Director of Public Prosecutions v Sweet

[2024] VCC 1210

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01160
CR-24-00646

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN SWEET

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JUDGE:	HIS HONOUR JUDGE GAMBLE
WHERE HELD:	Melbourne
DATE OF HEARING:	4 July 2024
DATE OF SENTENCE:	9 August 2024
CASE MAY BE CITED AS:	DPP v Sweet
MEDIUM NEUTRAL CITATION:	[2024] VCC 1210

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.

Catchwords:              Causing injury intentionally – Box-cutter used to slash face of police officer attempting to effect a lawful arrest while on duty – Category 1 offence subject to mandatory term of imprisonment of not less than 6 months – Prohibited person possess a firearm – Possess cartridge ammunition – Theft of two motor vehicles – Drive while disqualified – Possess cannabis.

Legislation Cited:      Crimes Act 1958, ss 18, 74; Drugs, Poisons and Controlled Substances Act 1981, s 73; Firearms Act 1996, ss 5, 124; Road Safety Act 1986, ss 28, 30; Sentencing Act 1991, ss 5(2G), 6AAA, 10A, 10AA(4), 18, 89.

Cases Cited:Gommers v The Queen [2021] VSCA 258; Shau v The Queen [2020] VSCA 252; Hope v The Queen [2018] VSCA 230; R v Schneidas (No 1) (1980) 4 A Crim R 95; Director of Public Prosecutions vArvanitidis (2008) 202 A Crim R 300; Berichon v The Queen (2013) 40 VR 490.

Sentence:                  Total effective sentence of five and a half years’ imprisonment with a non-parole period of three years and nine months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Z. Petric	Office of Public Prosecutions
For the Accused	Mr R. Barton	Sarah Pratt & Associates

HIS HONOUR:

Introduction

1Mr Sweet, you have pleaded guilty to two indictments which together contain two charges of theft[1] and single charges of causing injury intentionally,[2] prohibited person possess a firearm[3] and possession of a drug of dependence, namely cannabis.[4]

[1] Charges 1 and 2 on Indictment N12660223.2, laid pursuant to s 74 of the Crimes Act 1958 (Vic).

[2] Charge 3 on Indictment N12660223.2, pursuant to s 18 of the Crimes Act 1958 (Vic).

[3] Charge 1 on Indictment N12660223.A, pursuant to s 5 of the Firearms Act 1996 (Vic).

[4] Charge 2 on Indictment N12660223.A, pursuant to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

2The maximum penalty for each of theft and causing injury intentionally is 10 years’ imprisonment. For prohibited person possess a firearm, it is 10 years’ imprisonment or a fine of up to 1200 penalty units. And, for possession of a drug of dependence, it is the lower of the two available maximum penalties, namely a fine of up to five penalty units, since I am satisfied on balance that the cannabis was not possessed by you for any purpose related to trafficking.[5]

[5] See s 73(1)(a) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

3You have also consented to this court hearing and pleaded guilty to three related summary offences, namely one of possession of cartridge ammunition without a licence or permit[6] and two of driving while disqualified.[7]

[6] Summary Charge 9, pursuant to s 124(1) of the Firearms Act 1996 (Vic).

[7] Summary Charges 13 and 14, pursuant to s 30(1) of the Road Safety Act 1986 (Vic).

4The maximum penalty for possession of cartridge ammunition is a fine of up to 40 penalty units and for driving while disqualified, it is two years’ imprisonment or a fine of up to 240 penalty units.

Circumstances of the offending

5I note that you were 34 years of age at the time of offending and are now 36, having been born in March 1988.

6The circumstances of your offending are described in the typed Summary of Prosecution Opening for Plea,[8] which your counsel acknowledged could be treated as an agreed statement of facts for sentencing purposes. The basis on which you now fall to be sentenced was also discussed at the plea hearing and further plea.[9] I have had regard to that opening and to those discussions when determining the appropriate sentence in your case.

[8] Dated 28 June 2024 (Exhibit A).

[9] The plea hearing was held on 4 July 2024, while the further plea and sentence hearing was held today.

7For present purposes, your offending can be briefly summarised as follows.

30 November 2022

8At approximately 9:00 am on 30 November 2022, a woman named Michelle Woodhouse parked her Ford Territory vehicle at a BP Service Station in Melton. When she went inside the store to pay for the petrol, you approached and then entered her unlocked vehicle in which she had left her car keys and various personal items.[10] You then took opportunistic advantage of the situation and drove her vehicle away. Your conduct as just described was captured by CCTV cameras and forms the basis for the offence of theft alleged in Charge 1 on Indictment N12660223.2. As you later admitted to police, you sold the vehicle a very short time after having stolen it. The vehicle was not recovered and returned to its owner until some six months or so later.

[10] Namely, a handbag containing her driver’s licence, bank cards, iPhone, iPod and items of jewellery.

9At the time you drove that stolen Ford Territory away from the service station, you were undergoing a period of licence disqualification, and that fact forms the basis for Summary Charge 14, driving while disqualified.

9 December 2022

10Just after 9:00 am on 9 December 2022, an Uber Eats driver named Karampreet Singh Nijjar, used his Toyota Camry vehicle to make a delivery to a residential address in Kurunjang.

11After parking his vehicle, he left the driver’s door open and the keys in the ignition while he completed the delivery. At that point, a black sedan drove past and then parked in front of his vehicle. You got out of that other vehicle and got into the driver’s seat of the Toyota Camry. On seeing this, Mr Singh Nijjar tried to open the front passenger door of his vehicle only to find that it was locked. You then drove away in his vehicle. By that time, the black sedan was no longer at that location. Your conduct as just described forms the basis for the offence of theft alleged in Charge 2 on Indictment N12660223.2. Your act of driving this stolen Toyota Camry away from the scene while under a period of licence disqualification forms the factual basis for Summary Charge 13, driving while disqualified.

12Because Mr Singh Nijjar had left his Apple headphone inside his vehicle, police were able to track its location and that of the Toyota Camry. The police AirWing helicopter was dispatched to monitor the situation and to maintain an aerial picture.

13Ultimately, at approximately 12:50 pm on the same day, the headphone was tracked to a residential address in First Avenue, Melton South. The AirWing observed you and another male, Matthew Jaeger, exit the Toyota Camry vehicle, walk across the road and then stand near the footpath. At the same time, Senior Constable Jacob Kitching and a number of other police officers arrived at that location in an unmarked police vehicle.

14On becoming aware of the presence of the police helicopter and the plain clothed police officers, you and Mr Jaeger fled on foot towards a nearby parkland situated at Wattle Place. Senior Constable Kitching commenced to chase the two of you on foot while the other police officers returned to the unmarked police car and then drove towards the opposite end of Wattle Place.

15At a very early point in the pursuit, Senior Constable Kitching identified himself as a police officer by shouting “Police, stop running, Police!”. In response, you looked back at him but continued to run away. When Mr Jaeger then changed his course by running onto the road, Senior Constable Kitching decided to continue to pursue you as you kept running along the footpath.

16Very shortly afterwards, and when Senior Constable Kitching was approximately 10 metres behind you, he saw you reach behind your back with your left hand and pull out a black object from the waistband of your pants. He immediately recognised the object as a gun and so yelled “gun!” and unlocked the safety components of his firearm holster. He then saw you fumble and drop the firearm on the footpath. The foot chase then continued.

17As he closed in, Senior Constable Kitching again identified himself as a police officer but you just ignored him and kept running.

18Senior Constable Kitching ultimately caught up to you and grabbed your jumper. You then turned around to face him, clenched your fists and confronted him with a fighting stance. In response, he engaged a defensive manoeuvre, putting his leg behind yours and then punching you to the face, causing you to fall to your hands and knees. He then directed you to “get on your stomach and put your hands behind your back now”. In an attempt to get your hands behind your back, he placed his hand on your left shoulder. You refused to comply with his direction, choosing instead to get to your feet while holding a large box-cutter knife[11] in your right fist. You then swung your right fist in a slashing motion towards the left side of Senior Constable Kitching’s face. He immediately felt pain to the left side of his jaw and noticed that he was bleeding from his face. Despite sustaining a deep and gaping wound to his face, Senior Constable Kitching continued to try and subdue you. After deploying his capsicum spray and with the assistance of the other police officers, he was eventually able to apply handcuffs and place you under arrest.

[11] Photographs of the box-cutter knife were tendered on the plea as Exhibit C.

19The entire pursuit lasted approximately 30 seconds or even less.

20Mr Jaeger was arrested in the vicinity shortly afterwards without incident.

21A short time later, police located, photographed and then seized the firearm which you had dropped on the footpath early in the pursuit. It was found to be loaded. Later testing of that item revealed it to be an operational home-made firearm capable of discharging the single 0.22 calibre round that it contained.[12] Your possession of that firearm and of the cartridge ammunition found within forms the basis for the offences of prohibited person possess a firearm alleged in Charge 1 on Indictment N12660223.A and possession of cartridge ammunition without a licence or permit alleged in Summary Charge 9, respectively. You were a ‘prohibited person’ because you had served a term of imprisonment of five years or less within the previous five year period.[13]

[12] Photographs of the imitation firearm and the round of ammunition contained within the firearm were tendered on the plea as Exhibit B.

[13] See s 3 of the Firearms Act 1996 (Vic) for definition of ‘prohibited person’. On 25 August 2022, the accused was sentenced in the Sunshine Magistrates Court to a combination sentence with a custodial component of 11 months for offences that included thefts of motor vehicles, reckless conduct endanger serious injury, dangerous driving while pursued by police, unlicensed driving and possess cartridge ammunition without a licence or permit.

22During a search of the scene, police located and seized the following items in your possession:

·The box-cutter knife;

·The quantity of cannabis upon which the offence of possession of a drug of dependence alleged in Charge 2 on Indictment N12660223.A is based;

·A further round of 0.22 calibre ammunition;[14]

·Various sets of car keys, including a Toyota key and remote;

·A ‘vivo’ branded mobile phone;

·A silver tool;

·A school lanyard; and

·Various items of clothing.

[14] Photographs of the further round of ammunition were tendered on the plea as Exhibit G.

Injury to Senior Constable Kitching

23After being initially assisted by his fellow officers, Senior Constable Kitching was conveyed by ambulance to the Epworth Hospital.

24On presentation, he was found to have sustained a deep 10cm penetrating injury to his left check which was down to the bone and into the masseter (chewing) muscles, with muscle tissue exposed. The wound was still oozing blood profusely and a large collection of blood had formed under the skin and in the muscle (intramuscular and subcutaneous haematoma).[15] A small 1 millimetre metallic foreign object was found embedded in his lower jawbone which had sustained a fracture in the area adjacent to that metallic object.

[15] Photographs of the injury to Senior Constable Kitching’s face were taken at hospital prior to surgery and were tendered on the plea as Exhibit H.

25Despite emergency treatment, Senior Constable Kitching continued to experience ongoing bleeding and oozing. Specialist surgery was required to clean and repair the wound. That surgery revealed that he had sustained complete buccal nerve (buccal branch) damage, masseter muscle damage and damage to the parotid gland.

26He was discharged from hospital on the following day, 10 December 2022.

27In his report, the forensic medical expert, Dr Jason Schreiber,[16] indicates that were it not for that specialist surgery, Senior Constable Kitching would likely have experienced ongoing bleeding, impairment of chewing action, impaired sensation to the left cheek, disfigurement, ongoing problems with the left parotid gland and been at high risk of developing an infection.

[16] The report was prepared on 3 March 2023, with Dr Schreiber’s signature witnessed on 29 March 2023.

28Senior Constable Kitching later developed a sialocele (subcutaneous cavity filled with saliva) which required further management and treatment. In a further report,[17] Dr Schreiber explains that this complication arose from the injury to the parotid gland.

[17] The report was prepared on 10 October 2023, with Dr Schreiber’s signature witnessed on 24 October 2023.

29As a result of the injury caused by the box-cutter knife, Senior Constable Kitching now has a permanent scar on his jawline.

30It is the act of slashing Senior Constable Kitching’s face with that weapon and the resultant injury which provides a factual basis for the offence of causing injury intentionally alleged in Charge 3 on Indictment N12660223.2.

Victim impact

31In his victim impact statement made on 2 July 2024,[18] Senior Constable Kitching describes in brief but powerful terms the substantial impact that this offence has had and continues to have on his personal and professional life.

[18] Exhibit C.

32As he explains, it has negatively affected him on a physical, emotional and social level. He is now a changed person. He now becomes stressed and nervous in situations and environments in which he would previously have not felt that way. He is no longer able to implicitly trust the people with whom he comes into contact as a police officer as he is afraid of being injured again. In turn, this sense of wariness has fundamentally changed the manner in which he interacts with members of the public and offenders.

33He has also lost confidence in social settings due to the change in his appearance and loss of self-esteem. As a result, he has become withdrawn and socially isolated.

34The lengthy and clearly visible scar to his face is a daily reminder of the trauma he experienced. He is similarly affected when people stare at him or, as occurs frequently, when people ask him how he received the scar. He has an understandable concern that these issues will continue to plague him for the rest of his life.

35And, he still struggles to make sense of what you did and remains perplexed as to why someone would be prepared to injure him in that way over what was a relatively minor theft of motor vehicle offence.

36In her victim impact statement made on 1 July 2024, Ms Woodhouse explains that after the theft of her vehicle she experienced stress and anxiety for which she required medication. She is now hypervigilant when parking her vehicle and even while at home. The loss of her vehicle, which she was paying off, and its recovery in a damaged condition occasioned her financial hardship.

37Whilst Mr Singh Nijjar has not made a victim impact statement, I have no doubt that he too would have been negatively impacted. It was, after all, his work vehicle. At the very least, he would have been prevented from continuing to work as an Uber driver for the majority if not the entirety of the day on which it was stolen.

Interview

38Upon being arrested Mr Sweet, you were taken by ambulance to hospital for assessment. You were discharged the following day and then interviewed. In that interview, you told the police the following, inter alia:

·You took the Ford Territory vehicle from the service station and went across the road and sold it;

·You also took the Toyota Camry vehicle which had been left with the motor running and with the keys in the ignition;

·You drove the Toyota Camry to Werribee Plaza and then to a friend’s address in First Avenue;

·You noticed the police helicopter above and thought it was there in relation to the stolen Camry and that it might have been looking for you;

·You then noticed a silver car arrive with three or four occupants who you claimed to believe were ‘bikies’;

·You then got scared and ran;

·They were yelling at you and later hit you;

·You claimed to have only become aware that they were police officers after you were hit;

·You admitted to having possession of the box-cutter knife and acknowledged that the police officer sustained an injury but denied causing it, instead suggesting the officer may have sustained a cut accidentally by something on the ground or even by landing on the box-cutter; and

·While you denied ever being in possession of the handgun, you admitted to possessing the cannabis.

Pre-sentence detention

39After being interviewed, you were charged and then remanded in custody where you have remained ever since. The total period of pre-sentence detention for this matter is therefore 609 days, up to but not including today’s date. A declaration to that effect will be made shortly.

Resolution and guilty plea

40This matter resolved to a plea at a late stage after some pre-trial matters had been argued and ruled upon.

41Whilst the lateness of the plea needs to be factored in when assessing the extent of the sentencing discount to be afforded to the plea, it is also relevant to note that successful plea negotiations resulted after the prosecution agreed to no longer allege the two more serious charges of intentionally and recklessly causing serious injury.

42By entering the pleas that you have, Mr Sweet, you have saved the community from the cost and time of a trial and, importantly, spared the victims (particularly Senior Constable Kitching and Ms Woodhouse) from the ordeal of giving evidence.

43You are therefore still deserving of a discounted sentence on account of your pleas, and I will make clear the level of that discount later in these sentencing reasons.

Prior criminal history

44You have a very extensive and relevant prior criminal record, Mr Sweet.

45

In the nearly 17-year period between 30 November 2005 and 25 August 2022, you have appeared in court on 16 occasions and been sentenced for more than

200 offences. You have numerous previous convictions for criminal offences involving dishonesty, including for theft of motor vehicles. You also have multiple convictions for offences involving the illegal possession of weapons, including firearms.[19] You have a bad driving record and many convictions for driving while unlicensed or disqualified. Whilst your record for offences of violence is more dated and less extensive, it is still of some note. Thus, you have previously been sentenced for unlawful assault on two occasions in 2009 and for recklessly causing injury in 2008. You were also sentenced for an offence of threat to kill in 2022. And, you have prior convictions for driving in a dangerous manner and for engaging in reckless conduct that placed another person at risk of serious injury.

[19] Each of the three offences of armed robbery for which the accused was sentenced on 6 October 2017, involved the use of a firearm.

46You have been sentenced on numerous occasions to imprisonment.

47

You received your last term of imprisonment on 25 August 2022. That term of

11 months was imposed in combination with a 15 month community correction order. Due to time already served on remand, you were released from custody on 7 November 2022. Soon after being released, you began to use methylamphetamine and cannabis. Your current offences were committed within 3-4 weeks after that release and while subject to the community correction order which had commenced on the date of your release.[20]

[20] At the plea hearing, defence counsel indicated that Mr Sweet had not yet been charged with any contravention of this order.

48As your counsel explained at the plea hearing, that is not an isolated example or aberration on your part as your proven history demonstrates a pattern in which you are released from custody only to quickly relapse into drug use and then re-offend.

Personal circumstances

49I now turn to consider your personal circumstances, Mr Sweet.

50They were briefly described by your counsel at the plea and are also referred to in the report prepared by the neuropsychologist, Dr Loretta Evans.[21]

[21] Dated 24 June 2024 (Exhibit 1).

51You are the youngest child in your family and have an older brother.

52Your parents separated before you were born. A history of physical and emotional neglect and exposure to domestic violence is referred to in a 2015 report prepared by the Department of Human Services-Disability Client Services.[22]

[22] This report is referenced to by Dr Evans at [10] of her report (Exhibit 1).

53After spending the first few years living with your mother, you then went to live with your father who re-married in 2000 when you were about 12 years of age. The relationship with your stepmother was a difficult one as she favoured her biological children over you. This ultimately led to you leaving home when aged 21.

54You remain close to your brother and father who continue to support you. Indeed, you consider them to be your primary sources of support when you are in the community.

55You experienced a number of traumatic events while growing up, including the tragic deaths of a number of friends.

56You experienced bullying while at primary school. You were diagnosed with an intellectual disability at age 16. You found the demands of schooling challenging on account of your learning difficulties and when you left High School part way through Year 10, you were still experiencing difficulty reading.

57You had worked as a paper boy as a child. On leaving school, you have worked for brief periods in a number of fields, including bricklaying, plastering and at an auto wreckers yard. You have a keen interest in cars and enjoy working on them.

58According to what you told Dr Evans, you have not worked for a long time and have relied on the Disability Support Pension as your only legitimate source of income. You told Dr Evans that a friend may be able to assist you with employment on your release from custody.[23]

[23] See at page 10.2 of her report (Exhibit 1).

59Whilst you have lived with your father and his family intermittently when in the community, the situation is problematic on account of the strained relationship you have with your stepmother. You have the opportunity to live at your father’s home on your eventual release from custody.

60You are single and have no children.

61You appear to struggle with the daily demands of living in the community. In this context, you told Dr Evans that you find it “really hard” and feel “lost”.

62Apart from your interest in cars, you also enjoy painting and ‘rapping’.

63You have not abused alcohol but have used illicit drugs from a young age. This has no doubt been a contributing factor in some, if not the majority of your past offending. You instructed your counsel that you were affected by methylamphetamine and cannabis at the time of your current offending

64In 2004, you were assessed and found to be functioning within the mild to borderline range of intellectual disability. As a result, from that time you were deemed eligible for disability supports under the Disability Act 2006.

65You have a history of non-compliance with previous Justice Plans prepared in 2005, 2007 and 2015 in which you have trouble engaging.[24]

[24] I also note that the community correction order imposed as part of the combination sentence Mr Sweet received on 25 August 2022 also included a Justice Plan.

66You were referred to Dr Evans for neuropsychological assessment regarding your current level of cognitive functioning and the relevance (if any) to your offending. To that end, she assessed you on 19 June this year and concluded that your neuropsychological and psychological profile was most consistent with a disorder along the Autism Spectrum. You display poor social functioning and limited adaptability and present as anxious, stressed, depressed and with an underlying mood disorder.  

67As to any link between your condition and your offending, Dr Evans notes that your ability to inhibit impulsive or irrational responses, think clearly, make calm choices, or modify your behaviour, particularly under circumstances of acute or perceived threat and heightened stress, is likely to be extremely limited, and further compounded by acute substance intoxication.

68The symptoms that you have experienced since your unfortunate experience while detained in a Youth Justice Centre are considered to be highly consistent with a diagnosis of Complex PTSD which Dr Evans considers is likely to be exacerbated by your ongoing exposure to sexual offenders within your immediate custodial environment.

69In Dr Evans’ view, you have a history of poor anger management. Although you have some awareness about your offending, you have a limited capacity to appreciate the impact of your behaviour on others or the contribution of substance use and mental health and your aggressive actions.

70As Dr Evans also notes, you have failed to thrive in the community due to your inability for self-directed, goal orientated actions. You are socially awkward and appear reliant on others for guidance. For example, you believe your rehabilitative prospects are contingent on the input of others as opposed to self-initiated.

71As to the impact of incarceration on you, Dr Evans notes that you consider there are some positive aspects to being in gaol, such as “getting away from crime’” and “doing courses” as well as some negative aspects such as being isolated from family members. When questioned further about your experience of prison, you replied that ‘it’s shit’ and has involved you being assaulted, intimidated and bullied in the past.

72

In this context, I also note and accept what you have told your counsel and

Dr Evans about the benefits of the structured and repetitive routine of the prison environment and the opportunity to develop vocational skills and hobbies. But I also note and accept that your neuropsychological and psychological profile together with your understandable concern about being sexually abused while in gaol make your experience of custody more onerous.[25]

[25] Mr Sweet provided a history of having been previously sexually abused by a male staff member while in a Youth Justice Centre.

73In terms of any recommendations, Dr Evans considers that a referral for psychiatric evaluation is warranted with a view to having further clarity as to diagnosis and assistance with pharmacological management of your underlying mood symptoms. Understandably, she considers that addressing your drug use would be an important element to your rehabilitation. Further, an occupational therapy assessment to determine your actual level of functionality could provide strategies to assist with your transition to community living. Developing an ongoing therapeutic relationship with a GP would be of benefit also.

74Dr Evans is pessimistic about your rehabilitative prospects unless and until the following things occur:

·You are provided with significant supports and access to appropriate services tailored to your level of comprehension;

·You remain abstinent from drugs;

·Your mental health is stabilised, and

·You can demonstrate successful completion of targeted programs together with sustained and observable change.

Matters in mitigation

75I consider that you are able to rely on the following matters in mitigation, Mr Sweet.

76You were prepared to admit to some of your current offending when interviewed by police.

77You have pleaded guilty to the offences for which you now fall to be sentenced.

78You have been working as a cleaning billet while on remand.

79You have the continuing support of your family.

80There is a legitimate evidentiary basis for engaging Limb 5 of Verdins case. You have already found and will continue to find the experience of incarceration a more onerous one than many other inmates on account of your neuropsychological and psychological profile, including the Complex PTSD condition you have developed in the aftermath of your unfortunate experience while being detained in a Youth Justice Centre.

81Although not specifically relied on by your counsel at the plea hearing, I have concluded that there is also a basis for engaging other limbs of Verdins case in light of the opinions that Dr Evans expressed when considering the question of any connection between your condition and this offending. In such circumstances, I am prepared to ameliorate the weight to be given to denunciation and deterrence (both general and specific) and to assess your level of moral culpability as somewhat reduced. The extent of any such amelioration and reduction must, however, be quite modest, as you were on your own admission, substance affected at the time of your offending. Those drugs would no doubt have disinhibited you to some degree and also negatively impacted on your ability to make calm and rational choices. So, the situation is a nuanced one and not susceptible to any unpacking or unscrambling so as to assess with any precision, the exact extent to which your condition contributed to your offending.

Gravity of the offending

82Another matter to which this court must have regard, and an important one, is the gravity of your offending. In light of the relatively high maximum penalty of 10 years attaching to some of these offences, they must be considered as intrinsically serious in nature.

Causing injury intentionally

83The inherent seriousness of the offence of causing injury intentionally is further evidenced by the combined effect of ss 5(2G) and 10AA(4) of the Sentencing Act 1991 (‘the Act’). Where, as here, an offender falls to be sentenced for a Category 1 offence of causing injury intentionally to a police officer on duty,[26] the court is mandated to impose a term of immediate imprisonment of not less than six months. Whilst this mandatory sentencing regime is subject to an exception if the court finds under s 10A that 'a special reason exists', it has not been suggested by either party in this case that such a reason exists and I can see no basis for coming to any contrary view.

[26] A Category 1 offence is defined in s 3 of the Act and includes, inter alia, an offence against s 18 of the Crimes Act 1958 (causing injury intentionally or recklessly).

84This minimum term of imprisonment was introduced in this State in 2014 in order to “recognise the very special role played by Victoria's emergency workers, and the need to ensure that they receive the full protection of the law when treating, caring for and protecting Victorians at times of emergency”.[27]

[27] Victoria, Parliamentary Debates, Legislative Assembly, 26 June 2014, 2397 (Robert Clarke MP, Attorney-General).

85In the relevant Second Reading Speech, the Attorney-General said:

The longer sentences reflect the opprobrium that the community attaches to acts of violence against emergency workers who put themselves on the line in emergency situations on behalf of the community. It sends a clear message to perpetrators of these acts that violence against emergency workers will not be tolerated and will be met with strong penalties.[28]

[28] Ibid.

86In assessing the seriousness of any offence of causing injury, whether it be intentionally or recklessly, the court must consider the type, severity and extent of the injury caused. As was noted in Shau v The Queen (‘Shau’),[29] “the physical and mental consequences of the offender's conduct on the victim will generally assume significance in any assessment of the gravity of the offending”.[30] Although that case involved a charge of recklessly causing injury, I can see no logical basis for any different approach when dealing with an offence of causing injury intentionally.

[29] [2020] VSCA 252.

[30] Ibid, [42] (Niall JA) .

87The physical consequences that your offending has caused to the victim Senior Constable Kitching were significant. Unsurprisingly, the psychological impact of this offence on him has been substantial and ongoing.

88It is, however, also important to remember that any assessment of the seriousness of an offence of causing injury, whether intentionally or recklessly, is not to be gauged only by reference to the injury itself. The circumstances and method or manner by which it was inflicted is another important consideration. The correctness of this approach has been made clear in a number of recent Court of Appeal cases, including Phillips,[31] Milson,[32] Shau and Gommers.[33]

[31] Phillips v The Queen [2017] VSCA 313, [54] (Osborn and Priest JJA).

[32] DPP v Milson [2019] VSCA 55, [62] (Priest and Weinberg JJA).

[33] Gommers v The Queen [2021] VSCA 258, [44] (Priest and Kaye JJA).

89In this instance, you chose to have recourse to a very sharp bladed weapon and to swing it in a forceful slashing motion at the victim’s face.

90As nasty as the resulting injury was, it was a matter of sheer good fortune that the victim was not even more seriously injured given the proximity of the injury site to the victim’s eye and the major blood vessels in his neck.

91The fact that this offence was committed against a police officer who was performing his duty in an entirely appropriate manner is an aggravating feature of this offending.[34] In this context I note what the Court of Appeal said in Director of Public Prosecutions v Arvanitidis (‘Arvanitidis’)[35] and later in Hope v The Queen.[36]

[34] See for example, R v Schneidas (No 1) (1980) 4 A Crim R 95, 100; Hope v The Queen [2018] VSCA 230, [73]-[74] (The Court, comprising Priest, Beach and Kaye JJA).

[35] (2008) 202 A Crim R 300, 314 [50].

[36] [2018] VSCA 230, [73]-[74].

92A further aggravating factor of this offence, and for all of your other offences, is the fact that it was committed whilst on a community correction order.

93In all of the circumstances, I consider this to be a serious example of the offence of causing injury intentionally for which you bear a high level of moral culpability even after making a due allowance in accordance with Verdins case.

Prohibited person possess firearm

94The offence of prohibited person possess firearm is itself a serious offence.

95It was, after all, a loaded operational firearm.

96As was submitted by the prosecution and properly conceded by your counsel, it was possessed by you for what must have been an unlawful purpose. Accordingly, what the Court of Appeal said in Berichon[37] in relation to the second and more serious category of this type of offence has obvious relevance to your case. Whilst this court cannot conclude with any specificity what that criminal purpose was, it can at least infer that it was, at the very least, for the purpose of providing you with a measure of security while you were engaged in some form of criminal activity.

[37] Berichon v The Queen (2013) 40 VR 490.

97As I made clear on the plea, your attempt to gain control of this firearm while being pursued by Senior Constable Kitching, was an obvious preparatory step to then using it to try and prevent that police officer from arresting you. In that context, I note that by ‘using’ I mean brandishing as opposed to firing the firearm.

Theft of motor vehicles

98The theft of motor vehicle offences were committed opportunistically but negatively impacted the owners of those vehicles, particularly Ms Woodhouse.

99I consider those offences to be neither a serious nor a minor example of that type of intrinsically serious offence.

Other offences

100I do not propose to descend into any detail in regards to the remaining offences, which are of lesser importance in the overall scheme of things.

101The applicable maximum penalties and surrounding circumstances in which they were committed, speak for themselves.

Sentencing principles

102In a case such as this, denunciation and deterrence remain important sentencing considerations notwithstanding the need to ameliorate, to some extent, the weight to be accorded to such principles

103To adopt the observations made in Arvanitidis, it is a serious offence to assault police officers performing their duty and ordinarily requires a significant element of deterrence in the sentence to be imposed.[38] The purpose of sentencing offenders is to deter others and thereby protect police officers.[39]

[38] Arvanitidis, at [50] (Redlich JA).

[39] Ibid, [4] (Buchanan JA).

104Specific deterrence is likewise relevant. That is so not just because of the serious and disturbing nature of this offending, but also because of your extensive and very relevant criminal history, Mr Sweet. The sentence in this case must play a meaningful role in discouraging you from re-offending in this or any similar fashion. Furthermore, numerous past sentences of imprisonment have failed to deter you from re-offending. And, your current offending appears to represent an escalation in the seriousness of the offences you are prepared to commit.

105You must be justly and fairly punished for this criminal conduct. In my view, the nature and seriousness of this offending warrants a punishment of some significance.

106Protection of the community from you is another relevant factor in this case.

107Totality considerations arise in the context of this case given the close temporal connection of the offences, many of which were committed on the same day. However, the fact that there were different victims and the discrete and different nature of some of the offending needs to be reflected in the overall punishment imposed. 

108Your prospects of rehabilitation must be taken into account and are an important sentencing consideration. As I have already noted, you have a troubling and significant criminal history for someone of your age. You have not taken full advantage of more lenient court sentences in the past and gaol does not seem to have deterred you to date. You are now very close to being if not already institutionalised. That history does not bode well for the future. However, I allow for the fact that your prospects would be enhanced in the event that you receive the types of assistance and support recommended by Dr Evans. On the available material, I have concluded that your prospects of rehabilitation are modest at best.

109However, it is important that this court do its best to try and encourage and facilitate what limited prospects you do have. In this case, that can only realistically be done by fixing a non-parole period that will afford you the opportunity to be considered for a period of supervised parole release into the community. Whether, and if so at what stage you are released on parole will ultimately be a matter for the Adult Parole Board.

Sentencing submissions

110In his sentencing submissions, your counsel acknowledged that the only appropriate sentence was one involving a head sentence with a non-parole period. But, he urged the court not to impose a crushing sentence and to impose a longer than usual non-parole period.

111For their part, the prosecution agreed with the appropriateness of such a disposition and, in that context, highlighted the serious nature of some of this offending and the consequent need to emphasise such sentencing considerations as deterrence and punishment.

Analysis

112

In my view, given the nature, extent and gravity of this offending, the only appropriate sentence in this case is one involving a head sentence with a

non-parole period.

Sentence

113After considering, balancing and weighing all relevant matters, I have decided to sentence you as follows, Mr Sweet.

114In relation to the charges contained in both indictments, you will be convicted and sentenced as follows.

Indictment N12660223.2

115On Charge 1, theft, to 12 months’ imprisonment.

116On Charge 2, theft, to 12 months’ imprisonment.

117On Charge 3, causing injury intentionally, to four years’ imprisonment.

Indictment N12660223.A

118On Charge 1, prohibited person possess a firearm, to two and a half years’ imprisonment.

119On Charge 2, possession of a drug of dependence (cannabis), you will be convicted and discharged.

Related summary offences

120In relation to the related summary charges you will be convicted and sentenced as follows.

121On Summary Charge 9, possession of cartridge ammunition without a licence or permit, you will be convicted and fined $250.

122On Summary Charge 13, driving while disqualified, to three months’ imprisonment.

123On Summary Charge 14, driving while disqualified, to three months’ imprisonment.

Global total effective sentence and non-parole period

124The sentence of four years imposed on Charge 3 on Indictment N12660223.2, causing injury intentionally, will be the base sentence.

125The following periods are to be served cumulatively on that base sentence and on each other: three months for each of the two theft charges and 12 months on the offence of prohibited person possess firearm. That represents a total period of cumulation of 18 months.

126The global total effective sentence is therefore five and a half years’ imprisonment.

127In respect of that head sentence, I fix a global non-parole period of three years and nine months.

Pre-sentence detention

128Pursuant to s 18 of the Act, I declare that you have served a total of 609 days' pre-sentence detention, not including today's date, in respect of this sentence. I order that such period is to be reckoned as already served under this sentence, and I further order that the declaration and its details be entered in the records of this court.

Section 6AAA indication

129Pursuant to s 6AAA of the Act, I indicate that but for your plea of guilty to the offences for which you have received terms of imprisonment today, you would have been sentenced to a global total effective sentence of 7 years' imprisonment with a global non-parole period of 5 and a half years.

Ancillary orders

130Pursuant to s 89(4) of the Act, this court must make an order in relation to your licence on Charges 1 and 2 (theft) on Indictment N12660223.2, although the period is discretionary. Accordingly, for each of those charges I order that any driving licences or permits held by you are cancelled and you are disqualified from obtaining any further licences or permits for a period of 12 months.

131With regards to the two related summary offences of driving while disqualified, I consider it appropriate to exercise my discretion under s 28 of the Road Safety Act1986 in favour of making an order against your licence. For each of those charges, I order that any driving licences or permits held by you are cancelled and you are disqualified from obtaining any further licences or permits for a period of three months.

132In respect of all periods of disqualification, I order that such periods commence on the date of your release from custody for this matter, whether on parole or at the expiration of your sentence.

133Those periods of disqualification are therefore to run concurrently from that date.

134I grant the forfeiture and disposal orders in the terms sought by the prosecution, pursuant to s 51 of the Firearms Act 1996 and s 78(1) of the Confiscation Act 1997, respectively. In exercising that discretion, I have had regard to the fact that your counsel did not oppose the making of such orders.

Other matters

135Are there any matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons, starting with you, Mr Barton?

136MR BARTON: No, no.  No exceptions.

137HIS HONOUR: Mr Petric?

138MR PETRIC: Nothing for the prosecution, thank you.

139HIS HONOUR: Mr Barton, as I foreshadowed you will be permitted to have a brief conversation with your client utilising the current video link, once I leave the Bench.

140MR BARTON: Thank you.

141HIS HONOUR: Very well. Adjourn the court, thank you Mr Tipstaff.

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