate the sentence because her or his moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way’.[19] In this case, I accept that it is appropriate to moderate your sentence somewhat having regard to your deprived background.
[17] Defence Submissions on the Plea dated 7 November 2022 at [6].
[18] [2013] HCA 37.
[19] At [40].
53.However, as the High Court also noted in Bugmy, if there is evidence before a sentencing court that an offender will resort more readily to violence as a result of their deprived background, ‘such an inability to control the violent response to frustration may increase the importance of protecting the community from the offender’.[20] Yours is such a case. As noted earlier, according to Ms Lechner, you are prone to over-reacting to real or perceived threats. There is therefore a clear need to protect the community from you.
[20] At [44]-[45]
54.General deterrence is an important consideration in relation to the causing injury charge and the charge of failing to comply with the police direction. Your history of weapons-related offending makes specific deterrence an important consideration in relation to the injury charge and the possession of weapons charges.
55.At the hearing of your plea, I indicated my preparedness to have you assessed to determine your suitability for a community correction order. I was contemplating a combination sentence with a condition that you be treated for your mental health concerns. As the Court of Appeal has acknowledged, such a sentence can achieve a range of sentencing objectives both punitive and rehabilitative.[21]
[21] Boulton v The Queen (2014) 46 VR 308.
56.Under the law, a court may only impose a CCO, whether by itself or in combination with a term of imprisonment, if the offender consents.[22]
[22] Sentencing Act 1991 (Vic), s 37(c).
57.As your counsel informed the Court on 7 November 2022, you refused to provide your consent. Therefore, the only available sentencing option in my opinion is to sentence you to a term of imprisonment. In assessing the appropriate term, I have taken into account your guilty plea, the other matters of mitigation discussed above and the evidence of Ms Lechner that time in custody will be more difficult for you than for a person who does not suffer from your mental ill-health.[23]
[23] R v Verdins [2007] VSCA 102, see limb 5 at [32].
58.I have also taken into account in moderation of your sentence that there is some evidence from Ms Lechner that enlivens limb 6 of Verdins – that is, that there is a ‘serious risk of imprisonment having a significant adverse effect’ on your mental health. Ms Lechner’s evidence is that she ‘anticipates’ that your ‘mood’ would further decline in a custodial setting and that there will be ‘marked decline in [your] mental health’ if you are imprisoned.[24] The prosecution accepts that both limbs 5 and 6 of Verdins are enlivened.[25]
[24] Exhibit C, p 7.
[25] Crown Submissions for Plea dated 6 November 2022 at [23].
59.The delay in the finalisation of this case is significant. Your offending occurred more than four years ago. You have had the case hanging over your head since that time, a matter I have taken into account in mitigation.
60.I have also had regard to current sentencing practices for the offence of intentionally causing injury noting that they can offer no more than a guide and are merely one factor to which the court must have regard.[26]
[26] Director of Public Prosecutions v Dalgliesh [2017] HCA 41, 21 [68].
61.The most serious examples of the offence attract terms of imprisonment of between five and six years.[27] In the very recent case of Baroch v The Queen,[28] a sentence of three years and nine months for a ‘very serious example’ of intentionally cause injury was described as ‘moderate’ by the Court of Appeal. The offender had engaged in a sustained attack involving punching and kicking in company directed at a good Samaritan. The victim lost consciousness, lost a great deal of blood and was left with a fractured eye socket. The offender had prior convictions for offences of violence and was on bail at the time he committed the offence.
[27] See Rivera v The Queen [2020] VSCA 5; Byrne v The Queen [2020] VSCA 289; Harvey v The Queen [2021] VSCA 84.
[28] [2022] VSCA 90.
62.Your case is considerably therefore less serious than Baroch.
Orders
63.Taking into account the maximum penalties, the seriousness of your offending, current sentencing practices and the mitigating matters described above:
a.On charge 1, intentionally causing injury, you are sentenced to two years and three months’ imprisonment. This is the base sentence.
b.On summary charge 4, possession of the laser pointer, you are sentenced to 3 months’ imprisonment.
c.On summary charge 5, possession of the taser, you are sentenced to 3 months’ imprisonment;
d.On summary charge 6, failing to comply with the police direction to assist, you are sentenced to 2 months’ imprisonment.
64.I order that one month of the sentence on summary charge 4, one month of the sentence on summary charge 5 and one month of the sentence on summary charge 6 be served cumulatively on the base sentence and on each other.
65.The total effective sentence is therefore 2 years and 6 months’ imprisonment.
66.I order that you serve 20 months before you are eligible for parole.
67.Pursuant to s 18 of the SA, I declare that the 21 days you have served in custody be time served in respect of the sentences imposed today.
68.I make the forfeiture order in respect of the weapons sought noting that it is unopposed.
69.Finally, pursuant to s 6AAA of the SA, had you not pleaded guilty, I would have sentenced you to 3 years and 3 months’ imprisonment with a non-parole period of 2 years and 2 months.
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