Director of Public Prosecutions v Soloman

[2017] VCC 1608

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 17-01812

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID SOLOMAN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	26 October 2017
CASE MAY BE CITED AS:	DPP v Soloman
MEDIUM NEUTRAL CITATION:	[2017] VCC 1608

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P.Triandos
For the Accused	Mr B. Newton

HIS HONOUR: 

1David Soloman, you have pleaded guilty to one charge of causing injury intentionally and one charge of affray.  Those crimes carry maximum penalties of ten years and five years respectively. 

2You are now 23 years of age and were 22 years of age at the time of the offending; clearly, you are still a youthful offender.  You pleaded guilty at the earliest reasonable opportunity and must get the benefit of that plea of guilty.

3I accept that you have genuine remorse and you of course get the utilitarian benefit of saving the community the cost, the expense and the like of a trial. 

4You do have a concerning criminal history which in these circumstances I need to go into in some detail.  It will become clear from my summary of the Crown opening this involves public violence.  Going back, as best I can, in August of 2004 you received a custodial sentence for assault in the Magistrates' Court. 

5Prior to that in December of 2011 and the matters that I now refer to are all from the Children's Court, you breached a youth attendance order for matters that had been dealt with back in 2011 of assault and unlawful assault.  There was an assault with a weapon involved in that.  Going back further, in 2009, you were given a youth justice sentence for affray and recklessly causing injury. 

6In 2008, you were given another sentence for intentionally cause injury with youth justice.  And in 2007, you were in the Children's Court which is - will be spent in about a week's time - you were given a youth supervision order again for assault and causing injury.

7It is concerning that at the age of 23, you have for the last ten years received sentences or dispositions in regard to assaults on other people. 

8The circumstances of this offending have to be viewed very carefully.  One of the consequences of the affray to which you have pleaded guilty was that a man received very serious injuries indeed.  It is conceded by the Crown that co-accused have been charged with that crime of intentionally causing serious injury and you, other than in the terror aspect of an affray, are not to bear the brunt of it.

9The whole proceedings are coloured by the dreadful consequences to that man and I have to be careful not to let that interfere with looking at you objectively and in the situation in which you find yourself.

10The circumstances of the affray were that a Matthew Powney had been a defendant in a charge of assault against a Mr Max Soloman who is the elderly gentlemen involved in all of this.  Mr Powney was acquitted by a magistrate,
Mr Maxwell Snr had received serious injuries as I understand it and ultimately passed away.

11There is no evidence before me that those injuries contributed to that death but there certainly seems to be a belief within the family that in some way, they did.  None of that gives justification for what occurred later on however. On
New Year's Eve in 2016, Mr Powney was at Lakes Entrance foreshore to watch fireworks.

12He was set upon by a group of people.  Initially, on the material before me, by your co-accused Mr Ritchie and then Mr - a potential co-accused - Mr Baxter.  The Crown opening says you played a lesser role in the affray that followed.
 At some point Mr Powney was hit with a beer bottle and he was stomped and kicked.  You are not said to be a participant in that. 

13The kicking was obviously a terrible thing to watch for the people around and gives rise, in part at least, to the charge of affray.  At one point during all these, you picked up the broken neck of a beer bottle and threatened friends of
Mr Powney's that you would harm them if they tried to assist him.

14You lunged at a Mr Nicholas as he tried to assist.  The Crown opening says you sliced his forearm and marking his neck.  I note from the actual medical material that it was a superficial wound which did not require sutures so, again, one has to be a bit careful with that.

15The prosecution case was that you delivered the intentional injury as part of the affray, and again I have to be careful of double jeopardy, and using threatening language as part of the affray.  Your conduct in preventing others from assisting contributed to the affray.  Whether you can aid and abet an affray or not, I do not know, but in this situation it is certainly part and parcel of all that. 

16In any event, police arrived and you were subsequently identified and you have ultimately pleaded guilty.  So that is the extent of what you are to be charged with. 

17Insofar as the individual victim for you is concerned, there is no victim impact statement.  The victim impact statements in regard to the other victim that relate more to Mr Ritchie and Mr Baxter describe the terror that was caused by the violence of the assault.  You do have a prior, albeit in the Children's Court, for affray and a criminal history in relation to violence.  The offending has to be regarded as serious and calls for the application of general and specific deterrence, denunciation and appropriate punishment.

18In my view, a gaol sentence was and has been unavoidable in this matter and no other disposition by itself would suffice.

19I then deal with the submissions made by your counsel that imprisonment plus a community corrections order would be a sufficient punishment.  I am now aware of the authority that says, contrary to popular belief, that a community corrections order can follow a sentence of imprisonment where the
pre-sentence detention has not been declared.  I do not think this is a situation which requires me to get that far having given an objective, and independent of Mr Ritchie, consideration.

20You participated in Koori Court which is often of assistance.  I thought that during the course of that, you were open and honest with the elders and you related to them very well.  It is a very difficult position for a young Aboriginal man in a room with a number of people in it to articulate his feelings and I thought that you did your best. 

21I accept from that conversation that the remorse that you displayed was genuine; indeed, in my view verging on shame.  You clearly now have a vastly or greatly increased insight into the consequences and potential consequences of your offending. 

22Tendered on your behalf was a report from psychologist Dr Ball and Nicole De Sage who is well known to people involved in the Koori Court and is well known to you, spoke on your behalf.  Doctor Ball refers to your history and various matters about you and Nicole who spoke for you said that she had been your youth worker for a number of years when you were young and that she had had you assessed at that time by a psychologist and that the actual formal assessment showed that you were a person of high intelligence.

23Having listened to you and spoken to you, and your capacity to understand what was taking place in the courtroom, I have no reason to doubt that that is the case. 

24You have now been in custody some 230 days.  You have used that time well.  You have applied to do a literacy program within the gaol and it is to be commended that you do that as was said to you by both myself and by Auntie Dyer during the course of the sentencing conversation.  You are a person whom I think would be very skilled as a yarn teller and a writer and to be of real assistance to your community insofar as that is concerned.  At the present time, you are working in the prison and that is very much to your credit. 

25Your history is as is unfortunately so common in Koori Court that you did not meet your father until you were 15 years of age.  Your mother was in a relationship with a Mr Hoy, who is known to me, for approximately eight years.  That there was violence contained within that.  That by the time you had turned ten years of age, you had been to a number of different schools.  You had been to primary schools in Victoria, Queensland; your education had been disrupted.  You had been diagnosed with ADHD and you never got past Grade 6.

26When you left the education system, you had very limited reading, writing and numeracy skills.  You told me that you can read okay but your writing is not too good.  I understand from the materials that you are about, in that sense, a Grade 6 level. 

27By ten years of age, you were in the care of the Department. Your older sister went to live with aunties and that was a further blow to you.  By the age of 11, you were living in Berry Street supported accommodation in Moe.  As is so unfortunately often the case, you quickly developed drug and alcohol dependency and by the age of 13, you were using ice.

28You had an ongoing battle with drug addiction ever since.  I am well aware of the authorities in regard to disadvantaged background, particularly in regard to people of Aboriginal descent.  With a upbringing like that and the lack of moral support, it is very difficult.  You do, in your situation, have the benefit of a very loving grandmother who has cared and done her best to care for you since an early age.

29You are the father of two children; the eldest is 12 and in the care of his mother.  You do have regular contact since being on remand for that.  Your second son was born in June of 2016 and has currently been placed by DHS with your older sister and is living in Preston.  It is to be hoped that a reunification can be made in that regard.

30Unfortunately, that child's mother has also struggled with drug dependency issues but it has been done to try and get, as I have said, a reunification. 
To that aim, as you expressed yourself, you have been able to obtain a house in Warrigal which is being looked after for you and will be available for you upon your release.

31I take into account all the other matters: the early plea of guilty, the remorse and in my view whilst the risk of you reoffending has been assessed as high by Correction, which is hardly surprising, I think at the age of 23 you have packed a lot into those years.  I think you have reached a point in your life where your understanding of your background, your understanding of what is going to happen if you continue to live like this is that your prospects for rehabilitation at the moment are certainly genuinely held by you as being good.

32The risk of you reoffending if you use ice again will be high and there will be nothing that can be done to save you, David, and I know you know that.  You will not make forty, David; you will be dead by then.  It is up to you. 

33You do have the family support, you have the accommodation.  I am also very much aware of the principles outlined in cases such as Toumngeun in terms of a judge where he or she takes the view that a merciful decision is appropriate to rehabilitate an offender then it should be done.

34I think this is very much such a case and that is exactly what I propose to do. 
I have had you assessed for a community corrections order and you have been found to be acceptable.

35You had matters pending in the Magistrates' Court which your counsel will be appearing for you I hope in respect of those and these sentencing remarks will be available to counsel by then. 

36The community corrections order that I will be putting in place will be with conviction, obviously.  It will be commencing upon your release from custody and will have the conditions of drug abuse and dependency assessment and programs and courses consistent with achieving the purpose of treatment and rehabilitation that may include employment and other matters.  As I have indicated, I think in your situation it is very much my desire that you be assisted with grief counselling and other factors in regard to what has happened to you in your still young life.

37But taking all those matters into account if you agree, you are sentenced to an aggregate period of imprisonment of nine months to be followed by a two year CCO in the way that I have described and I say that if you agree to all this, pursuant to s.6AAA I would have sentenced you to be imprisoned for a period of two years with a minimum term of 15 months but for your plea of guilty.

38I direct that 230 days be reckoned as having been served under this sentence.  What that does is it gives you about a month to get your head around getting out, all right?  I am not having you walk out the door and do something silly; it gives you a month to get your head around it, talk to people, work out what you are going to do and when you do get out, go straight to Corrections and have everything in place David, all right?

39This is really your chance and as I said to you before, not many blackfellas down here live past 50, all right?  You be one of them, all right?

40All right, Mr Newton, if you wouldn't mind?

41MR NEWTON:  Yes, certainly.

42HIS HONOUR:  With my associate going down to get him to sign this.

43MR NEWTON:  He's staying in Warrigal.

44HIS HONOUR:  No, that's all right.  It would be Warrigal.

45MR NEWTON:  Is there a Corrections in Warrigal?

46HIS HONOUR:  It won't change.

47ASSOCIATE:  There is a Corrections in Warrigal.

48MR NEWTON:  If there's a Corrections in Warrigal ‑ ‑ ‑

49HIS HONOUR:  Yes, all right, we'll just change it to Warrigal, yes.

50MR NEWTON:  Yes, grateful.

51HIS HONOUR:  Yes, Morwell will just send you straight down there anyway but it doesn't matter.

52MR NEWTON:  It's got Morwell on it, yes.

53HIS HONOUR:  All right, those orders are made.  All right, Auntie Diane and Uncle Lloyd said to tell you that they believe you can do this David, all right.  I think you can too.  All right?  Up to you my friend.

54OFFENDER:  Tell them I copped it on the chin then.  Thank you for understanding and - yeah.

55HIS HONOUR:  Yes.  All right brother, stay out of strife.  Yes, thanks. 

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