Director of Public Prosecutions v Vitale
[2023] VCC 1408
•20 July 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00102
Indictment No. L11744659.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CRAIG VITALE |
---
JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 July 2023 | |
DATE OF SENTENCE: | 20 July 2023 | |
DATE OF REASONS: | 16 August 2023 | |
CASE MAY BE CITED AS: | DPP v VITALE | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1408 | |
REASONS FOR SENTENCE
---
Subject:Criminal Law
Catchwords: Sentence – Common law assault – Offending conduct committed while offender in custody – Victim another prisoner known to the offender – Significant physical injuries of victim – Upper range seriousness of offending – Late plea of guilty – Severely disadvantaged childhood – Alcohol and drug abuse – Poor mental health – Problematic prospects of rehabilitation – Extensive prior criminal history
Legislation Cited: Crimes Act 1958 – Sentencing Act 1991
Cases Cited:R v Devries [2005] VSCA 95 –De Castres v The Queen (2011) 33 VR 493 – Bugmy v The Queen (2013) 249 CLR 571 – DPP v Herrmann [2021] VSCA 160
Sentence: Total effective sentence 18 months’ imprisonment with six months cumulation on existing sentence
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Caruso | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | In person |
HIS HONOUR:
1Craig Vitale, on 20 July 2023 you pleaded guilty before me to an indictment containing one charge of common assault,[1] which has a maximum penalty of five years’ imprisonment.[2] On that date, I convicted and sentenced you to 18 months’ imprisonment and I directed that six months of that sentence be served cumulatively upon the sentence you were then serving.
[1] Contrary to common law.
[2] Pursuant to s 320 of the Crimes Act 1958 (‘CA’).
2In accordance with s 6AAA of the Sentencing Act 1991, I declared that but for your plea of guilty, I would have sentenced you to two years’ imprisonment. Under s 14 of the Sentencing Act 1991, I would have fixed a new non-parole period which would have had the effect of extending your earliest release date by 12 months.
3I indicated I would provide my reasons for sentence at a later time. These are those reasons for sentence.
The facts
4The prosecution filed a Summary of Prosecution Opening for Trial dated 5 May 2023, which you told me I could treat as a statement of agreed facts for the purposes of sentencing you.[3]
[3] Ex P1.
5At the time of the offending, you and the victim, Mark Tovale, were both incarcerated at Barwon Prison. Mr Tovale resided in the Cassia Unit and you resided in the Eucalypt Unit. You were known to each other.
6On 7 February 2020, Mr Tovale exited the Cassia Unit at approximately 12:49pm. You appeared to have been waiting for him to come outside and you immediately approached him. Without warning, you punched him to the face several times. Mr Tovale fell backwards onto the ground and was in a semi-conscious state.
7While Mr Tovale was on the ground, you continued to punch him numerous times to the head region. The assault continued until you were pulled away from Mr Tovale by a fellow prisoner. At no stage during the assault was Mr Tovale able to defend himself.
8After the assault, Mr Tovale was unconscious and began having a seizure. He continued to lie on the ground after the seizure for a further two minutes, before being placed in a coma position by prison officers who came to assist.
9The incident was recorded on CCTV and several prison offers were present in the Cassia Unit at the time of the offending. A compilation of the footage was tendered by the prosecution and was played at the plea.[4]
[4] Ex P2.
Investigation by prison officers
10Prison staff initially came to Mr Tovale’s aid. At 12:55pm, Senior Prison Officer McKiernan took one photograph of the victim’s facial injuries. The incident was also responded to by Senior Prison Officer Leach, who attended your holding cell at 1:07pm. Leach photographed your right hand and also took photographs of the victim’s injuries and the blood stains on the concrete where the offending had occurred.
Police investigation
11Detective Senior Constable David Baskin attended Barwon Prison and took photographs of the scene.
12Mr Tovale was twice asked to provide a statement and on both occasions he declined to do so.
Hospital treatment
13Mr Tovale was taken to the Royal Melbourne Hospital by ambulance and underwent scans and x-rays. He sustained peri-orbital swelling and bruising, with some minor discharge from the left eye. He also suffered facial injuries and a loss of consciousness, with pronounced left facial swelling, but no fractures. The prosecution advised me at the plea hearing that Mr Tovale has made a full recovery.
Victim impact
14The victim of your offending did not prepare a victim impact statement. Nonetheless, where no victim impact statement is relied upon, a sentencer may draw reasonable inferences from the known circumstances regarding the likely impact of an offence upon any victim.[5]
[5] See R v Miller [1995] 2 VR 348, 354 (Southwell, Ormiston and McDonald JJ); R v Lomax [1998] 1 VR 551, 559–560 (Ormiston JA, Winneke P and Hedigan AJA agreeing); R v Rankin [2001] VSCA 158 [10] (Winneke P, Vincent JA and O’Bryan AJA agreeing); MA v The Queen [2012] VSCA 214 [83] (Neave JA, Bongiorno JA and Whelan AJA agreeing).
15Mr Tovale would have suffered considerable pain and distress as a result of your attack. He could not protect himself and suffered from significant injuries and a seizure as a result of your actions. I note you are not charged with causing him injury. Mr Tovale had a right to feel safe within the prison and the incident would have been a terrifying experience for him.
Offence seriousness
16Common law assault is a moderately serious offence, carrying a maximum penalty of five years’ imprisonment. I consider your offending conduct to be in the higher range of seriousness for offences of this type.
17It is significant that your offending took place while you were in custody at Barwon Prison, and I accept that this is an aggravating circumstance.
18As Vincent JA observed in R v Devries:[6]
[It] is no part of a sentence of imprisonment that the individual subject to it is to be required to live in fear or be subject to violent physical attack. Whatever interpersonal problems might arise, there can never be any justification or the use of violence against a fellow prisoner … Neither can it be accepted that there is a separate gaol culture that somehow mitigates the employment of force as a method for settling disputes.[7]
[6] [2005] VSCA 95.
[7] Ibid [21]–[22]. See also R v Berry & Wenitong (2007) 17 VR 153, 189–190 [126] (Redlich JA, Buchanan and Kellam JJA agreeing); De Castres v The Queen (2011) 33 VR 493, 501 [34] (Ross AJA, Ashley and Harper JJA agreeing) (‘De Castres’).
19Ashley JA opined in De Castres v R,[8] when offending occurs in a custodial setting, general deterrence is a paramount sentencing consideration.[9] His Honour continued:
In part, this is because the victim has no choice but to be where he or she is, and has at least a reduced ability to take prudent measures for his or her own safety. In part, it is because the courts cannot permit the law of the jungle to take hold in prisons.[10]
[8] (2011) 33 VR 493 (Ashley and Harper JJA and Ross AJA).
[9] Ibid 494 [1] (Ashley JA, Harper JA agreeing), 495 [10] (Harper JA), 500–502 [32]–[36], 504 [48] (Ross AJA, Ashley and Harper JJA agreeing).
[10] Ibid. See also ibid 503–504 [47]–[48] (Ross AJA).
20Ashley JA further observed, where an offender has a past history of violence, as you have, ‘commission of an act of violence in a custodial setting will underlie the importance of specific deterrence as a sentencing consideration’[11] and ‘matters going in mitigation of sentence will be of lesser weight in the sentencing synthesis.’[12]
[11] Ibid 494 [2].
[12] Ibid 494 [3].
21Your attack on Mr Tovale was unprovoked, violent, cowardly and somewhat protracted. It continued after he lay prostrate and unconscious on the ground. General deterrence, denunciation and just punishment must be given primacy in sentencing you. Given your prior criminal history in particular, specific deterrence and protection of the community must also be given significant weight.
Personal circumstances
22You were assessed by Dr Adam Deacon, consultant psychiatrist, on 2 March 2018. Dr Deacon prepared a psychiatric report dated 12 March 2018, which you tendered at the plea.[13]
[13] Ex D2.
23You also tendered a psychological report prepared by Ms Carla Lechner, clinical psychologist, on 22 September 2017.[14] You were assessed by Ms Lechner on 9 September 2017.
[14] Ex D3.
24You were born in August 1988 and are currently 34 years of age. You were 31 years old when the offending occurred.
25You were born in New Zealand and you are the oldest of six children. You are of Samoan heritage. You reported to both Dr Deacon and Ms Lechner that your childhood was characterised by periods of domestic and community violence. In particular, you reported that your father was ‘very abusive’, a ‘violent alcoholic’ and ‘absent’, and while you love your mother, you described her as ‘emotionless … always working [and] emotionally missing in action’.
26At home, you faced abuse from your father and often wondered if you would survive. You told Ms Lechner about a specific time when your father belted you at the age of four, resulting in you receiving cuts, bruises and a broken arm. You reported to Ms Lechner your mother ‘stayed quiet’ while you faced abuse from your father, potentially because she was fearful of being abused herself. You also spoke to Ms Lechner about being traumatised by watching your father belt your sister ‘almost to death’.
27Both Dr Deacon and Ms Lechner reported that you were sexually abused between the ages of 4 to 6 years by your cousin, who was 12 years old at the time. You told Dr Deacon that you only realised the seriousness of what had happened when you migrated to Australia. It took you years to tell someone that this had occurred because you felt you had no one to confide in. As a result, you struggle to respond to people who have not only harmed you, but have also cared for you. Ms Lechner observed:
This, coupled with the chronic physical and mental abuse at the hands of [your] father, left [you] constantly on edge and constantly responsive to potential danger. [You have] all the hallmark features of complex developmental trauma, such as hyper-vigilance, low self-esteem, difficulties in trusting people and emotional dysregulation.
28Dr Deacon noted that although you do love your parents, you resented that they did not nurture and guide you adequately. Positively, you have a stable relationship with your siblings.
Education and employment history
29You lived in Auckland until you were ten years old before moving to Australia. You told Ms Lechner that living in Auckland ‘was tough’ as your parents ‘head-butted a lot’. You attended Wesley Primary School until Grades 3 to 4 where it was normal for you to experience chaos, bullying and fighting.
30When you arrived in Australia, you felt that your teachers were more involved and there was more of an emphasis on discipline. However, you reported to Ms Lechner and Dr Deacon that you felt school was ‘restrictive’ and you had difficulties adjusting.
31In Melbourne, you attended Springvale Heights Primary School from Grades 4 to 6. You then attended Wellington Secondary College for two terms before transferring to Hampton Park Secondary School. You told Ms Lechner that upon moving to Melbourne you faced new challenges at school because you were very emotional, had poor communication skills and generally had a negative attitude. You and your friends were often suspended for annoying students, wagging school and fighting. Dr Deacon wrote in his report that you were often aggressive and violent. Instead of viewing school as a place to be educated, you identified school as a place to merely avoid problems in your family.
32You felt isolated in Australia and have attempted suicide on several occasions, tracing back to when you were 13 years old. You left school at age 15 and you reported that your ‘brain left school at primary school … the rest of the time was a vacation, just waiting to die’.
33After leaving school, you worked in numerous jobs, estimating to Ms Lechner that you were employed about 40% of the time. According to Dr Deacon, when you first left school you worked with your father in a timber factory. You became estranged from your father and later worked in various unskilled labouring jobs. Your longest period of employment was as a furniture removalist for two years, however you reported to Dr Deacon that you struggled to maintain long-term employment because you ‘responded poorly to work colleagues giving [you] instructions’.
Substance use
34You told Ms Lechner that you have tried marijuana before but do not use the drug on a regular basis. From the age of 14 years until the end of 2011, you used ‘Ice’ and/or ‘speed’ daily, as well as regularly using ecstasy. You also have a history of ‘chroming’ and have used unprescribed Xanax to assist you in ‘coming down’.
35From the age of 12 years, you habitually drank alcohol, telling Ms Lechner that you would ‘have a six pack a night’. By the time you turned 18 you would drink a ‘slab’ every day. In 2011, according to Ms Lechner’s report, you ceased your use of alcohol.
Mental health
36Ms Lechner reported that you have a history of head injuries and periods of unconsciousness that can be attributed to your father’s abuse, fighting at school, boxing injuries and suicide attempts. At the time of your assessment with Ms Lechner, you said that you suffered frequent headaches and have felt confused and slow.
37According to Ms Lechner and Dr Deacon you were reasonably insightful about how your early life has impacted you as an adult. At the time of Ms Lechner’s report, you fulfilled the criteria of a diagnosis of Major Depressive Disorder and you were interested in undertaking specific trauma therapy. Ms Lechner reported that you presented with symptoms of complex developmental trauma and of Post-Traumatic Stress Disorder.
38Dr Deacon’s report showed that your mood was ‘subjectively flat’, anxious and ‘mildly depressed’. You also told Dr Deacon that you have been ‘persistently troubled by suicidal ideation’, a feeling that was amplified once you realised you had been sexually abused. In prison, you reported to Dr Deacon that you continue to be afflicted with suicidal ideation but you had not attempted to take your life.
39Due to your reports of head injuries and learning difficulties, you were administered by Ms Lechner with the Wechsler Abbreviated Scale of Intelligence – Second Edition to provide clarity regarding your cognitive skills. Ms Lechner found that:
[Your] performance places [you] in the “low average” range of intelligence with approximately 82% of the adult population performing better (IQ=86, range 81-91 at 95% confidence limits).
40Dr Deacon noted that your intelligence appeared to be average.
41In terms of your abstract verbal reasoning, Ms Lechner wrote that you are well below the average range and that you demonstrated a concrete thinking style. According to Ms Lechner’s analysis, you are more likely to interpret the world subjectively and may have difficulty taking other perspectives into consideration.
42You were also administered the Beck Depression Inventory by Ms Lechner. This is a self-report questionnaire that canvasses for symptoms of depression over the past two weeks. Your score fell into the ‘extreme’ range, consistent with a diagnosis of clinical depression. In particular, you included the following factors in your questionnaire:
(a) Agitation, irritability, indecisiveness and difficulties concentrating;
(b) Difficulty sleeping and issues with appetite, loss of energy and fatigue;
(c) Loss of pleasure and interest;
(d) Suicidal thoughts, but no intention of acting on those thoughts;
(e) A desire, but inability, to cry; and
(f) Feelings of pessimism, sadness, failure, guilt, self-dislike, punishment, worthlessness and self-criticism.
43According to Ms Lechner, your issues with mood regulation relate to your ‘past experiences, and long-held feelings of failure, inadequacy and lack of identity’.
44You also completed the Beck Anxiety Inventory with Ms Lechner and received a result in the ‘severe’ range. You reported being ‘severely bothered’ by symptoms such as an inability to relax, feelings of nervousness and scaredness, and fear of losing control. You also reported being ‘moderately’ bothered by a range of other symptoms of anxiety.
45Dr Deacon stated that while you did not appear to be overtly anxious during the assessment, you did report a ‘history consistent with a chronic anxiety condition with associated depression’. Further, Dr Deacon reported that your ‘anxiety state correlated with a deep sense of mistrust leading to paranoid like feelings’. These ‘paranoid like feelings’ were not consistent with a psychotic disorder. In relation to your anxiety, you told Dr Deacon that:
[You] perpetually feared that bad things would occur, resulting in a sense of doom, fear and restricted breathing. [Your] anxiety had continued in prison leading to apprehension and social avoidance. [You] felt that you couldn’t trust anyone including prisoners and staff.
46Ms Lechner and Dr Deacon both reported that you have previously engaged in counselling and anger management. At the time of Dr Deacon’s assessment you were also taking medication for your anxiety and depression, but it is unclear whether you still, years later, treat these conditions with medication.
47At the time of Dr Deacon’s report you were taking medication for your anxiety and depression. You told Ms Lechner, however, that although you had ‘tried’ anti-depressants, you did not continue to take them because you were afraid of becoming addicted. At the time of your plea, it is unclear whether you were taking any prescribed medication.
Prior criminal history
48You have a significant prior criminal history, commencing in 2009 and extending through to 2021. It is a matter of great concern that you have a number of prior convictions for offences against the person, including one for intentionally causing serious injury.
49Your criminal record also includes dishonesty and property offences. You have also committed several driving offences dating back to 7 September 2009, where you were convicted in the Dandenong Magistrates’ Court of drive in a dangerous manner, exceed speed in a speed-limited area, use of unregistered motor vehicle on a highway, drive without ‘P’ plates displayed, failure to carry probationary licence and failure to stop motor vehicle on request. For that offending, you were sentenced to a six month Community Based Order.
50You were convicted and sentenced to an 8 month Community Correction Order (‘CCO’) on 28 February 2012 in the Melbourne Magistrates’ Court for offences relating to recklessly cause injury, make threat to kill, unlicensed driving and reckless conduct endanger serious injury. On the same day, your failure to comply with the previous CCO was proven. The original order was confirmed and, without conviction, you were fined $200.
51You were first sentenced to a term of imprisonment of 3 months on 17 November 2015 in the Dandenong Magistrates’ Court for the offence of recklessly cause injury. However, your appeal in the Melbourne County Court was allowed on 22 February 2016. The previous imprisonment order was set aside and you were convicted and sentenced to serve to a two-year CCO which included a condition to undergo anger management, amongst other treatment options. You were also fined $200, with conviction.
52Of particular significance to the present sentence, at the time of the current offending you were serving a sentence of imprisonment imposed by the Supreme Court of Victoria in relation to charges of intentionally causing serious injury and armed robbery. You received a total effective sentence of 11 years’ imprisonment, with a non-parole period of 7 years. which commenced on 27 April 2018.
53Clearly, specific deterrence and protection of the community must loom large in my sentencing synthesis.
Mitigating circumstances
54You pleaded guilty to the present charges on 21 July 2023. While this is a relatively late plea, I accept it has utilitarian benefit, particularly in the COVID-19 environment.[15] Importantly, you have saved witnesses from giving evidence in court. Your plea also indicates your acceptance of responsibility for your offending conduct and a willingness to facilitate the course of justice.
[15] Worboyes v The Queen (2021) 96 MVR 344, 356–7 [22], [34]–[39], [2021] VSCA 169 (Priest, Kaye and T Forrest JJA); Chenhall v The Queen [2021] VSCA 175 [29]–[30], [33]–[35] (Priest, Kaye and T Forrest JJA); Tran v The Queen [2021] VSCA 278 [59] (Kaye and T Forrest JJA); Rossi v The Queen [2021] VSCA 296 [13]–[16], [19] (Priest and T Forrest JJA).
55While I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you, there is insufficient evidence before me to make a finding in your favour that you demonstrate true contrition and remorse for your offending conduct, beyond what is evident from the plea itself.[16]
[16] See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA) (‘Barbaro’).
56I also accept that you have already been serving a sentence in custody and given much of this time has been spent in COVID-19 conditions, this has meant that the time you have spent in custody to date has been more onerous on you than it otherwise would have been.[17] I also accept you will experience a greater level of custodial hardship as a result of COVID-19 restrictions which apply to all prisoners in this State for the foreseeable future.
[17] See eg The Queen v Madex [2020] VSC 145 [52] (Incerti J); R v Kelso [2020] NSWDC 157 [45] (Norrish QC DCJ); Brown (aka Davis) v The Queen [2020] VSCA 60 [48] (Priest and Weinberg JJA); Astbury v The Queen (No 2) [2020] VSCA 158 [33] (Kaye, Niall and Weinberg JJA).
57The prosecutor fairly conceded that because you come from a socially disadvantaged background, the principles discussed by the High Court of Australia in Bugmy v The Queen[18] are engaged.
[18] (2013) 249 CLR 571.
58You have been exposed to, and are a victim of, violence in the home and your upbringing has been deeply affected by substance abuse and sexual abuse.
59It is clear you had numerous challenges as a child and young adult which have no doubt fed into your criminal lifestyle and the circumstances surrounding your commission of a number of offences, including the present offence. Your experience growing up remains relevant when determining the appropriate sentence, notwithstanding your long history of offending.[19]
[19] Ibid 594–595 [43]–[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); cf 598 [56] (Gageler J).
60As the Victorian Court of Appeal observed in DPP v Herrmann:[20]
The significance of the ‘general’ approach enunciated in Bugmy is that the relevance of deprivation to sentencing does not depend on proof of such a nexus. ... ‘the impact of disadvantage is complex, multilayered, non-linear and not easily “diagnosed” or measured’. The High Court’s recognition that serious childhood deprivation is likely to make an offender less morally culpable than ‘an offender whose formative years were not marred in that way’ reflects the principle of equal justice.[21]
[20] [2021] VSCA 160.
[21] Ibid [45] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA). See also Jawahiri v The Queen [2021] VSCA 287 [73(s)] (Priest and T Forrest JJA).
61These complex factors must also feed into the weight I give to specific deterrence and protection of the community in your case, because you are a person who is obviously not easily specifically deterred because of your social disadvantage. Nonetheless, I will have to give some weight to specific deterrence if only to encourage you, upon release from custody, to rehabilitate.
62Moreover, these personal factors result in me moderating the weight I would otherwise have given to general deterrence, denunciation and the punitive aspects of the sentence I impose on you.
63So far as the application of the totality principle is concerned in your case, the time you have served in custody for unrelated offending cannot be declared as pre-sentence detention in respect of the sentence I imposed upon you. Accordingly, I have moderated the sentence I would otherwise have imposed on you to allow, in effect, for a measure of concurrency between the sentence you have served while on remand for this offence and this sentence.[22]
[22] See R v Mangelen (2009) 23 VR 692, 697 [28] (Redlich JA, Ashley JA agreeing); Mohamed v The Queen [2022] VSCA 136 [55] (Maxwell P, Emerton and Sifris JJA).
Rehabilitation
64In 2018, you were sentenced in the Supreme Court of Victoria by Croucher J in relation to other offending. His Honour’s Reasons for Sentence were tendered at the plea hearing and I have had regard to them when detailing your personal and mitigating circumstances.[23] According to his Honour’s remarks, from 2011 to 2018 you underwent a ‘remarkable’ transformation. Referring to you at that time, Croucher J observed that:
His sustained period of abstinence from illicit drugs and alcohol, his engagement in counselling, his growing insight into his own mental health problems, his engagement in regular paid employment, his interest in educating others against the ways of violence, his devotion to fitness and a healthy lifestyle – all of these things are demonstrative that he is well on the way to reform.[24]
[23] Ex P1.
[24] [2018] VSC 197 [77].
65Croucher J further stated in relation to you at that time that:
Despite the difficulties he has had in prison, he has continued to work towards reform by remaining drug-free and by doing various courses, including those concerning drug and alcohol treatment, managing loss and coping with change … In other words, it appears that he has done whatever he can while in prison to improve himself.[25]
[25] Ibid [78].
66No evidence was placed before me regarding any rehabilitative efforts you have made since you were sentenced by Croucher J in 2018. Clearly, the present offending demonstrates your rehabilitation is nowhere near complete. For that reason, and because of your lack of genuine contrition and insight, I would assess your prospects of rehabilitation as being somewhat problematic.
67However, I do recognise that you have not reoffended since the assault against Mr Tovale. I also acknowledge the many positive things Croucher J outlined you had achieved whilst in custody. It seems that you are capable of turning a corner in your life, provided you continue to engage in counselling, remain drug-free, seek further employment and take all other necessary steps, as you have in the past. By doing that, I would assess your prospects of rehabilitation as being far more encouraging.
Application of sentencing principles
68I have had regard to current sentencing practice in relation to this offence as informed by the decisions of the High Court of Australia in R v Kilic[26] and DPP (Vic) v Dalgliesh (a Pseudonym)[27] and the Victorian Court of Appeal decisions in DPP v Zhuang[28] and DPP (Cth) v Thomas.[29]
[26] (2016) 259 CLR 256, 266–268 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[27] (2017) 262 CLR 428, 444–447 [47]–[58] (Kiefel CJ, Bell and Keane JJ), 452–455 [78]–[85] (Gageler and Gordon JJ).
[28] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA).
[29] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
69While current sentencing practice is relevant to the sentence I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing a just sentence in your case.[30]
[30] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
70Moreover, it is difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute this offence and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain assistance from comparable cases, I have sought to do so in your case.
71The basic purposes for which a court may impose a sentence are just punishment, denunciation, deterrence, both specific and general, protection of the community and rehabilitation. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offence, your culpability for it, the effect of your offence on the victim and your personal circumstances.
72As this case involved offending whilst in custody, as I have previously observed, general deterrence, denunciation and just punishment must be given significant weight. Moreover, because of your prior criminal history in particular, real weight needs to be given to specific deterrence and protection of the community. As I observed earlier, I assess your prospects for rehabilitation as being somewhat problematic, however if you reengage with counselling, particularly to manager your anger, your prospects may be more optimistic.
73In sentencing you for this crime I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure that, so far as possible, you are rehabilitated and reintegrated into society.
74The present charge is not part of the standard sentencing scheme and is not a category 1 or category 2 offence as defined by the Sentencing Act 1991.
75After balancing all relevant sentencing considerations in your case, I consider a sentence of imprisonment is the only appropriate sentence and that partial cumulation with the sentence you are presently serving should be ordered.
—— —
0
26
0