Director of Public Prosecutions v St Mart
[2024] VCC 1300
•22 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-01715
CR-22-01887
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA ST MART |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 August 2024 | |
DATE OF SENTENCE: | 22 August 2024 | |
CASE MAY BE CITED AS: | DPP v ST MART | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1300 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Cause serious injury intentionally, cause serious injury recklessly, cause injury recklessly, common law assault
Legislation Cited: Road Safety Act 1986 (Cth); Sentencing Act 1991 (Vic)
Cases Cited:Atem v The Queen [2020] VSCA 35; Worboyes v The Queen [2021] VSCA 169
Sentence: 9 years and 6 months’ imprisonment with a non-parole period of 7 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Duckett | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr J Portelli | James Dowsley & Associates |
HER HONOUR:
Introduction
1Mr St Mart, you have pleaded guilty to four summary charges and one summary charge across two different proceedings. I will deal first with the circumstances of the offence starting with the first one in time, which was on 20 February 2022, a charge of intentionally causing serious injury.
Circumstances of Offending
First Incident – 20 February 2022 - ICSI
2The summary I will give of the events this day is taken from CCTV and witness accounts. Mr Tuimaseve, the victim of the matter, refused to make a statement to the police, and indeed when he gave any information it appears to be a fictional account when you compare it to the CCTV.
3At the time of this offending you were staying with your then partner, Ms Sheridan Schnurfeil. She was staying in Cranbourne. You had been granted bail in the Magistrates’ Court on 18 February 2022.
4At around 12.45 pm 20 February, the victim, Jonathan Tuimaseve, and his associate, Paul Smith, arrived the house you were living at, in Jane Maree Place in Cranbourne. They arrived in a white MG ZS Wagon.
5Mr Tuimaseve and Mr Smith approached the front door of the house where you were staying. You came out of the house and confronted Mr Tuimaseve. You and Mr Tuimaseve walked into the driveway. Several of the people living in the house, including a young teenage boy, came outside also, and watched what ensued.
6The CCTV footage shows that you and the victim were engaged in, judging by the body language of both of you, a tense discussion, and that both of you were shaping up for a physical fight. Initially neither of you had presented your hands in a fighting position, and your hands were in the pockets of your tracksuit pants.
7You and the victim were standing quite close to each other, when you moved suddenly towards Mr Tuimaseve, raising both hands. In the footage it can be clearly seen that you were holding a knife in your left hand, and that you moved that hand and knife towards Mr Tumiaseve’s upper body in an aggressive motion. He raised his hands and swung at you several times, but then began to back away, presumably because he realised you had a knife. The time from you producing the knife to Mr Tuimaseve backing away was three seconds at most.
8
You both made your way into the street, where you continued to advance on
Mr Tuimaseve, holding the knife, and he continued to back away. Whilst it was suggested, on your behalf, that Mr Tuimaseve was being aggressive and shaping up at you at this point, but that is not my understanding of what the footage shows. Rather, he was backing away from you, as you pursued him down the street. I consider his motions to be defensive, in the face of you pursuing him with a knife and with an aggressive demeanour.
9With Mr Tuimaseve backing away, and you following, you both made your way up the street, towards Clairmont Avenue. At the corner of Jane Maree Place and Clairmont Avenue, the footage shows you still advancing on Mr Tuimaseve, who is still backing away. Whilst he lifts his arms and swings at you once or twice, this again appears to me to be a defensive move, in the face of you advancing aggressively with the knife. As the pair of you rounded the corner onto Clairmont Avenue, Mr Kendall ran down the street towards you, followed by Ms Schnurfeil, who was holding a hatchet.
10What happened next was out of view of the CCTV.
11On Clairmont Avenue, Mr Tuimaseve ended up on the ground. You and Kendall punched, stomped and kicked him whilst he was on the ground, half on the road and half on the nature strip.[1] A witness shouted, ‘what the fuck are you doing?’ This gave Mr Tuimaseve time to get to his feet and try to get away. He was unsteady on his feet. You and Mr Kendall followed Mr Tuimaseve down the road. You caught up to him and he fell or was dragged to the ground again where you and Mr Kendall punched him and kicked him in the head. Mr Tuimaseve was bleeding from his torso onto the driveway of 96 Clairmont Avenue.
[1]Deps 428-294
12Mr Tuimaseve was yelling, “I didn’t do anything, I didn’t touch her.”[2]
[2]Deps 15
13Another witness described two men punching Mr Tuimaseve[3] and another that you and Mr Kendall were pulling at his clothes.[4] A witness described Mr Kendall kicking Mr Tuimaseve until you dragged him away. [5]
[3]Deps 23
[4]Deps 28
[5]Deps 28-29
14Mr Smith, who was Mr Tuimaseve's associate, drove up to where you all were in the white MG ZS wagon. He got out and said, ‘that’s enough.’ Mr Tuimaseve got into the wagon, and Mr Smith drove him to Casey Hospital.
15In overview, it appears that you and Kendall attacked Mr Tuimaseve, he fell to the ground for some reason, where he was punched and kicked, he got up again and tried to leave, but you and Kendall attacked him again, and continued to do so until Mr Smith arrived.
16At Casey Hospital, Mr Tuimaseve gave an implausible account of how the stab wounds identified by doctors had been caused, claiming that he had tripped while running.
17Mr Tuimaseve was moved to the Alfred Hospital as a result of the seriousness of his injuries. At the Alfred Hospital he was treated for approximately six stab wounds, of differing gravity. These have been listed in the expert report as:
Soft tissue injuries
§a 2-4 cm open wound on the left upper back, appearing to penetrate to some extent, and a 2-3 cm stab wound over the left buttock laterally;
§another wound, 2.5 – 3 cm in the mid right back, which appeared deep, and a small wound in the area of the right buttock;
§a 5 cm jagged laceration through the muscle of the left biceps, a left thumb laceration severing the radial nerve, a broken bone in his little finger, as well as superficial abrasions to the left palm;
Chest Injuries
§a 3 cm stab wound to the posterior aspect of right chest close to midline around the 4th rib;
§a 4 cm stab wound to the posterior aspect of left chest over the scapula, a small stab wound over the middle of right iliac crest;
§a 4 cm laceration in the posterior-basal segment of the lower lobe of the right lung with minor bleeding;
§moderate amount of blood and clots in the right pleural cavity; and
§loss of a litre of blood and difficulties breathing amongst other injuries that were a result of blunt trauma.
18Some of the injuries which I have described first were described as soft tissue injuries, and some were chest injuries. It is not abundantly clear to me whether there is an overlap between them. The most serious injury appears to be the injury that caused damage to Mr Tuimaseve's lung.
19Mr Tuimaseve lost a considerable amount of blood, and had air and blood in the chest cavity due to the stab wound to the chest which penetrated the lower part of the lung. His right lung collapsed and needed to be re-inflated, and the blood drained from the chest cavity. He required an emergency right thoracotomy.
20Mr Tuimaseve was released on 28 February 2022, eight days later, against medical advice. After his discharge, Mr Tuimaseve developed septic arthritis, which became septicaemia, requiring a further six week period of antibiotic treatment administered into his blood through a drip. It is unclear whether this treatment was as in or out patient.
21Forensic physician, Dr Angela Williams, considered that the injuries were life threatening, and again that seems to relate to the injury to his lung.
22Mr Tuimaseve provided a victim impact statement. He says his physical injuries have healed, but he has been suffering trauma, anxiety, fear and depression as a result of the stabbing, and has been training a lot to help him keep his mind occupied. He still gets flashbacks of the events, and has noted some paranoia about others’ attitude towards him.
Second Incident – 4 March 2022
23On Friday 4 March 2022 Ms Schnurfeil was involved in a dispute with Melinda Naughton. Ms Schnurfeil and a man damaged Ms Naughton’s car. The next day Ms Naughton messaged Ms Schnurfeil inviting her to come to her home to sort things out.
24At around 6.40 pm on Saturday 5 March 2022 Ms Schnurfeil drove to Melinda Naughton’s home, with you, in a Holden Commodore. She called Ms Naughton and said she was out the front.
25
Ms Naughton and her father, Brian, came outside and stood in the driveway.
Ms Schnurfeil had a silver revolver type gun, which she pointed out the window of her car. She apparently pulled the trigger, with Ms Naughton hearing a click, but no bullet was fired. Brian Naughton threw a garden ornament at Ms Schnurfeil’s car and told another person to go into the house to get a baseball bat.
26You and Ms Schnurfeil got out of the Commodore. She had the gun in her hand, partially concealed by a towel. She pointed it at a Mr Bettess, who was visiting the Naughton home.
27You approached Brian Naughton and pushed him to the ground before kicking him once to the head area – that is the charge of common law assault. Melinda Naughton went to her father’s assistance, and Ms Schnurfeil hit her to the head with the butt of the gun, two or three times. She then fired the gun over their heads, with the bullet hitting a garage door. Again it is not clear whether any projectile was discharged from the gun.
28
Other people started to emerge from the neighbouring houses. You and
Ms Schnurfeil both got into the Commodore via the driver’s door, so that you were in the driver's seat. When you were both in the car Mr Brian Naughton hit the passenger side rear window and panel of the Commodore with the bat several times. You reversed a few metres onto the roadway. Mr Naughton walked back towards his front yard. You revved the engine and accelerated across the gutter and footpath, across the drive and onto the nature strip.
29
As you were driving forward, Mr Naughton realised you were driving in his direction, and began to run forwards. The front of the Commodore hit
Mr Naughton, from behind, throwing him up and onto the bonnet of the car. He hit the windscreen and then fell onto a letter box.
30
On reviewing the footage, it is apparent that all of this happened very quickly and in a heightened situation. You were driving fast, and it appears you were in the process of leaving when the driving injured Mr Naughton happened, but it was clearly unnecessary for you to drive as far forward as you did, thus striking
Mr Naughton. I consider that the footage shows you deliberately drove at
Mr Naughton, and whilst you did not intend to seriously injure him, by your plea you accept you knew serious injury would probably be caused.
31It was the impact of Mr Naughton falling off the vehicle and impacting with the letter box, that caused the injuries to him. Mr Naughton broke his right fibula and ankle, and fractured two toes in his left foot. As I have said your conduct in causing these injuries has been resolved to a charge of recklessly causing serious injury.
32Meanwhile Ms Naughton had reached into the car and tried to grab the gun from Ms Schnurfeil. Whilst her arm was in the car you reversed the car again, which caused Melinda Naughton to be dragged backwards. She suffered lacerations to her right forearm from the broken glass of the passenger window.
33Mr Naughton was taken to Dandenong Hospital for emergency treatment. He had a complex fracture of his right shinbone, and a complex fracture of his right ankle. He also suffered a broken toe. He underwent specialist orthopaedic surgery, under general anaesthetic. He was advised to not weight bear on his broken leg for six weeks, and to wear a CAM boot for a further six to 12 weeks. Whilst no victim impact statement was provided, I was told that he continues to suffer with reduced mobility, and due to his medical issues was unable to complete a victim impact statement.
34Your counsel sought to characterise Mr Naughton’s injuries as towards the lower end of the scale of serious injuries. I do not agree. Bearing in mind that the extent and consequences of injuries are but one aspect of the assessment of the gravity of such an offence such as recklessly causing serious injury, I consider that the injuries were at the middle of the range of serious injury.
35Ms Naughton suffered abrasions and small lacerations to her forearm and bruises on her right knee and shin. One of the lacerations on her forearm required seven stitches, and another had two stitches.
36Melinda Naughton provided a victim impact statement. She reports that she has ongoing pain in her arm, and headaches. She is having counselling to address flashbacks, and other psychological effects of these events. She feels paranoid, about Ms Schnurfeil, and unsafe at home. She does not express similar fears about you. I note that the headaches appear to be as a result of the injury caused by Ms Schnurfeil, not you.
37At the time of this incident your licence was suspended and so you have also pleaded guilty to a charge of driving whilst suspended.[6]
[6]Road Safety Act 1986 s18
Arrest and Interviews
38You were arrested on 6 March 2022.
39When interviewed about the first incident you said that whilst you had recently been in custody, and at that time Ms Schnurfeil was being stood over. On the 20th the people who had been causing her trouble turned up, and called you outside, where a fight followed. You maintained in the interview that it was Mr Tuimaseve who started the physical altercation, and that you were acting in self-defence. You felt angry that the victim, who was much taller than you, felt he could stand over your partner, and also seek to intimidate you. You denied having a knife with you, or stabbing Mr Tuimaseve. When you were shown a still from the CCTV of you with the knife you said you did not remember but probably had it because you were scared of Mr Tuimaseve, due to his size, and that you were also enraged.
40You felt very aggrieved that Mr Tuimaseve had put you in the situation by standing over Ms Schnurfeil and initiating this confrontation. You said, “just had enough, mate, I can't fuckin' take this shit. Don't like no cunts standing over me or me missus.”[7]
[7]Deps 658, A 195
41You were not interviewed in respect to the second incident.
Personal Circumstances
42You were 38 years old at the time of offending and are 41 years old now. You are the second of four children. You have a close relationship with both your parents and older sister. You have a civil relationship with one brother, but sadly one of your other brothers died in 2009 due to a drug overdose. You continue to struggle with your grief about his death.
43You witnessed your father’s alcohol use and intoxication when you were young. and your parents verbally arguing while your father was intoxicated. Your parents separated when you were 11 years old. You did not experience any sexual or physical abuse as a child. Both of your parents found other partners. You left home at 15 years old owing to conflict with your stepfather, but you returned home a few years after this.
44You have described a brawl which broke out at your sister’s 18th birthday party. You were 14 at the time. The party was crashed by a large number of people, and in the ensuing fight members of your family were assaulted, stabbed and hit over the head. Apparently your father suffered head injuries requiring surgical repair and plates. You have described this as the worst thing you have witnessed, and you have associated flashbacks, nightmares and hypervigilance.
45You now have two children, now aged 21 and 17, with whom you do not have contact due to your past behaviour and substance abuse, but you report that you have written letters to your children.
46At the time of this offending you were involved in a relationship with Ms Schnurfeil, but you are apparently not sure of the status of that relationship or you were not when the submissions were put in for the sentence indication hearing. You reported that this relationship was marred with substance abuse, and this contributed to issues in the relationship.
47I was told that you were educated to Year 8 level. You have reported difficulty with learning and attention, but you have not been formally diagnosed with a learning or behavioural disorder. You did not have any problems forming or maintaining friendships in your schooling years.
48You have an intermittent work history. You worked at Woolworths from age 15, and have held jobs in cleaning, tiling, plastering, seasonal picking, and brick laying since then. Your work history has been interrupted by your drug addiction and periods of incarceration. You have currently been working whilst in custody as a recreation billet in tennis.
Drug and Alcohol Abuse
49You have a history of alcohol and/or other drug (AOD) use. You began drinking alcohol at age 14. You have had instances in your life when you believed you developed a dependency on alcohol, for example, around the time of your brother’s death.
50You also began smoking cannabis at age 14. You would consistently smoke more than 4 grams a day for a number of years. You reduced your cannabis use due to replacing it with other substances, although you still continue to use cannabis occasionally.
51You began using amphetamines at age 15, and by age 19 you had begun to use methylamphetamine on a daily basis. You would smoke between a half gram and 3 grams. You had some periods of not using methylamphetamine, however would return to use of that drug after periods of incarceration and spending time with antisocial peers.
52You first used GHB at age 25, consuming 20ml per day. At your worst stage you were consuming between 50 and 60 ml of GHB per day.
53You have used Alprazolam (Xanax) which you illicitly obtained, in combination with methylamphetamine and GHB. You say you used this combination of drugs to avoid feeling the pain of being separated from you children and your grief that you feel over the death of your brother.
54Whilst on remand you have completed over 60 hours[8] of AOD programs. Since your remand you have begun opioid replacement therapy (Buprenorphine), and you report positive effects from its use. I was provided with a summary report of drug testing you had undergone whilst in custody. In tests in February, August and September 2023 and May 2024 no positive results were returned save for medication.
[8] As at time of psych report
Mental Health
55You have reported that you were diagnosed with Bipolar Affective Disorder (BPAD) some years ago. You have experienced moods that shifted suddenly, however you have attributed this to the nature of substances that you were using. In the absence of substance use you have denied any ongoing symptoms of BPAD, leading the psychologist who assessed you for the plea, Ms Kocic, to conclude that, 'the symptoms were not the result of a mental health condition but were drug-induced.’[9]
[9]Kocic [39]
56You are unsure whether you have previously been diagnosed with Post Traumatic Stress Disorder (PTSD) in connection with the incident at your sister’s 18th birthday party.
57You report you have been prescribed alprazolam to manage anxiety. You have also illicitly used alprazolam in conjunction with other substances. You were prescribed Endep, an antidepressant, while at Port Phillip Prison. A doctor advised you that Endep and Buprenorphine do not combine well, so you stopped taking Endep.
58Ms Kocic tested you for mental disorders and impairments. She noted you do not currently meet the criteria for depression, anxiety, or any personality disorders. You do not currently meet the diagnostic requirements for PTSD, however there is a risk of future resurgence of PTSD symptoms that could lead to a diagnosis.
59Ms Kocic reports that your mental health appears to have improved or stabilised in the context of custody, where you have a routine.[10]
[10]Kokikc [45]
Sentencing Considerations
Plea of Guilty
60In respect to the first incident, you indicated your willingness to plead guilty at the sentencing indication hearing, on 27 March 2024, three weeks before the listed trial. The charges in respect to the second incident had resolved before then, and you were arraigned on that indictment on 1 March 2024. I accept that the pleas of guilty are valuable, in view of the reluctance of some of the witnesses to provide statements or evidence. Even if that were not the case, your pleas of guilty have removed the necessity of two trials, each of which would give rise to trouble and expense to the State, and the witnesses the stress of giving evidence.
61You told Ms Kocic you felt very bad about what happened, and were able to express some victim empathy. This was in respect to the Naughton incident. You described the second incident, the Naughton incident, as “one of the stupidest things I’ve done.”[11] At the time of the report you had not resolved the first incident, and so were silent about that. You have also provided a letter of apology to the victims of the Naughton incident, saying you deeply regret your behaviour. You described your actions as reckless and impulsive, in circumstances where you felt you had to protect yourself and your partner.
[11]Kocic [69]
62Your pleas of guilty give rise to real mitigation of your sentences.
Prospects of Rehabilitation
63The criminal history provided to the court commences in 2002, when you were 19. There are many sentences for dishonesty and the like offending. Of more relevance to the present matters are sentences in 2002 for recklessly causing serious injury and affray, intentionally causing injury and four charges of assault in 2007, and false imprisonment and kidnapping in 2016.
64Ms Kocic considered you have, “reasonable insight into [your] past offending behaviours.”[12] She said you expressed appropriate remorse, particularly in respect to Mr Naughton, and had a positive attitude towards seeking help to address your issues. She noted past counselling, in the context of a CCO, and with Dr Grech with whom you did some cognitive behaviour therapy in 2019. You were less positive about group based programs, in the custodial setting[13]
[12]Kocic [74]
[13]Kocic [55]
65As I have mentioned more recently you have completed a significant number of programs or courses, focussed on addiction and personal life skills whilst in custody. It is much to your credit that you have done these courses, and to be hoped that you can utilise the skills and things you have learnt about yourself on your eventual release.
66Drug use has been a factor in your live for many years. You are well aware of the difficulties you will face in keeping clear of drugs long term upon your eventual release. It is very much to your credit that you have done so much work whilst on remand, and you are clearly trying to make the most of your time in custody, working as a billet, and doing many courses.
67The fact that you cope well with custody suggests that you may well have better life skills for that environment than you do when free. Unless you can cement better coping mechanisms whist serving the sentences I will impose, and then put your progress into action on release, I expect you will be before the courts again. It is up to you.
68The offending for which I will sentence you today occurred within days and weeks of being bailed. At the time you blamed Mr Tuimaseve, and bewailed the loss of opportunity to take part in CISP bail. You need to face the reality that it is your decisions that bring you back to the court, and to develop these better life skills and then put them into action.
69In light of your history, specific deterrence is a significant factor in sentencing you.
Custody Conditions
70Another matter that was raised on your behalf in the plea was the fact that when you were remanded in custody, in March 2022, the pandemic was still having an impact on the conditions of custody, with quarantines and lockdowns when prisoners became ill. I was told that you were transferred to Margoneet in March 2023 and since then conditions have much improved for you.
Verdins
71Mr Portelli submitted that Ms Kocic’s report supported some mitigation of your sentence on the basis that your mental health would make your time in custody more onerous than for a person without those conditions. He pointed to her opinion:[14]
'imprisonment would likely weigh more heavily on Mr St Mart than a person without his conditions. His PTSD requires addressing; there is potential for significant mood fluctuation and the volatile nature of the prison environment may further exacerbate his symptom profile and risk of decompensation.'
[14]Kocic [116]
72In assessing that opinion, I note that Ms Kocic considered whilst you possibly have had PTSD in the past, at the time of her assessment, you did not meet the clinical criteria for that diagnosis.[15] The principal disorder or disorders she diagnosed were drug related. Thus, whilst at [95] and [116] she has said you do have PTSD, this is inconsistent with her earlier opinion. Furthermore, any symptoms that could give rise to that diagnosis were considerably abated whilst in custody, which seems to contradict the suggestion she made that they may worsen in custody.
[15]Kocic [91]-[93]
73I therefore do not mitigate your sentence on that basis of Verdins.
Other Sentencing purposes and considerations
74General deterrence is a powerful factor in the sentencing discretion, in your case. You brought a knife into the altercation with Mr Tuimaseve, and inflicted a life threatening injury. Such behaviour is to be strongly condemned. In the second incident, it is not suggested you encouraged Ms Schnurfeil to use a gun and you are not sentenced for her conduct. What you are sentenced for, in particular driving your car at Mr Naughton, was highly dangerous behaviour, done with the awareness that your conduct would probably result in serious injury, and done in the context of a dispute Ms Schnurfeil involved you in.
75Just punishment, and denunciation also carry considerable force, as does protection of the community.
Gravity of Offending
76Each incident was serious, and each involved you inflicting serious injury in the context of a dispute involving your then partner, Ms Schnurfeil.
77In the first incident, you were in company with Mr Kendall when committing the offence, and armed with a knife. Mr Tuimaseve was unarmed. Whilst Mr Tuimaseve came to the house where you were staying, it was you who followed him down the road, and then with Mr Kendall attacked him in Clairmont Avenue. The attack persisted even after Mr Tuimaseve fell to the ground, twice, and involved stabbing him, kicking him and punching him. His injuries required extensive treatment and were life threatening. Whilst he has recovered physically, he has ongoing psychological issues as a result of this event.
78
The second incident was again in company, this time with Ms Schnurfeil. She drove you both to Ms Naughton’s home, where Ms Schnurfeil attacked
Ms Naughton, in pursuit of her grievance with her. You backed her up, and attacked Mr Naughton, pushing him and kicking him. It is apparent from the footage that Mr Naughton was not a passive observer – he was angry and belligerent – but he was a much older man than you. Your conduct in then driving at him was disgraceful and very dangerous. Even accepting that you were affected by the adrenaline from the confrontation, when you drove at Mr Naughton, you and Ms Schnurfeil were the aggressors and the cause of the entire incident.
79As I have mentioned, when you were interviewed by the police in respect to the first incident, you justified your actions, in the police interview, as being a form of self-defence and by taking a victim stance in relation to the incident. In the second you and Ms Schnurfeil escalated a dispute to a very serious incident indeed in which you inflicted serious injury recklessly.
80In both incidents, as I understand it, you were drug affected. This does not reduce your culpability, although it may be part of the explanation for your extreme behaviour.
Parity
81In terms of parity, Mr Kendall pleaded guilty in the Magistrates' Court as I understand it to different offences to you, and Ms Schnurfeil pleaded guilty to different offences to you, in respect to the second incident. Given that neither of them pleaded guilty in the first incident to intentionally causing serious injury, and the second in respect to recklessly causing serious injury, I do not see that their sentences have any realistic relationship to yours.
Totality
82These two incidents occurred about 15 days apart. You had recently been released on bail, and have since been sentenced for the bail offences, to six months’ imprisonment.
83Because these offences were all committed whilst on bail, s16(1A)(e) of the Sentencing Act means that the usual presumption of concurrency does not apply.
84There will be sufficient cumulation between the incidents and charges to reflect that there were different victims and different acts causing the various injuries. I am mindful that the total sentence must be just and appropriate in all the circumstances.
Current Sentencing Practice
85I was referred to a range of cases, for offences of intentionally causing serious injury and one sentence for a charge of recklessly causing serious injury. I can see no real similarities between the sentence for a charge of recklessly causing serious injury and the offending before me.
86To assist with understating current sentencing practice for the charge of recklessly causing serious injury, I reviewed the case summaries on the Judicial College website, of Court of Appeal cases for that offence from 2020. Two cases in those summaries, Atem v The Queen [2020] VSCA 35 and Worboyes v The Queen [2021] VSCA 169 involved the driving of a car as the mechanism of causing the injuries. Both those cases have significant differences to yours. There have been a wide range of sentences imposed for the offence of recklessly causing serious injury.
Sentences
87On CR-22-01715, Indictment N10905438.1, the Naughton matter, the sentences are:
· Charge 1 – common law assault – six months' imprisonment;
· Charge 2 – recklessly causing serious injury – five years' imprisonment;
· Charge 3 – recklessly causing injury – 12 months' imprisonment;
· Summary charge – Drive Whilst suspended – one month imprisonment.
88One month of the sentence on Charge 1 and three months of the sentence on Charge 3 will be served cumulatively upon each other and the sentence on Charge 2. There will be no cumulation in respect to the summary offence.
89The total effective sentence on that Indictment is therefore five years and four months’ imprisonment.
90On CR-22-1887, Indictment N10446347.1, the charge of intentionally causing serious injury, you are sentenced to seven years and six months' imprisonment.
91Two years of sentence on Indictment CR-22-01715 in N10905438.1 is to be served cumulatively upon sentences imposed in CR-22-01887.
92This leads to a global total effective sentence therefore of nine years and six months' imprisonment.
93The non-parole period, which encompasses both indictments, is seven years.
94I declare that you have already served 720 days of pre-sentence detention, and I direct that that declaration be entered into the records of the court, and to be clear that 720 days applies to the total sentence.
95I will make the forfeiture and disposal orders in CR-22-01715 as sought.
96On Charge 2 on Indictment CR-22-01715, N10905438.1, which is a charge of recklessly causing serious injury, your licence is cancelled and you are disqualified from obtaining a further licence for two years from today.
97Finally, pursuant to S6AAA of the Sentencing Act, I state that if you had not pleaded guilty the global figure across both matters would have been 12 and a half years' imprisonment with a non-parole period of nine years.
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