Director of Public Prosecutions v Simons

[2023] VCC 1711

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00228

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOEL SIMONS

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	18 September 2023
DATE OF SENTENCE:	21 September 2023
CASE MAY BE CITED AS:	DPP v Simons
MEDIUM NEUTRAL CITATION:	[2023] VCC 1711

REASONS FOR SENTENCE
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Subject:Criminal Law – sentence – guilty plea

Catchwords:              Sentencing – causing injury intentionally – emergency worker on duty – category 1 offence – attempted theft – drive whilst disqualified – commit an act of animal cruelty – 35 years old at time of offending – struck multiple times towards head – use of weapon – not at the higher end for an offence of causing injury intentionally – being subject to a community correction order for violent offences at time of offending – relatively limited history for offences of violence – no prior history for animal cruelty – significant cognitive difficulties – polysubstance abuse and mild traumatic brain injury – depression and anxiety – ongoing impulsivity and lack of self-control – reduced moral culpability – significant utilitarian value of plea in the aftermath of COVID

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:

Sentence:                  Total effective sentence 12 months imprisonment with 18 months community correction order; 367 days reckoned as already served; 6AAA: 20 months imprisonment with a non-parole period of 10 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Plummer	Office of Public Prosecutions
For the Accused	Mr J. Lavery	Emma Turnbull Lawyers

HER HONOUR:

1Joel Simons, you have pleaded guilty on indictment to charges of causing injury intentionally and attempted theft.

2You have also pleaded guilty to a related summary offence of driving whilst disqualified and commit an act of animal cruelty.

3This offending all occurred on 18 September 2022.

4In sentencing you for these crimes I must have regard to the maximum penalties for the offences you have committed.

5The charge of causing injury intentionally carries a maximum penalty of 10 years imprisonment, attempted theft from motor vehicle carries a maximum penalty of five years imprisonment, drive whilst disqualified carries a maximum penalty of two years imprisonment and the charge of commit an act of animal cruelty carries a maximum penalty of 12 months imprisonment. The maximum penalties reflect the seriousness with which Parliament regards each of these offences

6The circumstances of your offending were set out in a document entitled 'Prosecution Opening for Plea Hearing' dated 29 August 2023. This document represents your acceptance of the elements of the offences to which you have pleaded guilty as well as the factual basis on which I am to sentence.

The offending

7On 18 September 2022 you were driving a white Toyota Corolla, registration 1UJ1 FM. Your license to drive had been disqualified by the Ringwood Magistrates Court on 9 June 2021 until 8 June 2023.

8It was approximately 6:15 am when you parked the Toyota in Lindamus Crescent, Cranbourne and walked some 25 metres back to a black Holden Commodore Ute. You opened the front driver's door and began to search the vehicle forming the basis for Charge 2 on the indictment, attempted theft from motor car. A member of the public saw you and called Triple Zero.

9Shortly thereafter, Leading Senior Constable Bradley Mascoll attended the scene. Whilst driving an unmarked police car, which he stopped right behind you, he was wearing full Police uniform.

10Leading Senior Constable Mascoll approached you as you were leaning into the Holden. He placed his hand on your shoulder and identified himself by saying 'police, mate'.

11You turned and immediately began assaulting Leading Senior Constable Mascoll by striking at his face and head with an extendable metal baton and punching him with your free hand. It appears that you made contact once to the head with the baton.

12Whilst he was being assaulted, Leading Senior Constable Mascoll instructed you to get on the ground on three separate occasions, yet you continued to assault him.

13Leading Senior Constable Mascoll was holding you with his left hand. You broke free and ran towards the Toyota parked nearby. Leading Senior Constable Mascoll released Police Dog Duke from his vehicle and gave chase alongside Police Dog Duke in an effort to apprehend you.

14Police Dog Duke bit you to the right upper leg as you reached the driver's door of your vehicle. You opened the drive's door and got in.  Leading Senior Constable Mascoll arrived almost immediately and blocked your driver's side door from closing. Both he and Police Dog Duke tried to remove you from the vehicle.

15You resisted and started to drive away with Police Dog Duke still attached to your right leg. Leading Senior Constable Mascoll told you to stop but you drove off with Police Dog Duke hanging from the open driver's door.

16You drove approximately 150 meters dragging Police Dog Duke in this way. The CCTV footage shown sees him make his way back to Senior Constable Mascoll afterwards.

17As referred to earlier, you were disqualified from driving at this time. Your driving on this day formed the basis for the summary charge of driving whilst disqualified.

18Police Dog Duke suffered grazing to his right shoulder, grazing to his right knee, grazing to his left inner thigh, multiple superficial grazing on all digits of each of his four paws and a graze to the left wrist. These facts form the basis for the summary charge of commit act of animal cruelty. Police Dog Duke required treatment at the animal emergency centre costing some $527.95.  As I understand it, application is made for compensation for that amount and I will grant that application.

19Leading Senior Constable Mascoll also sustained injuries which included a deep laceration to the right side of his temple and visible bruising to his right bicep. He was taken to hospital by ambulance for assessment and treatment. These facts form the basis for the charge of causing injury intentionally.

20You were arrested at your mother's home on 19 September 2022. You were assessed as being unfit to be interviewed by the police due to your mental health and drug withdrawal.

Offence gravity and victim impact

21The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.

22Leading Senior Constable Mascoll has provided a victim impact statement. In that document he describes how your offending has had a significant impact on his life, both personally and professionally. He is constantly on edge.  He has difficulty sleeping. He regularly has nightmares and the psychological effects of the assault have impacted on his sense of self and his relationships with important family members. He has naturally been upset about the injuries caused to Police Dog Duke, as have other members of his family. The impact of your offending on Leading Senior Constable Mascoll continues a year after the events and I accept is likely to do so into the future.

23This is obviously serious offending, particularly your assault of Leading Senior Constable Mascoll and, in effect, of Police Dog Duke.

24CCTV and body-worn camera footage of these events was made available and made very uncomfortable viewing

25Whilst I accept that you were caught by surprise and your actions were unplanned, Leading Senior Constable Mascoll was struck at multiple times towards the head, an inherently dangerous act. Your use of a weapon elevates the objective gravity.  It is certainly more by good fortune than good management that his injuries were not more serious.

26The same can be said for Police Dog Duke who was dragged some distance before becoming free. 

27I do accept that for an offence of causing injury intentionally, it is not at the higher end for an offence of its type given the circumstances in which it occurred and the level of injury. This finding should not undermine the significant distress which you have caused your victim.

28General deterrence and denunciation are necessary sentencing considerations in respect to the offence of causing injury intentionally, especially in the circumstances of this offending where the victim was an emergency worker. It is important that other members of the community are deterred from committing violent offences in such circumstances.

29At the time of this offending, you were subject to a community corrections order imposed on 28 March 2022 for offences of violence. Being subject to this order as of 18 September 2022 is an aggravating feature to the offending before me.   Specific deterrence and protection of the community are matters of some weight in the sentencing task.

Plea of guilty

30You were committed to this court on 20 February 2023 in relation to a range of indictable and summary offences arising from your actions on 18 September 2022.

31The matter is resolved as a result of a case assessment hearing held on 7 August 2023 and you were formally arraigned on 8 September 2023. A number of charges were not proceeded with.

32In these circumstances, your plea of guilty has occurred at a relatively early opportunity.

33It has saved the court the time and expense of contested proceedings and the need for witnesses to attend and relive what would be described properly as traumatic events.

34Your plea has additional utilitarian value at this time whilst the court system is still having to respond to the backlog created by the COVID‑19 pandemic.

35Overall, I accept that you do take responsibility for your offending of 18 September 2022. You are particularly distressed about the charge of animal cruelty

36These factors will all be taken into account in your favour.

Prior criminal history

37Your criminal history is part of your personal circumstances.

38Your criminal history spans come 36 pages, 18 years and approximately 15 court appearances.

39Relevantly you have a prior history for driving offences. You also have a prior history for drug trafficking, drug possession, dishonesty and breaches of court orders which do include orders not to drive, sentencing orders, and bail orders. You have a relatively limited history for offences of violence and do not have a prior history for animal cruelty

40This history shows that the imposition of terms of imprisonment have not deterred you, nor have supervisory orders assisted you.

41Whilst not to be punished for your criminal history a second time, it is relevant to an assessment of the weight in the sentencing exercise to attach to the principles of specific deterrence, denunciation, and protection of the community. It is also relevant to an assessment of your prospects for rehabilitation, to which I will later refer.

Personal circumstances

42You are now 36 years of age.

43You are the second of five children born of your parents. Your parents separated when you were aged nine to 10 years and you remained living with your mother, rarely seeing your father.

44At a later stage your parents commenced reconciliation.

45In a somewhat tragic set of circumstances your father died in a motor vehicle accident whilst travelling to collect you from school. You had had an altercation during the day and you had skipped school, not reporting this to your father. You were unfortunate to attend the scene and to see your father's body. I am told your mother kicked you out of home that day. You have blamed yourself since for you father's death.

46Your history of substance abuse commenced not long after. You commenced using alcohol from the age of 14 years and have used the drug ice from the age of about 20 years.

47This impacted your schooling, and you attained a Year 9 education.  You became largely itinerant from that time and have had limited employment.

48A report authored by Dr Evrim March, clinical neuropsychologist, dated 9 February 2017, has been tendered on your behalf. You were referred to Dr March to evaluate whether you had an acquired brain injury or intellectual disability. You had reported numerous incidents of assaults to the head and also motor vehicle accidents.

49In Dr March's opinion you had significant cognitive difficulties with processing speed, inhibition and impulsivity, inflexible thinking and verbal memory. You did not have an intellectual disability

50Your cognitive profile was consistent with an acquired brain injury that was multifactorial in origin including polysubstance abuse, multiple concussions and mild traumatic brain injury. Considering the identified nature of your cognitive difficulties, in Dr March's opinion, you were at risk of reoffending given your ongoing impulsivity and difficulty controlling your own behaviour. Dr March opined that 'his slow processing speed would make him even more vulnerable when he has to act to make decisions in a rushed, rapid paced environment.'

51A report authored by Dr Nathan Serry, consultant psychiatrist, dated 19 July 2018 was also tendered on your behalf. It was commissioned in relation to an unrelated event and sets out much of your personal history.

52At the time of writing his report, Dr Serry did not undertake a formal cognitive assessment. You did present with high levels of anxiety, agitation, and paranoia.  

53In terms of diagnosis at that time, Dr Serry opined that you presented with a combination of complex neurocognitive disorders reflecting multiple head injuries, polysubstance abuse of long-standing duration and persistent depressive disorder with anxious distress.

54No updated material has been filed. I accept that it is likely that your identified acquired brain injury and complex neurocognitive disorder is unlikely to have ameliorated entirely and I note that you have qualified for the National Disability Insurance Scheme. It is also apparent that your long-standing addiction to drugs has continued to some extent.

Prospect of rehabilitation

55A letter from Phoenix, Specialised Youth and Disability Services, updated 11 January 2022 tells me that you have been in receipt of services from the National Disability Insurance Scheme from 13 May 2021 due to a traumatic brain injury. This plan is in place for life, indicating that the assessment of your need to access such support for that particular disability is for that time period.

56The fact that you are funded for a scheme due to a traumatic brain injury, in combination with the reports from Dr March and Dr Serry and their respective identified issues with your cognitive function, allows for some reduction in your moral culpability for your offending on 18 September 2022.  I am satisfied that you are likely to have had an acquired brain injury at that time.

57The provision of services to you from the National Disability Insurance Scheme is voluntary in terms of what you choose to implement. From the letter from Phoenix from January of 2022, I was told you could be provided with occupational therapy support to build your independent living skills and maintain wellness and to assist future accommodation and support needs. At that time, you had access to a peer support mentor, individual skill development/training, transport funding and coordination of supports.

58At the time of that letter you had identified goals of obtaining employment, learning strategies to accept your father's death and manage your stress and anxiety and to become a confident speaker.

59You found rental accommodation and were described as successfully engaging with a support worker.

60A letter authored by Valentine Gonsalvez, Chief Executive Officer of Phoenix Specialised Youth and Disability Services, dated 15 March 2022, says that he knew you through his work at Port Phillip prison and commenced working with you in February 2022 through the National Disability Insurance Scheme. His engagement with you was in the capacity of therapeutic support as well as to assist you to reintegrate and manage in the community. You were in the community at the time of his work with you and you managed to secure employment, which amounted to effectively full-time employment.  You had accommodation, you were living independently, and you were building positive relationships. He describes you as working hard to resolve your maladaptive coping. Further, Mr Gonsalvez states that you never received this level of support that you were receiving at that time. At the time of writing, he was working with you one hour per week providing guidance, counselling and prosocial role modelling.

61The offending before me postdates these letters but at least confirms that services were in place, could be accessed and importantly, that you were utilising what was available to you and responding positively to that assistance.

62I am told that you had an offence free period for approximately 12 months and had considerable stability. You had begun to repair relationships with family and had their support. Both your mother and sister have visited you in custody and I note that two of your siblings and your mother are present for your sentencing today.

63The supports from the National Disability Insurance Scheme, your response to them as has been known to me, and your contact with family were all significant and positive changes in your life and give some basis to form the view that you now offer greater prospects for rehabilitation that you may have in the past.

64In the immediate lead up, a matter of some days, to 18 September 2022, there was a deterioration in your mental health, and you had been asked to stay away from work. You responded to this in a negative fashion and isolated yourself before a brief return to drug use. This does not excuse your offending but does provide some context for it occurring

65A letter from Paylos Life Changing Adventures dated 2 August 2023 confirms that their service now supports you through the National Disability Insurance Scheme.  They have the options of providing ongoing supports and short-term accommodation. They are supporting you in custody by means of video link, with the first session on 25 July 2023. They intend to increase the level of support upon your release.  Paylos can assist you to access community, to find suitable employment, give support with housing and to assist you to engage in outdoor recreational activities. You have responded to such assistance in the lead up to your offending and I am of the view that you are likely to do so again.

66A letter from the Australian Community Support Organisation (ASCO) dated 16 September 2023 also confirms they have been working with you whilst on remand and it indicates that they have created a reintegration transition plan to prepare you for your release from custody. They are able to support you with assertive outreach for three months post-release.

67A letter authored by Ms Taylah Douglass from Bloom Healthcare dated 2 August 2023 has also been tendered.  Ms Douglass is your treating occupational therapist and has worked with you for approximately 12 months. Ms Douglass refers to reported diagnoses of attention deficit hyperactivity disorder, impulse control disorder, depression, anxiety and an acquired brain injury

68She has assisted with goalsetting and to provide strategies to mitigate the functional impact of your health conditions. You have engaged in monthly sessions since September 2021. Ms Douglass describes you as having made 'progress towards his goals and remains proactive and motivated to develop his capacity for self-management in preparation for his release back into the community.'

69You have completed a wide range of course whilst in custody which have included work skills, educational programs and drug and alcohol programs. You have also obtained a billet's role which I understand to be a trusted position. You have written your own letter to the court.  In general terms I find such letters to be self-serving, but yours explains the benefits you saw from having stable accommodation and from having employment, and your sheer disappointment of what you have lost through your actions on 18 September 2022.  You also expressed some remorse for them.

70You have now been in custody for just over a year as a direct consequence of your offending. 

71Whilst your criminal history is obviously lengthy, your current remand would appear to be the second longest period which you have spent in custody. You have found it particularly difficult and are fearful for your safety. You were apparently the victim of an unprovoked assault recently and required stitches to your eye region. Your time in custody has given you the opportunity to see what you lost through your actions in September of last year.

Sentencing submissions

72The Crown submit that, having regard to the gravity of the offending, your criminal record, and the aggravating feature that your offending took place whilst on a community corrections order, that the sentence I impose should be one of imprisonment comprising both a head sentence and non-parole period.

73Your Counsel submits that all relevant sentencing considerations can be reflected in the imposition of a period of imprisonment for the charge of causing injury intentionally and a community corrections order for the remainder.

74The offence of causing injury intentionally, where the victim is an emergency worker on duty and the offender knew or was reckless as to whether the victim was such a person, is a category 1 offence under the Sentencing Act 1991.

75I am satisfied that Senior Constable Mascoll was an emergency worker and on duty and in the facts outlined to me, that you were aware of that fact.

76In sentencing an offender for a category 1 offence, a court must make an order under Division 2 of Part 3, that is a custodial order, other than a sentence of imprisonment imposed in addition to making a community corrections order in accordance with s44 of that Act.

77Pursuant to s10AA(4) in sentencing an offender for a period against s18 of the Crimes Act 1958 committed against an emergency worker on duty, a court must impose a term of imprisonment of not less than 6 months unless the court finds under s10A that a special reason exists. No special reason is contended for on your behalf.

78It does not appear to me that the provisions in relation to sentencing for a charge of causing injury intentionally committed against an emergency worker prevent me from taking the course submitted by your Counsel.

79Accordingly, and in order to be better informed, I had you assessed as to your suitability for a community correction order.

80A brief presentence assessment outcome report dated 19 September 2023 has been provided. That report alerts me to the fact that the offending before me contravenes an existing corrections order. I was aware of this fact. You expressed your remorse for your offending to the assessor. The assessor was of the view that the supports you have in place would assist you to undertake such an order. You were assessed as suitable for a community corrections order.

Sentencing

81The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation, and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of course of your victim.

82I must also balance the interest of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure, where possible, that offenders are rehabilitated and are reintegrated into society.

83I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the principles of both totality and proportionality.

84Accordingly, on Charge 1 – causing injury intentionally, you are convicted and sentenced to 12 months' imprisonment. I reckon 367 days as having already been served.

85On Charge 2 – attempted theft – you are convicted and fined $500.

86On the summary charges I propose an aggregate sentence given the interrelationship between the charge of driving whilst disqualified and the charge of animal cruelty. In so doing I again consider the principles of totality and proportionality and the sentences already imposed for the offences the subject of indictment. 

87On the summary charges you are convicted and sentenced to a community based order of 18 months duration during which you are to:

(a)   Perform 100 hours of community work

(b)   Be supervised by the Office of Corrections;

(c)   Undergo drug treatment;

(d)   On recommendation of the Office of Corrections, I will make a condition that you are to continue to engage with your NDIS support care team;

(e)   Fifty hours of community work will be offset against the treatment conditions.  It is that area where I see the greatest need.

88I have not included any other conditions given the level of support offered to you through the National disability insurance scheme and a desire for you not to be overwhelmed and therefore set you up to fail.

89In addition to the conditions that I have imposed there are standard conditions. The first and foremost of those is you must not commit any other offences punishable by imprisonment during the 18-month period in which the order is in place.  You must also report within two working days of your release to the nearest corrections office. You must also advise your corrections office of any change of address of where you are living or working and must do so within 2 clear working days. In essence, you cannot reoffend during the period of the corrections order, and you must abide by its conditions, otherwise you risk being breached and brought back before me to deal with contravention proceedings, where I will have the power to resentence you afresh. 

90I cannot place you on that corrections order unless you agree to be placed on it, Mr Simons, and I will give you the opportunity to speak to Mr Lavery about that.

91Section 6AAA of the Sentencing Act 1991 requires me to state the sentence that I would have imposed had you not pleaded guilty and fell to be sentenced. In those circumstances, the total effective sentence would have been one of 20 months with a minimum of 10 months.

92Anything I have missed from your end, Mr Plummer?

93MR PLUMMER:  Can I just clarify, Your Honour, the ancillary orders.

94HER HONOUR:  Right.  I haven't seen those. I made the order for compensation.

95MR PLUMMER:  Yes, Your Honour.  Your Honour, you have a discretionary power regarding the licence.

96HER HONOUR:  Thank you. Do you want to be heard in relation to that, Mr Lavery?

97MR LAVERY:  Only that my client's obviously been off the road for the last 12 months, Your Honour, but beyond that I don't seek to take it.

98HER HONOUR:  All right.  He's got a shocking history for driving whilst disqualified.

99MR LAVERY:  He does.

100HER HONOUR:  By the same token, if he returns to work, not that he's got a licence.

101MR LAVERY:  No.  If he returns to work, presumably a licence would be of assistance at some stage.

102HER HONOUR:  Well, given the efforts I saw him make prior to these events, and given the supports that will be in place, particularly the supports he's now got a family which are a big first as far as I am concerned, I won't make any orders against his licence.

103MR LAVERY:  As Your Honour please.

104MR PLUMMER:  As Your Honour pleases.

105HER HONOUR:  Now do you want to discuss the terms of the corrections order with him?

106MR LAVERY:  I don't believe that I'll need to, Your Honour.  I believe that my preliminary discussions with Mr Simons are such that I'm sure that he will consent to the order, Your Honour, but perhaps if I could just - I'm happy to do it in the presence of Your Honour.

107HER HONOUR:  All right.

108MR LAVERY:  You understand that you need to consent to that order, Joel?

109OFFENDER:  Yeah.

110MR LAVERY:  And you're prepared to do so, is that right?

111OFFENDER:  Yeah.

112MR LAVERY:  Well the court will now ask you about that, okay.

113OFFENDER:  Thank you.

114HER HONOUR:  So the corrections order that I made, Mr Simons, will be sent through to the prison for you to sign.  You have indicated over the link your consent.  So essentially the order that I made requires you to do 100 hours of community work, to be supervised by Corrections and to undergo drug treatment.  It also requires you to keep working with the NDIS team.

115OFFENDER:  Yeah.

116HER HONOUR:  And 50 hours of the community work are offset against the drug treatment.  So more treatment, less community work, is essentially the position.  All right?

117OFFENDER:  Yeah.

118HER HONOUR:  It hangs over your head for 18 months because your driving history is so poor, so for the next 18 months no more getting into trouble and do what the order requires you to do.  If you can manage that, you and I will not meet again and that's my preferred position, in the nicest possible way.

119OFFENDER:  Mine too.  Mine too.  Does that mean I get out today, Your Honour?

120HER HONOUR:  Yes.  It does.

121OFFENDER:  Thank you.  Thank you.

HER HONOUR:  I am going to close the court now until 9.30 tomorrow, and if you wish to speak with your client further, Mr Lavery, you can use the link.  Can I thank each of you for your assistance.- - -