Director of Public Prosecutions v Sportan
[2024] VCC 1156
•26 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00484
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JONATHON SPORTAN |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 July 2024 | |
DATE OF SENTENCE: | 26 July 2024 | |
CASE MAY BE CITED AS: | DPP v SPORTAN | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1156 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentencing – Plea of Guilty – Offender Serving a Sentence for Murder – Causing Injury Intentionally – Victim a Prison Officer – Offender serving murder sentence - Mid-Range Offending – Prior Convictions – Moral Culpability-modest – Verdins – Bugmy – Specific and General Deterrence – Rehabilitation-guarded – Violent Offending – Immediate Imprisonment – Principle of Totality – Cumulation – Prison Offence – Exceptional Circumstances.
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic.); Corrections Act 1986 (Vic.); and Corrections Regulations 2019 (Vic).
Cases Cited:Gommers [2021] VSCA 258; Hope v The Queen [2018] VSCA 230; R v Sporton [2016] VSC 290; Bugmy (2013) 249 CLR 571; DPP v Herrmann [2021] VSCA 160; Byast v R [2021] VSCA 344; O’Donohue v The Queen [2013] VSCA 196; Wright v The Queen [2015] VSCA 333; Williams v R [2018] VSCA 171; Yatv The King [2024] VSCA 93; DPP v Akol [2024] VCC 25; DPP v Baea [2023] VCC 2235; De Castres v The Queen [2011] VSCA 377; [1] R v Mangelen (2009) 23 VR 697; Berry v The Queen [2019] VSCA 291; DPP v Baea [2023] VCC 2235; DPP v Bolalailai [2023] VCC 2443; Roach v The Queen [2020] VSCA 205; McL (2000) 203 CLR 453; Mill v The Queen (1988) 166 CLR; R v Verdins [2007] VSCA 102; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41..
Sentence: 20 months imprisonment with a non parole period of 13 months - s 6AAA declaration - 2 years and 3 months with a non-parole period of 1 year and 8 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Casey | Office of Public Prosecutions |
| For the Accused | Mr C. Tom | Victoria Legal Aid |
HIS HONOUR:
1Jonathon Sportan, you have pleaded guilty to one charge of causing injury intentionally contrary to s 18 of the Crimes Act 1958 (Vic). The offence carries a maximum penalty of 10 years’ imprisonment.
2You committed the offence while imprisoned in Port Phillip Prison where you were serving a sentence for murder.
3You are to be sentenced on the basis of the Summary of Prosecution Opening for Plea dated 15 July 2024, which I note is an agreed document.[1]
[1] Exhibit P3.
The Offending
4On 18 January 2023 at approximately 11:20 am at the Sirius West Unit of Port Phillip Prison, you were standing on the upper level of the shared common area for prisoners. Corrections Officer Craig Koot was conducting a routine walk around the upper level and walked past you.
5With no warning or provocation, you turned towards Mr Koot and began punching him.
6The entire episode was clearly captured on CCTV footage which was played in court.[2] The footage shows that over the course of the attack, you threw at least 30 punches at Mr Koot.
[2] Exhibit P1.
7The first punch was a heavy blow with your right fist hitting the left side of Mr Koot’s face. A barrage of punches followed. Mr Koot tried to protect himself with his hands and arms, whilst retreating back along the floor. You followed him, continuing to punch his head. He was forced to his knees and into the foetal position, whilst you continued to punch his head and face.
8During the assault, Mr Koot shouted at you to stop. He also tried to use his radio to raise a duress alarm but was unable to do so due to the ferocity of the attack.
9The assault lasted for 26 seconds before correctional officers ascended the stairs and intervened by pulling you off Mr Koot and restraining you.
10Body Worn Camera footage captures you stating in the immediate aftermath:
a) “He’s been antagonising me”;
b) “What else was I supposed to do”;
c) “Got a rock in my dacks”;
d) “I didn’t use it I just used my hands”;
e) “Yeh, I got a rock in my pants”; and
f) “I was paranoid I was going to get jumped”.
11You were searched by officers and a rock was located inside your pants. There is no suggestion that you either used or intended to use the rock in your assault of Mr Koot. You were then transported to Barwon Prison and declined to be interviewed.
Victim Impact
12Mr Koot was immediately assessed by medical staff at Port Phillip Prison. He was bleeding and the right side of his face was significantly swollen. He was then transported to the Royal Melbourne Hospital for assessment of his injuries. He sustained the following injuries to his head and face:
a) Bilateral mildly displaced nasal bone fracture;
b) Extensive right-sided facial swelling/haematoma;
c) Mild left facial soft tissue swelling; and
d) Large left frontal scalp haematoma.
13Mr Koot prepared three victim impact statements dated 16 February 2023, 2 July 2024 and 15 July 2024 respectively.
14The statement dated 15 July 2024 was read to the court and it was explained by the prosecutor that it is intended to replace the earlier two by summarising their contents. The court accepted the tender of all three statements together with a single page report from the RMH dated 18 January 2023.[3]
[3] Exhibit P2.
15Mr Koot refers in detail in his Victim Impact Statement to the traumatic impact your offending has had on his life and that of his family. He has attended over 100 appointments with doctors and allied health professionals and continues to suffer from pain. The pain continues to limit his day to day activities.
16Although he loved his role as a prison officer, Mr Koot decided to resign due to his fear of a repeat of this incident. He is seeking alternative employment ‘that is less stressful on [his] family’.
17I have taken into account the impact of your offending on Mr Koot.[4]
[4] Sentencing Act 1991 s 5(2)(daa) and (db).
Objective gravity
18The maximum penalty of 10 years’ imprisonment indicates the seriousness of the offence of intentionally causing injury.
19While the injury caused will play an important role in a court’s assessment of the objective seriousness, as the Court of Appeal has explained ‘… the seriousness of the offence of intentionally causing injury is not only to be gauged by the injuries caused, but by the manner of their infliction’.[5]
[5] Gommers [2021] VSCA 258 at [44].
20The offence covers a wide range of circumstances and a wide range of injuries. The injury may be caused by a person using their fists or a weapon. The offending may occur in company or by a loan assailant.
21The injuries inflicted may range from a bruise through to a wound caused by a knife or the discharge of a firearm.
22In addition, it is well established that it is an aggravating circumstance to intentionally injure a law enforcement or corrections officer while the officer is performing his or her duty.[6]
[6] Hope v The Queen [2018] VSCA 230, [73].
23What is clear from the CCTV footage is that your attack on Mr Koot was entirely unprovoked and very violent. You were waiting for him and as he walked along the tier on the ‘B’ side of the unit and you punched him with considerable force to the side of his head. You then proceeded to rain blows on Mr Koot’s head and only stopped when you were forcibly removed by other correctional staff.
24The injuries you caused are outlined in the medical report and the victim impact statements of Mr Koot.
25Those injuries were significant and Mr Koot continues to suffer from them 18 months later.
26I assess the objective gravity of your offending as mid-range.
Personal circumstances[7]
[7] This part of the court’s reasons draws on material before the court and the sentencing decision of Beale J in R v Sporton [2016] VSC 290.
27You were born in 1993. You suffered profound disadvantage and trauma as a child. Your parents separated when your mother was still pregnant with you and you had very little contact with your father. Your mother re-partnered when you were two years old and had two other children.
28Your stepfather was physically abusive to both you and your mother. His relationship with your mother ended when you were six.
29Your mother struggled with mental illness throughout her adult life, having been diagnosed with bipolar disorder, schizophrenia and schizoaffective disorder.
30Child Protection was involved as a result, with you being placed in foster care regularly and with your maternal grandparents. You were close with your grandfather while growing up but he passed away from cancer when you were 13 years old. You were regularly in contact with your mother until she passed away in 2022.
31You attended University High but left part way through year 9. Upon leaving school you worked at a fast-food outlet briefly and as a builder’s labourer. You completed the first year of a carpentry apprenticeship.
32You began to drink alcohol at the age of 12, binge drinking up to three times a week between the ages of 14 and 17.
33You began to use cannabis at the age of 13, which quickly progressed to daily use. You then began to use methamphetamine at the age of 17 and started to regularly binge.
34You commenced a relationship with a woman called Ms Leveni when you were 18 and she was 22. In May 2015, when you were 22, Ms Leveni gave birth to your daughter Grace. While in prison, and to the extent that the conditions of your incarceration allow, you see Grace who is now 9 years old. This is facilitated by your sisters. Your relationship with Ms Leveni is over.
Mental Health
35Your defence counsel has provided a number of documents to the court which evidence your long term diagnosis of schizophrenia.[8]
[8] Exhibit D1 – D8.
36Due to behavioural issues, you were referred to the Royal Children’s Hospital at the age of nine. At the age of 12 you were seen by the Adolescent Psychiatric Unit at Travencore.
37You had further contact with health practitioners whilst in youth detention.
38Later on the day of this offending, you were transferred to Barwon unit where it became apparent that you had ceased taking your regular Olanzapine a week earlier.[9]
[9] Forensicare Report dated 6 March 2023, exhibit D1.
39You were assessed by consultant psychiatrist Dr Trainor on 25 January 2023 who reports vague comments by you hinting at persecutory and paranoid thoughts. Dr Trainor concluded that you may be psychotic.
40At a further consultation with Dr Trainor on 1 February 2023, he concluded that you were in a psychotic relapse.
41You were referred to the Aire Patient Unit on 17 February 2023 for further management. You were refusing your medications and exhibiting unusual behaviour and comments. The Unit assessed that you were having a possible relapse of Schizophrenia.[10] You struggled to engage with the treating team and were admitted to Thomas Embling Hospital on 8 March 2023 for more assertive treatment and were later discharged on 29 March 2023.
[10] Exhibit D1.
42During August 2023, you again began to refuse your medications or to engage with the mental health clinicians. The prison authorities determined that you were again at risk and referred you to Thomas Embling Hospital on 11 August 2023 for assertive treatment from which you were discharged on 6 September 2023.
43You are currently being treated by the psychiatric team at MRC. You are presently prescribed Olanzapine and Paliperidone, which you receive orally.
Antecedents
44Your prior convictions are numerous and relevant. They date back to 2007 when you first appeared in the Childrens’ Court as a 14 year old. After reviewing your criminal history when sentencing you for murder in 2016,[11] Beale J considered that it was clear ‘from your priors that your tendency to act violently is longstanding’.[12]
[11] [2016] VSC 290, [40]-[48].
[12] Ibid, [49].
45To the priors considered by the Supreme Court must now be added your conviction for murder in 2016. The circumstances are most disturbing. You fatally stabbed Roger Bertocci, a man you did not know, in November 2014. Mr Bertocci had stopped his car to inquire if your girlfriend Ms Leveni was alright. He was unarmed. While he was retreating after you spoke aggressively to him, you pursued him and stabbed him several times with a knife causing fatal injuries. You then stole his wallet from his car.
46You were sentenced to 21 years’ imprisonment with a non-parole period of 17 years. It was while serving that sentence that you offended against Mr Koot.
47There is also a subsequent matter involving an assault of a prison officer at Barwon prison on 30 January 2023, less than a fortnight after this offending. You have pleaded guilty to assaulting a prison officer and the matter is listed for a plea hearing in the Melbourne Magistrates’ Court on 30 July 2024. This is relevant to your prospects of rehabilitation which I will discuss later in these reasons.
Moral culpability, Verdins and Bugmy
48I accept that your severe childhood deprivation enlivens the general principle explained by the High Court in Bugmy.[13] The circumstance that you were raised in a highly dysfunctional setting mitigates your sentence because your moral culpability is less than that of an offender whose formative years were not marred in that way.[14]
[13] (2013) 249 CLR 571.
[14] DPP v Herrmann [2021] VSCA 160, [42]-[46].
49Your counsel also submits that limbs 1, 3 and 4 of the case of Verdins[15] are enlivened so as to reduce your moral culpability for your offending and reduce the role of both specific and general deterrence as sentencing purposes.
[15] R v Verdins [2007] VSCA 102.
50The application of Verdins to your case raises complex questions due to your ceasing taking your medication. The law about this is clear and was recently summarised by the Court of Appeal:
… the Verdins principles rest on the notion that an impairment of mental functioning may so distort a person’s decision-making, or affect their ability to exercise appropriate self-control, that the resulting criminal conduct is — to that extent — to be regarded as involuntary. Where that is established, the sentencing court may view the offender’s moral culpability and the need for specific (and general) deterrence as reduced.
The position is different, however, if the person has received effective treatment for the relevant condition but chooses to desist from that treatment and/or to take illicit substances, resulting in the reactivation of the condition. In those circumstances, the resulting criminal conduct may be regarded as the result of the person’s voluntary choices, and not as the involuntary consequence of the condition.[16][16] Byast v R [2021] VSCA 344, [5]-[6] (Maxwell P and Emerton JA) (‘Byast’).
51While it is not necessary for a court to find a causal connection between the mental illness and the offending before limb 1 of Verdins will be enlivened, there does need to be a nexus in the sense explained in the case of O’Donohue v The Queen.[17]
[17] [2013] VSCA 196, [25]; Wright v The Queen [2015] VSCA 333, [42]-[43]
52The evidence before this court is that your schizophrenia had been well managed while you were taking Olanzapine. According to the Forensicare report, ‘with medication compliance, [you had] improved and … came out of long term management and … stayed in open unit with nil signs of psychosis’. This related to the period after 23 April 2021.[18]
[18] Exhibit D1, p 4.
53The reason why you ceased taking your anti-psychotic medication in January 2023 is unclear. However, it appears that, to the extent that your conduct on 18 January 2023 is explained by a relapse of schizophrenia, it was primarily due to you having ceased taking the medication.
54As the Court of Appeal has explained, generally speaking, an offender’s culpability is unlikely to be reduced by a state of mind resulting from his abstention from medication.[19] Such a situation is ‘dramatically different’ to a circumstance in which the onset or relapse is beyond the offender’s control.[20]
[19] Williams v R [2018] VSCA 171, [41].
[20] Byast (n 16) [41].
55I therefore conclude that any reduction in your moral culpability for this offending can only be modest having regard to the above as you are to a significant extent responsible for the violence inflicted on Mr Koot.[21] Your high moral culpability remains a significant factor in the sentencing analysis as do specific and general deterrence.
[21] Ibid, [42].
Other matters of mitigation
56Your plea of guilty was early and represents your acceptance of responsibility for your offending. Your victim is spared the ordeal of giving evidence and this utilitarian benefit is not reduced because the prosecution case is strong.
57Your counsel sensibly placed no reliance on remorse.
58Your counsel submitted that your prospects of rehabilitation are ‘guarded’.[22] He accepted, correctly in my view, that your prospects are tied to the management of your mental illness.
[22] Outline of Submissions on behalf of Jonathon Sportan dated 11 July 2024, [48].
59I would assess your prospects as poor in light of your criminal history, substance abuse, your poor mental health and lack of community supports.
Prison conditions
60You have experienced onerous conditions in custody since your offending other than brief periods in Thomas Embling. You are held in a management unit with 23-hour lockdowns. While this is due to your violent history, it is nonetheless oppressive and is unlikely to change anytime soon. Such prison conditions are appropriately characterised as a form of extra-curial punishment.[23]
[23] Yatv The King [2024] VSCA 93, [85].
61This is a matter a sentencing court may take into account even where the onerous conditions are justified by the prisoner’s own behaviour although the issue is not without controversy. It has recently been characterised by the Court of Appeal as ‘vexed’.[24]
[24] Ibid, [67], [84].
62I have given some limited weight to this consideration in the sentencing synthesis to moderate the sentence. The court was referred by your counsel to the case of Yat[25] but your case does not share the unusual and ‘extreme’ features that were there present leading the Court of Appeal to conclude that considerable weight should be given to this consideration in that case.[26]
[25] Ibid.
[26] Ibid, [87]-[90]
Current sentencing practices
63The court was referred to two decisions of this court in which offenders who were prisoners pleaded guilty to intentionally causing injury to prison officers.[27] I have considered these and within the constraints explained by the High Court in Dalgliesh[28] have been assisted by them. Of course, each case must be considered having regard to its own facts and circumstances.
[27] DPP v Akol [2024] VCC 25; DPP v Baea [2023] VCC 2235.
[28] Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41.
Sentencing Principles
64General deterrence plays a very important role in sentencing in a case such as yours. As Harper JA observed in the case of De Castres v The Queen:[29]
Prison authorities will be assisted if it is known that the courts will in general regard deterrence as having a significance inside prison greater than that which it enjoys outside: the word will get around, inside prison, in ways which cannot be replicated in the general community.
[29] [2011] VSCA 377, [10]. See also Yat v The King [2024] VSCA 93, [54].
65In addition, your history of violent offending means that considerable weight must be given to deterring you from resorting to violence. Protection of the community and especially prison officers is also important.
66The understandable public concern about violent offending directed at corrections officers is reflected in:
(a) the designation of intentionally causing injury to a custodial officer on duty as a category one offence;[30]
(b) the requirement that, unless a ‘special reason’ exists, a court must impose a term of immediate imprisonment of not less than six months in such a case;[31] and
(c) the requirement on a court to order than any sentence it imposes for a ‘prison offence’ must be served cumulatively on any uncompleted sentence being served by the offender in the absence of ‘exceptional circumstances’.[32]
[30] Sentencing Act 1991, s 5(2G)
[31] Sentencing Act 1991, s 10AA(4).
[32] Sentencing Act 1991, s 16(3).
67The application of these statutory edicts to your case raises some complex questions.
Cumulation and totality
68You are pleading guilty to one charge. Ordinarily, no question of concurrency or cumulation would arise in such a case.
69However, because you are serving a sentence for murder imposed by the Supreme Court in 2016, the principle of totality must be applied as between that existing sentence and the one the court is now imposing. In such a situation, a sentencing court is required to consider ‘the total criminality involved in … the offence for which the offender is to be sentenced and the offences for which the offender is currently serving a sentence’.[33] The purpose of that consideration is to ensure that the total effective sentence imposed is proportionate to the offending as a whole and is not crushing.
[33] R v Mangelen (2009) 23 VR 697, [28]; Berry v The Queen [2019] VSCA 291, [32].
70Section 16(1A) of the Sentencing Act 1991 provides that the presumption of concurrency in s 16(1) does not apply ‘to a term of imprisonment imposed on a prisoner in respect of a prison offence’.
71Section 16(3) takes this further by requiring such a sentence to be served cumulatively on any uncompleted sentence unless ‘exceptional circumstances’ exist.
A ‘Prison Offence’?
72Is the offence of intentionally causing injury when committed by a prisoner contrary to s 18 of the Crimes Act 1958 a ‘prison offence’ as defined?
73Section 3 of the Sentencing Act 1991 provides that ‘prison offence’ ‘has the same meaning as in Part 7 of the Corrections Act 1986’.
74Part 7 of that Act is concerned with prison discipline.
75Section 48 of the Corrections Act 1986 in turn defines ‘prison offence’ for the purposes of Part 7 of that Act as "a contravention of this Act or the regulations”.
76Regulation 65 of the Corrections Regulations 2019 creates a series of ‘prison offences’ which may be committed by prisoners. The first of these is assaulting or threatening any person.[34] Thus, an offence of assaulting a custodial officer on duty contrary to s 31(1)(b) of the Crimes Act 1958 would appear to be a ‘prison offence’.
[34] Reg 65(1)(a).
77However, an offence against s 18 of the Crimes Act 1958 is not, strictly speaking, an offence against either the Corrections Act 1986 or the Corrections Regulations 2019.
78Although there is no binding authority on the question, I consider it to be significant that the offence of intentionally causing injury must encompass the elements of an assault. In light of the clear intent of parliament to constrain the court’s sentencing discretion in cases of violence perpetrated by prisoners against prison officers, it would be a curious result if the offence of intentionally causing injury is not caught by the term ‘prison offence’ but the less serious offence of assault is.
79I therefore conclude that the offence before the court is a ‘prison offence’ and s 16(3) of the Sentencing Act 1991 is applicable.
80I am comforted by the knowledge that the conclusion that I have reached on this issue is consistent with the approach taken by a number of judges of this court.[35] Further, in an appeal from the decision in one of those cases - DPP v Yat (which involved a charge of recklessly causing injury against s 18 of the Crimes Act 1958), the Court of Appeal assumed the application of s 16(3) of the Sentencing Act 1991.[36]
[35] See, eg, DPP v Baea [2023] VCC 2235; DPP v Bolalailai [2023] VCC 2443; DPP v Yat [2023] VCC 1638.
[36] Yat v The King [2024] VSCA 93, [93]. The Court of Appeal expressed a similar view (albeit by way of obiter dicta) in Roach v The Queen [2020] VSCA 205, [67].
Exceptional Circumstances
81It follows that I must order that the sentence I impose today should be served cumulatively on your current sentence unless there are ‘exceptional circumstances’.
82Your counsel relied on the following matters in combination to establish that ‘exceptional circumstances’ exist in your case:
(a) Your mental illness;
(b) Your deprived upbringing;
(c) The delay in commencing the proceeding; and
(d) Your early guilty plea.
83I have discussed each of these matters except delay earlier in these reasons and will not repeat what I have said.
84The delay between the offending and the filing of the charge was 7 months. This is not a lengthy period. I note that you were receiving treatment for severe mental illness during this time including under two Secure Treatment Orders.
85While I accept that it is possible to satisfy the s 16(3) test by relying on a combination of factors, even considered together, the factors identified by your counsel are not ‘exceptional’ in my view.
Conclusion about cumulation
86As I have rejected your counsel’s argument that there are exceptional circumstances in your case which would displace the operation of s 16(3), subject to the application of the principle of totality, I am required to order that the sentence I impose is to be served wholly cumulatively on your existing sentence.
87The principle of totality has not been excluded from a case such as yours by parliament.[37] Importantly however, the principle must be applied in a manner that does not undermine the legislative policy underlying s 16(3).[38]
[37] Freiberg, A, Fox & Freiberg’s Sentencing (3rd ed), p 782.
[38] See the observations of the High Court in the case of McL (2000) 203 CLR 453 at [76] (McHugh, Gummow and Hayne JJ) concerning a similar provision.
88In a practical sense, both the prosecutor and your counsel agreed that totality can only be achieved by moderating the sentence I impose appropriately. As the High Court explained in the case of Mill v The Queen,[39] (albeit in different circumstances) this may result in a head sentence that does not appropriately reflect the gravity of the offending. While this is unfortunate, it is to be preferred to the injustice of imposing a longer head sentence and thereby imposing a total effective sentence that is disproportionate to the offending as a whole.
[39] (1988) 166 CLR at [8].
89I have given effect to totality by imposing a slightly lower head sentence and non parole period than I otherwise would have done had you not already been serving a lengthy sentence.
Consideration and orders
90Taking into account all of the relevant considerations and giving full weight to the matters of mitigation, on the charge of intentionally causing injury you are convicted and sentenced to 20 months’ imprisonment.
91I set a non-parole period of 13 months.
92The sentence is to be served wholly cumulatively on the sentence of 21 years with a non-parole period of 17 years imposed by Beale J on 27 May 2016.[40]
[40] [2016] VSC 290.
93The new global total effective sentence is therefore 22 years and 10 months.
94Pursuant to s 14 of the Sentencing Act 1991, I fix a new non-parole period of 18 years and 1 month.
95Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that but for the plea of guilty, I would have sentenced you to imprisonment for 2 years and 3 months with a non-parole period of 1 year and 8 months.
96I make the disposal order sought by the prosecution noting that it is unopposed.
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