Director of Public Prosecutions v Valli
[2022] VCC 797
•20/01/2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00998
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BO VALLI |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARINGS: | 05/08/2021 & 20/01/2022 | |
DATE OF SENTENCE: | 20/01/2022 | |
CASE MAY BE CITED AS: | DPP v Valli | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 797 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW -- Sentence
Catchwords: Kidnap -- Intentionally Cause Injury -- Category 2 Offence -- Extra Curial Punishment
Legislation Cited: s.5(2H) Sentencing Act 1991 -- s323(1)(d) Crimes Act 1958 -- Children, Youth and Families Act 2005
Cases Cited:Judge v The Queen; Dix v The Queen [2021] VSCA 315 -- Bugmy v The Queen [2013] HCA 37; 249 CLR 571 -- R v Verdins & Ors. 16 VR 240 -- Farmer v The Queen [2020] VSCA 140 -- Boulton v The Queen [2014] VSCA 342; 46 VR 308 -- R v Teh [2003] VSCA 169 -- R v Armstrong [2014] VSC 256 -- Director of Public Prosecutions v Oatley, Seth (a pseudonym) [2014] VCC 1995
Sentence: 2 year Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Mr D. Care | Rolfe Criminal Law |
HER HONOUR:
Background Summary
1 On the night of 15 March 2019, 19-year-old Anthony Brown was tricked into accompanying a member of his girlfriend's family and her friends to an isolated area in bushland near Spring Gully outside Bendigo. They lured him there with the intention of assaulting him and chaining him to a tree where they proposed to leave him for several days. They took weapons and chains to execute that plan. Their spurious reason for doing so was that they did not approve of the way he was treating his girlfriend, their family member. There was little foundation for that belief, and even if there had been, their decision to punish him by way of personal harm was vigilante behaviour of high order.
2 The risk of serious consequences was borne out not only to Mr Brown who was physically beaten and bruised, but also to one of the assailants who was killed during the fight which evolved.
3 There are four offenders in this matter, three of whom – Jara Dix, Harley Dix and Benjamin Judge – have previously pleaded guilty and been sentenced by me.
4 You, Bo Valli are the fourth offender. You have now entered a plea of guilty to one charge of Kidnapping and one charge Intentionally Cause Injury in relation to those events.
Background to Offending
5 You had known the victim, Anthony Brown, for several months. He started living with you and your cousin Harley Dix at your residence in Flora Hill in
February 2019. While living there he became romantically involved with Harley Dix's younger sister, 19-year-old Starr.
6 Mr Dix had an issue with the way Mr Brown was treating his sister. You and
Mr Dix had issues with how you felt Mr Brown was behaving in the house. At one point you had an altercation with Mr Brown which resulted in you throwing him off a bed and onto the floor.
7 In early March 2019, you and Mr Dix evicted Mr Brown from the unit, and he moved to White Hills.
8 On Tuesday 12 March there was an altercation between Harley Dix and
Mr Brown at the house in Flora Hill where Mr Dix assaulted Mr Brown. You were present.
9 When Mr Brown and Starr Dix left after that altercation, Mr Brown was wearing your shoes. You, Harley Dix and a third person attended the marketplace where you chased him to recover your shoes.
10 Later that day you confronted Mr Brown at Jara Dix's mother's house where there was a large family gathering for the anniversary of Jara's father's death. After initially hiding, Mr Brown returned the shoes to you. You felt people were unhappy that you and Mr Brown had caused a scene at that occasion.
Lead up to the Offending
11 Harley Dix instigated a plan to 'teach Mr Brown a lesson'. The plan involved Jara Dix and Ben Judge taking Mr Brown to the bush to be beaten up. As I stated in earlier sentencing remarks, that plan was hatched between Harley and Jara Dix over several days and is evidenced by text messages.
12 You accept that you had knowledge of that plan and that one day you ran into Jara Dix at the marketplace. You admitted to police that you told Jara Dix to take your car, take Mr Brown for a drive, and 'hurt him a little bit'.
13 Your car was already in the possession of Harley Dix, who regularly shared it with you. You knew that Mr Brown would need to report on bail and would need a ride. By allowing them to use your car, you facilitated others to carry out the plan to assault Mr Brown.
14 You were aware that Ben Judge would be with Jara Dix when this occurred as 'they go everywhere together'. You did not want to be involved yourself because your partner was expecting a baby and did not want to risk any trouble.
Circumstances of Offending
15 I have detailed the tragic events which occurred on 15 March 2019 when Jara Dix and Ben Judge, along with Steven Judge, carried out the plan to kidnap and assault Mr Brown. In summary, they attended your residence and collected Harley Dix and his girlfriend. They then drove to collect Brown. Harley Dix and his girlfriend were dropped off. Jara Dix and Ben Judge, together with Starr Dix, drove Mr Brown to Bendigo in your Mitsubishi Lancer so that Mr Brown could report on bail. After this, they dropped Starr Dix off at her father's house.
16 At this time, Jara Dix invited Mr Brown to go with her and Ben Judge and smoke a bong at One Tree Hill. He agreed. They then drove via the Judge family home where tools and ropes were loaded into the car. Steven Judge decided to go with them.
17 The car of four went to the remote area near One Tree Hill Lookout, where Ben Judge and Jara Dix tied ropes to a tree while Steven Judge smoked a bong with the victim.
18 Anthony Brown was assaulted by Ben and Steven Judge with Jara Dix's encouragement. The assault included being dragged to the ground, hit with a sledgehammer, and being kicked and punched over approximately five minutes.
19 In the course of fighting back, Mr Brown produced a knife and stabbed Steven Judge. As Steven Judge reacted, Mr Brown took the opportunity to get away.
20 Ben Judge and Jara Dix drove back towards Bendigo where they ran to a house and called for help. Two ambulance units arrived along with police. Resuscitation was commenced; however, Steven Judge was pronounced dead at 11.47 pm. He was 24 years old.
Initial Accounts
21 Ms Dix and Mr Judge spoke to police at the scene and made up a story about being ambushed by unknown attackers. They both made sworn statements to that effect.
Arrest of Victim – Anthony Brown
22 The following morning Anthony Brown was found hiding in a shed and was arrested in relation to the death of Steven Judge.
23 Brown was injured and had a significant amount of dried blood covering his head, face, and clothes. He was examined at Bendigo Hospital and found to have multiple lacerations, abrasions and bruises to the face and neck, including an injury to the right side of his head which required three stitches. Forensic examination concluded those injuries were consistent with multiple episodes of blunt force trauma and abrasions.
24 Mr Brown was interviewed and then made a sworn statement reflecting his truthful account of what had occurred.
Arrests and Interviews of Accused
25 You were arrested and interviewed the following day, 16 March 2019. You made full and frank admissions reflecting the above outline. Through those admissions and by your plea, you admit the prosecution opening which describes the planning of these events and your complicity in these offences.
Sentencing Principles
26 This is a serious matter reflecting vigilante behaviour. Principles of general deterrence and just punishment are paramount in sentencing for offending such as this.
27 The offending involved a planned violence which was carried out. It involved multiple offenders and the use of weapons at night in a remote location. There is no doubt it is objectively serious offending.
28 This behaviour is deserving of denunciation on behalf of the community. Taking matters into your own hands in this way is unacceptable. The sentence I impose must deter others from taking similar action. It must be directed to community protection and must justly punish you. It must also deter you from committing any similar offence in future.
29 The victim impact statement of Mr Brown demonstrates his fear and the ongoing impact of this offending on him. He does not wish his victim impact statement to be read aloud and so I will not refer to it specifically. I have, however, taken into account what he describes as the ongoing and pervasive impact of this offending on him.
Maximum Penalties and Category 2 Offence
30 The seriousness of this offending is amply demonstrated by the applicable maximum penalties of 25 years' and 10 years' imprisonment, respectively.
31 Parliament has also declared the offence of kidnapping to be a category 2 offence and enacted s5(2H) of the Sentencing Act 1991. Those matters mean I must impose a sentence of imprisonment, not in combination with a community correction order, unless special circumstances exist. I will return to those considerations in due course.
Role
32 I have sentenced all three of your co-offenders to terms of imprisonment with non-parole periods.[1] In determining the appropriate sentence for you, there are some different considerations. The first is your role.
[1] Judge v The Queen; Dix v The Queen [2021] VSCA 315
33 Harley Dix was the instigator of the offending. He prevailed on Jara Dix to carry out his plan to take Mr Brown to the bush and beat him up, knowing that she in turn would involve Mr Judge. Mr Dix then had direct communication with
Mr Judge. The level of knowledge of your three co-offenders included taking Mr Brown at night to a remote location in the bush where he would be assaulted and injured, and where he would be chained to a tree and left for several days in that state.
34 Jara Dix and Ben Judge then carried out the plan as I have described.
35 The extent of your involvement in any planning was much more limited. You were aware of the growing animosity, and you admitted your involvement in some discussion with Mr Dix as to the planning of this offending. Your one conversation with Jara Dix was limited to the occasion when you ran into each other by chance at the market.
36 The basis of your plea to the charge of Kidnap, according to the Prosecution submissions, is made pursuant to s323(1)(d) Crimes Act 1958 – that is on the basis of recklessness. That is, you knew your car would probably be used to transport the victim to a location for the purpose of assaulting him. The evidence in that regard comes from your admissions, namely that you believed he would need to be transported to get him away from the house of Jara Dix and any family members.
37 Your expectation in relation to the intention to cause him injury was that you expected Jara Dix would fight him and that he might be punched and get 'something like a blood nose or blood lip'. That is, by your admissions you accept that you knew Mr Brown would be injured, but the type of injury you believed would be caused was at the lower end of the available spectrum.
38 Mr Dix, the other offender who was not present, had a different state of knowledge. He was aware that Mr Brown was to be taken to the bush and injured, the precise mechanism, i.e., whether that involved use of weapons was up to Ms Dix and Mr Judge. It is clear though he contemplated a more serious assault.
39 There is no evidence that you had knowledge of when those events would have unfold, nor of where they would occur. There is no evidence that you were aware any weapons or tools would be used. There is no evidence you were aware he was to be chained up and left in the bush in a beaten state.
Personal Circumstances
40 Your personal history is detailed in the 2021 report of consultant psychiatrist, Dr Nina Zimmerman, and a 2008 report of consultant psychologist, Mr Peter O'Neil. I have also received a letter from your mother which outlines some of your past and your present circumstances.
41 You are now a 25-year-old man. You have Aboriginal heritage. You have an intellectual disability and a history of depression and substance misuse.
42 The prosecution did not dispute that the principles enunciated by the High Court in Bugmy v R[2] are enlivened in your case. I agree that those principles are enlivened - I take them into account.
[2] Bugmy v The Queen [2013] HCA 37; 249 CLR 571
43 According to you, your father was part Indian and your mother part Aboriginal. You are the youngest of four children.
44 You do not recall your father ever working. He was an ice addict, and your home life was marred by his family violence. This was mainly directed at your mother. You recall her being thrown into walls and once through a window. This was a constant from when you were about age seven. On one occasion when you were older and tried to protect your mother, your father's violence was directed at you. Your father spent time in prison.
45 Your mother says two of your older siblings were born prematurely and have brain injury as a result of your father's violence. They both attended a special school for persons with disability.
46 Your mother drank heavily up until the time she became pregnant with you. She was also addicted to heroin during your childhood but has been free of heroin for some years now. DHHS had some short involvement when you were a baby. Your mother has a strong history of depression and suicidal ideation and attempts. Her sister, your aunt, suicided in 2020.
47 Your parents separated when you were 16. You moved between your parents' houses. You reconnected more fully with your father later, in recent years. He died from brain cancer in 2019, only a month after being diagnosed. You were shocked and depressed by his sudden death.
Intellectual Disability
48 Your intellectual difficulties have been documented throughout your schooling. You attended mainstream school for your primary years. You report that was positive although you experienced some bullying.
49 You were first referred for assessment of your intellectual and cognitive capacity at age six in 2002. You were assessed to have a full scale IQ of 64. You had an individual learning program and in-class aide throughout your primary school years.
50 The psychological assessment of Mr O'Neil in 2008 confirms results consistent with those previous assessments. He indicates that you were referred for assessment of your ongoing eligibility for participation in the program for students with intellectual disabilities. You were 12 and about to commence secondary school. Your assessed IQ fell at the bottom of the mild deficit range, meaning that you performed as well or better than fewer than one per cent of the population. Your adaptive functioning indicated a similar level of disability. He says students of your intellectual functioning and adaptive behaviour typically experience great difficulty coping in a regular school without intensive support.
51 It was anticipated that you would have serious problems coping academically in a mainstream school, would not be able to read a timetable or understand public address announcements, ask for help or follow directions. Your susceptibility to being misled and easily influenced by negative peers was noted, although the report notes you were not seen as being aggressive in any way.
52 It was recommended that you attend Kalianna Special School for your secondary schooling. Your time there was not happy, including ongoing bullying. You were unhappy because you felt you were assessed as being, 'no good for anything but gardening and mowing lawns'.
53 At home your parents' relationship was failing and although you developed some friendships at school, you were increasingly depressed because of the fighting between your parents.
54 You were suspended on three occasions, twice for bullying, and once for 'misbehaving'.
55 Around the time your parents separated you stopped attending school. You were 16. You were depressed and were referred to youth mental health service, Headspace, where you attended for counselling about 12 months.
56 You were assessed for the Disability Support Pension (DSP), which you have been on ever since. You have no work history.
57 At the time of this offending, you were in a relationship, however, that fell apart after this incident. At the time of the offending, you were intermittently smoking methamphetamines. You have not used that substance since this offending. You also used cannabis regularly; however, that use ceased when your daughter was born in 2021.
58 After this incident, you report people calling you a murderer and you felt unable to remain in Bendigo. You spent some time living in Frankston in 2020. Your GP in Frankston commenced you on the antidepressant fluoxetine which you took for approximately five months.
59 You returned to live with your mother in Bendigo. She is disappointed in your offending but is very supportive of you and has variously been in court.
60 You developed a relationship with your partner Hayley approximately two years ago. She also attended Kalianna and is a person with a moderate intellectual disability. Together you now have a daughter. In the lead up to your daughter's birth, you and Hayley set up a flat and prepared to become parents. You were very motivated by self-improvement for your family.
61 There was no involvement by DFFH in the lead up to your daughter's birth. However, soon after her birth she was removed from your care. This was apparently on the basis of your and your partner's intellectual disabilities and questions about your capacity to care for your baby, as well as your involvement in this offending.
62 Your mother was undergoing chemotherapy at the time and was not considered as an option for placement, and so your daughter was placed in foster care. You are going through the legal process of seeking reunification with your daughter either with care to you or to your mother. Your mother, who is at the end of her chemotherapy treatment, has recently been assessed for that purpose.
63 Your mother reports that you have changed and matured since the birth of your child. You have been attending daily contact with her and have self-referred to a positive parenting course and have been asking for support with parenting and health referrals. Your desire to be an active parent remains a key motivator for your future. DFFH report that your contact with your daughter during those access visits has overwhelmingly been positive.
R v Verdins
64 Your counsel relies on the psychiatric and psychological material to found a submission that principles of R vVerdins[3] are enlivened, and in tandem that this enlivens the exception in s5(2H)(c)(i) and (ii) of the Sentencing Act 1991.
[3] R v Verdins [2007] VSCA 102
65 Dr Zimmerman specifically refers to the fact you are susceptible to being misled. She reports that you have a mild intellectual disability which is lifelong and will continue to impact you in the future. She describes you as socially vulnerable.
66 She states that for individuals with mild intellectual disability, there are problems with planning and problem solving, and poor social judgment evident to peers and frequently resulting in manipulation. Specifically, she states: 'I believe that his intellectual disability meant he was unable to reason in a mature fashion about the likely consequences of his behaviours… and there is a significant chance that his vulnerability played a role in his willingness to participate…' Further, that regulation of emotion and behaviour is impaired and 'likely to have contributed to [your] impulsive angry behaviour shown towards Mr Brown in the lead up to the offending…' And finally she states, 'I believe that there is a direct relationship between Mr Valli's intellectual disability – particularly his impaired social reasoning and social judgments – and his role in the offending.'
67 She also states that you have a diagnosis of depression. Your depression was in remission at the time of her assessment of you, largely because of your positive relationship and anticipation of the birth of your child, as well as the then recent treatment with antidepressants.
68 Dr Zimmerman also opines that a term of imprisonment is likely to be more onerous for you than for a person without your intellectual disability and history of depression. She refers to your vulnerability to both bullying and manipulation in that setting and states that difficulty in negotiating unfamiliar interpersonal custodial environment will place you at risk. She also refers to the family history regarding suicide and to your depression as a concern. She states that increased stress in the custodial environment would place you at risk of relapse.
69 Dr Zimmerman also refers to your indigeneity and the associated increased risk of self-harm as a matter to be taken into account. Those opinions are relied on by Mr Morgan to found a submission in turn that limbs 1, and 5 and 6 of Verdins are also enlivened. Sorry, I will revise that just to clarify the first of those relates - the first of those paragraphs I have just read relates to limb 1, and the latter to limbs 5 and 6, and also s5(2H)(c)(ii) of the Sentencing Act 1991.
70 The prosecution at the plea conceded that those findings regarding limbs 1, 5 and 6 of Verdins may be open to me on the basis of the psychiatric and psychological material, and in turn may enliven s5(2H)(c).
71 I am satisfied on the basis of the material that limbs 1, 5 and 6 of Verdins are enlivened. Specifically in relation to limb 1, your intellectual disability and the way in which that impacts your judgment and ability to reason, in my view reduces your moral culpability to an extent.
72 Specifically in relation to limbs 5 and 6, I rely on the findings of Dr Zimmerman which I have just outlined.
73 Arguably, the threshold created by s5(2H)(c)(i) and (ii) is a higher one than Verdins, in that your mental impairment must substantially and materially reduce your moral culpability or mean the burden of imprisonment is substantially and materially greater than ordinarily. In my view the material does not support a finding that sub-s(c)(ii) is enlivened; however, I do find that sub-s(c)(i) is made out. To my mind the nature of your intellectual impairment and its operation on your moral culpability was substantial and material.
74 Having made that finding, it is open to me to depart from the usual course required by s5(2H).
75 It was also submitted by Mr Morgan that s5(2H)(e) is enlivened. That section really relies on the constellation of circumstances in a given case to support a finding that a term of immediate imprisonment is not required. Before turning specifically to that constellation, I will turn to other matters which are relevant.
Plea of Guilty
76 I take into account your plea of guilty. Although your matter resolved at a later stage, that was in order to determine the appropriateness of charges. The committal proceeded by way of legal submissions to resolve those issues. The prosecution accept that you made full admissions on interview and that you had always indicated an intention to plead guilty. In those circumstances I treat your plea as an early one.
77 A plea of guilty is a matter which entitles you to a discount in sentencing. It has the benefit of saving the community the time and expense of running a jury trial. That is of particular significance during the COVID-19 pandemic when there is considerable backlog in jury trials. I take those matters into account.
78 I also accept in your case that your plea is an expression of remorse.
Dr Zimmerman states that you expressed clearly that what happened should not have occurred and you were clear that no matter how angry you may have been towards Mr Brown, you ought not have allowed your car to be used in the offending. Further, you were able to state that in future you would walk away from a situation where you could become angry or lose control. She states any more sophisticated expressions are limited by your cognitive capacity.
Extra Curial Punishment
79 The impact of this offending has been significant for you and your co-offenders, given the death of Steven Judge. I have previously outlined the considerations relevant to his death as a form of extra curial punishment. Case law establishes that despite coming about as a result of offending which you and your co-offenders committed, it is still a matter which I should take into account. I do so, though in my view the impact on you is more limited than on your co-offenders. You did not have a specific relationship with Steven Judge, and you were not present when he died. Nonetheless, you are aware his death is a consequence of your offending.
80 As with your co-offenders, those serious consequences of the violence committed should deter you from ever involving yourself in violent behaviour again. In that way, I accept that to some extent this additional punishment impacts the consideration of specific deterrence.
Prospects of Rehabilitation
81 I take into account your prospects of rehabilitation. In my view, I should consider them in the light of your limited role in this offending. That in itself suggests an unlikelihood of reoffending.
82 You have no prior criminal history.
83 You have now been on bail now for almost three years. I was told this morning that you have been dealt with in relation to two breaches of intervention order, one in October 2019 and one in February 2020. The breaches were constituted by contact and not by any suggestion of violence or threatening behaviour. To that extent, they are not relevant considerations for sentencing you. Your period of time on bail of nearly three years is a significant one.
84 I take into account the protective factors I have outlined, namely you have ceased use of methamphetamine and cannabis, you are in a committed relationship and motivated by reunion with your child, and you have ongoing family support from your mother who also provides you stable accommodation. You are also medicated again on antidepressants and open to engaging in counselling.
85 In my view, your prospects of rehabilitation are excellent.
Parity
86 I am mindful of the issues of parity when dealing with co-offenders. Parity is an aspect of equal justice. There should be no unjustifiable difference in sentences imposed upon similar offenders for similar offending. The key words are 'unjustifiable difference'. That is because parity takes into account consideration of the offending and your roles in that offending but must also take into account your personal circumstances at the time and since. In that sense, equal justice may result in different outcomes.
87 I have given a great deal of consideration to parity in this case. I have considered also the Court of Appeal's comments in the matter of the appeal of Harley Dix.[4]
[4] Judge v The Queen; Dix v The Queen [2021] VSCA 315
88 The parties at plea were agreed that parity is not a particular consideration as between you and your co-offenders Jara Dix and Benjamin Judge. However, there are parity considerations in relation to Harley Dix. I accept that and agree with that approach.
89 Although at first blush it may appear that you and Mr Dix are on par, there are some distinct differences which to my mind result in a different sentencing disposition for you.
90 First, Mr Dix was the instigator of this enterprise. He was the one with the 'real' grievance against Mr Brown. He had assaulted Mr Brown in the lead up to these events.
91 Mr Dix enlisted the help of Jara Dix, repeatedly prevailing upon her. Initially she was reluctant but eventually agreed. You were not part of any of that communication.
92 Mr Dix's discussions with Jara Dix and the formulation of the plan occurred over several days. It was very deliberate. It included specifically the plan to take him to the bush, to injure him and to leave him chained to a tree.
93 Mr Dix arranged to borrow your car to facilitate that plan. Having said that, he was already in possession of it and frequently drove your car in any event.
94 Mr Dix travelled in the car to collect Mr Brown when he was taken to Bendigo to report on bail. He therefore knew that Ms Dix and Mr Judge were present in the car and were planning to carry out the plan that night.
95 There is no evidence that you knew Mr Brown would be taken to the bush or that he would be chained and left. There is no evidence that you knew the offending would occur at night. You say you were aware that he would be taken away the Judge home where Jara Dix was living, due to the fact that she would not want to assault him at the Judge family home. This, to your mind, was why she needed your car.
96 Mr Dix was aware and admitted that he wanted Mr Brown to get hurt and would be beaten – he did not care how. There was no evidence either you or Mr Dix were specifically aware that weapons would be used, although the level of injury contemplated by Mr Dix, in my view, is different to what you had in mind. Although you have pleaded guilty to intentionally causing injury, the injury in your mind was at the low end of that charge.
97 Although Mr Dix cooperated with authorities and was to give evidence if your matter had gone to trial, you had already implicated yourself in your record of interview and sworn statement ,and as such his assistance was of low value.
98 Mr Dix was 28 years old at the time of the offending. You were 23. Although his background had its difficulties, it did not enliven Bugmy principles.
99 Mr Dix had prior criminal offending for matters of violence. You have no prior convictions of any kind.
100 Both of you have an intellectual disability and the connection between that impairment and this offending enlivens limbs 1, 5 and 6 of Verdins for both of you.
101 Mr Dix pleaded guilty at an early stage, though later changed his plea. Your plea is a later one in time; however, for the reasons outlined I treat it as an early plea.
102 Remorse and insight is limited in both of your cases given your intellectual disability and the complicating impact of the death of Mr Steven Judge; however, in your case I have found there is evidence of remorse.
Current Sentencing Practices
103 I have given consideration to other cases. Some have similarities, but more often differences. In particular, kidnaps are often committed in the context of drug debts and with additional violence by persons with lengthier prior criminal histories. To the level they are relevant, I have taken them into account. Ultimately, I am required to impose a just sentence and that is what I have endeavoured to do.
104 I am conscious in this case that if I was to impose a term of imprisonment, you would be entering prison for the first time and would be doing so in the setting of the COVID-19 pandemic. It is a more difficult time for prisoners generally, and specifically for a person with your mental health and intellectual impairment.
Child Protection proceedings
105 I am also mindful of the impact a term of imprisonment would have on your efforts to regain care of your infant daughter. Despite efforts by your legal representatives to obtain a report from DFFH outlining the status of care and custody of your daughter, no report has been forthcoming. However,
Mr Morgan has provided an update this morning along with some further submissions from your solicitor. That update is that you have moved back to your mother's residence to better your chances at having custody of your daughter. You are assessed by DFFH as having a better chance of reunification, either by order placing your daughter with you or with your mother but with your living with her.
106 Recent DFFH reports and case notes indicate that you have the capacity to meet your daughter's needs, and provided you are available to support your partner, Ms Townsend, that the parents together may be able to meet the needs of the child.
107 The current DFFH recommendation is for a Family Reunification Order, pending completion of the parenting course.
108 Your application for reunification is on foot, and you and Hayley are scheduled to undertake parenting courses. Those have not been available but are due to commence in February.
109 Due to time limits provided by the Children, Youth and Families Act 2005 you and your partner essentially have approximately five months in which to prove your capacity to have your daughter returned to you.
Delay
110 The efforts to obtain further material resulted in an adjournment request which further delayed resolution of this matter.
111 I should note that there have been several delays not caused by you. The magistrate who had been part heard at committal stage was appointed to this court, resulting in further listings in the Magistrates' Court. Another delay was caused by the adjournment of the plea from last June in order to await the outcome of the appeals of two of your co-offenders. I take those delays into account.
Conclusion re s5(2H)(e)
112 Returning to s5(2H)(e), that section requires a finding that there are substantial and compelling circumstances that are exceptional and rare which justify not imposing a sentence of imprisonment in combination with a community correction order. Those principles have been explored by the Court of Appeal in Farmer v The Queen.[5]
[5] Farmer v The Queen [2020] VSCA 140
113 This offending occurred in March 2019 and therefore after the introduction of s5(2HC) which, when I am determining whether there are substantial and compelling circumstances, relevantly prohibits me from considering your prospects of rehabilitation, your early plea, or your previous good character, though that does not exclude consideration of your lack of prior convictions.
114 That section also compels me to regard general deterrence and denunciation as having greater importance that the other sentencing purposes, and I must give less weight to your personal circumstances than to other matters such as the nature and gravity of the offending.
115 I have taken into account the paramountcy of deterrence and denunciation in offending such as this. I have taken into account the nature and gravity of the offending. In both instances however, I need to take them into account while recognising your particular, very limited role, the basis of the plea to the kidnap charge (i.e., recklessness) and your belief as to the level of assault and injury which would occur.
116 In addition, that section does not mean I must ignore your personal circumstances, but give them less weight commensurate with the seriousness of the offending.
117 I do take into account your lack of prior criminal history and also your lack of any relevant subsequent offending over a long period on bail.
118 Pursuant to s5(2H)(e) I am satisfied that the combination of matters I have outlined is compelling and permits me to conclude that there are grounds for departing from the usual sentence of imprisonment in this case. Those matters are your very different involvement in the offending, your history as it relates to Bugmy principles, your lack of prior criminal history and subsequent relevant offending during a very lengthy period on bail, and your mental impairment enlivening Verdins limbs 1, 5 and 6.
119 If I am wrong in reaching that conclusion, I have already made a finding that s5(2H)(c)(i) applies which justifies departure from the usual sentence of imprisonment.
Pre-Sentence Assessments
120 I have had you assessed for suitability for a community correction order by way of extended pre-sentence assessment and in addition for a justice plan. You are assessed as suitable for a CCO with a number of conditions recommended.
121 Disability Justice recommend that you be referred to the Forensic Disability Clinical Services team to engage in offending behaviour and other programs. Programs will be aimed at increasing your understanding of issues that impact on your offending and reduce the risk of reoffending. In your case, programs will be aimed at assisting you develop your executive functioning skills such as decision making, consequential thinking, problem solving and assertiveness. You will be supported by Disability Justice in making an application under the NDIS.
Sentence
122 Ultimately, in all the circumstances, I have concluded that the appropriate outcome in your case is to impose a community correction order. That sentence will be an aggregate one in relation to both charges. I have come to that conclusion due to the factors I have outlined and with the principles enunciated by the Court of Appeal in Boulton v The Queen[6] in mind. That is, in the appropriate circumstances a community correction order may be imposed even for serious offending which might otherwise have attracted a medium term of imprisonment. It is a disposition which has the capacity to punish, to denounce and deter and to protect the community, while also being aimed at rehabilitation.
[6] Boulton v The Queen [2014] VSCA 342; 46 VR 308
123 Mr Valli, I want you to listen carefully to the conditions of that order because you will need to consent to it before I can impose it.
124 On both charges, you are convicted and sentenced to undertake a community correction order of two years' duration.
125 The conditions of that order, in addition to the core conditions, are that you will be under supervision.
126 You are to undertake 200 hours of unpaid community work. I allow for 100 hours of unpaid community work to be offset by treatment. So, in other words, up to 100 hours can be completed by you participating in other forms of treatment rather than community work.
127 You are to undertake assessment and treatment in relation to drug use.
128 You are to undertake assessment and treatment in relation to your mental health.
129 You are to comply with the conditions of the justice plan.
130 And you are to return to me for judicial monitoring in approximately six months, that is on 1 August 2022.
131 OFFENDER: Yes, Your Honour.
132 HER HONOUR: Do you understand that if you were to commit any further offence during the course of the community order, that would breach the order?
133 OFFENDER: Yes, Your Honour.
134 HER HONOUR: Or if you were to not comply with the conditions of the order, you would be in breach of the order?
135 OFFENDER: Yes, Your Honour.
136 HER HONOUR: Do you understand in either of those cases, you would be brought back to me - - -
137 OFFENDER: M'hmm.
138 HER HONOUR: - - - and I would be asked to re-sentence you on this offending, the kidnap and the intentionally cause injury?
139 OFFENDER: I promise you will not see me again.
140 HER HONOUR: As long as you understand that would be the consequence, you would be returned to me and I would be re-sentencing you for this offending, and the likely outcome would be a term of imprisonment?
141 OFFENDER: Yes, Your Honour.
142 HER HONOUR: All right. What will happen, Mr Morgan and Ms Taylor, is that my associate will have the order forwarded to your instructing solicitor and
Mr Morgan, and that will need to be signed by Mr Valli and returned to the court by the end of the day.
143 MR MORGAN: I will make sure that is done. Your Honour, can I just confirm the date for Mr Valli to return for judicial monitoring?
144 HER HONOUR: Yes, 1 August 2022 at 9.30 am. And Mr Valli, so that you understand what that is - - -
145 OFFENDER: Yes.
146 HER HONOUR: - - - I will receive, in advance of that, a report from your community correction worker, and that will tell me exactly how you are going on the community correction order, whether there are any issues, whether you are doing well or otherwise. That is why I want to have you come back to me, so that I can hear about your progress.
147 OFFENDER: Yes, Your Honour.
148 HER HONOUR: All right. So, you will be contacted before that date, but 9.30 am on Monday, 1 August.
149 OFFENDER: M'hmm. Will it be a Webex?
150 HER HONOUR: Likely, yes. Unless there are issues, in which case I might bring you to a court.
151 OFFENDER: Yes, Your Honour.
152 HER HONOUR: Are there any issues to raise, counsel? And I am conscious that there is a question mark in my notes about forfeiture. I was asked not to conclude any order for forfeiture at the time of the plea. But just before I come to forfeiture, are there any other issues to raise?
153 MS TAYLOR: Your Honour, can I just - sorry, just in relation to the judicial monitoring, I am presuming that the Office of Public Prosecutions is not require to attend?
154 HER HONOUR: Correct.
155 MS TAYLOR: Thank you.
156 ASSOCIATE: Your Honour, there is one administrative matter, Your Honour.
157 HER HONOUR: Yes.
158 ASSOCIATE: Given Mr Valli's recent change of residence, just to confirming the most appropriate corrections facility would be the Bendigo Corrections Facility not.
159 HER HONOUR: Well, I am sure that is right, Mr Morgan, is it?
160 MR MORGAN: Yes, Your Honour.
161 HER HONOUR: Terrific, thanks. All right, so Mr Valli, you will need to report there within two days.
162 OFFENDER: Yep.
163 HER HONOUR: But you will have a copy of that order provided to you today which you will need to sign and get back to the court.
164 OFFENDER: Yep.
165 HER HONOUR: Ms Taylor, do you have any instructions in relation to that forfeiture issue? If not, if you do not have them to hand - I know I made forfeiture in relation to the co-offenders, but I am happy to leave that to the parties to discuss and communicate via email later today if you need to have any discussion.
166 MS TAYLOR: I am sorry, Your Honour. I have just forgotten what we asked to be forfeited. Was it the weapons, et cetera, Your Honour.
167 HER HONOUR: Look, it might have been, but I think - obviously, I have made those orders in relation to others.
168 MS TAYLOR: Yes. Well, if they have been made in relation to the others and it has already been established that this accused was not involved in obtaining those weapons, then I do not think it is necessary to make another order in this case, Your Honour. Normally, I would say yes, it should be the same.
169 HER HONOUR: I am looking at the - sure, I am looking at the draft, the schedule to the draft order that has been e-filed. And to my mind, it is all of the - there is nothing peculiar to Mr Valli, if I can put it that way.
170 MS TAYLOR: Yes.
171 HER HONOUR: So, it is a shackle and bolt, sledgehammer, chains, cloth bag with ropes and ties, small grey plastic knife, cable ties, blood handle knife, some keys, another knife, pillow, pillowcase, mobile phones, someone's - I assume the victim's blood-stained T-shirt, some female jeans, some socks, female shoes, some runners, a T-shirt, tracksuit pants, and a hoodie. So, those all - - -
172 MS TAYLOR: Your Honour, I have just received a message from the informant. She is saying that no orders in relation to the other co-accused have been made but - - -
173 HER HONOUR: I wonder if that was because this matter at that time was listed for trial.
174 MS TAYLOR: Yes. In which case, Your Honour, I will need orders for that - that order made for each of the accused so that she can dispose of those.
175 HER HONOUR: Yes.
176 MS TAYLOR: Those items.
177 HER HONOUR: Well, Mr Morgan, is there any issue to me making that order? I know they do not all relate specifically to Mr Valli, but is there any issue - - -
178 MR MORGAN: The only - - -
179 HER HONOUR: - - - attaching that order so that the informant can rid of those items?
180 MR MORGAN: No, I do not think we would have any trouble, at least not opposing. The only thing I would raise is potentially the mobile phone, whether one of them might be my client's.
181 OFFENDER: Yes.
182 MR MORGAN: There might be instructions to seek to have that returned to him.
183 MS TAYLOR: We would not have any issue with that, Your Honour. The mobile phones can be returned.
184 HER HONOUR: Thanks very much.
185 MR MORGAN: On that basis, Your Honour, we - I mean, I cannot obtain consent instructions, but I am sure we do not oppose the order.
186 HER HONOUR: All right, thanks very much. Well, I will have that - perhaps if just a form of order could be provided, Ms Taylor, with that amendment excluding the phones and I will sign that order.
187 MS TAYLOR: Yes, Your Honour. I am just wondering whether it is possible also to - if I can make - if it can be retrospectively made in relation to the co-accused as well, if I put - if I make all four co-accused on the order?
188 HER HONOUR: I doubt that it can, but let me just have a look. I did not make any forfeiture order. I am looking at the sentencing remarks for Mr Dix, and I feel sure now that that was because of what was a possible pending trial.
189 MS TAYLOR: Because I know that I had instructed counsel in the co-accused's matters to ask for those orders. I thought that they had been made. And there had not been any disagreement to it.
190 HER HONOUR: I do not have my notes from the plea of the co-accused - or the co-offenders in front of me. Do you want to look at that and
communicate - - -
MS TAYLOR: Yes.
191 HER HONOUR: And I will see - I mean, there is the slip rule in relation to amending orders, it is just a little bit less clear when the matter has already been through an appeal process, but I think it is pretty uncontroversial in this case, so I will just have a look at that provision as well. And i am content to make an order attaching to the sentence of the three co-offenders.
192 MS TAYLOR: Yes, Your Honour.
193 HER HONOUR: If that is what is sought.
194 MS TAYLOR: I will send that order through to Your Honour's associate. And I will send the same one for the co-accused, and I will CC in the defence for all the accused, and if there is - because it has been my understanding that there was never any disagreement that was going to be - I am sure it was filed at the time and requested -anyway, I will check on that, Your Honour.
195 HER HONOUR: My memory is you are right about that, Ms Taylor. My memory is that there was no opposition to those additional orders. But as I say, because that there was a question mark over what was happening first with this matter and then when Mr Dix indicated he may consider changing his plea, I think that is why all the items were not subject to an order but - - -
196 MS TAYLOR: Well, Your Honour, I will check on that and I will send that through, and I will CC all defence representatives.
197 HER HONOUR: Thanks very much. The last matter I need to do is to indicate the 6AAA sentence.
198 MS TAYLOR: Yes.
199 HER HONOUR: So, Mr Valli, if you had not pleaded guilty, the sentence I would have imposed would have been a sentence of 12 months imprisonment plus a two years community correction order.
200 All right, are there any other matters, counsel?
201 MS TAYLOR: No, Your Honour.
202 MR MORGAN: Not from me, Your Honour.
203 HER HONOUR: Thanks very much. Mr Valli, I look forward to receiving a positive report.
204 OFFENDER: M'hmm.
205 HER HONOUR: And I will see you in August. Thanks very - - -
206 OFFENDER: Yep, just one more question before you go, can I go to the police station to pick up my phone?
207 HER HONOUR: I am going to leave you to have that discussion with Mr Morgan and Mr Morgan will speak of the prosecution about that.
208 OFFENDER: Yep, thank you, Your Honour.
209 HER HONOUR: All right. Thanks very much. Thanks counsel for your assistance. We will now adjourn.
210 MS TAYLOR: As Your Honour pleases.
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