Director of Public Prosecutions v Vanu

[2024] VCC 2046

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-24-01781

DIRECTOR OF PUBLIC PROSECUTIONS

v

STANLEY VANU

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JUDGE:	HER HONOUR JUDGE HAWKINS
WHERE HELD:	Melbourne
DATE OF HEARING:	18 November 2024
DATE OF SENTENCE:	12 December 2024
CASE MAY BE CITED AS:	DPP v Vanu
MEDIUM NEUTRAL CITATION:	[2024] VCC 2046

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE

Legislation Cited:      Crimes Act 1958 (Vic) s18, Sentencing Act 1991 (Vic) s 5(2G); s 16(3); s.10A(2)(e),

Cases Cited:Yat v The King [2024] VSCA 93, R v Mills [1998] 4 VR 235, Azzopardi v The Queen (2011) 35 VR 43, Bugmy v The Queen [2013] HCA 37.

Sentence:                  Total effective sentence of 9 months' imprisonment, with 6 months to be served concurrently with sentence currently serving.  New non- parole period of 17 months.  S6AAA: two years' imprisonment with a non-parole period of 15 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. Sheppard	Office of Public Prosecutions
For the Accused	Mr M. Murphy	Chester Metcalfe & Co Barristers and Solicitors

HER HONOUR:

1Stanley Vanu, you have pleaded guilty to one charge of recklessly causing injury. That charge carries a maximum penalty of five years' imprisonment.[1]

[1]Crimes Act 1958 (Vic) s18.

2You have also admitted your prior criminal history, which is comprised of an extensive array of serious offending for which you were sentenced by the Children’s Court to, variously, probation, youth supervision orders and detention in a Youth Justice facility. [2]  

[2]Exhibit 2 - Criminal History.

3Most recently, you were sentenced to two years and four months' imprisonment with a non-parole period of 14 months for a subsequent matter of attempted armed robbery in the adult jurisdiction, by Judge Meredith, on 15 April of this year.  You are currently serving that sentence.

Nature and gravity of your offending

4The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 25 October 2024, the accuracy of which you accepted through your counsel. [3]

[3]Exhibit 1 - Summary of Prosecution Opening for Plea dated 25 October 2024.

5At the time of your offending, you were remanded in custody at the Attwood Unit at the Metropolitan Remand Centre (MRC), pending the resolution of attempted armed robbery proceedings against you.

6On 6 March 2024 at approximately 2.30 pm, Acting Senior Prison Officer Bridget Elliott was working in the Attwood Unit.  She had just directed a prisoner to go to a holding cell.  As that prisoner walked away, you took steps towards Elliott, gestured in her direction, and told her to leave your mate alone.  Another prison officer moved towards you, so that he stood between you and Elliott.

7You put your food down and took a few steps towards Elliott in an aggressive manner.  Two other prison officers tried to separate you from Elliott.  One took hold of your right arm, whilst the other tried to physically block you from moving towards Elliott.

8You stepped to your left and punched Elliott’s face with your left fist.

9You avoided the prison officer’s attempt to physically restrain you and grabbed hold of Elliott’s hair with your free hand.  You ripped some of her hair out in one hand and struck her head with the other, before slamming her head onto the metal kitchen bench.

10Elliott was initially assessed by a medic at the MRC with a bloody nose and facial injuries.  She was told to seek further medical attention from hospital or her local general practitioner.

11She sought medical treatment in the days following.  As a result of the assault, she experienced pain, had a bruised and swollen nose, and lost a clump of hair from the back of her head.

12A violent offence against a custody officer is an inherently serious offence.  Prison Officer Elliott was just doing her job.  The CCTV footage of the incident shows that your attack against her was entirely unprovoked. Your actions are without motivation or reason and are clearly unplanned.  Whilst of short duration, your assault on Elliott was of dramatic intensity.

13Ms Elliot’s victim impact statement was read to the court.  It describes many of the physical and psychological injuries she has suffered since your assault.  I note that you fall to be sentenced only in relation to the physical injuries she sustained, being pain, a bruised and swollen nose, and the loss of a clump of hair from the back of her head.

14Ms Elliot describes how these physical impacts have been life altering.  She has ongoing problems with her nose, has had to shave off her hair, and suffers ongoing pain, which impacts her energy, sleep and mobility.

15Objectively your offending must be viewed as a mid-range example of this offence type.  

Personal Circumstances

16You were 18 years old at the time of the offending and are now aged 19.

17You were born in New Zealand, to parents of Tongan descent.  You are the fifth of eight children born to your parents.

18You emigrated to Australia with your family when you were six years old.  You are closest to your eldest sister, and one of your older brothers.  No one else in your family has any history of involvement with the criminal justice system.

19Your family initially settled in New South Wales where you attended primary school, before relocating to Melbourne in 2017, where you attended school until Year 9 before being expelled.  You then attended another school for year 10 but were again expelled and finished all schooling that year. 

20Sadly, your mother died last year.  She had been ill for some time, while you were in and out of youth detention.  You only learned of her terminal illness two weeks prior to her death.  You were closely attached to her and miss her deeply.

21You asked your family not to visit you in prison, because you feel embarrassed and as though you have let them down.  You remain in contact with them by phone.

22Judge Meredith observed when sentencing you on 15 April that you have a sporadic and limited work history involving some casual, infrequent manual work.  You have had regular contact with the criminal justice system, and this has prevented you from obtaining or maintaining consistent employment.

23You have a significant history of substance abuse.  You commenced smoking cannabis at age 13 and have been abusing Xanax since age 14 to stop you from 'overthinking'.

24You began using cocaine heavily in 2022 and also reported intermittent abuse of ketamine.

25You have never undergone any residential drug or other substance detoxification programs.

Matters in mitigation

Plea of Guilty and remorse

26You pleaded guilty at the committal of this matter, prior to witnesses being called. Significantly, this avoided the need for the complainant to be cross examined.  I accept this is an early plea with significant utilitarian benefit.  Whilst you have not demonstrated 'genuine remorse' your plea is evidence of 'some remorse'.

Extra curial punishment - Experience in custody

27At the time of this offending, you were on remand for offences to which you ultimately pleaded guilty before Judge Meredith.  Whilst you were arrested on this matter prior to that plea, it appears his Honour was not made aware that you were being held in solitary confinement at the time.

28Your 'Comprehensive Prison History' report, tendered on your plea, demonstrates that you have been held in management since this offending and you have been in solitary confinement for 257 days at the time of your plea before me. [4]  Counsel on your behalf did not seek to advance any reason other than your own misbehaviour for this regime.  You have been kept alone for 23 hours per day and only permitted an hour per day outside of your cell.  You are not permitted to work or attend courses designed to assist your rehabilitation.  Whilst the circumstances of your confinement are of your own making, at 19 years of age they are harsh and punitive, and I accept that they amount to a form of significant extra-curial punishment.  Unfortunately, I was not assisted by any material tendered on your plea to explore what, if any, specific effect this form of confinement has had upon you.  Accordingly, I can only take into account the conditions under which your sentence has been served in a general sense, but I nonetheless accept that your solitary confinement should be afforded significant weight in the sentencing process.

[4]Exhibit B – Comprehensive Prison History Sentence/Remand Report.

29As a result of your offending, you have spent most of your adult life in custody, and more than half of that time in custody has been spent in solitary confinement.

30Prior to that strict regime of confinement, you worked as a billet in Port Phillip Prison for a time and commenced a warehousing course.

31Whilst at Parkville Youth Justice Centre you commenced, but did not complete, a Men’s Behaviour Change Program.

Youth

32You were 18 at the time you committed these offences and are now aged 19.  For youthful offenders, rehabilitation is usually a far more important sentencing consideration than general deterrence.[5] However, as the Court of Appeal in Azzopardi’s case observed, 'as the level of seriousness of the criminality increases, there will be a corresponding reduction in the mitigating effects of the offender’s youth'. [6] 

[5]R v Mills [1998] 4 VR 235,241

[6]Azzopardi v The Queen (2011) 35 VR 43, 57 [44].

33The potential for young people to act without thought was aptly described by Judge Meredith when he sentenced you.  His Honour said: 'Young people are prone to act without regard to the consequences of their actions.  They are more impulsive and are, for a range of reasons, therefore regarded generally as less culpable. They are also more amenable to change for the better.'[7]

[7]Ibid [23]

34Whilst your youth is a significant sentencing consideration, the weight which can be placed upon your rehabilitation will be reduced because there is a significant need to deter you and others from assaulting prison guards.  This means that greater weight must be placed on denouncing your behaviour than might otherwise be the case.

Mental health

35

Prior to sentence by Judge Meredith, you were psychologically assessed by

Mr Jeffrey Cummins.[8]  He could find no disorder of your mental state.  He concluded that you committed the attempted armed robbery whilst you were under the influence of Xanax.  He observed that you are immature, hold antisocial attitudes, are psychologically vulnerable, and that you are someone who is likely 'easily led'.  He opines that 'regrettably…his prognosis in terms of further offending is significantly guarded'.[9] Mr Cummins recommended that you engage with regular psychological treatment over an extended period.

[8]Exhibit C - Report of Mr Jeffrey Cummins dated 19 February 2024.

[9]Ibid [45]

Childhood deprivation

36Your counsel submits that your circumstances growing up, and being introduced to drugs at a young age, attracts the application of the principles in Bugmy’s case.[10]  Mr Cummins sets out your childhood history in his report.  It does not reveal circumstances of childhood deprivation.

[10]Bugmy v The Queen [2013] HCA 37.

37Judge Meredith appears to have had additional material tendered on the plea before him that is not before this court.  He refers to a Youth Justice Centre report, and a neuropsychological assessment undertaken by the Children’s Court Clinic when you were 15 years old.  Whilst absent this source material, I have regard to the observations drawn by his Honour.  Specifically, I note that he did not find that the principles in Bugmy’s case had application to your case.

38There is no basis for this court to conclude otherwise.

Deportation

39You are a citizen of New Zealand.  I am told that as a result of your prior criminal record you face deportation upon the conclusion of your sentence.  The rest of your family now live in Australia, and you have no support in that country.  I accept that the weight of the prospect of deportation will weigh heavily upon you whilst in custody.

Other sentencing considerations

40Your offence is a category 1 offence pursuant to the Sentencing Act.

41Your counsel does not submit that there is a 'special reason' pursuant to s10A(2)(e) why this court should not impose a sentence of imprisonment of at least six months for this offence.[11]

[11]Sentencing Act 1991 (Vic) s.5(2G).

42You accept that your offending constitutes a 'prison offence' within the meaning of s16(3) of the Sentencing Act. That means that any term of imprisonment imposed must be served cumulatively upon the uncompleted sentence unless the court otherwise directs because of the existence of exceptional circumstances.  Your counsel submits that the combination of your youth, early plea of guilty, and the period of time you have spent in solitary confinement as a young person amount to exceptional circumstances in your case.

43In Yat’s case, the Court of Appeal found that the sentencing judge had failed to give adequate weight to the fact that a youthful offender had been held in management for almost three years, amounting to more than a third of his adult life in solitary confinement.[12]   That factor, in combination with your youth and early plea of guilty, does amount I conclude to exceptional circumstances in your case, and is the reason why I will afford some concurrency in sentencing you.

[12]Yat v The King [2024] VSCA 93

44In sentencing you, I must have regard to a range of matters such as the seriousness of your offending, your culpability for it, and your personal circumstances.  I must balance the interests of the community in denouncing criminal conduct with the interests that the community clearly has in seeking to ensure as far as is possible that young offenders are rehabilitated and reintegrated into society.  I must impose a sentence which is proportionate to the gravity of the offence, considering the circumstances.  The sentence must be no more than is necessary to satisfy those various objectives of sentencing.

45I have also taken into account current sentencing practices for the offence to which you have pleaded guilty.

46Your counsel submits that the court ought impose a concurrent sentence of six months' imprisonment which does not exceed the mandatory minimum.  Having regard to all of the relevant factors in your case, I conclude that such a sentence would be wholly inadequate to reflect the gravity of your offending and the need to deter you and others from violently lashing out against custody officers whilst in prison.

Sentence

47Stanley Vanu, I sentence you as follows:

48On charge 1 you are convicted and sentenced to 9 months' imprisonment.  Six months of this sentence is to be served concurrently with that you are presently undergoing.

49That is, your total effective sentence is nine months' imprisonment, and will practically extend your earliest release date by three months.

50I will set a new non-parole period at 17 months.  This period relates to the sentence you are presently serving and to this sentence I have imposed today.

51You have no pre-sentence detention available to you on this matter.

52Had you pleaded not guilty and been found guilty after trial I would have sentenced you to two years' imprisonment with a non-parole period of 15 months.

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