Director of Public Prosecutions v Timoteo
[2014] VCC 1934
•21 November 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-01813
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Timoteo TIMOTEO |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 November 2014 | |
DATE OF SENTENCE: | 21 November 2014 | |
CASE MAY BE CITED AS: | DPP v Timoteo | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1934 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms K. Churchill | Office of Public Prosecution |
| For the Accused | Ms E. Turnbull | Emma Turnbull |
HER HONOUR:
1 Timoteo Timoteo, you have pleaded guilty to one charge of intentionally causing serious injury in circumstances of gross violence. The maximum penalty applicable to this offence is 20 years imprisonment.
2 This crime arises out of events which took place between yourself and the victim of your offending Mohammed Yakubu on 24 April 2014.
3 It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case in my opinion are most serious and disturbing. Further, I note you have a prior criminal record for offences of violence.
4 I turn to a brief summary of this offending.
5 You were 19 years of age at the time of the commission of this offence and are 20 at sentence. There were nine co-offenders in this offending and each have had their charges dealt with in the Children’s Court jurisdiction. You are the only offender over the age of 18 and in the County Court.
6 The victim of your offending, Mr Yakubu, was 23 years at the time, and had previously had an altercation, it seems, with one of your co-accused, Joshua Cumine, in November 2013. Mr Yakubu believed that after that altercation, it was all over between he and Cumine.
7 On this day, 24 April 2014, Yakubu was at a Chinese restaurant in Sunshine with friends having lunch. They were later joined by a friend, Paul Sesay, who told Yakubu and his friends that he had just been chased by Cumine and a number of Islanders, some of whom had knives.
8 Mr Yakubu and his friends went to the railway station to see if they could find Cumine to tell them to leave them alone. They walked through the railway station to the corner of Dickson and Clarke Streets where you were standing with your group of friends including Cumine.
9 Prior to the initial confrontation between yourself and Yakubu, you could be seen in the bus stop passing a knife to co-accused One One. You were also in possession of a knife prior to this assault and the prosecution submitted you could be seen clearly on CCTV footage brandishing the weapon and tapping it against your leg.
10 Mr Yakubu and his friends approached your group. Your group encircled Yakubu and his friends, gesturing for a fight. Your group then ran towards the victim and his friends, forcing them to retreat into the bus stop at the railway station.
11 Mr Yakubu and his friends retreated further, running into the bus terminal. Mr Yakubu’s friends managed to get away. Your group focussed your attention on Yakubu and he identified Nathan Timoteo, your brother, as having a screw driver. He did not see anyone else with a weapon.
12 Cumine and others were yelling “Get him, get him, get him” and began chasing the victim through the bus station, eventually backing him up against a wall. You pushed Yakubu to the ground and then all ten of your group directly assaulted Yakubu whilst he lay on the ground.
13 Mr Yakubu was punched and kicked repeatedly by you and your co-offenders. He was also stabbed numerous times to various parts of his body. He identified, as I said, Nathan Timoteo as the only person stabbing him during the assault but the others were kicking and punching him.
14 One of Yakubu’s friends returned to assist him by getting the group to stop the assault. Mr Yakubu got up and attempted to run away but before he got very far he collapsed near the steps of the station, losing his breath, unable to keep his eyes open. Sirens of emergency vehicles could be heard and Yakubu recalled police telling him the ambulance had arrived. He next remembered waking up in hospital.
15 As a result of the assault upon him, Yakubu sustained a number of stab wounds to his body as outlined in paragraph 12(i-viii) of the prosecution opening (Exhibit A).
16 Mr Yakubu underwent several radiological investigations. He had sustained a small right-side pneumothorax requiring a tube to be put into his chest to drain, three right lung lacerations, each associated with minor bleeding, a small right pneumothorax, which consistently follows a lung laceration, and a small amount of other injury. Mr Yakubu also underwent an exploratory laparotomy, the result showed his bowels were undamaged but the membrane lining the cavity of his abdomen and covering the abdominal organs had been breached.
17 Dr Sangeev Gaya noted the medical notes did not contain information regarding the presence or absence of soft tissue injuries that might follow an assault by repeated punches and kicks.
18 Dr Gaya opined that Mr Yakubu’s injuries were life-threatening, notably the three lacerations to his lungs and the development of pneumothorax, haemothorax and damage to the peritoneum. There needed to be as a result of his injuries, multiple invasive investigations and treatments. In his opinion, it was highly probable medical intervention ensured his survival.
19 Mr Yakubu spent six days in hospital as a result of his injuries.
20 You were arrested and interviewed on 20 May 2014. In that interview you told police your group did not get along with Yakubu’s group. Regarding this offending, you admitted you were there at the assault and admitted punching and kicking the victim but denied stabbing him. You were not prepared to nominate the person (your brother) who stabbed the victim.
21 Ms Turnbull submitted, and I note, your plea was on an acting in concert basis, that you were not the one who inflicted the stab wounds to Yakubu. Your co-offender and brother, Nathan, was sentenced on the basis he stabbed Yakubu.
22 Ms Turnbull acknowledged your offending was serious, occurring in a public place, no doubt terrifying to onlookers and also, of course, to the victim. She is of course correct. As such general deterrence is an important sentencing consideration.
23 Regarding your involvement on this occasion, you instructed you were at the hospital with your partner and newborn son when you received a phone call from your brother, Nathan, saying he was in trouble and needed your immediate assistance. Ms Turnbull submitted you decided to leave your partner and newborn son to assist your brother. She submitted your involvement was at a time of great emotional upheaval, having become a father and being contacted by your concerned younger brother. This does not, of course, provide any justification for your offending, nor was Ms Turnbull relying upon it in that way.
24 Ms Turnbull submitted your role in this offending was less than your brother, Nathan, who was sentenced for stabbing the victim. Your offending behaviour, she submitted, was less aggressive than that of your brother. As such, the respective roles within the offending should be reflected in the sentence imposed, as of course they must. You are to be sentenced on an acting in concert basis with the other co-accused, being aware there were weapons present, but not that you were the person who inflicted the stab wounds to the victim.
25 Mr Yakubu has suffered considerably as a result of your offending and I shall return to pass some remarks on that subject shortly.
26 You have pleaded guilty to this charge and are entitled to have that fact taken into account in your favour and I do so. The community, by your plea, has been spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial. Your victim was unfortunately required to give evidence at a contested committal hearing, however I further refer to that later in these sentencing remarks.
27 I take into account you indicated on 13 October 2014, your intention to plead guilty to the charges before me. I accept your plea of guilty indicates remorse for your actions. However, in particular, given your history of previous violent behaviour, I am concerned about the extent and genuineness of your remorse.
28 I turn to your prior criminal history which in my opinion is relevant and significant. You first appeared at Sunshine Magistrates’ Court on 25 November 2013 approximately five months prior to the offending before me. On that occasion you were without conviction placed on a Community Corrections Order for a period of 12 months with conditions attached, including community work, treatment and assessment for programs including anger management. You were then before the Court on a charge of affray, and two charges of intentionally causing injury, that offending having occurred on 28 June 2013.
29 You next appeared at Sunshine Magistrates’ Court on 20 December 2013, that offending having occurred on 12 March 2013. You were convicted on that occasion and placed on a Community Corrections Order for nine months. You were then sentenced by the Court for offences of theft, intentionally cause injury and failing to answer bail.
30 Your current offending before me breached both Community Corrections Orders and you have recently been dealt with for those breaches. You are not, of course, being sentenced by me for those breaches, however such is relevant when assessing your rehabilitation prospects.
31 I was told a little about those prior appearances, being mindful of course that the summaries provided of your offending at the Magistrates' Court may have been different from those that were put before me. Turning to your appearance on 25 November 2013, it would appear you were again in a group where there was violence, and weapons present, that offence having occurred in June 2013.
32 Your appearance at Court on 20 December 2013, the summary before me indicated that offending did not involve you in a group, but rather you on your own assaulting an individual and taking the victim’s mobile phone.
33 Your offending that occurred in March 2013, dealt with on 20 December 2013, was approximately 13 months prior to the commission of the present offence. In relation to your appearance at court on 25 November 2013, that offending occurred in June 2013, approximately 10 months prior to your offending before me.
34 In addition, you subsequently appeared in the Magistrates’ Court on 15 September 2014 for offending that occurred on 8 July 2013, that is, approximately nine months prior to your offending before me. You were dealt with by the Court on a charge of affray and unlawful assault. You were sentenced to 90 days’ imprisonment. That offending occurred in December 2013 and I was told involved assault by your then group on strangers in a tram. On that same day, 15 September 2014, you were also re-sentenced for breaching the two Community Corrections Orders, to which I have previously referred.
35 Before me was the Breach report from Community Corrections, and I discussed your breaching of those Orders with Ms Turnbull in some detail. There was, in my opinion, minimal compliance by you with the Orders, with you having 11 unacceptable absences from either community work and/or reporting. In addition, you breached the orders by the further offending currently before me. That report (apart from the community work you did complete) was not glowing regarding your insight into the seriousness of your offending and displayed, in my opinion, a disregard by you for the Orders of the Magistrate, albeit again I note you completed approximately 80 hours of community work. As stated, your non-compliance is relevant when assessing your rehabilitation prospects.
36 Regarding your prior criminal history, Ms Turnbull conceded, the charges dealt with in 2013 involved violence as did the charge before me. Ms Turnbull submitted that based on the report of Dr Aaron Cunningham, to which I shall shortly refer, as you were a young offender who did not have any psychological or cognitive impairment, your prospects, however, for rehabilitation, she urged, were reasonably good, in particular if you were not in the adult prison environment.
37 The fact that you have a relevant prior criminal history is particularly concerning given your young age. Despite “warnings” regarding your offending no doubt given to you by the Magistrate on 25 November and again on 20 December, you chose to be a participant in the serious offending before me.
38 Ms Turnbull prepared a written outline of submissions for your plea hearing and addressed them. She acknowledged, as she had to, that your offending was serious. She conceded your offending required a custodial sentence.
39 I was told you had been on remand since your arrest on 20 May 2014. Whilst in custody you had been sentenced, as I said, on 15 September 2014 to 90 days imprisonment. As at the date of your plea hearing, you had spent 81 days, as I understand it, as pre-sentence detention referrable to the charge before me.
40 Ms Turnbull noted, as do I, that at the time of sentence at 20 years of age you are a young offender, and Ms Turnbull referred to R v Mills[1]. However, as has previously been stated, the principles in Mills are general propositions and are not of usual or automatic application. Each case depends on the circumstances, including the circumstances of the offending, as well as the offender (see DPP v Lawrence[2]).
[1] (1998) 4 VR 235
[2] (2004) 10 VR 125
41 In Connolly[3], Coldrey J referred to the principles in Mills and stated that:
“No doubt a sentencing court will endeavour to implement these principles as far as is possible in sentencing a youthful offender, but they are not to be regarded as immutable. In the context of the variety of fact situations and offenders with which courts have to deal, such factors as the seriousness of the offence or offences committed (and just punishment therefore); the need for deterrence (specific and general); the offender's prospects of rehabilitation; and the need to protect the community may need to be reflected in the sentence imposed.”
[3] [2004] VSCA 24
42 This was confirmed in Gosland and McDonald v The Queen[4]
“It is apparent from his Honour’s sentencing remarks that he paid close attention to the principles essayed in R v Mills. As his Honour observed, however, the premium which is placed on the rehabilitation of youthful offenders must be balanced against other sentencing considerations such as general and specific deterrence, denunciation and community protection. More specifically, as Batt JA explained in R v Lawrence, the general propositions enunciated in R v Mills are just that, general propositions, and they are not to be treated as if they were of usual or automatic application. Each case depends on its own circumstances, including the circumstances of the offence as well as of the offender. That is particularly so where a sentencing judge is required to deal with a case of gratuitously violent offending in a public place by youthful offenders under the influence of alcohol or drugs; especially where, as here, the offender has had previous opportunities to rehabilitate through community-based orders and Youth Justice Centre orders and in effect has thumbed his nose to those chances. Additionally, as Batt JA said, the benefits that flow to youthful offenders diminish the older they become.”
[4] [2013] VSCA 269
43 Whilst of course, allowing for the differences between the factual circumstances and matters personal to each of the offenders in those cases and to you, the principles stated therein apply.
44 In R v JED[5], Justice Kellam considered the relevant principles when sentencing young offenders:
[5] [2007] VSC 348
“In R v Mills Batt JA expressed his approval of the proposition that the youth of an offender should be a primary consideration for a sentencing court and that usually rehabilitation is far more important than is general deterrence. His Honour pointed out, however, that that was particularly so in circumstances where a youthful offender is a first offender, which is not the case with you. Furthermore, in R v Bell, Batt JA said:
“ ... the general propositions accepted in R v Mills are just that – general propositions. They are, as their terms show, not of universal or automatic application. True it is that they may apply not infrequently, but each case depends upon its own circumstance, including, it is to be noted the circumstances of the offence as well as those of the offender”.
“As is stated in DPP v SJK and GAS:
“When youth is raised for sentencing considerations, the focus is usually placed upon the offender’s prospects of rehabilitation, but this is by no means the only basis upon which it assumes relevance. For at least a century, the attribution of criminal responsibility and the response in terms of the dispositions handed down upon offenders has increasingly reflected developing ideas and understandings concerning personal responsibility, moral culpability and accountability. In the case of young people, to some extent, the law incorporates an acknowledgement of aspects of immaturity. By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and full consequence of the offending actions. However, it does not follow that this is always the situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity.”
“The Court stated further:
“These remarks are not intended to diminish in any way the considerable significance to be accorded to youth and rehabilitation as factors to be taken into account in the determination of the appropriate sentence to be imposed on a youthful offender. They are intended, however, to emphasise that these factors constitute only some in a number of matters that must be taken into account and that, even in the case of a young offender, there are occasions on which they must give way to the achievement of other objectives of the sentencing law.”
45 Further, in Scott v The Queen[6], the Court cited with approval the observations of Redlich JA in Azzopardi[7]:
“The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.”
[6] [2013] VSCA 347
[7] [2011] VSCA 371
46 Ms Turnbull’s submissions were primarily but not only directed to s10 Sentencing Act 1991 which requires that a minimum non-parole period of four years be ordered for this offence, specifically directing her submissions to s(10(1) and s10A of that Act, which provides that the four year minimum term need not be imposed if the Court is satisfied that a “special reason” exists to depart from that minimum. Assistance in determining whether such ‘special reason’ exists is found in s10A(2) of the Act.
47 Ultimately, it was Ms Turnbull’s submission that I should find “special reason” based on a number of matters which would enable me to depart from the mandatory minimum penalty. She then urged Mr Timoteo could be assessed for his suitability for a Youth Justice Centre disposition, or that you rather could be assessed.
48 It was understood by Ms Turnbull, and confirmed by the prosecution in the Prosecution Opening and orally, the prosecution conceded in your case, there was ‘special reason’ to depart from the mandatory four year minimum period of imprisonment.
49 Ms Turnbull submitted there were five factors relevant to assessment of ‘special reason’. That they were that you were a young offender, parity, your early plea of guilty, your role within the offending and the prosecution concession that ‘special reason’ existed in your case, which justified departing from the four year minimum sentence.
50 Referring to principles of parity, there were a number of co-offenders to this offending and principles of parity apply (see R v Taudevin[8] and Postiglione v R[9]). Parties to the commission of the same offence should receive the same sentence, but matters such as age, background, prior criminal history, character and role played in the offence are taken into account. I am conscious of the need to avoid a justifiable sense of grievance in co-offenders.
[8] [1996] 2 VR 420
[9] (1997) 189 CLR 295
51 Your co-offenders were dealt with in the Children’s Court. Your brother, Nathan, who was then 17 years of age, received a 15 month Youth Justice Centre order. Co-offender One One, was sentenced to 12 months Youth Justice Centre, and Cumine a 12 month Youth Supervision order. Each of those co-offenders was before the Court on the same charge as you. Four other co-offenders were placed on 12 month good behaviour bonds, each on charges of affray. A further co-offender was placed on the ROPES program, also for affray. That program was explained to me by Ms Turnbull and for present purposes, it can briefly be described as being similar, as I understand it, to the Diversion Program in the Magistrates’ Court.
52 Your brother Nathan had one prior Court appearance at Sunshine Children’s Court on 24 March 2014 on charges of affray and intentionally cause injury, and was released on a Youth Supervision Order for nine months up to 23 December 2014.
53 Soane One One’s first Court appearance had been on 8 October 2014 (i.e. after the commission of the offence committed (with you) in April 2014). His appearance at Court for his offending in April 2014 was on 23 October 2014. His appearance on 8 October 2014, based on material received by my associate subsequent to the plea hearing, was for a consolidation of offences committed between 10 October 2012 and 7 April 2014 for offending which included recklessly cause serious injury, intentionally cause injury and affray.
54 Joshua Cumine’s first Court appearance was on 13 March 2014 for non-violent offences. He appeared approximately three weeks after this April 2014 offending involving you as co-offender, at Sunshine Children’s Court on 12 May 2014 for offending between 28 June 2013 and 2 January 2014 for a consolidation of charges that involved a charge of recklessly cause injury and affray.
55 Turning to principles of parity, Ms Turnbull submitted that, relying upon Lowe v R[10], whilst you were older than your co-accused, your role in the offending was said to be less aggressive than that of your brother, Nathan, who was sentenced as the one who stabbed the victim.
[10] (1984) 154 CLR 660
56 Ms Turnbull submitted if a term of imprisonment was imposed, the mandatory four year minimum referred to by Parliament would result in a justifiable sense of grievance, given the sentences imposed in relation to the other offenders.
57 When considering questions of parity, at the time of this offending you did however, have two previous and relevant Court appearances from an Adult court which distinguishes you from your co-offenders.
58 There are, in my opinion, a number of differences between yourself and your co-offenders in age, numbers of prior Court appearances, and the jurisdiction in which you were each sentenced for your various offending. Your prior Court appearances involve hearings in the adult jurisdiction.
59 Ms Turnbull was unable to assist as to whether any of the co-offenders relied on specific matters in mitigation of their sentences, in particular such as any principles in R v Verdins & Ors[11], however the prosecutor, Ms Churchill, advised there were not, as the informant recalled, any issues raised such as Verdins.
[11] (2007) 16 VR 269
60 In relation to parity, Ms Turnbull submitted your role was more limited than that of the other co-offenders, in particular compared to brother, Nathan, Cumine and One One. The prosecution accepted that the person who wielded the weapon and caused stabbing injuries to the victim was your brother. I accept that your role was more limited and as such is to be reflected in the disposition. There are, however, other distinguishing features between your co-offenders including your prior criminal history and the relevant jurisdictions in which you have appeared in the past.
61 The Children’s and Magistrates’ Courts involve very different sentencing considerations. Comparisons between the sentences imposed on your co-offenders and sentencing considerations in the Magistrates’ Court are really of limited assistance. Your co-offenders were subject to a quite different sentencing regime. There was also a significant age difference between you and some of the co-offenders, with you being between 5 and 2 years older than your co-offenders.
62 Ms Turnbull outlined something of your background and history in her written submissions.
63 You came to Australia when you were 3 years of age. Your mother separated from your father in 2009 and spent most of her time looking after the three young children and supporting your girlfriend and son.
64 Your father returned to Samoa after separating from your mother, however, returned in 2013 and had a tree lopping business. His relationship with you, I was told, had improved in the last 12 months and prior to your arrest you had been working for him in his tree lopping business. You have two sisters and a brother, Nathan, your co-accused.
65 You have a girlfriend, Sunshine, and have been together for two years. She and your son have been living with your mother whilst you were in custody. You son is 6 months of age.
66 I was told that prior to you being incarcerated, you were a regular attender with the Seventh Day Adventist Church.
67 You completed Year 8 but were then expelled from Keilor Downs College in Year 9. You have obtained some qualifications since then, Business Administration Certificates II and III in 2009-2010 and 2012 and had also part completed a construction certificate prior to incarceration.
68 Upon release, you would like to return to work in your father’s tree lopping business. You also hope to complete your construction certificate and obtain a fork lift permit. Over the years, up until your most recent employment, you have had various employment, albeit for short terms.
69 You were in good health and did not abuse drugs or alcohol, although I note your failure to attend for community work on the previous Community Corrections Order on one occasion was because you were ‘hung-over’.
70 I turn to the report from Dr Aaron Cunningham, Forensic Psychologist, dated 5 November 2014. He assessed you at the Metropolitan Remand Centre on 2 November 2014 and provided further details of your background and history. When your parents separated, as the oldest male child, it became your responsibility to care for the family in the absence of your father and in that regard you cared for your younger siblings and obtained employment.
71 In an interview with your mother, she confirmed you had become stressed after her divorce from your father.
72 You described your relationship with your current partner, Sunshine, in positive terms. In custody you have been visited by your mother, father, sisters, partner, child, grandfather and aunt.
73 Reference was also contained regarding your primary school attendances up to Year 9 and details of your employment.
74 You suffered a knee injury in 2009 playing rugby and were on a wait list for surgery. You described having ceased use of cannabis which you began using socially in 2010 and reported minimal use of alcohol.
75 You described this offending as occurring in the context of you supporting your cousin, but that was what was referred to in the report, and also your younger brother. That, of course, was no excuse for your offending yet again, in what I regard as violent and thuggish behaviour.
76 You did not meet the criteria for a mental illness, and following testing, Dr Cunningham concluded there was no indication of intellectual impairment.
77 Dr Cunningham noted a number of current protective factors he considered would reduce your risk of further offending and stabilise you within the community and improve your psychological functioning. You were motivated to further yourself through education and motivated to engage with employment and undertake anger management programs. Such, he considered, would reduce your risk of re-offending. Your commitment is of course yet to be tested. You need to significantly change your attitude and priorities. Your past history and non-compliance with Community Corrections Orders does not give me any real confidence. In that regard I note in the Breach Report dated 3 September 2014 your indication to the author of the report that you ‘externalised blame’ for your past offending, and you appeared reluctant to distance yourself from negative peer groups.
78 Again, I stress, you are not being re-sentenced for breaching the Community Corrections Order, however, those observations are relevant when assessing your rehabilitation prospects. Nevertheless, I hope your motivation, as noted by Dr Cunningham, since your recent incarceration continues otherwise you will be back. The sentences get longer, simple as that.
79 Ms Turnbull stressed that since being in custody you had developed a level of insight which she urged would give me confidence regarding your rehabilitation prospects. In particular, she relied upon an answer by you in your record of interview with police most recently, in which you acknowledged you were aware you had anger management issues. Further, the report of Dr Cunningham, she submitted, supported the proposition that your rehabilitation prospects would be enhanced by your ability to participate in programs such as those offered under a Youth Justice Centre disposition and that you had, since being in custody, however, developed some insight into the seriousness of your offending.
80 I have, as I have stated, real concerns regarding your rehabilitation prospects, although, I am mindful of the principles in Mills and other authorities to which I have previously referred. You instructed Ms Turnbull you had at least done something constructive whilst in custody, both in Melbourne Assessment Prison and Metropolitan Remand Centre having completed an Occupational Health and Safety Course, a Food Handling Course, IT course, and were, I was told, due to start an anger management course on the day of your plea hearing, however, were unable to participate because you were here before me. The relevant certificates and confirmation of courses undertaken were to be provided to me following your plea hearing and prior to sentence.
81 My Associate, Ms Jackson, followed this up with Ms Turnbull, with various correspondence also going to the Prosecution.
82 It would appear at best that you have self-referred at this stage only for programs for Offending Behaviour, Anger Management, Mood Management, Communications Skills and Conflict Management, and were on the waiting lists. I did receive some further certificates today and I have already discussed those with counsel.
83 I am concerned however, it would have been ringing in your ears when you left Court on both occasions in 2013 about the real risk of you going to jail should you re-offend, and in particular re-offend in a violent manner. On this occasion before me, your judgment was not clouded by alcohol or drugs, simply motivated by your impression your brother and cousin were being threatened in some way. There were obviously other ways you could have dealt with this situation other than the one you chose, you are not unintelligent. I regard the circumstances of your offending as very serious indeed.
84 There was a Victim Impact Statement from Mr Yakubu. He described being scared, frightened and that he felt he was going to die as a result of your assault upon him. He was unable to attend work and school for more than a month as a result of the injuries he sustained. He had sleepless nights for more than a month and difficulty eating.
85 As a result of the offending he had scars on his body which was distressing to him. He was no longer able to play the sports he enjoyed. As at September, the date of swearing his Victim Impact Statement, he was not able to run or walk like he used to prior to the assault. His family was unhappy that he had not been able to work as his family lived in Africa and was dependent upon him financially. He was considering leaving Victoria and moving interstate in order to find employment.
86 The effects upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991). I am also conscious, however, that I must not allow the effects upon a victim to swamp the sentencing process.
87 Ms Turnbull submitted Dr Cunningham concluded you did not have any mental health issues, although you were a person with limitations. Your difficulties would not preclude you from taking on board and participating in counselling you might receive. Ms Turnbull conceded, of course, that your lack of mental health issues was in a sense a two-edged sword, as it is very clear you were not adversely affected by such at the time of this offending. You well knew the difference between right and wrong when you offended.
88 Ms Turnbull submitted this was your first time in custody. She submitted, pursuant to s32(1) Sentencing Act 1991, when considering whether or not a Youth Justice Centre disposition was appropriate, she urged that on the material you had “reasonable prospects” of rehabilitation, in particular relying upon the recent birth of your child and that responsibility, and your recent period of incarceration in an adult prison which had, she said, prompted you to develop some insight into your offending behaviour and the factors that might lead to it, including your anger. She said you understood the need for you to undertake the counselling required.
89 Further, Ms Turnbull also relied on your stable home environment. You had employment with your father and would be able to return to your mother’s home where your partner was currently living with your son.
90 I discussed with Ms Turnbull the timing of your plea of guilty, which I accept was at the earliest opportunity. As I have previously stated, I note there was a contested committal. I discussed that at some length with the prosecutor during the course of your plea hearing and I accept it was through ‘no fault of yours’ a contested committal was held. Albeit the victim of your offending was called to give evidence, which no doubt would have been stressful, I accept this may not have been in your best interest, rather a decision made then by your legal representatives. I have concluded such should not adversely impact upon my conclusion regarding your entering of your plea of guilty and remorse.
91 Ms Turnbull urged that I could appropriately sentence you to a Youth Justice Centre disposition with a declaration as to time served to date. If I considered further time was required over and above the 3 year maximum available for Youth Justice Centre, as further denunciation of your behaviour, I need not declare the days spent by you in pre-sentence detention.
92 Her secondary submission, without abandoning her primary submission, was that if an immediate term of imprisonment was to be imposed, I should impose a longer period on parole to enable you to put into practice, and undertake, further counselling under the supervision of the Adult Parole Board.
93 Her third submission, without abandoning her primary or secondary submissions, was that I could impose a sentence of up to two years and combine that with a Community Corrections Order.
94 I have considered all her submissions and relevant sentencing dispositions.
95 As I say, I discussed at some length my concern about your offending and your specific involvement in it, your prior Court appearances and my real concerns about your rehabilitation prospects and I remain concerned about those prospects.
96 The prosecutor, Ms Churchill, submitted a Youth Justice Centre order would be appropriate in your case. Her instructions as to disposition were based on your age, 19 years at the time of the commission of the offence, 20 at sentence. The community, she submitted, would benefit from you being rehabilitated when ultimately released into the community and that Youth Justice would provide the most positive chance for your rehabilitation by offering suitable programs.
97 The prosecution acknowledged you had relevant prior Court appearances, however, submitted you were not yet at the point where your rehabilitation would take a “back seat”.
98 The prosecution submitted your offending was serious, and it certainly was. It occurred in daylight, and no doubt terrified onlookers. Further, the effects upon the victim of your offending has resulted in serious and significant injuries and his Victim Impact Statement refers to constant reminders of the offending in relation to his life.
99 There was a need, she submitted, for general and specific deterrence. I agree. The prosecution submitted a Youth Justice Centre disposition could be imposed and that I need not declare pre-sentence detention to date as an additional punishment, if you put it that way.
100 Ultimately, the disposition that is appropriate for your offending falls to me to determine. A summary was provided, Exhibit 6 which sets out the basis on which your co-offenders were dealt. I note the prosecution case in that summary referred to you, during the assault, using a knife with Yakubu, many aspects of that summary it appears are now not maintained in the prosecution outline of your offending before me.
101 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation of which I have, at best, guarded optimism, I must also take into account matters such as general deterrence which is of considerable importance in a case such as this.
102 Specific deterrence is also relevant when sentencing you given your prior criminal history for violent offending.
103 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. This is an important sentencing principle in your case, however I am mindful of the conclusions of Dr Cunningham that the likelihood of your re-offending would be assisted by you undertaking courses and being assisted towards your rehabilitation, which would hopefully address, if successfully completed, protection of others in the community.
104 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
105 As I previously stated, Ms Turnbull’s ultimate submission was that whilst a custodial disposition of sorts she conceded was appropriate for your offending, she urged it should not be in an adult prison and that a minimum of 4 years' imprisonment would be excessive and not reflect the matters relied upon by her as ‘special reason’ to depart from the mandatory minimum.
106 I acceded to Ms Turnbull’s request you be assessed for suitability or otherwise for a Youth Justice Centre disposition, making it clear to you I hope, you should not assume I would necessarily impose that disposition.
107 I have received a Suitability Assessment prepared by Mr Gene Bell of Youth Justice. In that report Mr Bell assessed your prospects of rehabilitation as reasonable.
108 You appeared to have reasonable insight regarding the impact of violent offending and appeared to show genuine remorse and shame. Whilst Mr Bell did not regard you as particularly impressionable and immature there was the potential for you to be subject to undesirable influences if in a custodial adult environment.
109 He concluded you were suitable for a Youth Justice Order.
110 Turning to s10A(4) Sentencing Act 1991, it is to be entered in the Court record that it is my opinion there is ‘special reason’ you should not be required to serve the mandatory minimum four years for this offending. Specifically, in so determining I have taken into account your youth, parity, plea of guilty, role in the offending and prosecution attitude.
111 I have given this matter further consideration since your plea hearing, as I said I would, regarding appropriate disposition. I have ultimately determined that to impose a Youth Justice Centre disposition would be appropriate in your case. However, I do not propose to declare the pre-sentence detention in this matter as, in my opinion, the three year maximum that I can impose under Youth Justice Centre Order would be inadequate on its own.
112 On Charge 1 therefore, I sentence you to 3 years detention in a Youth Justice Centre.
113 I do not propose, as I have said, to declare the time you have spent in custody to date, for this offence, nor based on Renzella[12] principles relevant to your sentence of 90 days, as pre-sentence detention. I make it clear, I am of the opinion a head sentence of 3 years is a very significant concession by the prosecution for your offending, and one I would not have considered appropriate had that concession not been made by the prosecution. I have to determine this matter on my own, but I consider that to have been a sensible submission by the Crown and an appropriate one. What that means in plain terms is 3 years Youth Justice and I will not be declaring the time you spent in custody, whether it is the 90 days or the 81 days, you follow that?
[12] [1999] VSCA 85
114 Current circumstances, he is in custody?
115 MS CHURCHILL: He is, Your Honour.
116 HER HONOUR: Should it have been more days just so we are clear in case I have to look at this in the future? How many days would he have spent for PSD on these - - -
117 MS CHURCHILL: Ninety one.
118 HER HONOUR: So it has gone up from 81 to 91 - - -
119 MS CHURCHILL: Sorry, 96.
120 HER HONOUR: Ninety-six, okay. I am not declaring that, as you know, I just want it clear on the transcript if I need to look at this again in the future.
121 MS CHURCHILL: Of course.
122 HER HONOUR: That is the reason I am raising it. It is now 90 days the sentence. It is now 96 days PSD for this offending. The total together I am not declaring either, be it specific PSD for this offending or Renzella principles in relation to the 90.
123 MS CHURCHILL: Understood, Your Honour.
124 HER HONOUR: So is that clear?
125 MS CHURCHILL: Yes.
126 MR LEWIN: Yes, Your Honour
127 HER HONOUR: So he does three years Youth Justice Centre, no declaration of any PSD that I have just discussed.
128 MS CHURCHILL: Understood, Your Honour.
129 Pursuant s6AAA Sentencing Act 1991, had you been found guilty of this charge following jury verdict, that is if you had pleaded not guilty and been found guilty of it, I would have sentenced you to adult gaol 5 years and directed you serve 3 years 6 months before being eligible for parole. So you can see a significant difference between that term and Youth Justice, you follow?
130 The prosecution made application for a forensic sample pursuant to s464ZF Crimes Act 1958. This was consented to by counsel on your behalf, and I make the order in the terms sought based on the seriousness of your offending and your prior criminal history. The order will be for a saliva sample, and I must advise you the authorities can take a saliva sample from you and they can use reasonable force to get it. I have to tell you that, right? Okay.
131 Any other orders?
132 MS CHURCHILL: No, Your Honour.
133 HER HONOUR: Thank you very much. Anything further in this matter.
134 MS CHURCHILL: No, Your Honour.
135 MR LEWIN: No. As Your Honour pleases.
136 HER HONOUR: Very well, can you remove Mr Timoteo, thank you very much. Thank you very much everyone.
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