Director of Public Prosecutions v Somlai
[2020] VCC 1117
•24 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-19-00529; CR-19-01972
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES SOMLAI |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 June 2020 (Plea); 22 July 2020 (Further Plea) | |
DATE OF SENTENCE: | 24 July 2020 | |
CASE MAY BE CITED AS: | DPP v Somlai | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1117 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Gray | Office of Public Prosecutions |
| For the Accused | Mr A. Pyne | Victoria Legal Aid |
HER HONOUR:
1 James Somlai, on 2 September 2018, at approximately 11:30am, you and Jason Gardiner went to the Morwell RSL and drank together. You left at approximately 2:00pm and eventually went to your home. You kept drinking and smoking marijuana all day. You sold some marijuana that you had previously grown and harvested for $70.00 to Mr Gardiner.
2 Shortly after 6:00pm, you became angry and told Mr Gardiner to leave. He left but returned, believing, mistakenly as it turned out, that he had left his marijuana behind. You confronted him as he re-entered your front gate and again told him to leave.
3 You picked up a brick from the front yard and swung it hard at Mr Gardiner, hitting him around his left eye. He fell to the ground and hit his head on the concrete, losing consciousness. You left him there and went back inside.
4 Mr Gardiner was found in the street by passers-by, who contacted the police and ambulance. He was taken to the Latrobe Regional Hospital for initial assessment and then to the Alfred Hospital for further care.
5 Mr Gardiner sustained trauma to the left side of his head, which included fractures to his skull and facial bones, bleeding on the brain and soft tissue injuries. It is this conduct which constitutes the basis of Charge 1 on Indictment J12370409C, intentionally cause injury, to which you have pleaded guilty.
6
Although forensic physician, Dr Angela Williams, described the injuries that
Mr Gardiner sustained as potentially life-threatening, I must of course sentence you for the charge that is before me, of intentionally cause injury. That is, that your intent was to cause injury, not serious injury, as that term is defined by law. Serious injury is defined in s 15 of the Crimes Act as an injury which endangers life or is substantial or protracted. By definition, injury is something lesser than that. But, that the injury actually suffered by Mr Gardiner could have been life-threatening is nonetheless a matter proper to take into account when assessing the weight to be given to denunciation and deterrence.
7 Five days later, on 7 September 2018, police executed a warrant at your home pursuant to the Drugs, Poisons and Controlled Substances Act 1981 (Vic). As a result of that search, cannabis was found in two containers in the kitchen cupboard, in a glass jar and a foil in the kitchen and in four containers in the bedroom. The cannabis weighed, in total, a little over 300 grams.
8 This gives rise to Charge 1 on the second indictment, J12370409B, cultivation of a narcotic plant, namely Cannabis L, to which you have also pleaded guilty.
9 You participated in a recorded interview and made admissions in relation to possessing and cultivating cannabis but you denied having committed the assault on Mr Gardiner. You said you grew the plants for personal use but would sometimes give it to acquaintances for free. This is at odds with the agreed prosecution summary in respect of the cause injury charge, where you acknowledged that you had sold Mr Gardiner an ounce of cannabis for $70.00 earlier on the day of the assault.
10 The maximum penalties for these offences are one measure of their seriousness. Intentionally causing injury has a maximum term of imprisonment of 10 years. Cultivate a narcotic plant has either a maximum penalty of one year imprisonment or 20 penalty units if the court is satisfied on the balance of probabilities that the offence was not committed for a purpose related to trafficking in the narcotic plant or, in any other case, 15 years' imprisonment.
11 The charge of intentionally causing injury is clearly the more serious of the two that I have to sentence you for. Although it was one blow only and not premeditated, it was a drunken, unprovoked attack on a friend with a weapon. Although the choice to use a weapon and the choice of weapon itself was opportunistic, not calculated, an assault with a weapon of that nature clearly adds to its seriousness. And although I cannot sentence you on the basis that you intended to cause serious injury or that you intended Mr Gardiner would fall and strike his head, when that unintended consequence occurred, you left him where he fell and did not go to his aid. That indicates a callous disregard for his welfare, which I take into account in assessing your moral culpability.
12 As I said in the course of the plea hearing, it is a matter of good luck, not anything else, that you are not before the Supreme Court, facing a charge of murder or manslaughter.
13 In respect of the charge of cultivate a narcotic plant, I am not satisfied on the balance of probabilities the cultivation was not committed for a purpose related to trafficking. In your interview, you told police you supplied cannabis to friends. On the agreed summary in relation to the cause injury charge, you admitted supplying Mr Gardiner with cannabis for reward on the night of the assault. Having said that, I accept on the evidence that your cultivation was predominantly for your own use, but that you also supplied, whether for free or reward, some of your yield to acquaintances. Although that puts you in the higher sentencing category, it is low-level offending in that category and absent the usual indicators of a commercial enterprise which would usually warrant a term of imprisonment.
14 You have an extensive criminal history beginning in 1988, when you were a young man. It includes several offences relevant to the charges for which you come to be sentenced today. You have two previous convictions for offences of personal violence: the first, unlawful assault in 1988, the other more serious, grievous bodily harm in 1993. For the first, you were sentenced for that and other offences in the Magistrates' Court to a 12-month community-based order, which included a high number, 500 hours, of unpaid community work. In 1993, for the offence of grievous bodily harm, you were sentenced in the Southport District Court in Queensland to a term of imprisonment of three years. So far as cannabis convictions are concerned, in 2003 you were sentenced in the Magistrates' Court to a 12-month community correction order, with conditions including unpaid community work, supervision and drug and alcohol treatment for cultivating a narcotic plant (cannabis) and fined $1,000.00 in total for possession of cannabis, possession of amphetamine and use of cannabis.
15 You have other convictions not directly referable to assault or cannabis cultivation. In 2003, you were convicted for firearms and weapons offences. They were dealt with at the same time as the cannabis and amphetamine offences, to which I have just referred. You received, for a charge of carry a firearm in a populous place, a three-month term of imprisonment to be served by way of intensive correction order, and for one charge each of being a prohibited person possessing and using a firearm, a two-month term of imprisonment, fully suspended for 12 months. Charges for possess ammunition without a licence and possess a controlled weapon were dealt with as part of the community correction order disposition that was also imposed in relation to the cultivation charge.
16 Finally, in 1991, you were sentenced to a term of imprisonment of three years in the County Court for a charge of arson.
17 None of these obviously serious offences are recent. You have not been dealt with for violence offences since 1993, you have not been dealt with for arson on any occasion other than the 1991 sentencing and you have not been dealt with for drugs, firearms or other weapons offences since 2003. Although you also have been sentenced for dishonesty offences, they too are old and represent a confined number of offences and a confined period of offending in your youth. They were dealt with initially in 1988, but not finally disposed of until 1991, where it appears breach and appeal proceedings caught up with you when you were sentenced for the arson.
18 Your other criminal convictions are driving and alcohol related: speeding and refusing a breath test in 2001, driving under the influence in 2009 and a second refuse breath test, as well as dangerous driving and breach of licence conditions in 2015.
19 It is clear that, subject to considerations personal to you, specific deterrence, as well as general deterrence, denunciation and just punishment must all carry weight in the sentencing mix. A drunken attack on a person you regarded as a friend, unprovoked and with such dangerous consequences, is clearly unacceptable behaviour which the community cannot accept and must be denounced.
20 Turning then to your personal history and the matters personal to you that mix into the balance and temper the weight to be given to deterrence, denunciation and just punishment. You are now 51, and you were 49 at the time of the commission of these offences. You do not appear to have had an easy childhood.
21 Your parents emigrated to Australia from Hungary in 1957, following the Hungarian Revolution. When you were eight years old, your eldest sister died in a car accident. One of the consequences of that was the disintegration of your parents' marriage.
22 You moved between a number of schools before leaving school altogether in what is now called Year 9 and you began working as an apprentice chef. Your life became chaotic. Mr Pyne's submissions recount a history of excessive drinking, cannabis smoking and association with people who committed 'smash and grab' burglaries and thefts. That is reflected in your early criminal history, to which I have referred. It was also during this time that you committed the offence of arson, although you were dealt with that some considerable time later. You had left Victoria before being charged with the arson offence and went to live with your father in Queensland.
23 Things were no better for you there. You continued to abuse alcohol and it was there that you committed an offence of grievous bodily harm, the one for which you were sentenced in Queensland some years later. Before being dealt with for that, you returned to Victoria because your father decided to permanently relocate to Hungary. It was on your return to Victoria that you were arrested and then sentenced for the arson charge. On your release, you were extradited, sentenced and then imprisoned in Queensland for the grievous bodily harm offence. It means that you served each of those two terms of imprisonment well after the offences were committed. You were 26 by the time you were released on parole for the Queensland matters and returned to Victoria. You then went to live with your mother.
24 Life achieved some stability for you after that. You obtained and maintained employment for four years, but then you injured your back at work and lost your job. Ultimately, you received compensation, which you used to purchase a property in Hastings, and you went to live there.
25 However, you continued to abuse alcohol and marijuana and your life, whilst essentially aimless, was revolving around substances. It was in that context that your convictions in 2003 for cultivation of cannabis and firearms-related offences occurred.
26 Your drinking and use of marijuana continued unabated and that contextualises all your drink and related offences, both pre-dating and post-dating the cultivation of cannabis sentence.
27 The offending for which you come to be sentenced today appears to have finally been the impetus for you to acknowledge the extent of your abuse of alcohol and marijuana, the impact it has had on your life and the need to address it. It has been one year and 10 months since the offending took place and I have now been provided with powerful evidence to support your instructions that you have not used alcohol or marijuana during this period or for the bulk of it. This was in part supported by a letter from your general practitioner, Dr Htet Aung, who wrote:
In the last consultation on 24/02/2020, he mentioned that he had not touched any alcohol or cannabis for nearly one and a half years. The liver functions test done in May 2019 showed a very normal result which may be a proof that there was no effect of excessive drinking alcohol.
28 As I indicated in the course of the original plea, that was some indication that you might be one of those medical anomalies who, notwithstanding years of abuse, managed to maintain a normal liver function.
29 I also was told at the time of the original plea that your licence had been reinstated, with an alcohol interlock condition, and that you had abided by those alcohol interlock conditions. You also instructed that you had now formed the resolve that you wanted to return to work as a bus driver, but you are unable to do so until the alcohol interlock condition on your licence expires in January of next year.
30 On the initial hearing of the plea on 10 June, I adjourned it in order for you to obtain further evidence, if you wished to do so, of your abstinence. I also wanted evidence that you would be able to comply with any unpaid community work conditions, were I minded to impose a community correction order, which was a concern given the evidence I had of the pre-existing injury to your back and that you are currently in receipt of, and have been for some time, a disability support pension.
31
The adjournment has resulted in some very hopeful and positive evidence being obtained. You produced two urine screen results, one dated 12 June, just two days after the adjournment and the original plea hearing, the second of 9 July. Both of them were negative for drugs, including cannabis, and alcohol. And we discussed on a previous occasion, the fact that because of the long half-life of cannabis, it can be detected in the system well after use. Therefore, the fact that you submitted for a test two days after the last plea hearing indicates that the instruction you gave were correct and that was borne out by that the test results. I was also provided with a cumulative monthly summary report from the Victorian Alcohol Interlock Program, which shows consistent compliance with that program for many, many months. And a further letter was provided from
Dr Aung, which certified that you were fit to engage in unpaid community work.
32 Those materials were supplemented by testimonials, which I find convincing, from your mother and from an elderly neighbour. Both spoke with direct knowledge of your drug and alcohol-addled lifestyle before the assault and your consistent sobriety since then.
33 Robert McQullen wrote frankly of his observations of your problems with drugs and alcohol. He said that he had previously, but without success, advised you to give them up. He reports that you are in a 'much better space mentally and [have] a much more positive outlook'.
34 The age at which you were when you committed these offences is a cause for concern. In your late 40s, coming into your early 50s, one would hope that you would know better than to engage in this offending. You have, on several occasions and as recently as the order imposed on you in 2015, been required to comply with community correction orders which have included as a condition assessment and treatment for drug and alcohol addiction and to submit to medical, psychological or psychiatric assessment and treatment. None of previous orders appear to have had the desired effect of reducing or managing your alcohol or drug abuse.
35 However, that you have, since being charged and without any compulsion, other than these charges hanging over your head, without bail or other conditions requiring you to do so, taken steps independently to address your drug and alcohol abuse issues, counts positively in your favour when now assessing your prospects for rehabilitation. I accept, in the circumstances, that your abstinence since being charged indicates shock at the realisation of what, impaired by drugs and alcohol, you were capable of doing to a person who you regarded as a friend. I am satisfied you also indicated a desire not to put yourself in a position where you might act in such a way again. This is perhaps a belated maturation, but a maturation nonetheless, and in my view, a clear acceptance of the role alcohol and drugs have played for close on 20 years in your aimless and destructive lifestyle. I take this, therefore, as change and real evidence of genuine remorse and it counts powerfully when assessing your prospects for rehabilitation. It is a powerful counterweight to the impression of entrenched recidivism a cursory scan of your criminal history might suggest.
36 Your mother is now 82 years old. In her testimonial, she reports on the assistance and support that you provide her, speaking daily, visiting weekly to help her with her housework and, now that you are licensed again, taking her to and from the many medical appointments which she has had to attend. She spoke of the person who you were, and who she did not like when impaired by substances, and the change. Perhaps belatedly, but nonetheless, it is to your credit, that you appear now to be an attentive and caring son and providing care for her when she is clearly of an age and in circumstances where she needs it.
37 The enduring support of your mother and your desire to be present to look after her are clearly powerful protective factors. Although the support and your relationship with her does not appear to have deterred from offending in the past, it may be that her advanced age and your newfound acceptance of responsibility for your behaviour has now impressed upon you the need for you to be present and sober in order to look after her.
38 Although you have those serious criminal offences on your record, they all occurred over 25 years ago when you were a youthful offender. Your offending in the time since your release from prison in Queensland has been of a significantly different and less serious nature. And that is of course consistent with what we know of the offending patterns of many young men. We know now that young people, particularly young men, mature slowly, often not until their mid-20s, and many do not repeat or escalate their early violent and other seriously criminal and antisocial acts. I treat the violence that you displayed in respect of the charge for which you come to be sentenced today as out of character with the adult that you have been in the last 25 years, despite your abuse of drugs and alcohol during that time.
39 Taking all those matters into account, I would describe your prospects of rehabilitation as being good and indeed very good if you can sustain your abstinence from drugs and alcohol and return to meaningful employment.
40 You pleaded guilty to these charges and are therefore entitled to a reduction in the sentence otherwise appropriate, by reason of the statutory imperative in s 6AAA of the Sentencing Act 1991 (Vic). I accept that your plea of guilty to the charge of cultivate a narcotic plant was entered at an early stage and that you are therefore entitled to a significant discount to the sentence otherwise available for the utilitarian value of the plea, for facilitating the course of justice and as evidence of remorse. Despite the fact I am not satisfied the offence was not committed for a purpose not related to trafficking, imprisonment is not warranted. A monetary penalty is, in my view, a just and proportionate punishment.
41 Whilst your plea of guilty in respect of the intentionally cause injury charge was not entered at an early stage and the charge was contested at committal, it still clearly has utilitarian value and has facilitated the course of justice. The plea was a negotiated plea. You had originally faced more serious charges. And in the circumstances, having regard to the evidence of your change of lifestyle and your abstinence, I am satisfied that this plea is properly characterised as one which evidences remorse. And finally, your guilty plea in these circumstances, in my view, justifies a greater reduction in sentence by reason of the impact of COVID-19 on the courts, the prison system and the broader community.
42 The utilitarian value in pleading guilty at this stage of the pandemic, thereby alleviating some pressure on the criminal justice system when the already lengthy delays between charge and trial have been further extended, must be recognised and that you come to be sentenced in those circumstances, when we are in that fearful time of a still-increasing community transmission rate and when COVID-19 has entered the prison system, must be recognised.
43 Even before the second wave, there was an added burden of imprisonment by reason of the pandemic. The lockdowns associated with the pandemic, the reduction in programs available to those serving time and the fear of an outbreak in prison is clearly properly to be taken into account as an additional hardship associated with imprisonment, which could operate properly either to either trip the discretion in favour of not imposing a term of imprisonment or in reducing the term otherwise appropriate.
44 As we live through the second wave, and with the risk of cases coming into the prison from new remandees in quarantine and Corrections staff having actually materialised, there comes another factor relevant to sentence.
45 Had it not been for this second wave, despite the powerful evidence of remorse or rehabilitation well under way and a clear disconnect between your earlier serious criminal activity and this cause injury offence, I was inclining towards the imposition of a combination sentence, requiring a short term of imprisonment, followed by a community correction order. There were arguments in favour of the imposition of a term of imprisonment, although not a lengthy one, to give effect to denunciation and deterrence. However, in my view, there are, at present, powerful arguments against imposing a short sentence, whether alone or as part of a combination sentence, in these current extraordinary circumstances. And that is particularly so where a person has demonstrated a capacity to address the risk of reoffending and has a demonstrated history of making amends although, despite court proceedings hanging over their head, having no compulsion to do so. It is important to bear in mind that imprisonment is the sentence of last resort. In these unprecedented times and in your circumstances, I am not satisfied that the needs of punishment, deterrence and denunciation can only be met by a term of imprisonment.
46 I do not consider that it is necessary, either for specific deterrence or for protection of the community that a term of imprisonment need be imposed.
47 In these unprecedented circumstances, I have come to the conclusion that it is not just or proportionate to impose a short sentence of imprisonment in order to serve those needs of just punishment or deterrence, specific or general. In my view, they can adequately be marked by conviction and a sentence imposing obligations to submit to and engage in supervision and treatment to be served in the community. Those obligations, of course, have sanctions attached to them, including the very real risk of resentencing to a term of imprisonment if those conditions are breached.
48 You have been assessed as suitable for the imposition of a community correction order. I had had in mind initially, and again, would have considered in pre-COVID times, a considerable component of unpaid community work. The Corrections assessment report recommends that there be no unpaid community work, as programs have been suspended as a result of the pandemic. The only rider to that is the imposition of unpaid community work will be credited to hours successfully engaged in treatment programs. And I propose, in the circumstances, again to accept this recommendation. James Somlai, on Charge 1 on Indictment J12370409C of intentionally cause injury, you are convicted and sentenced to a community correction order for a period of two years on conditions which I will shortly explain.
49 On Charge 1 on Indictment J12370409B of cultivate a narcotic plant, you are convicted and fined in the amount of $700.00.
50 I propose to make the forfeiture and disposal orders sought. I also direct pursuant to s 464ZF(2) of the Crimes Act 1958 (Vic), that you undergo a forensic procedure for the taking of a scraping of the mouth, that is in respect of Charge 1 on the indictment J12370409C, of cause serious injury. I make that order because of the nature of the charge and your initially having denied committing the assault on Mr Gardiner.
51 I declare pursuant to s 6AAA of the Sentencing Act 1991 (Vic) that, but for your pleas of guilty, I would have sentenced you to a fine of $1,500.00 for cultivation of cannabis, and to be imprisoned for a period of two years and six months, with a non-parole period of one year and nine months, on the charge of intentionally cause injury.
52 The conditions of the order are these.
53 The order is to last for two years, commencing today, 24 July 2020, and ending on 23 July 2022. You must attend at the Morwell Community Correction Services at 25 Ann Street, Morwell, or, if directed, to attend by telephone by phoning 5116 5800 within two clear working days after the commencement of this order.
54 The mandatory terms that apply to all community correction orders are these: you must not commit another offence for which you would be imprisoned during the time the order is enforced; you must comply with any obligation or requirement described by regulation 17 of the Sentencing Regulations2011 (Vic) (that means you must not be impaired by alcohol or any other substances when you attend for any appointments as directed by Corrections under this order and you must submit to drug and alcohol testing if directed to do so); you must report to and receive visits from the Secretary or delegate; you must let a community correction officer know within two clear working days if you change your address or your job; apart from the pandemic restrictions that apply, you must not leave Victoria without first getting permission to do so from the Secretary or delegate; and you must obey all lawful instructions from and directions of the Secretary or delegate. Do you understand those conditions and do you consent to those?
55 OFFENDER: Yes, your Honour. Yes, your Honour.
56 HER HONOUR: And in addition to those mandatory conditions, I impose the following specific program conditions. You must perform 100 hours of unpaid community work over the period of two years, as directed by the regional manager. I order that all hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purpose of this unpaid community work condition.
57 If you fail to comply with this order, the Secretary to the Department of Justice or their delegate may give you a direction to perform additional hours of unpaid community work in accordance with s 83AU of the Sentencing Act1991 (Vic).
58 You must be under the supervision of a community corrections officer for a period of two years and you must undergo assessment and treatment, including testing for drug abuse and dependency as directed by the regional manager. You must undergo assessment and treatment, including testing for alcohol abuse or dependency as directed by the regional manager and you must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager. Do you understand the effect and conditions of this order?
59 OFFENDER: Yes, your Honour.
60 HER HONOUR: Do you consent to it being made?
61 OFFENDER: Yes, your Honour.
62 HER HONOUR: All right, your consent to and your acknowledgement of your understanding of the effect and conditions of this order will be noted on the court record and a copy of the order, as signed by me, will be provided electronically to Mr Pyne and to you after this hearing.
63 OFFENDER: Yes, your Honour.
64 HER HONOUR: The order I made in relation to the provision of the forensic sample is to be by the taking of a mouth swab, that is a buccal swab or a mouth swab. You must rub a thing like a long cotton bud on the inside of your mouth until advised that a sufficient sample has been obtained. And if you do not comply with that and provide that sample, then the police are authorised to use reasonable force and they will likely use more invasive means of obtaining a forensic sample, that is taking a blood sample. Do you understand that?
65 OFFENDER: Yes, your Honour.
66 HER HONOUR: You must attend at the closest police station to you or to another 24-hour police station for the provision of that sample. I think that is, in Morwell. So you must attend at Morwell Police Station to provide that sample. There is a complicated timeframe for doing that, you must wait 28 days from today, and then you must attend within 28 days after that. The reason for that, Mr Somlai, is you must wait for the time for appeal to expire before you submit to the test.
67 OFFENDER: Yes, your Honour.
68 HER HONOUR: But Mr Pyne will explain that to you and no doubt give you a clear indication of the dates between which you must attend for that. Mr Pyne, you will do that?
69 MR PYNE: Yes, your Honour, I will.
70 HER HONOUR: Thank you. All right. No further orders?
71 COUNSEL: No, your Honour.
72 HER HONOUR: And do the orders that I now pronounce reflect what I said I intended to do?
73 MR PYNE: Yes, your Honour.
74 HER HONOUR: Mr Somlai, I hope very much that you never come before me for breach of this order or that you come before any other court again, that you take this as the sobering experience that it has been, that you remember it each time you think to look at another joint or you think to look at another drink.
75 OFFENDER: Yes, your Honour.
76 HER HONOUR: And that you can repay the trust that has been placed in you by the making of this order by abiding by its terms and conditions strictly to the letter and in that spirit.
77 OFFENDER: I will.
78 HER HONOUR: Thank you. All right, thank you to Mr Gray and Mr Pyne for your considerable assistance over this time and of course to Mr Cecil and whoever has in the background been assisting you, Mr Pyne.
79 MR PYNE: Mr Tom, I will pass that on.
80 HER HONOUR: Thank you. All right, thank you, we will adjourn.
81 COUNSEL: As the court pleases.
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