Director of Public Prosecutions v Sorensen
[2018] VCC 1900
•16 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-17-02292
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEN SORENSEN |
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| JUDGE: | HIS HONOUR JUDGE RYAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 November 2018 |
| DATE OF SENTENCE: | 16 November 2018 |
| CASE MAY BE CITED AS: | DPP v Sorensen |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1900 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Causing serious injury recklessly – Plea of guilty.
Legislation Cited: Sentencing Act 1991
Cases Cited:Bugmy v The Queen [2013] 249 CLR 571; R v Verdins [2007] 16 VR 269.
Sentence:4 years imprisonment with a non-parole period of 2 years and 6 months’ imprisonment; 81 days pre-sentence detention; 6AAA declaration: 5 years and 6 months’ imprisonment with a non-parole period of 3 years and 6 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Vingerhoets (Sentence) Mr C. McConaghy (Plea) | Office of Public Prosecutions |
| For the Accused | Ms M. Walker (Sentence) Ms K. Chibert (Plea) | Melinda Walker |
HIS HONOUR:
1Ben Sorensen, on 7 November 2018, you came before me charged with one charge of causing serious injury recklessly. The maximum penalty for this offence is 15 years' imprisonment. You admitted to your criminal history of fire offending as well as that offending recorded in Exhibit 4 on the plea which contained matters subsequent to the incident offence and which was relied upon in part by your counsel, Ms Chibert.
2Tendered as Exhibit A and read aloud in court was the amended summary of prosecution opening upon plea. As well, Exhibit 6 was a DVD of close-circuit television that depicts your offending that when combined with the still photographs from that film that appear at p.39 to 49 both inclusive of the depositions graphically depicts your offending.
3In short, you were acquainted with your victim. You believe that sometime well-prior to the incident offending that the victim had stolen your tattoo gun. At about 12 midday on the day of your offending being 19 March 2015, you together with your victim were at the Salvation Army Centre in Bourke Street where you threatened to assault the victim. Police were called to the centre but by the time they arrived, you had left the centre. At about 1.54 pm while on the lawn outside the State Library, you observed your victim crossing Swanston Street. You pursued your victim across Swanston Street and struck him from behind with an object believed to be a bottle breaking your victim's jaw in two places and causing a laceration to his chin (see depositions p.51 to 53 both inclusive).
4You were arrested on 5 May 2015 and when interviewed under caution, denied any involvement in the offending despite being shown CCTV images of your offending. You told the police that the assailant depicted in the images was not you and that the victim had many enemies who would be glad to harm him.
5Tendered as Exhibit B and read aloud in court was the victim impact statement. Your victim has been adversely affected both physically and psychologically by your act of wanton violence.
6As to your criminal history, as at 30 August 2018, you had 39 prior convictions or findings of guilt from 16 appearances. Your criminal history includes a prior conviction for causing serious injury intentionally and subsequent convictions for causing injury recklessly and assault as well as drug, bail and dishonesty offences. Of note is that four days after committing the incident offence, you have committed the offence of causing injury recklessly for which you were dealt with by the Melbourne Magistrates' Court on 17 April 2015 and sentenced to four months' imprisonment. Further, you are due to appear on 23 January 2019 before the Magistrates' Court at Melbourne and the Neighbourhood Justice Centre for plea in respect of three separate lots of charges being wilful damage committed on 9 June 2016, criminal damage committed on 21 January 2018 and theft of a motor vehicle and fraudulent use of number plates committed on 18 August 2018. You are currently remanded in custody and had spent 71 days by way of pre-sentence detention as at the date of your plea hearing.
7At the time of your offending, you were on bail. This is an aggravating feature of your offending. I was informed that the bail was entered into in respect of an offence committed by you on 20 February 2016 being intentionally damaging property that was dealt with by the Magistrates' Court on 17 April 2015.
8Mr Sorensen, you are 42 years of age. You were born in Redcliffe in Queensland. Until the age of 11, you moved house on many occasions because of your mother's employment. Your father was imprisoned when you were 18 months old and you have not really had contact with him, first truly meeting him when you were aged 16 years. Your mother repartnered and you were subject to violence at the hands of your stepfather and occasionally by your mother. Your mother remains in Queensland with your stepfather and their three children and you have limited contact with her.
9You left school at the age of 16 in 1992 and since that time have lived an itinerant life. At the age of 17, you moved in with your father, however, this proved unsuccessful and you moved from his home in the Northern Territory to Cooktown, Nimbin and then Brisbane. At the age of 20, whilst in Brisbane, you were living on the streets and began using amphetamines. You moved to Victoria in the mid-2000s.
10You have not had any paid work since approximately 2000 and prior to that time, your jobs consisted of jackarooing, working as a station hand and odd jobs such as fruit picking, washing dishes and working as a stockman. You have been on the Disability Support Pension for approximately ten years.
11Plainly, you have had a deprived background and your counsel relied on Bugmy v The Queen [2013] 249 CLR 571 to submit that your background was relevant to your current situation and your offending behaviour. Even if I were to accept that your background was one of (1) marked by a profound childhood deprivation as the majority of the court opined, such a background may point in a number of directions in respect to the purposes of punishment and in my opinion it primarily points towards protection of the community from you because of your inability to control your violent response to situations of frustration.
12You have had one significant relationship with a woman named Stephanie which commenced in 2003. You underwent an informal marriage ceremony with her in 2004. Together you came to Melbourne in mid-2005 and shortly thereafter, your daughter, Crystal, was born. Your relationship with Stephanie broke down shortly after the birth of Crystal and you have not been permitted to see your daughter since that time.
13From the mid-2000s, you have principally lived on the streets of Melbourne socially isolated and living a transient existence. Things improved for you in 2017 when you obtained stable accommodation living with a friend for whom you were caring. This arrangement ended in early 2018, however, you were able to find other accommodation in Carlton living with a friend named Robyn. I was told you will be able to live with Robyn when you are released from prison.
14Since obtaining stable accommodation, you have been in regular contact with an organisation known as Innerspace regularly consulting a Dr Sullivan. You are currently on a methadone program, one of many that you have been on over the years, however, this last program has continued for a period of two years.
15Tendered on your behalf as Exhibits 1 and 2 respectively, were the reports of Dr Danny Sullivan, psychiatrist, dated 7 December 2009 and Dr Adam Deakin, psychiatrist, dated 23 October 2018.
16Dr Sullivan's report appears to have been prepared in anticipation of your plea to causing serious injury intentionally that took place in December 2009. Dr Sullivan reported that you first consumed alcohol at the age of nine and commenced to drink more heavily from the age of 15. As at 2009, you were dependent on alcohol. You commenced to use cannabis at the age of 15 and have abused that drug on and off since that time. You reported to Dr Sullivan that you commenced smoking heroin when you were aged 24 or 25 years and that you were injecting that drug by the time you were 26 years of age. By 2009, you had twice attempted detoxification in respect of heroin but had not managed to complete these course of treatment. You have abused a plethora of drugs including amphetamine, ecstasy, nitrous oxide, chroming, GHB, LSD, magic mushrooms, ketamine and prescription medication including benzodiazepine.
17In 2009, Dr Sullivan opined,
"Mr Sorensen's chaotic background, difficult progress through schooling and erratic lifestyle are suggestive of a personality disorder. He exhibits antisocial and borderline elements. These are to some extend accommodated through his subcultural affiliation with homeless, anarchist and drug using peers.
"However, Mr Sorensen's potential for rehabilitation will be limited while he is unable to develop stable accommodation, employment and more prosocial activities. He does not appear cognitively impaired and seems to be functioning in the low average or borderline range of intellect."
18In respect of the offending, Dr Deakin reports,
"Mr Sorensen said he assaulted Mr Sorensen in response to a 'build-up of events, I felt he kept fucking me over. I wanted to remind him he wasn't invincible and hoped he'd wake up to himself'. Mr Sorensen understood he broke Mr Manse's jaw. He noted that Mr Manse's jaw must have been weak as he 'only gave him a little tap'."
19Dr Deakin also reported that you have a limited formal psychiatric history and you are unlikely to meet criteria for a formal mental illness diagnosis. Consequently, your counsel, did not rely upon any of the principles enunciated in R v Verdins [2007] 16 VR 269.
20Dr Deakin was of the opinion that your intellect seemed "normal".
21It was submitted by your counsel that a term of imprisonment combined with a community correction order was the appropriate sentencing disposition in all the circumstances. Your counsel's principal submission was that your violent offending had deescalated overtime and that your recent experience of stable accommodation together with regular contact with Innerspace meant you had reasonable prospects of rehabilitation notwithstanding your difficult background and prior history.
22Your counsel also relied on the delay between your offending and being dealt with by this court. As part of the Crown opening, Exhibit A, was a chronology that set out the history of this prosecution. You have contributed to the delay in no small way but failing to appear on no less than three occasions that surround its history necessitating warrants being issued for your arrest. Be that as it may, the true test of the effect of delay is what a person does towards their rehabilitation during that period. In your case, you have continued to offend. Whilst I take the matter of delay into account in arriving at an appropriate sentence in your case, it is, in my opinion, of little weight.
23In support of her submission as to penalty, Ms Chibert drew my attention to your last appearance at the Melbourne Magistrates' Court on 8 May 2018. She informed me that whilst it is not recorded within Exhibit 4, on proof of the contravention of the community correction order that you were sentenced to in July 2016, you were placed on a good behaviour bond for 12 months with special conditions that you remain in contact with Innerspace in Collingwood as well as continuing your contact with Dr Deakin.
24You have been sentenced to or spend a number of periods of time in custody. Whilst in custody in 2007, you suffered a mild heart attack and you are prescribed aspirin to be taken daily in respect of that complaint. Whilst in contact with Innerspace, you consulted with Dr Dean in respect to unexplained anal bleeding and you have been screened for bowel cancel whilst in custody. However, the results of that screening are not to hand. You are seropositive for Hepatitis C.
25It should be noted that you were initially charged with causing serious injury recklessly and your matter was listed within the summary stream of the Magistrates' Court. However, the prosecution filed a charge of intentionally causing serious injury which took your matter from the summary stream and placed it in the indictable stream. You originally indicated a plea of guilty to the charge of causing serious injury recklessly in July 2015 prior to your matter being uplifted into the indictable stream. The prosecution have settled with you on the basis of the offer made by you in July 2015. Accordingly, your plea must be regarded as one made at the earliest opportunity. Further, it may be that should the prosecution have accepted your offer, that it may have been dealt within the Magistrates' Court however this is a matter of speculation.
26The offence of causing serious injury recklessly is a serious one punishable by 15 years' imprisonment. Exacting revenge upon your victim by a wanton act of violence in a public place makes your offence a serious example of the crime of causing serious injury recklessly. You are an appropriate vehicle for the application of the principles of general and specific deterrence.
27You pleaded guilty at the earliest opportunity and are entitled to the benefits that flow to you from that plea being that it is some evidence of your remorse as is the contents of the note read by you prior to sentence and that it has utilitarian benefit. In accordance with Dr Sullivan's opinion in his report of 2009, I am of the opinion that absent stable accommodation and abstinence from drugs, your prospects of rehabilitation are bleak.
28Will you please stand?
29By this sentence, I must denounce your conduct. I must punish you and deter you and others from committing crimes of a same or similar kind. I must look to the protection of the community. I must look to your rehabilitation.
30Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedence, endeavouring to produce a sentence that reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you to four years' imprisonment and I direct that you serve two years and six months' imprisonment before you will become eligible for parole.
31I declare that you have spent 81 days by way of pre-sentence detention not including today.
32Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for you plea of guilty, I would have sentenced you to five years and six months' imprisonment with a non-parole period of three years and six months' imprisonment.
33Please be seated.
34Are there any other matters that need to be attended to?
35MS VINGERHOETS: No, Your Honour.
36MS WALKER: No, Your Honour.
37HIS HONOUR: Remove the prisoner please. I will stand down till the next matter is ready.
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