Director of Public Prosecutions v Tominiko
[2018] VCC 1427
•7 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00900
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VINCE TOMINIKO |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 31 August 2018 | |
DATE OF SENTENCE: | 7 September 2018 | |
CASE MAY BE CITED AS: | DPP v Tominiko | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1427 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr D. Glynn | Office of Public Prosecutions |
| For the Accused | Mr D. Grace QC | Giorgianni & Liang Lawyers |
HER HONOUR:
1 Mr Tominiko, you have pleaded guilty to one charge of intentionally causing injury (Charge 1), the maximum penalty applicable is 10 years’ imprisonment, one charge of causing serious injury intentionally in circumstances of gross violence (Charge 2), the maximum penalty being 20 years’ imprisonment, and possessing an unregistered handgun (Charge 3), the maximum penalty four years’ imprisonment.
2 You have also agreed to me hearing three summary charges and have pleaded guilty to driving whilst disqualified (Summary Charges 11 and 12). As this is a subsequent offence, the maximum penalty is two years’ imprisonment or 240 penalty units and committing an indictable offence whilst on bail (Summary Charge 7), the maximum penalty is three months’ imprisonment or 30 penalty units.
3 In relation to Charge 2, causing serious injury intentionally in circumstances of gross violence, s10 Sentencing Act 1991 provides that the court must impose a term of imprisonment and fix a non-parole period of not less than four years, unless the court considers under s10A that a ‘special reason’ exists. Mr Grace QC, who appeared on your behalf, did not urge ‘special reason’ applied to you.
4 These crimes arise out of events which took place between yourself and the two victims of your offending on 19 November 2017.
5 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 consistent with Exhibit A and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing, and arguably a disturbing escalation of your violent offending dealt with in prior court appearances.
6 I turn then to a brief summary of your offending.
7 On Saturday, 18 November 2017, there was a function held at Hampton Park Tavern, Hallam, a party celebration for Junior Salesulu. Among attendees at the party were the two victims of your offending, Foisa Pasi and Tremaine Pasi, and also you. You were 25 years of age at the time. You are Junior Salesulu’s brother-in‑law, your sister is married to Mr Salesulu.
8
Foisa Pasi was 27, Tremaine Pasi was 21. They are brothers and knew
Mr Salesulu through the Edithvale Uniting Church.
9 The two victims and yourself were not previously known to each other.
10 The two victims arrived at the party at about 8.00pm. You attended with your wife at about 8.13pm, you having driven to that location.
11 The celebrations took place mainly in the function room, although at various times people were in the outdoor smoking area. Alcohol was consumed at the party. You and Foisa Pasi met and conversed briefly in the smoking area during the evening. There were no apparent problems of any kind until approximately 12.30am.
12 At approximately 12.30am there was a slight altercation at the bar, when one of the male attendees sought to speak to another male attendee about alleged behaviour of the second male towards the first male’s girlfriend. You and the two victims happened to be standing nearby, although were not involved. Junior Salesulu intervened to try to calm the situation.
13 Shortly afterwards you left the bar with the first man from the altercation, followed by two others, and ended up in the carpark.
14 You were seen to open a car boot, and it is contended by the prosecution that at that time you obtained a firearm from the boot of your car and placed it down your pants.
15 A short time later, other persons including the two victims, left the bar and joined the other group in the carpark. As conceded by Mr Grace during your plea hearing, there was no evidence to suggest any ‘provocation’ by either victims which could have led to your offending against them.
16 At approximately 12.45am there were about nine persons, including you and the two victims, standing close together in the carpark.
17 At approximately 12.45am a male punched Foisa Pasi to the head. You then produced the firearm and fired a shot into Foisa Pasi’s buttocks. Mr Pasi fell to the ground (Charge 1, intentionally cause injury).
18 Another man who was in the group ran away, and you walked a few steps in the direction of the fleeing man. A woman (possibly your wife) could be seen on CCTV grabbing hold of you to try to restrain you, but you fended her off. I actually viewed that footage with counsel at a mention that I held just recently on 4 September 2018, that is after your plea hearing. Counsel was obviously present when I viewed that CCTV footage and I discussed it with them, which no doubt the transcript will reveal.
19 It is not clear from the footage that I saw what type of firearm was used or action used by you to discharge the bullets. What is clear, however, is after firstly shooting Foisa Pasi, you were then restrained by a female and either broke away from her, or she let you go. An opportunity to desist therefore from further shooting not taken by you. Subsequent to you no longer being restrained you walked to Tremaine Pasi and shot him. Both shots fired within approximately eight seconds.
20 At the same time as you fired the first shot, another male grabbed hold of Tremaine Pasi and dragged him to the ground. That male and another male proceeded to assault Tremaine Pasi while he was on the ground by kicking and stomping on him, including stomping him to the head. While they were still engaged in that assault you walked over to where Tremaine Pasi was lying, leaned over him and shot him in the lower abdomen at point blank range. At the time you fired that shot, Tremaine Pasi was incapacitated due to the ongoing assault upon him (Charge 2, intentionally cause serious injury in circumstances of gross violence).
21 The unregistered firearm which you used was a .22 calibre rifle on which both the barrel and the stock had been cut down (Charge 3, possess unregistered handgun).
22 You left the scene in your car with your wife.
23 At some point later that day, you gave the firearm you had used to an associate, Simon Scull, telling Mr Scull you wanted him to get rid of it.
24 Mr Scull subsequently took the firearm to his home and destroyed it using an angle grinder and a hammer, before going to Phillip Island with the remnants of that firearm.
25 Police attended the scene, and both victims were taken to the Alfred Hospital by ambulance.
26
At 3.10pm that same day you were arrested by members of the Special Operations Group at a service station in Cranbourne, and taken to Melbourne West police station for interview. Whilst at the police station you telephoned
Mr Scull and told him to “give them the thing”. I note some co-operation by you with police at that time referrable to the firearm.
27 You were interviewed and mostly gave ‘no comment’ responses which of course was your right. You said you feared for your life and acted in self-defence, later clarifying that as fear for your family, wife, sisters and cousins. You declined to elaborate on those fears and Mr Grace could not point to any evidence that supported those assertions. I also note in Mr Grace’s written submissions (Exhibit 1, paragraph 7) you no longer maintain your actions were committed in lawful self-defence, as reflected in your plea of guilty to these charges.
28 Later that day police travelled to Cowes and spoke to Mr Scull, who handed over the remnants of the firearm you had given him.
29 Foisa Pasi was admitted to the Alfred Hospital with a wound to his left buttock. A projectile was lodged in the inside of his right upper thigh, and a possible projectile fragment in the region of the right scrotum. It was decided not to surgically remove the bullet, and he was discharged after two days. The entry wound was expected to heal uneventfully, leaving a small scar.
30 Tremaine Pasi was admitted to the Alfred Hospital with a penetrating abdominal gunshot wound. The bullet entered his body and penetrated through and through his small intestine. He required surgical repair which involved a section of his small intestine being removed. This injury was potentially life threatening.
31 The bullet was lodged at the back of Mr Pasi’s pelvis, where it caused a slight fracture to his pelvis. The bullet interfered with Mr Pasi’s sacral nerve, which supplies sensation from the upper buttock across the outer leg and down to the sole of the foot. After an eight-day stay he was discharged on 27 November 2017, although subsequently underwent another procedure to remove the bullet from his body.
32 I was not provided with any updated medical material regarding the injuries sustained by either victim.
33 Tremaine Pasi, one of the victims of your offending, provided a victim impact statement. I shall return to that later.
34
You were a disqualified driver at the time of this offending, your licence having been cancelled and disqualified for two years at the Frankston Magistrates’ Court on 11 April 2017, that is, approximately seven months prior to the offending before me. When you drove to the function, you committed the offence of driving whilst disqualified (Summary Charge 11) and when you drove away after your offending, you again committed the offence of driving whilst disqualified (Summary Charge 12). I discussed with counsel at a mention on
4 September 2018 the specific driving, the subject of each charge. I note Mr Grace, in his submissions (paragraph 3, page 9) initially thought one of those charges was on a different basis, that now clarified.
35 In addition, you were on bail at the time of the commission of these offences, having been granted bail on 26 June 2017 relevant to offences committed in February 2017 (yet to be dealt with). By committing the offence of intentionally causing serious injury in circumstances of gross violence, you committed an offence against the Bail Act 1977 (Summary Charge 7).
36 There are aggravating features of your offending, including being on a Community Correction Order, and use of a weapon relevant to Charges 1 and 2, in this case a firearm. You of course are not being sentenced by me for breaching the Community Correction Order, the relevance of it being that you were subject to a Court order at the time of your offending.
37 Mr Grace submitted regarding your offending, that whilst it was not any excuse, the only explanation you could proffer for your offending was that at some stage there had been an incident in the bar inside the hotel earlier that night which apparently continued outside in the carpark. As I have said, Mr Grace however, could not point to any material within the depositions that indicated either of the two victims relevant to Charges 1 and 2 were involved in any form of altercation with you, or altercation with anyone at all, prior to your offending against them.
38 You have admitted a number of prior court appearances commencing on 16 January 2009. On that date you appeared at the Dandenong Children’s Court on charges including recklessly causing serious injury, making a threat to kill and unlawful assault. You were released on a Youth Supervision Order for a period of 12 months, with a number of conditions.
39 You then appeared at Dandenong Children’s Court on 4 September 2009 on violent-type offending involving a charge of wilfully damaging property, and without conviction the matter was adjourned for 12 months upon you entering a good-behaviour bond.
40 You also appeared at Dandenong Children’s Court that same day on a charge of unlicensed driving, and without conviction were fined and suspended from driving for two months.
41 On that same day you were also before the court on charges of intentionally causing injury, affray and unlawful assault, and were detained in a Youth Justice Centre for nine months.
42 You next appeared at Dandenong Magistrates’ Court on 10 February 2011 on charges including intentionally damaging property, unlawful assault and unlicensed driving, for which you received detention in a Youth Justice Centre.
43 On 5 September 2011 you were dealt with for driving offences.
44 On 19 November 2014 you were before Dandenong Magistrates’ Court for two charges of being a prohibited person possessing a firearm and possessing cartridge ammunition without a permit amongst other charges, and were sentenced to an aggregate three months’ imprisonment (wholly suspended).
45 You then appeared at Frankston Magistrates’ Court on 11 April 2017 on a number of charges, including hinder police, resist police and traffic methylamphetamine, for which you were convicted and placed on a Community Correction Order for a period of 18 months with conditions attached. It is that Community Correction Order which is breached by your offending before me.
46
In addition, there is a matter pending from offending that occurred on
26 November 2017 (ie: which predates your offending before me). It is yet to be heard (on 17 September 2018), however I was told at a mention on
4 September 2018 before me that you will or have entered pleas of guilty to charges of intentionally cause injury, affray and possession of cannabis. This pending matter is relevant to your rehabilitation prospects, although I again note this predated your offending before me.
47 I discussed with Mr Grace your prior criminal history and what I regard as an escalation in the gravity of your violent offending in particular, on this occasion involving the use of a firearm and two victims. Mr Grace did not disagree with that description.
48 Your counsel, Mr Grace, as I said, provided a written outline of submissions for your plea hearing (Exhibit 1).
49 By way of chronology, you were arrested at approximately 3.10pm on 19 November 2017 and have been remanded in custody from that date.
50 On 1 May 2018 there was a contested committal proceeding listed for hearing. Prior to that, however, there were discussions between your legal representatives and the Office of Public Prosecutions in an attempt to resolve your offending to a suitable indictment.
51 On that same day you pleaded guilty to the charges on this Indictment before any witnesses were called. You also indicated at that time there would be pleas of guilty entered in relation to the related summary matters before me.
52 You have pleaded guilty to the charges on the Indictment and the three summary charges, and you are entitled to have that fact taken into account in your favour, and I do so. The community has by your pleas been spared the time and cost of a trial, and witnesses have been spared the need to give evidence upon your trial, and in particular I refer to your two victims.
53 Further, I take into account you intimated earlier your intention to plead guilty to these charges. I note, however, that when first spoken to by police about your offending, you maintained you were acting in self-defence, a position now not taken by you. I note you did, however, enable police to contact Mr Scull regarding the firearm you used.
54
In the circumstances, I am prepared to accept your pleas of guilty indicate some remorse for your offending, although given your relevant criminal history, the circumstances of your offending before me and the conclusions of
Mr MacKinnon, to which I shall shortly refer, I am concerned about the extent of your remorse.
55
Details were provided regarding your background and history in a report of
Mr MacKinnon, Consultant Psychologist, dated 20 August 2018 (Exhibit 2) and also in the written submissions of Mr Grace.
56 You are 26 years of age at time of sentence. You were born in New Zealand to Samoan parents with five siblings, a brother and four sisters. When you were 10 years of age you and your family moved to Australia, initially settling in Hampton Park.
57 You said your family were deeply involved in the Catholic community, regularly attending church services. You described your Catholic beliefs as still being important to you.
58 When you were 20 years of age your father died from a stroke and medical complications. Your mother, as I understand it, lives in Endeavour Hills with one of your sisters, her husband and their children.
59 You have a wife and two children, a daughter, 8 years old and a son, 11 months, currently living with your wife’s parents in Hampton Park.
60 You attended St Kevin’s Catholic School in Hampton Park until you were expelled. You then attended Narre Warren Secondary College and were again expelled. You then attended Glen Eagles Secondary College for Year 8, again expelled. You then commenced at Dandenong Secondary College for Year 9, ultimately attending Year 9 at Doveton Technical College, expelled due to fighting. During your teenage years you were constantly involved in fighting and anti-social behaviour. This continues. You described yourself as ‘always fighting’.
61 You described employment after leaving school in various jobs, including concreting when age 14. You left home shortly after obtaining work and commenced using drugs and alcohol to excess. To fund your drug use you sold amphetamines and were subsequently charged with trafficking amphetamine. You commenced drinking, using cannabis and speed, which led to your appearances at court for various offending over the years. You described in your early adolescence and adulthood regularly abusing alcohol and illicit substances, and of having received as you described it “heaps of D and A counselling”.
62 You did however enjoy school and sport and reported having played in Victorian State Rugby competition from ages 10 to 15.
63 You joined the Hell’s Angels a few years ago.
64 You reported you generally enjoyed good physical health and had never received psychiatric treatment. You were not currently receiving any prescribed medication.
65 Your first child was born in 2010 and shortly after that you were incarcerated. You instructed you had been drug free since.
66 You obtained employment with Toll Express for three years and were offence free during that time. You married in 2016.
67 In 2015 you left Toll Express and drove forklifts at a factory for two years. In 2017 you left that employment and to support your family started selling drugs.
68 Your second child was born on 10 July 2017.
69 At the time of interview with Mr MacKinnon you were in custody on remand for these offences, working in prison industries and using the prison fitness centre on a regular basis. You received regular visits from family and friends. You hope to obtain work in the construction industry when finally released from prison.
70 At the time of assessment by Mr MacKinnon, you did not appear to be suffering from symptoms meeting the clinical criteria for any major diagnosable psychological disorders.
71 Mr MacKinnon concluded that in his opinion your functional intelligence was within the normal adult range. Your problems, he opined, largely stemmed from faulty environmental/social influences that encouraged your anti-social and criminal traits over the years. Physical confrontations with male peers was built around you being a ‘tough guy’. That identity, opined Mr MacKinnon, provided you with a sense of respect and renown amongst your peers.
72 In the opinion of Mr MacKinnon, your involvement with the Hell’s Angels MC probably only encouraged your maintenance of a ‘tough guy’ identity. Your anti-social and violent impulses were likely to have been encouraged, succumbing to peer pressure. It was likely you felt you had a reputation to maintain through displays of violence and (misguided) loyalty.
73 In the opinion of Mr MacKinnon you possessed entrenched anti-social and violent traits, oblivious to the dissonance between your violent offending and your stated commitment to Christian values.
74 In the opinion of Mr MacKinnon, raising your awareness of the moral conflict between the church and involvement with the Hell’s Angels may be a therapeutic factor to reduce or eliminate your anti-social and criminal tendencies.
75 Regarding your offending, you expressed a level of remorse ‘mixed with justification’ for it.
76 Mr MacKinnon concluded you developed a ‘tough guy’ identity with an increasing propensity for serious violence. Mr MacKinnon suggested should you remain involved with outlaw motorcycle groups and other anti-social circles, your planned rehabilitation would probably come to naught, and you would eventually re‑offend in a serious manner. Those conclusions concern me.
77 In his opinion, counselling or psychological therapy may assist you to recognise that dissonance between family and Christian morals and the anti‑social values and expectations of the anti-social milieu with which you associate.
78 He concluded your past history suggested your prospects for rehabilitation were ‘not high’. You would at least benefit from anger management programs.
79 Mr MacKinnon observed that if imprisoned for a fairly significant period, you appeared generally able to manage yourself satisfactorily enough in the prison environment.
80 Mr Grace, who appeared on your behalf, conceded on the material before me, in particular the report of Mr MacKinnon, he was not relying upon any of the principles in R v Verdins and Ors[1], and in my opinion that concession was appropriate on the material before me.
[1] (2007) 16 VR 269
81 Also before me was a Corrections Order Breach Report dated 2 February 2018 (Exhibit 3) referable to the Community Correction Order imposed on 11 April 2017. It was noted you failed to attend in relation to supervision on two occasions. You had also been assessed as a high risk of re‑offending with your companions and leisure/recreation identified as the significant criminogenic needs requiring intervention.
82 In the Breach Report reference was made to a referral to Ms Pascarl from the SURe program, Cranbourne. You failed to attend your first three appointments and were therefore exited from treatment. A random urine screen of 26 July 2017 returned positive to cannabis. You also failed to attend twelve community work sessions.
83 The author of that report notes, as do I, your offending behaviour appeared to be escalating in nature. I repeat I am not sentencing you for that breach. That report was however provided by your counsel and is referrable only when assessing your prospects of rehabilitation.
84 Also before me was a Notice of Intention to consider cancellation, under s116 Migration Act 1958, dated 24 April 2018, referable to your visa (Exhibit 4). That correspondence set out your offending behaviour considered to be concerning.
85 On 9 May 2018 in response you wrote to the Department outlining the reasons why your visa should not be cancelled. Mr Grace relied upon your correspondence in support of his submission that you were remorseful for your offending and in essence wanted to change your life around and not do the ‘wrong thing’ again. You referred in that correspondence to your desire to remain in Australia with your family.
86 In subsequent correspondence dated 18 May 2018 you were advised by Immigration that your visa had been cancelled on that date. You were advised in that correspondence of your right to apply for review of that decision within seven days. I was told by Mr Grace you had not applied for review of that decision.
87 Your family was now in Australia (apart from many first cousins in New Zealand). You have a wife and children in Australia, the children being Australian citizens. I discussed this with Mr Grace. As I discussed with Mr Grace, I accept that you will be deported and that such could impact adversely upon your family, with ultimately decisions having to be made as to whether or not your wife and children remain in Australia when you are in New Zealand or they travel with you, ultimately a matter for determination at some later stage no doubt between the two of you.
88 Mr Grace relied heavily upon your deportation following completion of your sentence, and I discussed that at some length with him. I accept there is material before me which confirms that upon release from custody you will be deported to New Zealand. I discussed with Mr Grace relevant authorities, including Guden v R[2]. See also Konamala v The Queen[3].
[2] [2010] VSCA 196 at [28]-[29]
[3] [2016] VSCA 48
89 I accept, consistent also with the submissions made by Mr Glynn for the prosecution, that I can take into account, and do when sentencing that you will be concerned whilst serving your term in custody regarding you and your family’s future upon your eventual release.
90 Mr Grace relied upon correspondence by you, to which I have referred, in response to the initial determination that you would be deported, as demonstrating he urged a change in your attitude, consistent he submitted, with your instructions to Mr MacKinnon. That in my opinion however remains to be seen. At the moment, given your criminal history to date and the escalation of it most recently, in November 2017, I have concerns.
91 Mr Grace urged that you were still young at age 26. You are 26, however, you also have a very extensive and relevant criminal history for violent offending, with stated caution regarding your rehabilitation prospects, as reflected in the report of Mr MacKinnon.
92 When sentencing you, however I must seek to maximise your chances of rehabilitation as they may be. I remain concerned about your ability to be rehabilitated, but hopefully one day ‘the penny will drop’ and you will realise that spending more and more time in custody is perhaps not a satisfactory utilisation of your time. Only time will tell. In custody it may assist you to undertake courses offered to you, in particular Offender Behaviour Programs, which might include anger management.
93 Mr Grace submitted your prospects for rehabilitation were reasonable. I am not as confident.
94 Mr Grace referred to the support you had from family, including your wife. I note, however, you had that support at the time of your recent and past offending and it did not stop you from offending.
95 Mr Grace relied upon some favourable aspects of your compliance with the Community Correction Order, there was however significant non-compliance including this very serious offending. You have a long way to go to address your many issues to reduce your level of risk of similar future offending.
96 Mr Grace conceded general deterrence, specific deterrence and denunciation were relevant sentencing principles to be applied. He is correct.
97 Mr Grace urged you had the prospect of maturation and with it appreciation of your offending lifestyle. I hope so, although there is little to date to support that conclusion.
98 You are, however, not a child rather at age 26 well familiar with the legal system.
99 Mr Grace referred to submissions on sentencing (paragraph 3, page 9 of his written submissions). I discussed his submissions at the mention before me on 4 September 2018 and that discussion, as I have said, is on transcript and should be read in conjunction with these sentencing remarks and your initial plea hearing.
100 The victim of your offending, Tremaine Pasi, has prepared a victim impact statement. He has suffered considerably in the manner described in the statement.
101 Since your offending he had difficulty sleeping and had nightmares. He had thoughts of being shot, which made him stay indoors more and not go out as often. He was reluctant to go out, to get to know strangers, preferring to spend time with family. He was not working at the moment because of your offending. He had previously done labouring work but had been unable to do so since your offending.
102 His whole lifestyle had changed, and he was angry about it. He had been struggling financially, and was not the same person he was prior to your offending.
103 He described having to have his bowel stitched up, as the bullet passed through it, and of having to undergo further surgery to remove the bullet.
104 There is a large scar on his stomach since the surgeries and a smaller one on his back. He had bruising on the nerves, which made him unable to run. His left leg did not function the same as the right any more. Doctors said they were not 100 per cent sure if it would ever be back to how it was.
105 He was, as at 19 July 2018, still seeing a physiotherapist and having to do his own rehabilitation, which took a lot of time.
106 Financially, he had to pay for medicine and travel expenses, and bills had been piling up due to his lack of work.
107 He says he still wondered why it was he and his brother were shot. His life had changed forever.
108 The effects upon a victim are a relevant sentencing consideration (see s5 Sentencing Act 1991).
109 Also relevant is the notion of social rehabilitation. A number of authorities have referred to this, in particular relevant to victims of sexual offending (I stress not your case before me). However, that principle has application not only referrable to victims of sexual offending.
110 The importance of social rehabilitation was for example discussed in DPP v Toomey[4], in which his Honour Justice Vincent referred to social rehabilitation citing DPP v DJK[5].
[4] [2006] VSCA 60
[5] [2003] VSCA 109
111 I am, as I have stated, conscious of the different type of offending in those cases from yours, and am also conscious I must not allow the effects upon a victim to swamp the sentencing process.
112 Mr Grace, referring to sentencing considerations conceded appropriately your offending behaviour was serious, particularly Charge 2.
113 He noted, however, as do I, your pleas of guilty. I have referred, however, to my concern regarding your remorse beyond your pleas of guilty to these charges.
114 Mr Glynn, on behalf of the prosecution, referred to the seriousness of this offending, involving using a firearm in a public place.
115 Mr Glynn described your offending as very serious. I agree.
116 Mr Glynn referred to the need for general deterrence when sentencing you, also submitting the need for specific deterrence, given your relevant criminal history. I agree.
117 Regarding the charges, he submitted there should be some cumulation in sentence between the charges. Whilst there was a short time between your offending involving the two victims, it nevertheless involved two victims with two shots fired.
118 Mr Glynn submitted your deportation would mean a degree of hardship felt by you when undergoing sentence, and such could and should be taken into account. As I say, I have.
119 Mr Glynn also submitted that you pleaded guilty at the committal hearing, in other words at the earliest opportunity, and I am also aware of that.
120 Also in that regard I note, as was consistent with the material before me and the prosecution opening, when interviewed on 19 November 2017 by police, you enabled police to contact Mr Scull to locate parts of the firearm. I accept that indicated, as at 19 November 2017, some cooperation by you at that time with the investigating authorities.
121 As well as matters personal to you, including your prospects of rehabilitation, I must also take into account the needed for general deterrence, which is important in a case such as this. In the Second Reading Speech 13 December 2012, the Attorney-General stated:
“This bill sends a clear message that violent attacks such as these will not be tolerated. It will ensure that adult offenders who inflict gross violence will go to gaol and will stay in gaol for at least four years, unless the court decides that a genuinely special reason applies.”
I note no ‘special reason’ was urged on your behalf.
122 I was assisted in considering the charges before me by Nash v The Queen[6] in which Court of Appeal President Maxwell summarised the matters to be taken into account when assessing the gravity of the offence of intentionally cause serious injury. Also I note the decision of Ferrer v The Queen[7] referrable to intentionally cause serious injury in circumstances of gross violence.
[6] (2013) 40 VR 134
[7] [2016] VSCA 295
123 There is also the need for specific deterrence when sentencing you, in particular given your relevant prior criminal history.
124 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, which still causes me some concerns. You have a number of unresolved issues and until you address them and change your attitude towards violence and what is acceptable behaviour, I remain concerned for members of the community.
125 When sentencing you in relation to Charge 2, s10 Sentencing Act provides that I must impose a term of imprisonment and fix a non-parole period of not less than four years, unless I find under s10A that a special reason exists. Mr Grace, as I have previously stated, did not suggest a special reason existed, and in my opinion that was an appropriate concession on the material before me.
126 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
127 In determining the appropriate disposition, I also take into account principles of totality and proportionality.
128 I sentence you as follows.
129 On Charge 1, you are convicted and sentenced to 3 years’ imprisonment.
130 On Charge 2, you are convicted and sentenced to 7 years’ imprisonment.
131 On Charge 3, you are convicted and sentenced to 10 months’ imprisonment.
132 On Summary Charge 11, driving whilst disqualified, you are convicted and sentenced to 1 month’s imprisonment.
133 On Summary Charge 12, driving whilst disqualified, you are convicted and sentenced to 2 months’ imprisonment.
134 On Summary Charge 7, you are convicted and sentenced to 42 days’ imprisonment.
135 I direct the following in relation to cumulation and concurrency.
136 Charge 2 is the base sentence.
137 I direct that 1 year of Charge 1 be served cumulatively upon Charge 2.
138 I direct that 4 months of Charge 3 be served cumulatively upon Charge 2.
139 I direct that 7 days of Summary Charge 11 be served cumulatively upon Charge 2.
140 I direct that 14 days of Summary Charge 12 be served cumulatively upon Charge 2.
141 I direct that 28 days of Summary Charge 7 be served cumulatively upon Charge 2.
142 The orders for cumulation are upon each other and upon the base sentence.
143 That results in a total effective sentence of 8 years 4 months and 49 days’ imprisonment, and I direct you serve a period of 6 years before you are eligible for parole.
144 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these charges, so if you had pleaded not guilty and we had a jury trial, and been found guilty of them following jury verdict, I would have sentenced you to a term of 12 years’ imprisonment with a non-parole period of 9 years’ imprisonment.
145 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 292 days in custody (up to and including 6 September 2018) by way of pre-sentence detention, and I direct that that be entered into the records of the court.
146 The prosecution made application for a forfeiture order in relation to the parts of the firearm. This was consented to by counsel on your behalf, and I make the order in the terms sought.
147 No other orders were sought.
148 What about the maths? I am not asking if you agree with the maths, I am just asking did you get it all written down?
149 MR GWYNN: Is it the total effective sentence of eight years, four months and 49 days?
150 HER HONOUR: No, 42 days. Sorry, 49 days, you are right. Do you want me to read it out again or are you right? Have you got it all?
151 MR GWYNN: In that case I agree with the maths, Your Honour.
152 HER HONOUR: That is all I am asking.
153 MR GWYNN: Yes, I agree.
154 HER HONOUR: Do you agree with the maths?
155 MS LIANG: Yes, Your Honour.
156 HER HONOUR: PSD correct?
157 MR GWYNN: Yes, Your Honour.
158 MS LIANG: Yes, Your Honour.
159 HER HONOUR: Anything further? No? Thank you. Mr Tominiko, you can go out, thank you.
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