Director of Public Prosecutions v Smith
[2013] VCC 923
•26 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-01567
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN SMITH |
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JUDGE: | HIS HONOUR JUDGE MCINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 June 2013 | |
DATE OF SENTENCE: | 26 June 2013 | |
CASE MAY BE CITED AS: | DPP v Smith | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 923 | |
REASONS FOR SENTENCE
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Subject: Criminal – plea – sentence
Catchwords: robbery – reckless injury – co-offender – drug dependence – prior convictions – delay
Legislation Cited: s.75 of the Crimes Act 1958 – s.18 of the Crimes Act 1958
Cases Cited: Nil.
Sentence: a total effective sentence of two years and six months with a minimum period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Hogan | Office of Public Prosecutions |
| For the Accused | Ms S. Gaunt | Valos Black & Associates |
HIS HONOUR:
1 Mr Smith, you can remain seated. What I have to do now is go through a number of matters, in particular the matters that were put to me on your behalf by Mr Goddard. It is important that I do that so that you know why I am passing the sentence I am and that a record of that could be kept, should there be any need for anyone else to be able to observe or to be able to ascertain why I pronounced the sentence I did and or whether any other court in due course wants to understand the reasons. Once I have got to the stage where I am going to pronounce sentence, I will ask you to stand and I will pronounce the sentence then.
2 This matter came before the Court on 20 June headed DPP v John Hockhing, spelt with an H, and Mr Smith indicated that in fact was not his real name and an amendment was made to that effect. Ms Hogan, who appears today, appeared on behalf of the Director and Mr Goddard appeared indeed on behalf of Mr Smith.
3 At the time of these offences, Mr Smith was aged 24 and he is now 27. He is a painter by profession. He pleaded guilty to two charges in Indictment No. C10414508.1.
4 The first of those is a charge of robbery, an offence against s.75 of the Crimes Act 1958, for which the maximum penalty prescribed by Parliament is one of 15 years gaol.
5 The second matter was a matter of reckless injury under s.18 of the Crimes Act 1958 to Peter Murray, an offence for which a maximum penalty prescribed is one of five years.
6 The summary tendered in this matter was agreed to by both Counsel as an accurate representation to the facts to which you have pleaded. That summary was tendered as Exhibit A.
7
As I indicated, this crime took place on 3 March 2011. It took place at premises of which you were well acquainted. Indeed, as I understand from reading your record of interview, you had indeed lived there. That is, at
329 McGrath Road, Wyndham Vale. You had gone there to visit Jason Brooks, who you knew well.
8 It would appear that there were many people there that day. Many apparently were interested in the purchase or consumption or injection of the drug ice, a drug which besieges this community and is involved in nearly every serious criminal matter that comes before this Court, especially in regard to violence. There were a number of other people at the house, including the unfortunate victim in this matter.
9 At approximately 4 pm, yourself and Mr Brookes had a heated verbal argument. As a result thereof, the victim felt particularly concerned and Mr Murray decided to vacate the premises. You and a fellow offender somehow took umbrage at that and followed him out, threatened him, took $500 out of his pocket and thereafter gave him a severe beating. As described by a person who observed this beating, the offender and co-offender managed to get the victim close to the house before they started to kick him again. He had been abused in a most crude manner.
10 Although he appeared to be lying on the ground unconscious, yourself and your co-offender continued to kick the victim a number of times. He remained motionless on the ground. You apparently lost your footing and at that stage the victim tried to get past you. The co-offender blocked his path. You both chased him and almost grabbed him. You then noticed that the neighbour was watching you. At this stage, the victim was in extreme pain from the punches and kicks he had received. The totality of that beating that you gave to this man makes up the circumstances of Charge 2, cause injury recklessly.
11 Fortuitously, from the victim impact statement signed by Mr Murray, but prepared by his mother, for you and indeed most importantly for him he was not seriously hurt. He was, however, bruised and Exhibit C shows the photos. It is suggested in the victim impact statement that you were aware of him being an epileptic. I cannot be satisfied beyond reasonable doubt about that. However, from an observation of him as detailed in the photos, the type of attack that you carried out with your co-offender upon him can only be described as a gutless attack by you upon what can only be described as a defenceless boy or young man.
12 If those matters themselves are not bad enough, you come before the Court with a serious history of criminal priors. At least, your priors for assault are not too bad. Your assaults go back some considerable period. You have considerable driving offences, however you have four aggravated burglaries, and as I understand you are now in gaol for a further aggravated burglary.
13 Of course you do not come before the Court to be sentenced again for your prior offences. However, when you have priors of that sort and you have been to gaol as a result of those matters, in particular in 2010 you were sentenced to a period of some twelve months and subsequent to that on shorter periods, the options are greatly limited as to what the Court can do insofar as you are concerned.
14 As I say, your Counsel in this matter prepared a chronology insofar as you are concerned and also, proposed with that chronology, an appropriate plea. He questioned, as I have said, the suggestion in the victim impact statement that you were aware that the boy that you so savagely beat was in fact an epileptic. As I say, you only need to look at him to know that you were beating someone well below your physical capacity.
15 However, the real fact may be, given that you have a limited assault history, you may well have been affected by the drug ice that you really were beyond appropriate comprehension as to the circumstances in this matter. It is unfortunately one of those drugs which leads to a situation where people simply do not have proper appreciation.
16 Tendered on your behalf firstly was Exhibit 1, a report of the psychologist
Mr Ball. It is considerably old, however it shows the problems that have been consistent in your life. You have unfortunately had a drug substance and dependence issue for many, many years. Unfortunately, as a young man, you have endured particular assaults and have had a tough life.
17 However, you have got to a stage where you must get over that if you are going to make something of your life and not, as I said to you last time, simply build up your bicep in gaol. You have got to do something about it. You cannot simply try to overcome these issues that you have endured in your life by self-medicating. That was the view of Mr Ball and clearly it is the view of Mr Crewsdon (Exhibit 3). You need particular and ongoing treatment, and counselling.
18 No one likes to sentence a young man such as you, which you really still are, but unless you stop self-medicating, as a means to get over the difficulties in your life by way of drugs, then it is obvious where you are headed. Your Counsel pointed out that you were in fact very honest with Mr Crewsdon. You were not, for your own views, according to what you said to Mr Crewsdon in the interview with him, reported in his report which makes up Exhibit 3 dated
19 June 2013, yet ready to give up drugs. That probably sounds crazy when you think that someone is in gaol, but unfortunately gaol is no protection from being able to be involved in drugs.
19 The other matters tendered on your behalf were the CISP Report (Exhibit 2) and Chronology (Exhibit 4) and the priors of your co-accused, Mr Stewart (Exhibit 5). As I say, your counsel Mr Goddard appropriately referred the court to the trauma of your upbringing and the effect of drugs upon your life. He pointed out that on the recent community-based order imposed upon you that you were able to meet those obligations and that you are able to complete matters if you want to.
20 He pointed out that you were in fact a painter and decorator, which is a very well-paid and well thought of profession and in regard to that, he pointed out that you are and have a history of hard work. You have the capacity to make something of your life and really it ends up with just you having to decide. You have had a poly-substance history and, as I say, most recently you have been involved in ice.
21 As Mr Crewsdon said, you are not an unintelligent person. You have the ability and the emotional development to change your life, if you want to, but ultimately it comes down to you. I accept that on this particular day you were drugged and to that extent while I describe your beating of this boy as gutless, I take the view that that was exacerbated by the fact that you were "off your tree", to use a phrase, due to the effect of ice.
22 Mr Crewsdon talks of the dramatic - I think is the word that can be used - need for you to have psychological assistance and counselling and to make a commitment to change. You are aged 27, the Court is interested in rehabilitation. I would be very happy if we never saw you again. As to that, I must take the view that your rehabilitation is guarded, it depends particularly on you. You have a long history of drug addiction.
23 Insofar as the matters particularly relevant to your sentencing, despite the beating, your counsel pointed out that the injuries amounted to not much more than bruising and a few bumps, which are disclosed on the photos.
24 He took me to the sentencing statistics relevant to robbery as set out in the sentencing snapshot 121. I might say in the circumstances of this case, I see the more serious offence being the reckless injury to Peter Murray, rather than the taking from him of the $500.
25 Your Counsel pointed out the utilitarian benefit to the community of your plea and especially in this case the fact that you have saved Mr Murray from having to give evidence. You have no pre-sentence detention in this matter, however he pointed out as a matter of general concern for the Court the fact that on other matters you have now been in custody, again as a relatively young man, from November 2011. He asked me to not pass a sentence in all those circumstances which was crushing.
26 Your Counsel submitted that there was an issue as to delay. You are entitled to a discount because of delay for whatever purpose. You were not charged for a considerable period after these offences. That was mainly due to identification problems. There was further problems to come about, I am told, by understaffing from the Werribee Police Station and of course there was thereafter a contested committal. I take those matters into account.
27 Your Counsel in particular asked me to pass a sentence that gives you some hope so that you do not become institutionalised. It seems to me you are well acclimatised to prison. You will not be institutionalised if you do not want to be. You clearly have the ability to serve your time and then change your life.
28 Your Counsel remarked that you do have prospects of rehabilitation as set out in
Mr Crewsdon’s report. However, as I have remarked, to do that you have got to relieve yourself of the demons you quite rightly suffer, from what happened to you as a young boy, and from the continued use of drugs to try and solve those problems.
29 Insofar as the issue of parity, your Counsel pointed out that the issue of parity with your co-offender is limited because of the fact that he was dealt with in a different jurisdiction and there was a considerable difference in age. However, it is to be noted that your co-accused had significant other offences - that is, a significant number of armed robberies even at the young age of 16. I do take those matters into account.
30 Finally, your Counsel submitted that a merciful sentence in this circumstance should give you a long parole period whereby assistance can be given by the Parole Board to you in getting counselling and getting assistance to maintain yourself off drugs.
31 The learned Prosecutor, in reply, submitted that this offending, as I have described, amounted to a sustained beating with multiple applications of force to the victim in this matter. She submitted that the assault was aggravated as it was done in company, while you were on parole, and serving a suspended sentence. Certainly I find it to be aggravated as a result of it being committed in the company of another. She submitted given the difference in age between you and the young offender that has already been given a young supervision order, despite his priors, that there was little weight in the argument of parity.
32 She submitted that the issue as to your rehabilitation must be guarded and that these were significant assaults committed while under the effect of drugs. She maintained that this Court must also bear in mind what is set out in the victim impact statement that, as the mother confirmed to me in court, the victim in this matter continues to have sleep issues and restlessness as a result of the assault inflicted by you.
33 Mr Goddard, in reply, spoke about the fact that you intend to start in prison a drug and alcohol course. I hope that is so. There is only one person who knows how to give up, and that is you, and you have just go to stop. He asked me to at least accept that you were talking as to drugs with Mr Crewsdon with some candour in the way that you remarked about its effect upon you.
34 Mr Smith, I take all of those matters into account in the sentence I am about to pronounce upon you and I would ask you to stand please.
Sentence
35 Insofar as the charge of robbery, you are sentenced to a period of imprisonment of two years.
36 In regard to the assault charge, Charge 2, you are sentenced to a period of imprisonment of two years. It is clear from that that I see that the second offence is the far more serious offence in this matter.
37 Using the imprisonment imposed on Charge 2 as the base sentence, I order that six months of the sentence imposed in the robbery matter be cumulated, making a total effective sentence of two years and six months. I order that of that period, you serve a minimum period of 18 months.
38 As best as I can comply with the requirements of Parliament, I am required to tell you that had you not pleaded guilty, the sentence I would have imposed upon you was a period of three years and four months with a minimum of 24 months. Mr Smith, it is up to you. If you are going to make a contribution and enjoy your life after you finish this sentence, then you know what is involved.
39 OFFENDER: Yeah, sweet.
40 HIS HONOUR: Good luck.
41 OFFENDER: (Indistinct).
42 MS HOGAN: Just one matter, Your Honour, the - - -
43 HIS HONOUR: Yes. I am sorry Mr Smith, just one moment.
44 MS HOGAN: The compensation order, was that - - -
45 HIS HONOUR: I have signed that, have I not? Yes.
46 MS HOGAN: Thank you, Your Honour.
47 HIS HONOUR: No other matters?
48 MS GAUNT: No, Your Honour.
49 HIS HONOUR: Yes, good luck Mr Smith. Let us not see you again, hey?
50 OFFENDER: (Indistinct).
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