Director of Public Prosecutions v Spokes

[2017] VCC 50

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 16-00766

DIRECTOR OF PUBLIC PROSECUTIONS

v

GRAHAM JAMES SPOKES

---

JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	6 February 2017
CASE MAY BE CITED AS:	DPP v Spokes
MEDIUM NEUTRAL CITATION:	[2017] VCC 50

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Taylor
For the Accused	Ms S. Poulter

Pages 1 - 8

 

 

HIS HONOUR: 

1Graham James Spokes, you can stay seated for the time being.  You pleaded guilty to an indictment charging you with intentionally causing serious injury in circumstances of gross violence.  The offence took place on 24 July 2015,. The aggravating feature pleaded in the particulars to support the allegation of circumstances of gross violence was that you can continued to cause injury to your victim, Thomas Pawley, after Thomas Pawley was incapacitated. 

2You have also admitted a number of court appearances and prior convictions going back to 3 March 2005.  The offending on that occasion included an offence of recklessly causing serious injury and assault by kicking. The various offences that have occurred since have resulted in terms of imprisonment.  I understand that you had already been incarcerated from a younger age and that you spent a significant part of your late teens and adult life in one institution or another.

3Your last offending was before the courts in 2006, 2007 and the combined effect of those sentences resulted in you being incarcerated until 2014. 

4The prosecution tendered and relied upon a summary of prosecution opening which sets out the circumstances of the offending. Those circumstances as described are not challenged.  I incorporate that document into these reasons for sentence in its entirety.  I do not propose to read it again, but it is clear that your attack upon Mr Pawley was substantially unprovoked.  The only provocation was in your own head and could not possibly justify or explain on any rational basis the kind of attack that you perpetrated upon him.  Having rendered him unconscious and incapacitated, you continued to kick and stomp on his hand and cause very serious injury indeed. 

5The prosecution also provided me with a more up-to-date although unsigned report from the Alfred Hospital which provides further information about the injuries suffered by Mr Pawley, your victim.  The prosecution provided me also with victim impact statements from Thomas Pawley, from his mother Glenda Pawley and his father John Pawley. John Pawley gave evidence in this court and read the victim impact statement in this court on the last occasion. 

6Those victim impact statements speak volumes about the effects, both physical and emotional, that resulted from your attack upon Mr Pawley.  You have as you now appreciate substantially altered the course of Thomas Pawley's life.  You have in many respects ruined his life by your attack.  He will never recover physically from the injuries that he suffered and will never be able to lead a normal life and the psychological injuries too, he will never recover from.

7The knock-on effect as far as his family is concerned was very clearly set out in the victim impact statements and eloquently spoken to by his father on the last occasion.  I suspect that you appreciate and understand now the effects of your conduct upon those victims. 

8The prosecution also relied on some photographs which do not take the matter a great deal further, but they show the superficial effects, at any rate, of your attack upon your victim. 

9It is hard to assess the seriousness of this offence other than by saying that this was a cowardly attack and a brutal attack and one which has to attract a significant term of imprisonment.  It was unprovoked and you followed through in a way which was calculated to and did cause really quite horrific injuries.  All over, in a very short period of time, but you have left somebody who is suffering for the rest of their lives. 

10Turning to matters personal to you, I was provided with a helpful written outline of submissions by your counsel and by a letter from your sister, Margaret Hood, who is unfortunately not able to be present in court. 

11I was provided with a report from Dr Karen Scally, forensic clinical neuropsychologist. That material led me to conclude that some further investigation was indicated as to your mental state in a general sense and also as that might have impacted on your offending conduct. 

12The attack was of a kind which suggested to me that there needed to be some further investigation of possible impact to mental illness upon your offending., and it was for all those reasons that I have sought and have obtained a Forensicare report which is dated 6 February of this year. I incorporate all of that material submitted on your behalf and that report into these reasons for sentence. 

13I am not going to go through that material in detail, but it supports the general conclusions that I have reached about you as an individual.  You cannot help when reading those reports to get a feeling that you have not had much of a chance in life.  You had the most difficult start to life that can be imagined. 

14You were abused sexually and physically.  You had no stability and not surprisingly, you became involved in substance abuse from a very early age and at an age when you could not possibly exercise proper judgment and control; and that substance abuse has blighted your life because it is difficult to see how you could have coped with any kind of regular employment or leading a normal stable life with those kind of addictions and abuses. 

15Consequently, you got involved in the criminal justice system at a young age and have been in and out of custody ever since.  You were substantially institutionalised. You have had only relatively brief periods in the community during which were able to begin to live a more normal life in the community and to develop good habits.

16Not surprisingly, even though you have tried, I think, and tried genuinely to overcome the difficulties of your background and your substance abuse, when you encounter a setback or when you find a barrier in your way when things go wrong, not surprisingly, you resort to what you know best which is the comfort - or relative comfort of substance abuse to blot out the hurt.

17Surprisingly perhaps, with that kind of background, you have stumbled across a very good woman who has impressed me and I think impressed everybody.  You heard her speak on the last occasion.  You formed a relationship with her and have a child to whom you should hold yourself out as a father figure. 

18Unfortunately, your efforts to integrate yourself into that more normal lifestyle encountered difficulties because the Department of Human Services refused to allow you to live with your new family because of concerns about sexual offending and you were therefore deprived of the opportunity of integrating into that family unit. 

19I find it impossible to assess the degree to which one factor dominated or caused or contributed to your actions thereafter but I am quite sure that they played a part in your ice habit and other substance abuse habits increasing in severity in the period leading up to this offending conduct.  And I have no doubt at all that ice and other substances probably were a significant contributing factor to your offending. 

20You have been around long enough in the substance abuse community to know the effects.  It is not mitigation, but it is contextual and the actions that you displayed on the occasion of this offending were no doubt fuelled by substance abuse.  As I say, that is not a mitigating factor but it is, to some extent explanatory of what would otherwise seem to be totally inexplicable conduct on your part. 

21It may well be that you were hurting badly as a result of being deprived of the opportunity of living with your family.  But again, that is ultimately no excuse.  I am not suggesting you have put that forward as an excuse, but it is not.  It has to be said.

22You chose to come to a Koori Court and you spoke on two occasions during the conversation - one on the previous occasion and again today. You found it a little awkward on the first occasion and much of what you wanted to say I think was said by your partner. 

23Today, you were more confident and certainly more articulate.  You spoke well.  And I think it was a useful exercise and to the extent that it is useful for me to say it here and now, this is an example of where Koori Court works; and where a conversation of the kind that we had today and on the previous occasion does have the capacity to inform a judge about a person and better inform them about background but also as to their prospects of rehabilitation. 

24That is important because as I indicated during the plea hearing today that there are aspects of the Forensicare report which would suggest particularly as to personality disorder that protection of the public would be an important sentencing consideration.  And it is, but that has to be balanced against your prospects of rehabilitation. 

25It is very hard to predict how things are going to go for you in the future.  For somebody who has come from your background as set out in the various documents to which I referred today and which I incorporate into these reasons for sentence without going into the detail of them.  Coming from your background, it is very difficult to assess how you are going to cope in the future once you are released into the community. 

26Again, it is very difficult for you to assess because you have become very substantially institutionalised, I have no doubt.  You are used to a prison environment and it will be hard for you dealing with the ups and downs of life in the community once you ultimately get out.  But I was extraordinarily impressed by you today and I believe you presently to be genuine about your wish to put all this behind you and lead a decent and honest life. 

27I see a strength in you which may get you through.  You have got an enormous amount of support and it will give you a good deal of assistance during the troubled times when you do get out because it will start getting hard once you get out into the community again and when things go wrong will the temptations to go back to your old lifestyle. 

28Unfortunately of course, you have been in custody now on remand for 556 days and that in many respects is wasted time because you have not been able to do the rehabilitation programs that you would no doubt like to have been involved in.  And now, from today, you will at least be eligible for programs that were not available to you. 

29What I have in mind - I have to sentence you to a suitable sentence which takes into account the need to punish you, the need to denounce your offending conduct, to deter you from offending again and also most particularly to deter other people who might be inclined to behave as you did.  But I do balance that and I have to against the need to promote your rehabilitation to the extent that I can. 

30I regard you as presently motivated to rehabilitate yourself.  I will be giving you a discount for the fact that you suffer from post-traumatic stress disorder, that you have had a very difficult start to your life and that your addictions and tendency towards substance abuse have been ingrained from a very early age when you did not have the opportunity of exercising proper restraint and judgment.  All of that, I take into account in your favour.

31I have to sentence you appropriately for what was a very serious offence indeed, aggravated by the fact that your victim was incapacitated at the time that you stomped on his head, in particular, and caused the very serious injuries that he has suffered. 

32But what I propose to do is to make a non-parole period which gives you incentive to work hard on your rehabilitation whilst you are serving your sentence of imprisonment, and you will have to work had if you are to get parole and for your record and for offending of this kind, it will be up to you to impress the parole board that you are a good risk to release on parole. 

33Much of that will be in your hands and if you persist with what seems to be your present motivation, I think you have a very good chance.  I have to be guarded about it because it has not really been put to the test over a substantial period of time and has not been put to the test with a period in the community where you can show real track record.  But I think you do have a real chance, as I say, so I am going to take that into account in setting a non-parole period. 

34Balancing all of those factors as best I can, I am now ready to impose sentence upon you.  Would you please stand?

35Graham James Spokes, for the offence of intentionally causing serious injury, I convict you and sentence you to imprisonment for a period of seven years.  I order that you serve a period of four years and six months before you become eligible for parole. 

36But for your plea of guilty, I would have sentenced you to imprisonment for a period of nine years, with a non-parole period of six years and six months.  I declare 556 days of pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and deducted administratively from that sentence. 

37I might say that in view of the non-parole period that I have imposed, it has been unnecessary for me to consider or discuss at any length or at all the submissions in relation to the resistance or otherwise of a special reason not to impose a term of imprisonment involving a non-parole period of four years that is enshrined in the legislation.  And for that reason, I have not referred to that in my sentencing remarks.  Are there any other orders I need to make?

38COUNSEL:  No.

39HIS HONOUR:  No?  All right.  Yes, thank you.  Yes, I will stand down and do the other matter now.

‑ ‑ ‑