Director of Public Prosecutions v Slatter
[2019] VCC 938
•25 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JESSE SLATTER |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2019 | |
DATE OF SENTENCE: | 25 June 2019 | |
CASE MAY BE CITED AS: | DPP v Slatter | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 938 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Crimes Act 1958
Cases Cited: Hogarth v R [2012] VSCA 302; R v Storey [1998] Vol 1 VR 359; R v Olbrich (1999) 166 ALR 330; R v Mills (1998) Vol 4 VR 235; Azzopardi, Baltatzis and Gabriel (2011) A Crim R 369; R v Merrett, Piggott and Ferrari, [2007] Vol 14 VR at 392;
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms.I Moffat | Department of Public Prosecutions |
| For the Accused | Mr D. Sala | Matthew White & Associates |
HIS HONOUR:
Introduction
1 Jesse Jayden Slatter, you pleaded guilty before a jury to two charges of aggravated burglary, contrary to s77 of the Crimes Act. The maximum penalty in relation to the charge of aggravated burglary is 25 years’ imprisonment. On that same day, you pleaded not guilty to one charge of intentionally causing serious injury in circumstances of gross violence, contrary to s15A of the Crimes Act. On 25 March 2019, a jury returned a verdict of guilty in relation to that charge. The maximum penalty for this charge is 20 years’ imprisonment. Pursuant to s.5(2G) of the Sentencing Act, a sentence of imprisonment for this offence is mandatory. Pursuant to s.10 of that Act, the Court must fix a non-parole period for this offence of not less than 4 years, unless the Court finds under s.10A that a special reason exists.
Circumstances of the offending
2 Just before 10.30am on 29 September 2016, you were a passenger in a vehicle in company with a number of other young men. Your group was heading to a property located at 54 Capon Street, Malvern East, which was the home of the victim in this matter, Andrew George, looking for his brother Simon George. In the preceding 24 hours, at least some of your group had formed the view that Simon George had stolen some MDMA at a group gathering after a funeral. There would appear to have been no rational basis for this view, but nevertheless both yourself and another young man who would play a pivotal role in the ensuing events, Brent Whelan, were contacted and agreed to become involved. Together, the group consisting of at least Brent Whelan, Timothy O’Neill, Daniel Kessler and yourself attended at 54 Capon Street, Malvern East, looking to confront Simon George.
3 Whilst two of your group banged loudly on the front door, waking the victim in this matter, Andrew George, you and other members of the group, including Mr Whelan, attended at the back door of the property, which was kicked in. You and the others then ran through the house searching for Simon George, to no avail. You and the group then confronted Andrew George inside the property, in relation to the alleged theft and the whereabouts of Andrew George’s brother. This commotion apparently woke up Andrew George’s housemate, Ryan Mitchell, who confronted you collectively, telling you to leave. Mr Whelan, who was armed with a tomahawk at the point of entry to the property, then produced this item and raised it in a threatening manner towards Mr Mitchell. You and the other members of the group dragged Mr Whelan away and you all then left the address.
4 Your conduct in relation to your entry to 54 Capon Street, East Malvern forms the basis of Charge 1, the first aggravated burglary. By virtue of your plea of guilty to it, you have accepted criminal responsibility for being one of a number who gained entry to Andrew George’s property as a trespasser, with an intention to assault an occupant, knowing or at least being reckless to the fact that someone was present, whilst Brent Whelan was armed with a tomahawk.
5 The group, of which you were a member then attended at the address of Simon George, in Blythe Street, Murrumbeena. There, your group confronted Simon George on the balcony area of his property regarding the alleged theft. Simon George denied the theft and eventually your group accepted the denials. In the course of the trial, footage was played of that confrontation with Simon George at his property in Murrumbeena. It is clear in my view that Brent Whelan is playing a dominant role in his dealings with Simon George, with you present but in the background.
6 A decision was made to return to the home of Andrew George at 54 Capon Street, Malvern East. You and others, including Mr Whelan, arrived back at the Capon Street property around 11.30am, approximately one hour after your first attendance at the property.
7 Your conduct upon arriving back at the property forms the basis of Charge 2, the second aggravated burglary, to which you pleaded guilty, and Charge 3, intentionally causing serious injury to Andrew George in circumstances of gross violence, that is in company with two or more other persons. Whilst you pleaded not guilty to that charge, a jury found you guilty of it.
8 You, Mr Whelan and another male, entered 54 Capon Street without the consent of Andrew George. By virtue of your plea of guilty to Charge 2 (the second aggravated burglary), you have accepted criminal responsibility for being one of a number who gained entry to Andrew George’s property as a trespasser, with an intention to assault an occupant, knowing or at least being reckless to the fact that someone was then present, whilst you were armed with a screwdriver and Brent Whelan was armed with a tomahawk. The victim in this matter, Andrew George, was confronted by you and Mr Whelan inside the property, first inside one of the vacant rooms, and then in the kitchen area of the property. Whilst inside the premises, you, Mr Whelan, and it would seem another unknown male, engaged in what can only be described as a ferocious physical attack on Andrew George, a man who had done absolutely nothing to warrant this attack in his home. Whilst the attack appears to have lasted only a matter of minutes, Mr George was viciously struck and stabbed on multiple occasions to the face, torso and limbs. You and the others left Mr George in a pool of blood with extensive injuries including stab wounds to the chest, head and arms as well as multiple lacerations.
9 Following a triple zero call, police attended at the property and observed Mr George to be covered in blood from head to toe, with multiple serious injuries. Ambulance paramedics who subsequently arrived observed Mr George to be bleeding from multiple wounds, with a 10-centimetre-long wound running diagonally across much of Mr George’s face, a large deep incision type wound on his left arm, three puncture type wounds to the chest and multiple penetrating wounds to the torso. At hospital, Mr George was noted to have a large pneumothorax, multiple serious lacerations, a stab wound to the front of the left chest, a stab wound to the right side of the torso, and nasal bone fractures. The large pneumothorax with lung collapse was described as severe and life threatening. Indeed, the entirety of the injuries were described as severe. According to forensic physician, Dr Jason Schreiber, who reviewed the medical records and extensive medical treatment undertaken to deal with Mr George’s injuries, and who gave evidence at the trial, but for the medical intervention, Mr George would have died.
Impact on the victim, Andrew George
10 At your plea hearing on 31 May 2019, Victim Impact Statements from Andrew George and his mother, Amany Aboltins, were tendered.[1] I have read both of those statements and taken them into consideration in sentencing you. Mr George indicated that when he was on the ground, he felt the punches and kicks from so many different directions he blacked out and gained consciousness. Immediately following the attack, he thought he was dying. He described being very conscious of the physical scars that remain on his face and body. He also described having to find alternate accommodation due to the attack at his home. Mr George concludes by stating, “Even now I still do not know why this happened to me but I don't think I deserved this. It's unexplainable.”
[1]Exhibits A and B respectively
11 Mr George’s mother, Ms Aboltins, graphically described the impact of your offending on her, both in terms of her emotions on the day in question, and the aftermath. She said, “Every time I look at Andrew's face and see the big scar on his face, I remember the horror and the fear of the day of the accident.” She described being fearful that her son would not survive the attack, and described the impact on her as a result of the attack. She said, “This has affected my life severely; I left my home, lost my job. I am paranoid; I call Andrew and Simon several times to ensure that they are ok, to the point that I feel that I am suffocating them with my text message and phone calls to make sure that they are ok.”
12 Collectively, these Victim Impact Statements graphically highlight the catastrophic impacts of your offending, and I have taken them into account in consideration of the impact on them, when determining an appropriate sentence.
13 At your plea hearing on 31 May 2019, I was also provided with an updated report from Dr Jason Schreiber dated 15 August 2017, setting out an update, nearly 12 months after the offence, in relation to Mr George’s injuries. I was also provided with photos of Mr George’s injuries, taken at the Victorian Institute of Forensic Medicine on 15 August 2017. I must say that the photographs speak for themselves in terms of the severe and ongoing implications of the physical attack on Mr George. Nevertheless, Dr Schreiber’s opinions included there being evidence of long-term cosmetic consequences of the sharp trauma injuries to the face, torso and limbs, a likelihood of new onset mental health and psychological consequences of the traumatic experience in the course of the alleged event, and the high likelihood of the worsening of Mr George’s mental health condition already present at the time of the alleged event. I have also taken into consideration the medical material insofar as it relates to the impacts of your offending on Mr George.
Nature and gravity of the offending and your role in it
14 In relation to the aggravated burglary charges, your counsel in written submissions made the appropriate concession that the offending is towards the more serious end of an aggravated burglary. In that regard, the considerations arising from the decision Hogarth v R[2] are applicable. This type of offending is extremely serious, particularly when it consists of what is often described as a classic confrontational aggravated burglary. The fact that you returned to the property for a second time, after approximately one hour, reflects that the criminal endeavour you were involved in was a determined one. Some cumulation is required in relation to the Aggravated Burglary charges, given that they represent discrete criminal acts in the circumstances I have described.
[2][2012] VSCA 302
15 In relation to Charge 3, in my view, this is a serious example of the crime of intentionally causing serious injury in circumstances of gross violence. Clearly enough, your offending took place in company, this aspect forming the basis of the “gross violence” component of the charge. You involved yourself in a completely unwarranted and frenzied attack on an unarmed and defenceless victim in the sanctity of his own home. You and at least Mr Whelan were armed with offensive weapons, namely a tomahawk in Mr Whelan’s case, and a screwdriver in your case. The attack extended to multiple locations within the property and involved sustained ferocity by virtue of the number and nature of the injuries sustained by Mr George. Mr George was then essentially left for dead, in a pool of blood. He is fortunate to have survived.
16 At your plea hearing on 31 May 2019, it was clear that there was a factual dispute in relation to the basis upon which a jury found you guilty of Charge 3, intentionally causing serious injury in circumstances of gross violence. Your counsel expanded upon the written submissions dated 30 May 2019 in this regard, located at paragraphs 1, 2 and 3. Essentially, it was submitted that you should be sentenced in relation to this charge on the basis that you did not actually stab Andrew George, and that you were not therefore directly responsible for the stabbing injuries inflicted upon him. The submission was made that it was Mr Whelan who stabbed Mr George and your role was limited to assaulting and being complicit in the injuries sustained to him.
17 The prosecution, on the other hand, submitted that as a result of the jury’s verdict, it was open to the Court to find that you used the screwdriver to stab Mr George, as well as being complicit in Mr Whelan’s actions.
18 Pursuant to the principles in Storey’s case[3] and the High Court decision of Olbrich[4], I may not take facts into account in a way that is adverse to you unless those facts have been established beyond reasonable doubt.
[3]R v Storey [1998] Vol 1 VR 359 at [369]
[4]R v Olbrich (1999) 166 ALR 330 at [337]
19 Having seen Mr George give evidence at your trial and having reviewed the Transcript of all of the evidence in this matter, I make the following findings in relation to your role in the offending. Firstly, I am satisfied beyond reasonable doubt that you agreed with Mr Whelan and others to engage in the conduct which forms the basis of Charges 1, 2 and 3; that is, you agreed to enter Mr George’s property as a trespasser, with an intention to seriously assault Mr George. In relation to the second attendance at 54 Capon Street, East Malvern, I am satisfied beyond reasonable doubt that you entered whilst armed with a screwdriver, and whilst in the company of others. This was a classic confrontational aggravated burglary.
20 I am satisfied beyond reasonable doubt that you came into contact, so to speak, with Mr George fairly early on in the ensuing attack. Mr George described you as the second person he saw inside the property, and he observed you to be holding a screwdriver.
21 Mr George first noticed you come into the doorway of the empty room, at a time when he was dodging Mr Whelan who was swinging his tomahawk at Mr George. Your actions in remaining in the doorway of that room prevented Mr George from leaving.
22 I am satisfied beyond reasonable doubt that, whilst in this general location, at the point in time when Mr Whelan swapped from holding a tomahawk to a foldout knife, you tried to stab Mr George with the screwdriver that you were then holding.
23 Shortly afterwards, when Mr George had made his way to the kitchen of the property, I am satisfied beyond reasonable doubt that you arrived at the kitchen and shouted “attack” at which point Mr George was ferociously assaulted in the manner to which I have earlier described.
24 I am satisfied beyond reasonable doubt that in the course of the physical confrontation with Mr George inside his property, at some stage you punched him. I make this finding based upon your admissions to police in your subsequent police interview, coupled with the reference by Mr George in his evidence that you might have punched him amongst other things.
25 In relation to the issue of whether or not you stabbed Mr George with your screwdriver, I am unable to be satisfied beyond reasonable doubt that this is so. Having closely reviewed the Transcript of the victim’s evidence, it seems to me that Mr George was not entirely sure that you in fact stabbed him with the screwdriver and may have based his assertion that you did upon the subsequent medical information provided to him. I refer in particular to the evidence of Mr George contained at pages 221 and 222 of the trial Transcript, where Mr George essentially accepts that his evidence at Committal, where he said that he cannot be sure that he was stabbed with a screwdriver, was probably accurate. I have also taken into consideration the comments said to have been made by Mr George to an ambulance paramedic shortly after the attack (see page 355 of Transcript), referring to the puncture type wounds being from a screwdriver using a stabbing motion. Nevertheless, considering the evidence in total and being cognisant of the high threshold regarding an, adverse finding against you, I am simply unable to say to that requisite standard, beyond reasonable doubt, that you stabbed Mr George with the screwdriver that you were holding.
26 Notwithstanding this finding, in my view your level of involvement in the offending was very significant, and your culpability is high. Whilst it would seem that Mr Whelan was playing the most dominant role in the criminal endeavour that took place at 54 Capon Street, East Malvern, your participation in the offences for which you now fall to be sentenced was complete. For the reasons that I have outlined, your level of involvement is significant.
Background and personal circumstances
27 You turned 22 years of age on 16 March 2019, midway through your trial. At the time of your offending, you were aged nineteen. You were born in Frankston and lived with your parents until they separated when you were six years of age. Your childhood was described by your counsel as a positive one. You were educated at East Bentleigh and Parkdale and I was told that at the age of 14 you went to reside with your mother in Mansfield, regional Victoria. A bundle of character references was tendered at your plea hearing on 31 May 2019 and marked Exhibit 2. One of those references was written by your father, Jamie, and I have had regard to it in relation to your background. Your father described you as a quiet boy growing up who was heavily involved in playing sports, a boy who would enjoy spending time playing sports and spending time with his brother, a happy boy with a very good sense of humour. Your father described you as not dealing well with your parents’ divorce however.
28 I have also had regard to a character reference written by Thomas Dunlop dated 30 May 2019. Mr Dunlop confirms that he employed you from 2012 until 2014 through an apprenticeship in commercial cookery, whilst you attended Mansfield Secondary College. I understand that you completed Year 10. As indicated by Mr Dunlop, you made the decision to leave Mansfield where you had been residing with your mother in early 2014, and you left the apprenticeship with Mr Dunlop and moved to Melbourne to live with your brother and be closer to your father. Mr Dunlop confirms that since this period of time, he has had contact with you and continued to regard you highly. The reference from Mr Dunlop, like the other character references tendered on your behalf, essentially describes you as kind, honest, likeable, and a caring young man, all qualities which stand in stark contrast to your criminal behaviour.
29 I was informed that upon your arrival in Melbourne you embarked on some further training in the area of commercial cookery, but this endeavour petered out by the age of 18, as you had decided that it was not an area you wished to pursue. You undertook some labouring including doing some work with your grandfather.
30 Your father indicated in his reference that your behaviour started to change in your mid to late teenage years, as you became more withdrawn and more distant from the family. I was informed that you had commenced using cannabis from the age of 16 whilst still in the Mansfield area within your local peer network and your drug usage escalated upon your arrival in Melbourne, such that by the time you were 17 or perhaps early into your eighteenth year, you had commenced using ice. Whilst it was not suggested that Mr Whelan had introduced you to ice, I was told that your use of ice roughly correlated to the start of your friendship with Mr Whelan and the associated peer network. During this time, you were living with your brother, and there would be frequent visitors staying over at the house. According to your father, “Although looking after those a little less fortunate as him, Jesse was still quite aimless and goalless and wasn’t too concerned about work or a future, just living day to day.”
31 I was informed that your criminal history, limited as it is, commenced within this context of alienation from family and drug use. On 15 July 2015, when you were 18 years of age, you were dealt with at the Moorabbin Children’s Court for possession of cannabis, graffiti related offending, and of most relevance, affray. I was informed that this matter involved you being in company with other young people on a street, and there was a physical remonstration when one of your group stole an item from a shop. Whilst there was a scuffle, there was no suggestion of any injury. You were dealt with by way of a probation order without conviction, and subsequently dealt with on 20 April 2016 for breaching that probation order, receiving a further without conviction probation order for a period of 6 months. Whilst affray is itself a relatively serious criminal offence, I am of the view that your criminal history is limited, and perhaps reflective of your associated difficulties as I have described, rather than being reflective of any ongoing violent disposition.
32 I was informed that your involvement in the commission of the current offending occurred in the context of your ice use, and your involvement in the peer network associated with such use, particularly your friendship with Mr Whelan, whom I note was aged 21 at the time of the offending.
33 In the weeks following your offending, you made the decision to move back to the home of your mother and stepfather, Andrew Kirk, and you resided with them for the period of weeks leading up to your arrest on 8 November 2016. I note from the reference of Mr Dunlop that in that period you had been offered a trial for re-employment with Mr Dunlop. That employment did not eventuate due to your arrest.
34 You remained in custody until being granted bail on 15 May 2017 and remained on bail until your remand in custody following the guilty verdict on 25 March 2019.
35 After being granted bail on 15 May 2017, you resided with your mother and stepfather for the first 12 months. Andrew Kirk, your stepfather, gave evidence on your plea hearing, elaborating on the matters referred to in his reference, particularly in relation to your conduct whilst on bail within that 12-month period. Mr Kirk indicated that he had visited you whilst you were on remand at Fulham Correctional Centre. He indicated that prior to being remanded you had appeared to him to be skinny and withdrawn. He recalled picking you up from Fulham Correctional Centre, and you initially presented as withdrawn and defensive. However, Mr Kirk confirmed that gradually your demeanour changed and you began to open up to him and your family. He recalls actively participating in your drug screen regime, taking you to Mansfield for these appointments, and receiving the invoices from the relevant pathology agency. He indicated that he had no concerns regarding your drug use whilst you were residing with him and your mother during this 12-month period. Mr Kirk also confirmed that he had maintained contact with you after your move to Melbourne and similarly had no concerns in relation to drug use.
36 Your father, Jamie Slatter, also gave evidence at your plea hearing. After residing in the Mansfield area on bail, you moved to Melbourne to reside with your brother in a house across the road from your father. Your father spoke of the significant change in your demeanour whilst living in Melbourne, as compared to your demeanour prior to your initial arrest. Your father indicated that within this 12-month period you had become more engaged, connected and focussed, and more interested in the family and friendships with positive influences. In your father’s reference dated 31 May 2019, he referred to you in this period working with your grandfather’s company and associated businesses doing duct cleaning and maintenance, working up to six days per week.
37 I was impressed with the evidence of both your father and your stepfather, who both spoke well of you in relation to your rehabilitative progress on bail. In addition to the material to which I have already referred, the character reference from your grandfather, Paul, and your sister, Shiann, bode well in terms of your prospects of rehabilitation. Whilst I was not provided with any documentary material, I was advised that you had provided clean urine screens whilst you have been in custody. In all the circumstances, I am prepared to accept that you are still a young man with ongoing family and other supports (many of whom were in Court during your trial and your plea hearing and I note are present today), and provided you receive adequate assistance to reintegrate into the community following your sentence, It is my view you have good prospects for rehabilitation.
Mitigatory factors
Youth
38 You were aged 19 at the time of the offending and were then a ‘young offender’. You are currently 22 years of age and fall to be sentenced as a ‘youthful offender’. I have taken into consideration the sentencing principles applicable to young and youthful offenders, as discussed in R v Mills[5] and other similar decisions. Clearly, for a young man of your age, your ultimate rehabilitation must remain an important aim of the criminal law, notwithstanding the gravity of your offending conduct. However, I agree with the prosecution submission that the weight to be attached to youth is somewhat reduced where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus.[6] Nevertheless, it is often said in relation to community protection that this aim is best served by rehabilitation of the young.
[5](1998) Vol 4 VR 235
[6]Azzopardi, Baltatzis and Gabriel (2011) A Crim R 369
Delay
39 It is clear that there has been a significant delay between the date of offending and the date of sentencing. Your offending took place on 29 September 2016, almost three years ago. In that regard, I have had regard to a chronology of proceedings in relation to O’Neill, Whelan, Kessler, Slatter and Thackrah, provided to me at your plea hearing by the prosecution on 31 May 2019. Clearly, there were delays associated with the criminal process in relation to each of the individuals charged, which has impacted upon you. There were several adjournments for various reasons, none of which as I see it were due to any fault on your part. By way of example, your trial first commenced before his Honour Judge Lacava on 5 March 2018 but was adjourned following the resolution of the prosecution relating to Mr Kessler, and the initiation of charges in relation to Mr Thackrah. On another occasion, the delays (then associated with problems with the police charges) were of such a magnitude as to warrant a costs order against the Chief Commissioner of Police. Pursuant to the principles discussed in R v Merrett, Piggott and Ferrari,[7] some allowance is warranted in relation to the sentence to be imposed, given that in the intervening period, from all accounts, you progressed well on bail. I was further informed that in the intervening period there had been no further offending. In submissions before me at the plea hearing on 31 May 2019, it was conceded by the Prosecution that there had been a relevant delay in your case.
[7][2007] 14 VR at 392
Plea of guilty
40 As earlier indicated, you entered pleas of guilty to the 2 Aggravated Burglary charges in front of the jury at the commencement of your trial on 12 March 2019. Having indicated an intention to plead guilty on 4 March 2019 in pre-trial discussions. According to the chronology of proceedings provided by the prosecution, you had previously offered to plead guilty to intentionally causing injury and aggravated burglary on 2 January 2017. In written submissions, your counsel argued that attempts had been made to resolve the matter for some time, and that the pleas of guilty and attempts can be viewed as indicative of a small level of remorse. It was also submitted that the pleas of guilty had an effect, albeit a limited one, of narrowing the issues at trial.
41 In oral argument, your counsel conceded that there was a degree of uncertainty in terms of any documentary record of the plea negotiations insofar as whether the offer to plead guilty was to one instance of aggravated burglary or both. Your pleas of guilty to the aggravated burglary charges limited, to a minor degree, the facts in issue at your trial. Some modest allowance in relation to the entering on those pleas of guilty is warranted, but it does not feature as a significant matter in the sentencing calculus, given the lateness of the plea and the issues to which I have just referred. Whilst your pleas of guilty in combination with the earlier plea offer reflects some degree of acceptance of wrongdoing, I am unable to make a positive finding in relation to the presence of remorse on your part. A plea of guilty in and of itself does not evidence remorse – the extent, if any, to which it does is to be determined in each individual case. Of course, no sentencing discount is warranted in relation to the intentionally causing serious injury charge, given your plea of not guilty.
Rehabilitative prospects
42 As I have already stated, I have formed a positive view in relation to your prospects of rehabilitation, which I regard as good, subject to you obtaining appropriate assistance and treatment prior to your reintegration into the community. Your offending clearly was drug-related. It is hoped that whilst in custody, you will embark upon drug rehabilitation programs to assist in that reintegration. However, taking into account your background, your limited criminal history, the ongoing supports of your family and other loved ones, your proven ability to work, and most importantly your youth, I regard your rehabilitative prospects as favourable.
Disparity with regards to Mr Whelan
43 Your counsel submitted that, notwithstanding that you proceeded to trial as opposed to Mr Whelan, your position was more favourable from a sentencing perspective than Mr Whelan. I was provided with a copy of Mr Whelan’s criminal history, which runs for some 11 pages. It is clear that Mr Whelan, who is now aged 24 (whereas you are 22), has a lengthy criminal history for various matters but particularly for matters of violence. He has previously been dealt with for charges including recklessly causing serious injury, recklessly causing injury, unlawful assault, intentionally causing injury, robbery and assault with a weapon. Of most concern, Mr Whelan’s last prior matter predating the current offending resulted in a term of imprisonment imposed on 7 June 2016 for robbery, intentionally causing injury, and assault with a weapon. It appears that Mr Whelan was only a few weeks out of prison in relation to that serious assault matter, and subject to a Community Correction Order for it, at the time of the current offending. I can only concur with appeal Justice Priest JA (in relation to an assessment of Mr Whelan’s criminal history, and its impact on sentencing), that it ‘does not bode well for his prospects of rehabilitation…. His unhappy criminal record is an indicator of his moral culpability, his dangerous propensity and the community’s need for protection, and the increased importance of specific deterrence as a factor in sentencing, given his resistance to previous penalties as a means of deterrence.’[8] I regard this as a significant matter of disparity between you and Mr Whelan, notwithstanding that he pleaded guilty to the current matter.
[8]Whelan v The Queen [2018] VSCA 279, at [16].
44 Furthermore, having reviewed the reasons for sentence in this Court, of his Honour Judge McInerney on 22 November 2017 in relation to Mr Whelan, together with the transcripts of the Application for Leave, and the Appeal against Sentence, it is clear that he was sentenced on the basis that it was he that suggested the group return to 54 Capon St after attending upon Simon George, that he struck Andrew George several times to the head and body with the tomahawk, and that he then stabbed Mr George with the knife. Whilst not detracting in any way from your level of criminality and involvement in this matter, it is clear that Mr Whelan, then not long out of gaol and subject to a Community Correction Order for a matter of violence, played a most significant role in the attack on Andrew George on 29 September 2016, and as the Prosecution acknowledged in oral submissions at your plea hearing on 31 May 2019, was probably the ‘driver’ of this criminal endeavour.
45 Your counsel submitted that the cumulative effect of Mr Whelan’s extensive criminal history and more significant level of involvement in the offending would warrant a reduction in the applicability of specific deterrence as a sentencing purpose in your case, and the imposition of a lower non-parole period than that imposed on Mr Whelan. I note that in relation to the charges of aggravated burglary and intentionally causing serious injury, together with theft, Mr Whelan received a total effective sentence of 9 years with a non-parole period of 7 years. The Prosecution in this case conceded that specific deterrence would have less prominence in your case than Mr Whelan, given that you have a more limited criminal history than Mr Whelan. I agree that specific deterrence has less applicability in your case than that of Mr Whelan. Whilst I am cognisant of the principle of parity, I have formed the view that a combination of matters – your lesser role in the commission of the offence in comparison to Mr Whelan who was ‘driving’ the crimes, your much more limited criminal history and the resulting reduction of the needs for any sentence to specifically deter you, and your favourable prospects for rehabilitation in comparison to those of Mr Whelan, warrant a slightly shorter non parole period than that which was imposed in Mr Whelan’s case, notwithstanding his plea of guilty to the charges.
Sentencing Purposes
46 Any sentence I impose must reflect the sentencing purpose of manifesting denunciation of the type of conduct you have engaged in. Due to the considerable gravity of your offending, such denunciation should be loud and clear, on behalf of the community. Any sentence must also justly punish you for your appalling conduct on this day. General deterrence must also feature prominently as a sentencing purpose in this case – that is, other persons must be deterred from engaging in such violent and completely unwarranted behaviour. As I have stated, whilst specific deterrence has application in this case (particularly given your denial of the intentionally causing serious injury charge), given your limited criminal history I am satisfied that this sentencing purpose is of lesser weight in your case. Given the fact that you remain a youthful offender, any sentence I impose must, to the extent that is reasonable, facilitate your favourable rehabilitative prospects. In those circumstances, the need to protect the community from you is somewhat reduced. The non-parole period imposed will foster your rehabilitative prospects.
Sentence to be imposed
47 As I have stated, you engaged in extremely serious offending on the 29 September 2016, when you participated in the brutal attack on Andrew George, whilst he was at home, a place where he was entitled to feel safe. You and those with you essentially broke into his home, attacked him with weapons, and left him seriously injured. Each of the charges to which you have either pleaded guilty or been found guilty of, both separately and collectively represent extremely serious criminality, for which a substantial term of imprisonment is warranted. Acknowledging the need to honour the principle of totality, a degree of cumulation is required as between the charges, to reflect the distinct and serious nature of your offending on each charge.
48 It is a matter of considerable significance, to impose a lengthy term of imprisonment on a young person, in relation to conduct committed at the age of 19. This is particularly so when that young person presents with a limited criminal history, clearly retains the love and support of those around him and has favourable rehabilitative prospects. In my view however, such a penalty is warranted given the matters to which I have referred in this sentence, most particularly the gravity of your offending, and its catastrophic impact on your victim and his loved ones.
49 On Charge 1 of Aggravated Burglary, you are convicted and sentenced to 7 years imprisonment.
50 On Charge 2 of Aggravated Burglary, you are convicted and sentenced to 7 years and 3 months imprisonment.
51 On Charge 3 of intentionally causing serious injury in circumstances of gross violence, you are convicted and sentenced to 7 years and 6 months imprisonment. This is the base sentence.
52 I direct that 12 months on Charge 1, and 15 months on Charge 2, be served cumulatively on each other, and on the sentence imposed on Charge 3, making a total effective sentence of 9 years and 9 months. I order that you serve a period of 6 years and 4 months before becoming eligible for parole.
53 Pursuant to s.18 of the Sentencing Act, I declare 281 days as the period of imprisonment already served on this sentence.
54 Pursuant to s.6AAA of the Sentencing Act, I indicate that had you pleaded not guilty to the Aggravated Burglary charges, I would have imposed a total effective sentence, including Charge 3, of 11 years imprisonment, with a non-parole period of 9 years imprisonment.
55 I will also make the ancillary order sought by the Prosecution, namely a Disposal Order pursuant to s.77(1) of the Confiscation Act 1977, regarding the items listed in the Schedule to the Application.
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