Director of Public Prosecutions v Smith, Aaron John
[2012] VCC 2128
•19 December 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-12-01414
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AARON JOHN SMITH |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 19 December 2012 | |
CASE MAY BE CITED AS: | DPP v Smith, Aaron John | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2128 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Gibson | O.P.P. |
| For Accused | Ms A. Baring | Ann-Maree Baring & Associates |
HIS HONOUR:
1 Aaron John Smith, you have pleaded guilty to one charge of recklessly causing serious injury contrary to s.17 of the Crimes Act 1958. The maximum penalty for that offence is 15 years' imprisonment. You pleaded guilty at a committal mention on 12 July 2012 and I have taken your early plea into account in your favour in mitigation of sentence.
2 The prosecution opening was read to the court and your offending may be summarised as follows:
3 On Sunday 1 April 2012, at approximately 9 pm, after an extended drinking session, you boarded a bus in Ringwood in company with a friend, the victim of your offending, Paul Uhe and another person, Alison Dolby.
4 You all alighted from the bus in Montrose and, for reasons that are unclear, an argument erupted between you and Mr Uhe. You punched him in the head and whilst he was the ground you also kicked him in the head. Ms Dolby attempted to stop your assault on Mr Uhe but you continued to kick him.
5 A passer-by observed your offending and contacted police. As they approached the scene you ran off but were apprehended shortly thereafter. You initially denied your offending to investigating police who did not then arrest you.
6 Subsequently, on 14 April 2012, you were arrested and interviewed in relation to the offending and you made full admissions to the police during the course of the interview.'
7 The victim of your offending suffered facial fractures and abrasions, a laceration to his right ear and an acute lung injury as a result of the aspiration of gastric contents, in all probability whilst he was unconscious following your assault upon him. A victim impact statement has not been prepared by
Mr Uhe but it is clear that your offending must have had a deeply traumatic effect upon him.
8 Your offending may properly be described as of the utmost seriousness. In a drunken rage you inflicted serious injuries to a friend for no apparent reason and your assault on him was committed in a public place. Any penalty that I impose must be calculated to deter you and others from offending in the way that you did. Furthermore, you must be punished for your offending.
9 I now turn to your personal circumstances. You were born on 25 March 1975 and you are now aged 37 years. You are a member of the Wurundjeri people and have lived in Healesville for the majority of your life.
10 You have an identical twin brother and three sisters. Your parents separated when you were 15 years old. Prior to this, you were subjected to severe punitive physical abuse by your father. Your mother has worked as a community health and welfare officer for a number of indigenous organisations and she is very supportive of you, as are your three sisters.
11 Like you, your twin brother has had extensive contact with the criminal justice system. Before turning to a consideration of your prior criminal history, it must be observed that whilst you were growing up in Healesville you were subjected to considerable racist abuse and discrimination. I have received, in evidence, a detailed letter from your sister, Susan Smith, setting out the abuse that you suffered both in the community and at school. As a result, your education was disrupted and at the age of approximately 15 you began abusing drugs and alcohol.
12 I have also received, in evidence, a psychological report of Mr Ian Mackinnon, a consultant and forensic psychologist, detailing your developmental history and personal circumstances. I accept that you suffer from a longstanding depressive condition which has led to alcohol and drug abuse.
13 You are of average intelligence and your general cognitive functioning is within the normal range. You are currently serving a term of imprisonment at Fulham Prison and you reside in the Koori Unit there. Your counsel informed me that you are functioning well in prison and you have undertaken a number of courses to support your rehabilitation. You have, however, returned two positive tests for illegal substance use whilst in prison.
14 You have admitted an extensive criminal history, comprising 98 convictions or findings of guilt from 23 court appearances over a period of 16 years. You have admitted a number of prior convictions for offences of violence, although the offence that I am to sentence you for, is the most serious to date.
15 By reference to your criminal history and substance abuse disorder, your prospects for rehabilitation may only be described as poor. Specific deterrence is an important consideration in your case.
16 Your counsel submitted that by reason of your depressive condition and polysubstance abuse disorder, that the principles set out by the Court of Appeal in R v Verdins (2007) 16 VR 269, are engaged in your case. She submitted that your moral culpability should be moderated for this reason and the principles of specific and general deterrence should also be moderated. She further submitted that imprisonment for you would be more arduous by reason of your condition.
17 I do not accept this submission. In my opinion, there is no realistic connection between your depressive condition and your offending. Your offending was an alcohol fuelled act of extreme violence triggered by a dispute between you and Mr Uhe. Furthermore, as your counsel submitted, you are coping well in prison and you are engaged in programs to support your rehabilitation.
18 On 14 June 2012, you appeared before the Ringwood Magistrates' Court charged with a number of offences of dishonesty. You were sentenced to an aggregate term of imprisonment of 12 months and a non-parole period of
6 months was fixed. That non-parole period has now been served and you are still undergoing the sentence that was imposed on that occasion.
19 Whilst the offences you received that sentence for are unrelated to the offence before this court, I am nevertheless required to consider the principle of totality when arriving at an appropriate proportionate penalty in this case.
20 The offences dealt with by the Ringwood Magistrates' Court involved a series of acts of dishonesty committed over a period of 7 months. Three of the offences occurred whilst you were on bail for the offence before this court. In all probability, your offending was the product of your polysubstance abuse disorder.
21 Whilst I consider that your realistic prospects of rehabilitation are poor, I nevertheless consider that you may benefit from an extended period of supervision on parole and this was also accepted by the prosecution.
22 You are now a mature man. However, the seriousness of your offending on this occasion must also be reflected in the sentence that I impose.
23 In the result, the sentence of the court is as follows:
· On the charge of recklessly causing serious injury; you are convicted and sentenced to be imprisoned for 3 years. I fix a non-parole period of 15 months.
· The sentence I have imposed will be served concurrently with the balance of the sentence imposed on you at the Ringwood Magistrates' Court.
· But for your plea of guilty I would have sentenced you to a term of imprisonment of 4 years and fixed a non-parole period of 2 years.
24 The effect of the sentence is that you will have to serve a further 15 months in prison before becoming eligible for parole.
25 Yes, I have signed the disposal order.
26 MR GIBSON: Thank you, Your Honour.
27 MS BARING: As Your Honour pleases.
28 HIS HONOUR: Thank you.
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