Director of Public Prosecutions v Simmons
[2023] VCC 498
•3 April 2023
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO SITTING AT Shepparton DELIVERED AT MELBOURNE | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01472
Indictment No. M12161472
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LACHLAN SIMMONS |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 February 2023 | |
DATE OF SENTENCE: | 3 April 2023 | |
CASE MAY BE CITED AS: | DPP v SIMMONS | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 498 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence – Causing Injury Intentionally – Offending against custodial officer – Application of mandatory sentencing regime in context of Sentencing Act provisions – Youthful offender – Early plea of guilty – Extensive and serious prior criminal history
Legislation Cited: Sentencing Act 1991 ss 5(2G), 10AA(4)
Cases Cited:Gommers v The Queen [2021] VSCA 258 – Baroch v The Queen [2022] VSCA 90 – R v Mills [1998] 4 VR 235
Sentence: Total effective sentence 18 months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D R Cordy | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr R J Thyssen | Adrian Paull Criminal Lawyers |
HIS HONOUR:
1Lachlan Simmons, you have pleaded guilty to an indictment containing one charge of causing injury intentionally.[1] The maximum penalty for this offence is 10 years’ imprisonment.
[1] Contrary to s 18 of the Crimes Act 1958.
The Facts
2The prosecution filed a summary of prosecution opening for plea dated 7 February 2023[2] which I am told by your counsel I can treat as a statement of agreed facts for the purposes of sentencing you.
[2] Exhibit ‘Ex’ P1.
3You were born in May 2002 and are currently 20 years old. At the time of the offending, you were aged 19 and had been imprisoned at Loddon Prison, Castlemaine (‘the prison’) since 31 March 2021.
4The charge arises out of an incident involving the victim, Kieran Smith, a Senior Prison Officer who had worked at the prison for approximately seven years prior to the incident.
5On 24 August 2021, Mr Smith was working in uniform at the Coliban unit at the prison. At approximately 9.25 am he was clearing the unit for cleaning, as was customary every Tuesday morning.
6At 9.27 am to 9.28 am, a closed circuit television (‘CCTV’) camera shows you speaking to five prisoners and looking in Mr Smith’s direction.
7While clearing the top tier of unit 3, Mr Smith saw you walk around the top tier, near cells 11 and 12. He told you to leave the unit. You ignored him and kept walking.
8Mr Smith went to check the next cell. As he did this, he felt a blow and pain to his head and face area. He then felt two more quick blows to his head and face. This stunned him.
9CCTV footage shows you punching Mr Smith, including to his face, for approximately 20 seconds.
10At 9.29 am, Matt Baker, a prison officer who was rostered at Day 2 Coliban unit, heard an uproar from prisoners in Unit 3. They were shouting and ‘goading’ in an ‘unusual way’.
11At the time, Michael Rimmer, a technical officer maintenance, was working in Coliban Unit 3 kitchen. At approximately 9.30 am he heard murmuring and a ‘dull cheer’ by prisoners. He went to investigate the noise and saw you bent over Mr Smith punching him.
12Mr Rimmer ordered you to step back and you were restrained. Others, including members of the Security and Emergency Services Group of Corrections Victoria, arrived and removed you. You were generally compliant, however you did resist as officers escorted you back to your cell.
13Mr Baker went to cell 10 and observed Mr Smith had facial injuries, with blood covering his nose and mouth and bumps to the back of his head.
14Nursing staff and police attended. Paramedics arrived and Mr Smith was conveyed to hospital.
15On examination, Mr Smith had the following injuries:
(a) Haematomas to right upper and lower lips.
(b) Tender right lateral forehead bilateral rami of mandibles right paneto-occipital region.
(c) Mid trapezius tenderness bilaterally.
16On 14 September 2022, you were formally charged with intentionally causing injury to Mr Smith. You declined a formal interview on 22 September 2022.
Victim Impact
17A victim impact statement (‘VIS’) from Mr Smith was tendered by the prosecution,[3] in which he describes the injury he suffered as a result of your attack on him. Mr Smith attended the plea hearing via Webex and read his VIS aloud to the Court.
[3] Ex P2.
18Following the incident, Mr Smith suffered from bruising and cuts all over his head. He struggled to sleep at night because of the pain. He had to attend an osteopath for treatment to relieve the strain on his neck and shoulders.
19Mr Smith spends hours going over the incident in his head, questioning what he could have done differently. He considers the idea that someone could hit another person from behind as ‘cowardice’.
20As a result of the incident, Mr Smith had to go through the Workcover claims process which he found to be an arduous process which he felt ultimately caused more stress than it was worth.
21Mr Smith’s wife experienced anxiety and panic attacks as a result of the incident because she feels his life is always at risk when he is at work. She dreads the phone ringing while he is on shift and worries Mr Smith may not come home one day.
22The thought of his wife suffering because he goes to work to provide for his family causes Mr Smith further distress. He feels like his workplace is unsafe and that this kind of attack could occur at any moment. Mr Smith’s whole perspective on his work has changed, he feels it is not safe to work in the units.
Offence Seriousness
23At the plea hearing your counsel conceded your offending is inherently serious, as it involves violence directed towards a custodial officer who was performing his lawful duties. The seriousness of your offending conduct is highlighted by the effectively mandatory sentence of a term of imprisonment of not less than six months provided for in s 5(2G) and s 10AA(4) of the Sentencing Act 1991 (‘the Act’).[4]
[4] It is not submitted in this case that a ‘special reason’ exists under s 10AA(4) of the Sentencing Act 1991 (‘SA’).
24The minimum term of imprisonment was introduced into Victoria in 2014 to ‘recognise the very special role played by Victoria's emergency workers, and the need to ensure they receive the full protection of the law when treating, caring for and protecting Victorians at times of emergency.’[5]
[5] Victoria, Parliamentary Debates, Legislative Assembly, 26 June 2014, 2397 (Robert Clark MP, Attorney-General).
25In the Second Reading Speech, associated with the enactment of that section, 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.[6]
[6] Ibid.
26As the Victorian Court of Appeal recently observed in Gommers v The Queen:[7] ‘the seriousness of the offence of intentionally causing injury is not only to be gauged by the injuries caused, but by the manner of their infliction.’[8]
[7] [2021] VSCA 258.
[8] Ibid [44] (Priest and Kaye JJA) citing Phillips v The Queen [2017] VSCA 313, [54] (Osborn and Priest JJA); DPP v Milson [2019] VSCA 55, [61] (Priest and Weinberg JJA); Shau v The Queen [2020] VSCA 252 (Priest JA).
27Mr Smith was particularly vulnerable at the time you began to punch him because his back was turned towards you. You struck him numerous times in quick succession, appearing to take advantage of your attack having caught Mr Smith off guard. Your violent conduct was cowardly, unprovoked and appears to be entirely gratuitous. The fact you targeted a vulnerable part of Mr Smith’s body, striking his head several times, is an aggravating feature.
28Overall, I assess your moral culpability to be very high.
29Moreover, the injury Mr Smith suffered, which by your plea of guilty to this charge you admit you intended to cause, cannot be categorised as falling at the lowest end of the scale. He suffered an injury that required osteopathic treatment and prevented him from sleeping at night due to the pain, indicating the injury was not insignificant.
30Nonetheless, your offending conduct does not possess some of the aggravating features commonly seen in more serious examples of this offence.[9] You did not use a weapon during the assault and your attack on Mr Smith was of relatively short duration. You acted alone and were not in the company of others and you were not disinhibited by alcohol.
[9] Eg Baroch v The Queen [2022] VSCA 90; Gommers v The Queen [2021] VSCA 258.
31Clearly, denunciation, general deterrence, and just punishment are primary sentencing considerations in offences of this kind. In your case, given the circumstances of the attack and your appalling criminal history, specific deterrence and protection of the community also need be give real weight.
Personal Circumstances
32Your counsel briefly summarised your personal circumstances in oral and written submissions. You are currently 20 years old and at the time of the offending you were aged 19 years. You were born and raised in the Geelong area.
33Your parents separated when you were seven years old and you have not had any contact with your father since. Your mother raised you as a single parent, relying on government benefits for financial support. You have one older sister with whom you enjoy a good relationship.
34You completed primary school in Geelong. You partially completed Year 7 at Northern Bay High School before ceasing your education altogether. You first came into contact with the Department of Families, Fairness and Housing (then the Department of Health and Human Services) when you were 14 years old.
35Your counsel submitted that since leaving school, you have been unemployed and going through the youth justice system. You have had issues with substance abuse, using methylamphetamine and cannabis. There is nothing to suggest you were affected by alcohol or drugs at the time of committing this offence.
Prior Criminal History
36You have an appalling prior criminal history which dates back to 22 March 2017, when you were 14 years old. At that time, you were sentenced in the Geelong Children’s Court to youth probation for a period of 12 months for aggravated burglary (one charge), criminal damage (one charge), act prejudicial to security/good order/management of gaol (one charge), dishonestly undertake in retention of stolen goods (one charge), theft from shop (three charges), burglary (two charges), theft (three charges), obtain property by deception (five charges), theft of a motor vehicle (two charges), unlicensed driving (two charges), obtain financial advantage by deception (four charges) and intentionally damage property (two charges).
37Overall, your criminal history comprises convictions and findings of guilt in respect of over 100 dishonesty and property offences, 9 offences involving actual violence, the threat of violence and endangerment offences, 18 driving related offences, 22 offences involving breaching court orders, three drug offences, one weapon related offence and one offence relating to stating a false name when requested.
38Significantly to the present charge, you have one prior conviction for assaulting a youth justice worker on duty. You also have two prior convictions for unlawful assault, one prior conviction for assault with a weapon, one prior conviction for affray, one prior conviction for make threat to kill, one prior conviction for resist emergency worker on duty, two prior appearances for resist police officer, one prior conviction for reckless conduct endanger life, one prior conviction for reckless conduct endanger serious injury and one prior conviction for act prejudicial to security/good order/management of gaol.
39Your history indicates a propensity towards violence and a complete lack of respect for court orders and for those in authority. While you are not to be repunished for your past offending, clearly specific deterrence and protection of the community need to be given significant weight in sentencing you for the present offence.
Subsequent Offences
40You are presently imprisoned in relation to a number of offences which were committed after the offending which gives rise to the matters before me. On 17 and 18 May 2022, you committed a number of offences comprising aggravated burglary, burglary, theft, theft of motor vehicle, dangerous driving while pursued by police, drive whilst disqualified and retention of stolen goods. You were remanded in relation to those matters on or around 4 August 2022. On 28 November 2022, you were convicted and sentenced to a total effective sentence of 4 years 6 months’ imprisonment in relation to those charges. I am informed by the Sentence Calculation and Warrant Administration branch of Corrections Victoria your earliest release date is 24 July 2025.[10] That sentence is subject to an appeal by you to this Court, which is yet to be heard.
[10] Emergency management days deducted from the sentence may alter this date.
41Prior to that offending, on 31 December 2021, while in custody at Barwon Prison, you called for a prison officer to attend your cell. Once the officer had attended and lowered the trap door to your cell, you threw faeces and liquids through the open trap door which splashed on the prison officer. In relation to this offending, you were convicted in the Bendigo Magistrates’ Court on 26 August 2022 of assaulting an emergency worker and sentenced to three months’ imprisonment.
42On 24 March 2022, at the Werribee Magistrates’ Court you received an aggregate sentence of 120 days imprisonment for a number of offences relating to theft, obtain property by deception, theft from motor vehicle, attempt to commit indictable offence, theft of a motor vehicle, attempted theft of a motor vehicle, theft from a shop and drive whilst disqualified.
43While subsequent offences cannot be taken into account in the same way as prior criminal history can, they bear upon my assessment of your character and shed light on your risk of recidivism, which is relevant to the weight I give to specific deterrence and protection of the community in sentencing you for the present offences. They are relevant also to my assessment of your prospects of rehabilitation,[11] which I assess as being highly problematic.
[11] See R v Rumpf [1998] VR 466, 475 (McGarvie J, Young CJ and Murray J agreeing); Alexandros v Birchell (2000) 31 MVR 307, 310–11 [15], [18] (Smith J); DPP v Rongonui (2007) 17 VR 571, 580 [37] (Maxwell P); Bellizia v R [2016] VSCA 21 [75], [77–78] (Santamaria JA).
Mitigating Circumstances
44You pleaded guilty to this offence at the committal mention stage in the Magistrates’ Court following negotiations between you and the prosecution. I accept your plea was entered at the earliest reasonable opportunity.
45Your plea has utilitarian benefit, particularly in the COVID-19 environment.[12] It also indicates an acceptance by you of responsibility for your offending conduct and a willingness to facilitate the course of justice.
[12] Worboyes v The Queen (2021) 96 MVR 344, 356–7 [34]–[39] (Priest, Kaye and T Forrest JJA); Chenhall v The Queen [2021] VSCA 175 [29]–[30], [33]–[36] (Priest, Kaye and T Forrest JJA); Tran v The Queen [2021] VSCA 278 [59] (Kaye and T Forrest JJA); Rossi v The Queen [2021] VSCA 296 [13]–[16], [19] (Priest and T Forrest JJA).
46While I accept you are undoubtedly regretful for the situation you are in and the effect this has had on you, there is insufficient evidence before me to make a determination that you are remorseful and demonstrate true contrition for your offending conduct, beyond what is evident from the plea itself.[13]
[13] See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).
47Your young age is a significant sentencing consideration. At 20 years of age, you are a young offender. As a general rule, the paramount sentencing consideration for young offenders is rehabilitation.[14] However, given your current circumstances it is difficult to give effect to this principle.
[14] See R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43.
48Your counsel submitted, and the prosecution fairly conceded, the risk of institutionalisation is a live issue in your case because of your youth.
49In Balshaw v The Queen,[15] Kaye and Forrest JJA expressed the principles that apply to youthful offenders in the following terms:
The particular weight to be accorded to the youth of an offender must depend on the circumstances of the case. In that respect, it is recognised that as the level of seriousness of criminality increases, there will be a corresponding reduction in the mitigating effects of the offender’s youth. Similarly, where the offence is one which is commonly committed by young offenders, the youth of the offender in question may need to be accorded less weight as a mitigating factor, in order to ensure that the sentencing principles of general deterrence and specific deterrence be given sufficient weight.[16]
[15] [2021] VSCA 78.
[16] Ibid [56] (citations omitted).
50The mitigatory effect of your youth and prospects for rehabilitation are diminished by two matters. First, intentionally cause injury committed against an emergency worker on duty is an objectively serious offence. Emergency workers perform an important role within the community and they are entitled to carry out their duties without the fear of violence and/or injury. The seriousness of violent offending against emergency workers requires that general deterrence be regarded as of great importance. The second matter is your past and subsequent history of relevant offending.
Application of Sentencing Principles
51I have had regard to current sentencing practice in relation to the charge of intentionally causing injury as informed by the decisions of the High Court of Australia in R v Kilic[17] and DPP (Vic) v Dalgliesh (a Pseudonym)[18] and the Victorian Court of Appeal decisions in DPP v Zhuang[19] and DPP (Cth) v Thomas.[20] In particular, I have had regard to the Victorian Sentencing Council’s Sentencing Snapshot for causing injury intentionally[21] and the Council’s SACStat Higher Courts – Causing injury intentionally, while recognising the limitations of these resources. I have also had regard to the Judicial College of Victoria’s Sentencing Manual Case Summaries for this offence.[22]
[17] (2016) 259 CLR 256, 266–268 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[18] (2017) 262 CLR 428,444–447 [47]–[58] (Kiefel CJ, Bell and Keane JJ), 452–455 [78]–[85] (Gageler and Gordon JJ).
[19] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA).
[20] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
[21] No 265 December 2021.
[22] Judicial College of Victoria, VSM Case Summaries – 04 – Causing Injury Offences, 4.5.1 (online).
52While current sentencing practice is relevant to the sentence I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing a just sentence in your case.[23]
[23] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
53Moreover, it is difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute the offence of causing injury intentionally and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain assistance from comparable cases, I have sought to do so in your case.
54The basic purposes for which a court may impose a sentence are just punishment, denunciation, deterrence, both specific and general, protection of the community and rehabilitation. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offence, your culpability for it, the effect of your offence on the victim and your personal circumstances.
55Denunciation, general deterrence and just punishment must be given significant weight in sentencing you for this offence. Moreover, I consider weight needs to be given to specific deterrence and protection of the community, given the nature of your offending conduct and your prior criminal history. I assess your prospects for rehabilitation as being highly problematic.
56The standard sentencing regime does not apply in this case. However, the offence of intentionally causing injury when committed against a ‘custodial officer’, as was the victim in this case, is a ‘category 1’ offence under the Act.[24] Accordingly, a court must impose a sentence of imprisonment to be immediately served[25] and, unless ‘special reason exists’, a term of not less than six months’ imprisonment must be imposed.[26]
[24] See Sentencing Act 1991 (‘SA’) s 3(1) definition of ‘category 1’ offence at para (cc).
[25] See SA s 5(2G).
[26] See SA s 10AA(4).
57At the plea hearing, neither your counsel nor the prosecutor submitted a special reason exists here and I am satisfied none is established in this case.
58Totality is a particularly important consideration given the length of the sentence you are presently serving. Your counsel submitted that I should order full concurrency of this sentence with the lengthy sentence of imprisonment you are currently serving. I note that the presumption of concurrency is not displaced in the current circumstances.[27] In response, the prosecutor submitted that in sentencing you I should partially cumulate the sentence I impose in order to properly reflect the added criminality involved in the present offending.
[27] See SA s16(1).
59After balancing all relevant sentencing considerations in your case, I consider a sentence of imprisonment is the appropriate sentence and that partial cumulation should be ordered.
Mr Simmons
On the charge of causing injury intentionally you are convicted and sentenced to be imprisoned for 18 months. I direct that six months of that sentence is to be served cumulatively on the sentence you are presently serving.
There is no pre-sentence detention to declare.
In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to 2 years’ imprisonment, and fixed a new non-parole period which would have added 1 year to the non-parole period of your present sentence.
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