Director of Public Prosecutions v Turner
[2023] VCC 1039
•8 November 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-00023
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRAE TURNER |
| JUDGE: | HER HONOUR JUDGE GWYNN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 April 2023, 13 June 2023, 18 September 2023, 4 October 2023 |
| DATE OF SENTENCE: | 8 November 2023 |
| CASE MAY BE CITED AS: | DPP v Turner |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 1039 |
REASONS FOR SENTENCE
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Subject: Criminal Law - Sentence
Catchwords: Threat to inflict serious injury - recklessly cause injury - conduct endangering serious injury - make threat to kill, – resist police on duty . Contravention of Community Corrections Order – indigenous offender – Bugmy principles
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; R v Verdins & Ors (2007) 16 VR 269
Sentence:Contravention found proven, order confirmed, convicted and sentenced to 1 month imprisonment, of which 2 weeks was cumulative on Indictment;
Total effective sentence of two years and two weeks imprisonment with a 14 month non-parole period. 258 days reckoned;
s6AAA: but for a plea of guilty the sentence imposed would have been three years and four months imprisonment with a non-parole period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Fallar | Office of Public Prosecutions |
| For the Accused | Mr C. Oldham | Slades & Parsons Solicitors |
HER HONOUR:
1Trae Turner, you have pleaded guilty on indictment to one charge of threat to inflict serious injury, three charges of recklessly cause injury, one charge of conduct endangering persons, one charge of threat to kill, and one charge of resist a police officer- which is a rolled-up charge.
2In sentencing you for these crimes, I must have regard to the maximum penalties for the offences you have committed. Threat to kill has a maximum penalty of 10 years imprisonment and the remaining offences of threat to inflict serious injury, recklessly cause injury, conduct endangering persons and resist police officer each carry a maximum of five years imprisonment.
3The maximum penalties to which I have referred reflect the seriousness with which Parliament regards these offences.
4The circumstances of your offending were set out in a document entitled 'Prosecution Plea Opening' dated 18 April 2023. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence. I will not repeat the entire summary as it is a matter of record, but in brief terms the offending that gives rise to these charges occurred in the early hours of the morning on Saturday 29 May 2021. You were 24-years of age at that time.
Offending
5The victim of your offending was Ibrahim Khayre, he was then 57 years of age and worked as a taxi driver. At approximately 6.14 am on 29 May 2021, you called Silver Top Taxi Services and requested a taxi. At approximately 6.39 am, Mr Khayre arrived at the pick-up location. You, along with your then partner, Amanda Dawson, and an unknown female, got into the back of Mr Khayre's taxi. You sat directly behind Mr Khayre.
6Mr Khayre asked for pre-payment of the fare. You handed him a $50 note which he placed in the left-front shirt pocket. Ms Dawson gave Mr Khayre a Taxi Commission card in the name of Christine Rudd, whom I now understand to be Ms Dawson's mother.
7During the drive, you became verbally abusive to Ms Dawson and the unknown female. The unknown female was dropped off in Lalor and you and Ms Dawson remained in the vehicle. At approximately 7.08 am, Mr Khayre asked you to stop verbally abusing Ms Dawson. You grabbed Mr Khayre by his face and neck in a headlock, telling him that you had a knife and would cut his throat. These facts form the basis for Charge 1, make threat to inflict serious injury. You also bit Mr Khayre on the right side of his forehead, forming the basis for Charge 2, recklessly cause injury.
8The taxi was travelling at 60 kilometres per hour at the time. As a result of being put in a headlock, Mr Khayre could not see and swerved and braked. He thought he was going to crash the vehicle, these facts forming the basis for the conduct endangering persons charge, Charge 3. He stopped the taxi outside the Ruthven train station and got out and tried to wave down passing vehicles. You and Ms Dawson got out of the taxi. You demanded that Mr Khayre get back in. You told him, 'I've got a knife, I'm going to kill you', and demanded he drive home whilst brandishing the knife. This forms Charge 4, threat to kill.
9When Mr Khayre tried to take the knife from you, his hand was cut, forming the basis for Charge 5, another charge of recklessly causing injury. Mr Khayre got back in the taxi and you remained outside. You had your arm on Mr Khayre's shoulder as you continued arguing. You pushed Mr Khayre to the chest and demanded he return your $50 note. Mr Khayre said that he would return the money. A bystander called triple zero to report the incident.
10As Mr Khayre attempted to drive away, you forced your way into the taxi through the driver's side window and landed on the front passenger seat.
11You were holding the knife and grabbed the victim and stabbed his back and right thigh, forming the basis for Charge 6, recklessly cause injury. You and Mr Khayre got out of the taxi and then Mr Khayre got back in and drove away. You walked towards the Ruthven station with Ms Dawson and disposed of the knife at an unknown location. Mr Khayre drove to a service station and called triple 0, telling the operator that he had been stabbed.
12At approximately 7.21 am, First Constable Elise Wilkes and First Constable Nathan Urbaniak arrived at the Ruthven train station and, observing you to be alcohol affected, called you a taxi. When you and Ms Dawson got into the taxi police asked you to wait.
13You became verbally abusive to police and you and Ms Dawson exited the taxi. That taxi driver was frightened and started driving away. You held onto the rear passenger window before First Constable Wilkes pulled you away. You then picked up a rock from the ground and raised it above your shoulders whilst facing First Constable Wilkes. You continued to be verbally abusive to police. You did not put the rock down when directed.
14First Constable Wilkes deployed capsicum spray in your direction. Ms Dawson and police tried to reason with you. You dropped the rock and tried to leave. You yelled at First Constable Urbaniak, who was holding a police baton, 'Do you think you can take me on with that?'. First Constable Urbaniak directed you to ‘back off’ and deployed capsicum spray again and returned to the police vehicle.
15You then grabbed dirt from the ground and yelled at First Constable Urbaniak to 'Come on, come here'. First Constable Urbaniak deployed capsicum spray, hitting you in the face. You then walked onto High Street, causing other motorists to stop whilst two police officers ran after you, forming the basis, or part of the basis, for the rolled-up charge of resisting police on duty.
16You ran back towards the Ruthven train station car park and were subsequently arrested by First Constable Urbaniak and held down to be handcuffed with the assistance of First Constable Morgan. First Constable Morgan attempted to sit you up and wash the spray from your eyes. You resisted and turned your head up and spat in the direction of First Constable Urbaniak. The spittle landed on First Constable Wilkes' forehead and nose and also forms part of rolled up Charge 7.
17You were transferred to Heidelberg Police Station where you largely exercised your right to answer 'No comment' to questions asked of you. You stated that you could not remember the incident as you were intoxicated and that you picked up a stone after being pepper sprayed. You also said you could not see where you were spitting and that there was a lot of saliva in your mouth.
18Mr Khayre was transported to the Royal Melbourne Hospital as a result of your offending. Hospital records and a prepared medical report indicate that Mr Khayre received the following injuries as a result of the assault with the knife:
(a) a stab wound to the back left shoulder, this was 3 centimetres deep through muscle;
(b) an incised wound to the right thigh, this was 2 centimetres deep, down to the fascia;
(c) and an incised wound to the right thumb webbing.
Mr Khayre also received an abrasion or graze on the right side of his forehead as a result of you biting him.
Offence gravity and victim impact
19The CCTV footage of the police approach, the events which followed, and your arrest was made available to me, as was some footage inside Mr Khayre's taxi.
20In terms of gravity and victim impact, your offending is obviously serious and somewhat unexplained. You were irrational and clearly drug and/or alcohol affected.
21Your actions were also dangerous.
22The charge of reckless conduct endangering persons encompasses you grabbing Mr Khayre from behind, entirely unprovoked, when he was driving at approximately 60 kilometres per hour. This placed him, you, and Ms Dawson, as well as other road users, at risk.
23Mr Khayre received his first injury when you bit him. The next occurred after you had threatened to kill him - there was a scuffle and he was trying to get hold of the knife.
24He then got back into the taxi whilst you remained outside. He had agreed to return the money to you, albeit in the context of what had already transpired. When he tried to drive away, you forced your way in through the driver's window, struggled with Mr Khayre, stabbing him a further two times. These acts were entirely gratuitous.
25Whilst I have no victim impact statement, it is obvious that Mr Khayre suffered a physical injury, and I have little doubt that he was likely to have been psychologically affected. Whilst I accept your offending was unplanned, your attack of Mr Khayre was brutal, somewhat protracted, and entirely without reason. This is concerning. His taxi was his place of work, an environment in which he was entitled to feel safe.
26Your anger towards police really commenced when you were handcuffed at the start which, it was said, was done for your own safety. That decision seems to have set things off and from that point, you could not be calmed down by either police or Ms Dawson's efforts. This is also concerning. Police were simply going about their duties when they incurred your violent and aggressive behaviour.
27General deterrence, protection of the community, and specific deterrence are important sentencing considerations.
Plea of Guilty
28You have, however, taken responsibility for your offending through your plea of guilty. You were initially committed to this court on more serious charges.
29The matter resolved at a case conference so I accept that your plea of guilty on 28 April 2023, in effect, represented your first opportunity to enter your pleas to appropriate charges.
30Your plea has saved the court the time and expense of contested proceedings, as well as the witnesses from having to give evidence and relive a distressing set of circumstances.
31Your plea has additional utilitarian benefit, given it was entered whilst the court system was still having to respond to the backlog created from the COVID-19 pandemic.
32Remorse may be harder to discern, but you have, as I said, taken responsibility for your offending.
33These factors will all be taken into account in your favour.
34The chronology would indicate some delay. Your offending occurred on 29 May 2021 and you were charged around that time. Committal proceedings were held on 14 January 2022, at which time serious charges, now withdrawn, were pressed. I do take into account that the time since being charged until resolution in late March of 2023 is a period of time where there has been stress associated with ongoing proceedings, as well as representing a further period in which to assess your future prospects.
Personal Circumstances
35I now turn to your personal circumstances. You were 24‑years‑old at the time of the offending and are now 27 years of age.
36You are an indigenous man and were born and raised in the inner suburbs of Melbourne. You were raised by your mother after you parents separated when you were approximately four years of age. Your father has been incarcerated on numerous occasions, resulting in limited contact with him; you have had some contact with him on the telephone. You have a paternal half-brother who you have met once.
37After your parents separation, your mother had multiple partners, many of whom were violent. You were exposed to physical abuse and indicate that you still have memories of being assaulted and witnessing attacks on your mother. You were removed from your mother's care at age eight in response to protective concerns, and placed with your maternal grandmother, who raised you from that time.
38You were very close with you grandmother and step‑father, and despite multiple incidents of family violence by you and involving your grandmother, she has, in the main, remained supportive. Your grandmother has attended a number of your recent court hearings. You have previously stated that your grandparents are your greatest support.
39Your mother was incarcerated when you were nine years of age. You spent weekends with her and understood she was mentally unwell and frequently abused drugs. Your mother died from pneumonia when you were 12 years of age.
40Your history of parental absence due to incarceration and/or drug use and abuse, together with your exposure to domestic violence and limited stability in your younger years, would appear to give rise to the consideration of the so-called Bugmy principles in which the High Court said, and I quote:
“The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's makeup and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.[1]”
[1] Bugmy v The Queen (2013) 249 CLR 571 at [594] – [595].
41Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving full weight to an offender's deprived background in every sentencing decision. I do so in your case. The application of these principles reduces your moral culpability for this offending.
42You did attend North Fitzroy Primary School from preparatory years through to Grade 4. You then completed the rest of your primary education at Pender's Grove Primary School. You attended Thornbury High School for Years 7 to 10 before attending the Northern College of the Arts and Technology, where you completed Year 11 and successfully undertook a pre‑apprenticeship in carpentry at CMFEU trade industry.
43You began consuming alcohol heavily from the age of 14 years and have been hospitalised twice due to gastrointestinal issues from alcohol abuse. You commenced using methamphetamine on a daily basis around 2018 and have also used cocaine.
44You commenced a carpentry apprenticeship, although you were fired from your job as you missed too many days of work. You state this was due to your alcoholism. You have since engaged in casual labouring and had prepared to recommence your carpentry apprenticeship two weeks prior to your arrest.
45You have suffered a range of physical injuries through accident and assault. You were struck the head with a rock when aged seven, have had blunt head trauma from fighting or falling when intoxicated and, in October 2019, were hit by a car whilst on a bike. In March 2021 you were stabbed in the face, neck, and abdomen and you also recall assaults whilst in custody.
46You were romantically involved with an ex-partner, Teresa, for four years. This relationship broke down which you contribute to your drug use as being the primary factor. You then formed a relationship with Taylah and had difficulty with your emotions, in which you would tell her you loved her, but then disappear for days at a time. You were homeless and sleeping on the streets.
47You lived with an aunt and cousins in Rockbank after your most recent release in March 2020. You say they were all drug users and that you remained there for only 3 months before returning to live with your maternal grandparents in Thornbury. You stayed with them until November 2020. You moved out with a female friend, Olivia, in Heidelberg and remained there for a brief period of time.
48At the time of your arrest, you were in a relationship with Amanda Dawson, and did believe that there was a future with her. In the lead up to your offending, you were drinking daily and using cocaine. You had been stabbed two weeks prior but had not sought medical attention. You were presenting as increasingly anxious.
Psychological assessments
49Four psychological assessments, all authored by Ms Gina Cidoni, psychologist, have been tendered on your behalf. The first in time is dated 22 October 2019. You were 23 years of age at that time. This report appears to have been prepared in preparation for other court proceedings for offending that involved family violence, criminal damage, drug possession, and other offences of violence. The family violence offending related to your grandmother, Ms Cheryl Turner.
50Psychological testing at that time indicated post-traumatic stress disorder, depressed mood, hypomania and anxiety. You were vulnerable to substance misuse. Your primary diagnosis was complex and untreated post-traumatic stress disorder arising from your childhood experiences.
51The second in time is dated 22 February 2020 and entitled, 'Supplementary psychological assessment report on Trae Turner', and related directly to the earlier report dated 22 October 2019 and Ms Cidoni having been provided with additional materials.
52In the context of having seen you previously, in Ms Cidoni's report of 22 February 2020, she was of the opinion that you had suffered a traumatic unstable upbringing with considerable negative impact. Your formation was affected as a result and, from your teens, you sought escape and comfort through alcohol and drug abuse.
53There were signs of persisting hyperactivity, and anxiety was extremely elevated with post-traumatic symptoms. Ms Cidoni was concerned about the state of your mental health and the impact upon you of the prison system. She thought your best chance was to enter a residential rehabilitation program.
54A psychological assessment report dated 3 September 2021 was prepared after you had been charged with the offending before me but at a point prior to the matters having resolved to a plea. Testing indicated similar results to your past presentations with post-traumatic stress disorder, depressed mood, hypomania and anxiety being evident. You remained vulnerable to substance abuse.
55In this report your primary diagnosis remained complex and untreated post-traumatic stress disorder arising from your multiple experiences. You also suffered substance use disorder with alcohol intoxication. You were in urgent need of substance abuse treatment. Ms Cidoni opined that, and I quote, your 'state of mental health was very concerning in that as a result of his symptoms his experience in prison will be harder than someone not burdened by these conditions.'
56In her report dated 20 April 2023, you reported to Ms Cidoni that your mental health was poor in response to problems in your relationship and increased substance use. You were experiencing severe paranoia and thought that everybody was out to get you. You describe yourself as being 'at the worst point in my life.' Your relationship with Ms Dawson was described as 'troubled'.
57In terms of risk assessment you were assessed as presenting with a high risk of violent recidivism. Ms Cidoni confirmed her previous diagnosis of post-traumatic stress disorder, stimulant use disorder and borderline personality style. She also raised concerns about schizophrenic spectrum disorder or drug induced psychotic disorder. In combination, this was described as 'a complex and challenging set of symptoms' for you. It is challenging for you to manage your emotions and make good choices. Your presentation is complicated when you use and abuse drugs and alcohol. This raises obvious concerns for the protection of the community.
58Ms Cidoni maintained her concerns for you on being incarcerated opining that for you, and I quote:
“Prison can have particularly harmful effects given his background of childhood trauma and mental health conditions such as PTSD, BPD and paranoid delusions. Being incarcerated may exacerbate his symptoms of mental illness leading to further distress and trauma.”
59I am satisfied that there is a basis to apply limbs five and six of R v Verdins & Ors (2007) 16 VR 269, given Ms Cidoni's repeated reference to her concerns for you given your presentation and your increased complexity in terms of your mental health. Whilst it was submitted that the psychological reports would also allow for some reduction of your general and specific deterrence, it appears that your level of intoxication was the major contributor to your actions on 29 May 2021.
Prior Criminal History and procedural history
60Your prior criminal history does form part of your personal circumstances and is relevant in the sentencing process. You appeared at the Melbourne Magistrates Court on 7 May 2019 and were placed on a 12-month Community Corrections Order for charges relating to intentionally damage property, resist police and breaches of court orders.
61On 30 October 2019, you appeared at the Heidelberg Magistrates' Court and were sentenced to an aggregate of 77 days of imprisonment reckoned as served and placed on a 12-month Community Corrections Order for a range of violence, bail, dishonesty, and drug related offences - as well as for breaching the corrections order imposed on 7 May 2019. The corrections order of 7 May 2019 was confirmed and, therefore, remained in place until 6 May of 2020.
62On 29 April 2020, you successfully appealed the sentence imposed on 30 October 2019 by the Heidelberg Magistrates' Court, but only for charges of contravened family violence intervention order and unlawful assault. The orders of the Magistrates Court were set aside, and you were convicted and placed on Community Corrections Order for 15 months. This required you to perform 100 hours of community work, and you were to be supervised and undergo assessment and treatment.
63You had not appealed the orders made by the Magistrates' Court on 30 October 2019 in relation to contravening the corrections order made 7 May 2019. Your offending on 29 May 2021 was therefore in breach of the corrections order imposed by the County Court on 29 April 2020, which is now also the subject of proceedings before me.
64On 31 August 2020, you appeared before the Melbourne Magistrates' Court for a range of charges relating to breaches of court orders, property, bail, dishonesty, violence and drug related offences. You were placed on an adjourned undertaking without conviction until 20 August 2021. The contravention of community corrections order-imposed 30 October 2019 saw that order confirmed.
65Your offending on 29 May 2021 was in breach of your undertaking made to the Melbourne Magistrates Court on 31 August 2020, aggravating the offending before me.
66Your criminal history demonstrates to date a disregard for supervisory orders and a worrying trend of breaching court orders. You have not responded to court ordered therapeutic interventions. Furthermore, there is also a history of violence and of resisting police, which I find relevant in the circumstances.
67Your prior criminal history is not something for which you fall to be sentenced a second time. Instead, it is relevant to the weight which should attach in the sentencing exercise to the principles of specific deterrence, denunciation and protection of the community. It is also a mechanism with which to assess your prospects for rehabilitation, to which I now turn.
68I do accept that at the time of the offending, you were still relatively young at 24 years of age. I do accept the submission that prospects of rehabilitation is a factor that should not be lost sight of.
Prospects of rehabilitation
69A Final Progress Report from the Court Integrated Services Program (“CISP”) in the Magistrates Court dated 22 October 2020 was tendered. During your work with this program you engaged in 10 case management sessions, were described as polite and forthcoming and your mental health had stabilised.
70Post dating this report, you were remanded on 29 May 2021 for the offending before me and granted bail on 18 January 2022 with a condition that you attend residential rehabilitation with Odyssey House at Bairnsdale. This condition was varied on 22 June 2022, allowing you to exit Odyssey House and you returned to live with your maternal grandmother.
71To your credit, you completed five months of residential rehabilitation. Correspondence tendered on your behalf from Odyssey House indicates that you engaged well with the program and were able to abide by the rules and the instructions of staff. You met all expectations of the program. You told Ms Cidoni that you were not ready for sobriety at that time. After leaving Odyssey house, you were again placed on the CISP program.
72A progress report dated 23 August 2022 from the County Court's Court Integrated Services Program has also been tendered. You were referred to this service in mid-2022 due to concerns relating to your use of illicit substances, housing and mental illness. This would have correlated with your exit from Odyssey House. You were stressed at the time, as you believed that your girlfriend was pregnant. The progress report was largely positive, and the CISP program organised for you to be psychiatrically assessed.
73A report authored by Dr Roth Trisno, consultant psychologist, dated 28 July 2022 has also been provided. This assessment was organised as part of the CISP program. Dr Trisno had access to Ms Cidoni's report from 2019 and communications from Odyssey House as well as your criminal record. Dr Trisno was of the opinion that, at the time of writing his report, you had moderate depression in a background of co-morbid personality disorder. Your risk of harm to yourself and others was considered to be moderate in the long term. Dr Trisno recommended antidepressant therapy and treatment, alcohol and drug counselling and relationship counselling.
74You did not attend a referral by CISP for neuropsychological assessment.
75You told Ms Cidoni that you relapsed into drug and alcohol abuse in December 2022 after being told that your partner had been unfaithful. You were remanded on allegations of further offending on 28 January 2023. Bail orders in relation to the matters before me were made revoking your bail on 4 April 2023.
76As referred to earlier, your plea hearing commenced on 28 April 2023. Your matters were adjourned for further plea on 23 May 2023.
77On 13 June 2023, you were bailed by me to reside with Teen Challenge Training Centre, a rehabilitation facility located in Kyabram. You matters were to return before me on 18 September 2023.
78Towards the end of August, you were exited from that program, having allegedly breached their internal rules. No material has been tendered as to your work or progress with this program, but I take into account the 65 days you spent there, as I do the five months you spent in Odyssey House.
79On 1 September 2023, the Crown made application to revoke your bail, given you had left Teen Challenge and were no longer in compliance of bail conditions. This application was adjourned until 6 September 2023 and your bail was varied to allow you to live at an address with Ms Dawson and her mother, and report to police daily.
80On 6 September 2023, the application to revoke your bail was withdrawn. You had signed on daily, as was required by your bail conditions, and were to undertake an assessment by Odyssey House. You did not want to return to Teen Challenge. The further hearing was adjourned until 18 September 2023 which was the date originally listed when you were released on bail by me in June 2023.
81On 18 September 2023, your matters were listed for further plea and breach of corrections order was also part of the proceedings. You did not appear and the court was advised that you were in intensive care. No material has been provided in relation to this hospitalisation, other than confirmation you were there for two days.
82Your matters were listed on 4 October 2023 for the court to be updated.
83On 4 October 2023, you appeared late, and after your court listing, bail was further extended until today's date, 8 November 2023, when your matters were listed for further plea and sentence at 9 am. You appeared late for that hearing. Today, the Crown have filed a document setting out your compliance with bail. In more recent times, you have been non‑compliant, and I note that you are no longer residing at your bail address.
84You have 258 days of pre‑sentence detention directly referable to the matters before me, and some further 155 days of time which your counsel seeks to be considered pursuant to the Renzella discretion[2]. In combination, these periods represent your longest exposure to the custodial system. I accept totality is an important consideration, as it would be in any event.
[2] R v Renzella [1997] 2 VR 88.
Contravention of Community Corrections Order
85As referred to earlier, on 29 April 2020, an appeal from the decision of the Heidelberg Magistrates' Court of 30 October 2019 was successful. You were convicted and placed on a community corrections order of 15 months duration for offending which occurred between March 2019 and June 2019, and involved charges of unlawful assault and contravening family violence intervention orders. The order made included 150 hours of community work, supervision, and treatment and rehabilitation. It commenced on 29 April 2020 and expired on 28 July 2021.
86You are now in breach of that order, having committed further offences on three separate occasions. You pleaded guilty in the Magistrates' Court to offences of violence which occurred in January 2021. On 15 June 2023, that court deferred sentencing until 26 September 2023 which, at the time of the deferral, was a date post 18 September 2023, the date to which I had deferred your sentencing for the matters before me.
87I understand that you admit the contravention.
88Section 83AS of the Sentencing Act 1991 (Vic) (‘Sentencing Act’) provides that a judge who is dealing with a contravention of a corrections order can deal with the offender for the original offence with respect to which the order was made as if the court had just found him guilty of that offence. In other words, the offender can be re‑sentenced entirely afresh. In effect, you can be sentenced for the contravention of the corrections order and your original offending, which saw you placed on that order.
89It is that course which the Office of Corrections seek I undertake, and that was supported by the Office of Public Prosecutions.
90Section 83AS(2) of the Sentencing Act requires me to take into account the extent you had complied with the order made. I have had recourse to the contravention package filed and the Contravention of Community Corrections Order by Conditions and Further Offences Report, dated 10 August 2023.
91To your credit, you completed alcohol and drug counselling and mental health treatment but disengaged with community corrections after being transferred between correction offices in October 2020, 6 months into the 15-month order.
92Whilst reoffending on the order is to be dealt with by me in part, given it includes the charges the subject of indictment and a pending hearing in the Magistrates Court, the further offending is a reflection of your level of compliance, as well as your prospects for rehabilitation.
93I have indicated the Crown adopts the recommendations of the Office of Corrections. Given I am to deal with the contravention of the order imposed upon you on 29 April 2020 and the matters the subject of the indictment, the totality principle is again an important consideration, as, again I indicate, it would be in any event.
94I take into account that you provided instructions to have the contravention proceedings listed at the same time as the matters the subject of indictment.
95I do find the breach proven. I confirm the order made on 29 April 2020, noting that it has now expired, and on the charge of contravening the order, given your level of compliance and your history of breaching such orders, you are convicted and sentenced to 1 month's imprisonment.
Sentencing Submissions
96At your initial plea hearing on 28 April 2023, your counsel submitted that a combination sentence - that is, a term of imprisonment combined with a community corrections order - would reflect all relevant sentencing considerations. In the alternative, the Court could consider a deferral of sentence to allow you to continue rehabilitation in the community.
97The Crown contended that your offending is serious, your history poor, and that a head sentence with a non-parole period is appropriate in all the circumstances.
98I have been through the chronology to some extent. You were given the opportunity of a deferral of sentence and were exited from Teen Challenge after about 6 weeks. The chronology overall reveals commitment to drug treatment and rehabilitation, and then a loss of interest from you and a return to drug and alcohol use.
99Psychological and psychiatric material tendered would indicate some overall deterioration in your presentation. This in combination does, of course, raise concern for your future risk. Whilst not accepting Mr Oldham's original submission, I do see merit overall in an extended period of support when you do transition back into the community. This is a mechanism to both foster your rehabilitation and a means with which to protect the community.
100Now, I am just going to check, Mr Oldham, whether there are any factual errors. I appreciate I have been going very quickly. That is because of today's time pressures.
101MR OLDHAM: No, Your Honour.
102HER HONOUR: Ms Fallar?
103MS FALLAR: Yes, I think so, I think the ICU is for four days, I think Your Honour said two days. It's 16, 17, 18, 19, Your Honour.
104HER HONOUR: Sorry, what was ‑ ‑ ‑
105MS FALLAR: For the ICU. It's four days.
106HER HONOUR: Oh, four days? My apologies, well, I'll correct that.
107MS FALLAR: 16, 17, 18, 19.
108HER HONOUR: I'll amend my reference of two days to four days, and thank you very much, Ms Fallar.
Sentencing
109The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation, and protection of the community. In sentencing you, I must have regard to a range of matters, which include the seriousness of the offending, your culpability for it, your personal circumstances, and those of your victims.
110I must also balance the interest of community in denouncing criminal conduct, with the interest of community and seeking to ensure, where possible, that offenders are rehabilitated and reintegrated into society.
111For the charges on the indictment, I propose to impose an aggregate sentence, as I am satisfied that these offences are founded on the same facts or form or are part of a series of offences of the same or a similar character. They all occurred on the same day, within a similar time frame, and were of similar character - an atmosphere and actuality of aggression and violence.
112In relation to the matters on the indictment, Trae Turner, you are convicted and sentenced to 2 years imprisonment.
113Two weeks of the sentence imposed for the contravention is cumulative, making a total effective sentence of 2 years and 2 weeks. I fix a period of 14 months before you are eligible for parole, allowing for that supported transition into the community. 258 days are reckoned as served.
114S6AAA of the Sentencing Act requires me to state the sentence I would have imposed, had you not pleaded guilty to the charges. If not for your pleas of guilty, you would have been sentenced to 3 years and 4 months' imprisonment, with a minimum of 2 years before being eligible for parole.
115Anything further?
116MR OLDHAM: Yes, Your Honour, custody management issues.
117HER HONOUR: Yes.
118MR OLDHAM: Your Honour, detox would certainly be one of them, self‑harm, and mental health, Your Honour.
119HER HONOUR: All right. Well, I have reflected on the custody warrant that he is detoxing from drugs and is at risk of self‑harm. Thank you, Mr Oldham.
120MR OLDHAM: thank you, Your Honour.
121MS FALLAR: Nothing.
122HER HONOUR: I do thank each of you for your assistance in this matter; both of you went beyond the call and I'm very appreciative.
123MR OLDHAM: As Your Honour pleases.
124HER HONOUR: Thank you. I will close the court now until 9.15 tomorrow. Thank you.
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