Director of Public Prosecutions v Wac
[2016] VCC 594
•10 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01247
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AJAK DUOT WAC |
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JUDGE: | HIS HONOUR JUDGE HOWARD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 March and 19 April 2016 | |
DATE OF SENTENCE: | 10 May 2016 | |
CASE MAY BE CITED AS: | DPP v Wac | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 594 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW - plea of guilty to recklessly causing serious injury – 25yo offender stabbing victim with screwdriver which penetrated his brain causing brain injury – profound and enduring victim impact – offender with disadvantaged background and serious prior convictions for personal violence – sentenced to 5 years’ imprisonment with minimum of 3½ years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J Livitsanos | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr G Casement (plea) MrAMcMonnies (sentence) | Allan McMonnies |
HIS HONOUR:
1 Ajak Duot Wac, you have pleaded guilty to recklessly causing serious injury for which the maximum penalty is 15 years’ imprisonment. I must now sentence you on behalf of the community.
Circumstances of the offending
2 The circumstances of your offending are set out in an agreed prosecution plea opening which was read out in Court. A summary will suffice. At the time of offending, you were staying over with friends, the complainant, Deng Deng and his brother, Chol Deng, at their housing commission flat in Collingwood. You had stayed there for about two weeks and had been asked to leave because there was not enough room for you. On Saturday 23 May 2015, you had been drinking heavily with a group of friends at the flat and by about 10.00pm you and others were intoxicated. You began arguing with the complainant about overstaying your welcome and the request to leave. Obviously you did not want to go. You and the complainant exchanged punches and his brother tried to separate you. Others became involved. You armed yourself with a screwdriver, following which you were glassed in the face and cut on your arm with a knife. It is agreed the complainant was not responsible for causing either of those injuries to you. Nevertheless, using an overhead motion, you stabbed the complainant to the head with the screwdriver, which penetrated his skull and pierced his brain. The complainant fell straight to the ground unconscious and bled profusely. Several other people fought and disarmed you.
3 You fled the premises and were arrested by police. You were taken to hospital for treatment of your injuries, which substantially consisted of a 3cm wound to your forehead and a 9cm cut to your left forearm which was stitched, then you were released that night into police custody so that you could sober up before interview. You were breath-tested and had a reading of 0.22%. You were eventually interviewed around 2.20pm the following afternoon. You claimed that you and the complainant had been pushing and fighting earlier that day but you had stopped and everything was fine. You said that about 9.00pm the complainant told you to leave the premises and that you lent over a chair to collect your jacket and were struck in the head with a glass by a male in a wheelchair. You said you were then pushed out the door by a number of people who assaulted you and one cut your arm with a knife. You denied stabbing the complainant with the screwdriver, or being in a fight with him later in the night. You said that you did not know how he came to receive his injuries and denied ever holding a screwdriver.
4 You were charged with intentionally and recklessly causing serious injury to the complainant and have been held in custody until the present. There is 352 days’ presentence detention up to, but not including, today. You pleaded not guilty at a straight hand-up brief committal in July 2015. You filed a defence response in December 2015 in which you claimed you armed yourself with the screwdriver after you were struck with the glass and cut on the arm, following which you claimed you were acting in self-defence.
5 The trial was listed to commence on 22 February last. However, on 2 December 2015, following a pre-trial hearing of evidence from an eye-witness,[1] the prosecution modified its view of the matter, it withdrew the charge of intententional conduct and you pleaded to the present matter on 22 February.
[1]The witness was Achol Kir-Deng who was due to give birth on the first day of the trial. She said she had seen the offender stab the victim. There was some equivocation but ultimately she said the victim had done nothing to the offender before he was stabbed with the screwdriver. And that the offender had another screwdriver in his back pocket which she had taken from him when he went to use it.
Victim impact
6 It is agreed that in stabbing the complainant to the head, you were and are responsible for a penetrating wound which fractured the left frontal bone and extended into his brain causing bleeding on the brain and unconsciousness. He also suffered some other injuries, but the Crown concedes that the Court could not be satisfied beyond a reasonable doubt that you were responsible for them.[2] The head injury put the complainant into a critical and serious condition; he underwent a neurosurgical operation to insert a monitor in his skull to gauge pressure and spent 7 days in ICU. In hospital, neurosurgeons noted he was suffering from right upper-limb weakness, he required help to walk and had profound aphasia, which is impairment of language affecting the production or comprehension of speech and the ability to read or write. There were other consequential problems including disorientation, difficulty concentrating and a low tolerance for pain. The complainant was then released to an inpatient rehabilitation centre for four weeks. On discharge from there he suffered speech difficulty, loss of vision and visual field on the right side, fatigue, intermittent headaches, poor sleep, pain in his mouth, memory and cognitive impairment and a mild right-sided weakness.
[2]They included fractures to the tips of the nasal bones, fractured teeth, a laceration to a finger on the left hand, swelling above the right eye and a skin tear to the left shoulder. It is conceivable that these injuries were sustained by the complainant while he was struggling on the ground with the offender or, perhaps, caused by others.
7 Although he had been living with his brother, the complainant was forced to return to live with his mother and required assistance with all his activities of daily living other than personal care. He required supervision when walking outdoors due to his impaired vision. He was unable to work or drive and had to go onto Centrelink benefits. In a medical report dated 19 February 2016, it was indicated that he has continued to make slow but steady progress, although he has ongoing memory and cognitive impairment. A neuropsychological assessment last year indicated he had reduced working memory and attention span. His speed of information processing was considerably impaired and hampered by his right-sided visual impairment. His general comprehension, self-monitoring and simple problem-solving was intact. The most recent report notes that his deficits are in keeping with his Traumatic Brain Injury affecting the left frontal lobe and that he requires prompting, use of memory aides and strategies to manage his memory and cognitive impairment. Physically, his right upper and lower-limb weakness has resolved and he has normal strength now. He is able to walk independently and has been taught to compensate for his visual field loss. He is now independent and safe walking outdoors and is able to travel on public transport alone. Nevertheless, the complainant’s right-sided visual impairment continues and he has difficulty reading and cannot return to driving motor vehicles. This impacts directly on his ability to return to his previous job which involved driving forklifts. His speech has improved and he now has only mild speech difficulty. Fatigue still limits his activities during the day, but with associated sleep disturbance. His headaches have improved. It is hoped that one day he may be able to return to some form of paid employment in the near future with assistance from disability employment services. The complainant has now completed his outpatient rehabilitation program and is hoping to obtain funding through Victims of Crime to commence a gym program to further improve his fitness and endurance.
8 I received Victim Impact Statements declared by the complainant on 24 March 2016 and from his mother declared on 15 March 2016. Both attended court and the mother read her statement. It was then 10 months on from your attack and the complainant stated his life has changed a lot. He spoke of his speech and visual difficulty. He said that he will be scarred on his face forever, which makes him feel angry and upset. He regretted the loss of his working life and the slowing of his cognitive agility. He can no longer play sport and has lost confidence. He was forced to return to live with his mother and noted her anger and upset. He said that he is focusing on getting better rather than being angry, but knows it will take time to be normal again.
9 The complainant’s mother spoke of the many different ways in which your attack has affected the complainant and his wider family. In addition to the matters I have already mentioned, she noted that he can no longer study as he had done in the past. She stated that the incident has consumed 25% of the total family income due to the treatment and transport costs involved. The mother has had to curtail her personal activities so that she can now take care of her son. She spoke of the frightening and intense emotional reaction to the trauma of this incident, particularly for the complainant, who has suffered intrusive memories, irritability and anger, social isolation, hyper-vigilance and anxiety. Finally, she lamented that although her son is alive today, he is no longer able to have a proper future in his life.
10 You should feel a great deal of shame and remorse for the profound and enduring victim impact which you have caused.
Background and personal circumstances
11 I shall turn to your background and personal circumstances which are set out in a psychological report of Michael Crewdson, dated 23 March 2016, and in a comprehensive and helpful written submission provided by your counsel. You are now just 26, and were 25 at the time of offending. You were born in Sudan and have a relatively well-educated half-brother who is 45 and two, perhaps three, other older siblings. When you were two, your parents fled from the terrible civil war and travelled overland to Uganda, where you were raised for a number of years in extreme poverty. When you were seven, in 1996, your father died from a cardiac condition brought on by drinking contaminated village water. When you were eight you were getting caught up in gang activity and your mother took you to a refugee camp in Kenya, where you lived for five years. In 2002, when you were 13, you were brought to Australia as a refugee by your half-brother and settled with him and his family in Toowoomba, Queensland. Sadly, your mother remained in Kenya and you have not seen her since that time, although you have had some phone or mail contact. She remains a very important figure to you and you are concerned about her health.
12 You completed your secondary studies in Toowoomba to Year 9-level. Particularly due to your height, you excelled at basketball and won a scholarship to the Australian Institute of Sport in your mid-teens. You wanted to go to Canberra for this purpose but your brother, acting as your guardian, refused to allow you to do this. There was much conflict about the matter and at about 15 you left home and school and fended for yourself. To your credit you had a variety of semi-skilled jobs, with a particular interest in building and construction work, and commenced TAFE courses, but you experimented with a variety of drugs, significantly abused alcohol and engaged in self-destructive behaviour. Trouble with the law followed. In 2006, when you were 15, you were found guilty in the Children’s Court in Queensland, of going armed to cause fear for which you were indefinitely referred to a Youth Justice Conference. Then followed a liquor offence at 17 and a driving offence at 18, for which you received a wholly suspended sentence of three months’ imprisonment.
13 In July 2009, you breached that order when you were convicted in the District Court of Queensland for assaults occasioning bodily harm, some whilst armed and in company, for which you were sentenced to a total of 4 years’ imprisonment with an order for immediate release given time served of 492 days’ pre-sentence detention. You were then 19 and had been in custody for about 16 months. You were on parole for 2 years and 8 months, due to expire in March 2012. The facts of that offending and the sentencing remarks have been provided. There were two lots of offending, the first in December 2007, when you were just about to turn 18. You got into an argument with a man at a basketball match and struck him in the face with a metal stake, causing a large deep laceration to his forehead. Other injuries, including a fractured jaw, was caused by you or a co-offender continuing to assault him. A few months later, in March 2008, you were at a drinking party and had a dispute with a man, you knocked him to the ground and started punching him with both fists before standing up and jumping on his head. You punched another man who tried to intervene. The victim was unconscious. Some hours later you returned to the house, where you confronted the victim again, became angry and dragged him outside. You landed several more blows on him before the fight was broken up. The victim fell unconscious again, and when taken to hospital was found to be in a coma, suffering from bleeding to his brain, swelling and bruising to his forehead and other injuries. The sentencing judge told you that it was lucky that victim did not die and spoke of the need for you to engage in an anger management course to control your temper but you did not listen to her.
14 You were released from custody in July 2009 and went to live in South Australia without, it would appear, effective parole support. You breached the suspended sentence or parole from Queensland when in December 2010, when almost 21, you were convicted of causing serious harm to another, which offence was aggravated because you were in possession of a weapon. Again, I have the advantage of the sentencing judge’s remarks. The offence was committed in January of that year, when you were just 20. You were intoxicated after another night of drinking. In the early hours of the morning you attacked a man who was simply walking to work minding his own business. You and a co-offender struck him on the head with a stick causing serious injuries, including a fractured skull which lead to subdural bleeding requiring surgical release of pressure. As a result, the victim was unable to work and lost the chance to apply for permanent residency in Australia. The sentencing judge noted your significant problem with alcohol and again you were put on notice about your need for conflict and anger management. Otherwise, he said, you faced the prospect of spending the better years of your life in jail. You were sentenced to 3 years’ imprisonment with a minimum of 1 year and 3 months, which accounted for almost all of the pre-sentence detention. Although this offending breached your parole in Queensland, apparently no such proceeding has been instituted. You were released from custody in South Australia in April 2011 and remained on parole there until November 2012 without breach, although you were found guilty of street offending in 2013 and 2014, for which you were fined.
15 In October 2014, you came to live in Melbourne. You got a job and formed a relationship with a young Sudanese woman, but there were frequent arguments and the relationship broke down. You left her and this is how you came to stay temporarily with the complainant and his brother.
16 Since you have been in custody following your arrest in May 2015, you have worked responsibly as a cleaner at Port Phillip Prison and completed courses in construction skills, cleaning operations and literacy and numeracy for which you have gained 8 certificates. But you have been socially isolated. You no longer have any family in Australia and your only visitors have been your lawyers, the psychologist and a Prison Fellowship worker who describes you as a genuinely humble and reflective individual, very motivated to be a man your family can be proud of and someone who can become a future leader of your community. You have also been racially vilified in prison. I have not received any urine screens and you have not had effective treatment for your alcohol addiction or psychological problems, particularly anger management.
17 You are reported by the psychologist as presently suffering from a moderate level of anxiety, which is not surprising in all the circumstances, but psychological testing suggests that you score in the normal range for depression and stress. Certainly you are an intelligent person and not without the ability to comprehensively address your personal problems, particularly to undertake meaningful treatment for your alcohol addiction and anger management problems. Whilst you are diagnosed as having an Adjustment Disorder related to the approaching sentence, your anxiety and other personality difficulties are of an ongoing nature, and probably reflect the circumstances of your childhood and family disadvantage. I was disappointed to read that you had told the psychologist that you had done some training in anger management while imprisoned in Queensland, which you thought could be beneficial to you, but at the time regarded it as just a necessary step to gain your release. Clearly you need intensive support to address your problems, both while in prison and on your ultimate release upon parole.
Mitigating circumstances
18 There are a number of mitigating circumstances which I accept. The first is your significant dysfunctional and disadvantaged background. As a child, you were exposed to an atmosphere of violence and lawlessness and lived without the support of a male role model and this explains, in part, your inability to deal with conflict in a responsible way, although that could never excuse that failing. You also lost the opportunity of an important sporting scholarship when you were a teenage thereby being deprived of the discipline and structure which sporting pursuits can provide to young people. You became effectively homeless and abused alcohol and drugs. You have lost contact with all of your family, other than perhaps with your mother. On an encouraging note, you have spoken positively of the two children you have fathered and appear to accept issues of responsibility concerning them.
19 The next matter is that you are only 26 and still relatively a young man. Your counsel relied on the Mills principles, which emphasise the primacy of youth and the desirability of promoting the rehabilitation of young people.[3] However, the Mills principles are general propositions which are not of universal or automatic application. As is often said, every case must turn on its own facts and circumstances. Whilst your relative youth is a circumstance in your favour and that element is not extinguished as a sentencing consideration, you are not a youthful offender as the law understands that concept, far from being a first offender and a long way from eligibility for youth justice detention. Given the objective gravity of your offending and criminal history, your youthfulness and rehabilitation, achieved and prospective, is of much less significance than it otherwise might have been, for instance, with a less serious offence and were you a much younger offender.[4]
[3]Counsel cited Azzopardi & Ors v The Queen [2011] VSCA 372, [34]-[36], per Redlich JA, see the particular points made at para 4(a) of the defence written submission (exhibit 2).
[4]DPP v Lawrence [2004] VSCA 154, [22] per Batt JA, with whom Winneke P and Nettle JA agreed.
20 Next, you have pleaded guilty to the charge and this is of significance because you have thereby avoided the need for the victim and others to relive the trauma of this event and there has been saved significant time, cost and inconvenience to the community by the avoidance of a trial which was likely to take a couple of weeks.[5] Accordingly, your plea has been of utilitarian benefit and served the ends of justice and for that reason alone there should be a significant discount in penalty. However, I reject the submission that yours is an early plea given that you ultimately pleaded to a charge of recklessness. This was not a new substituted offence as part of a plea negotiation; you were originally charged with this offence. In your police interview you denied any offence against the victim. You pleaded not guilty at committal, as you were entitled to do, and made a false claim of acting in self-defence in your defence response. You could have indicated long before the matter was settled that you were willing to plead to the present charge, which would have enabled the victim and others to avoid the anxiety of waiting a considerable time for a contested trial.
[5]There were 46 witnesses listed on the original indictment.
21 However, I accept you have some remorse for your offending. You told the psychologist that you wished you had acted differently; you accepted responsibility for the harm caused and said you regretted the damage to the victim, at one point speaking decently about him. You have also developed some insight and reflected on the need to make big changes in your life. Apparently you have been left with some permanent scarring to your arm, which will be an ongoing reminder of the uselessness of such violence. Today, through your counsel, you have offered a public apology to the victim and his family for what you did. You expressed your sorrow for the pain caused to others. You said you feel disgust for what you have done and accept that you should be punished, but you do not think you should rot in prison, as you put it.
22 Since you have been in prison now for the past 12 months, you have found incarceration difficult, experiencing social isolation and racial discrimination. You were in lockdown for three weeks at the MRC as a result of the recent prisoner riots. Despite these challenges, to your credit you have completed personal development courses and obtained certificates. Whilst I can accept that there has been some rehabilitation in recent times, given the serious nature of your offending; your criminal history; your alcohol addiction, which appears to have been essentially untreated, and the lack of family supports, I am satisfied you have poor prospects for rehabilitation. I consider the risk of re-offending is much higher than the psychologist’s estimate that you are a moderate risk of re-offending.
Other sentencing considerations
23 There are, of course, other important sentencing considerations. The first is that I must have regard to the maximum penalty of 15 years’ imprisonment which reflects community concern for this type of offence. Such a penalty is reserved for the worst type of case, which is not yours, however you have committed a serious example of the offence. You were significantly intoxicated and used a weapon, both are aggravating features of your offence.
24 You are to be sentenced for recklessly causing serious injury, not for intentionally doing so. I gather the element of recklessness is found in your intoxicated state and because you only hit the victim once to the head with the screwdriver in the context of fighting with a number of people.
25 It was put on your behalf that you were engaged in an ongoing violent confrontation where you were outnumbered and injured before you committed the offence.[6] Whilst this much can be accepted, I do not accept that your attack upon the victim occurred “within the confines of lashing out within the ongoing conflict”, as it was put. You were not “lashing out” when you struck the victim. Significantly, you armed yourself with the weapon before you were cut to the arm, not after, as you wrongly suggested to the psychologist. It is true, as submitted, that the offence was not premeditated in the sense that you came to the flat with a weapon intent on causing injury to someone, but I disagree strongly with your submission that because of this it would be appropriate to attach less significance to moral culpability and general deterrence that other cases of premeditation would demand.[7] When you were glassed and cut to the arm, you did not lash out at those who had done that to you, instead you gathered your thoughts and sought out the victim, who of course was the one, along with his brother, who had ordered you out of the premises in the first place. Indeed, you stabbed him even though he was not responsible for you being injured to the face or arm. In all the circumstances, I consider your moral culpability is high indeed and that general deterrence is an important principle as our community struggles with the devastating effects of alcohol-fuelled violence, particularly amongst young men.
[6]Counsel also argued that the cleaning up of blood and abuse aimed at police by others enabled a proper assessment of the events but neither of these matters were of significance to the actions of the offender.
[7]Citing Okutgen v R (1982) 8 A Crim R 262, 266 per Starke J, with whom Crockett & O’Bryan JJ agreed. The Court of Criminal Appeal found that the offender had acted in the heat of the moment after he had been assaulted such that the impact of general deterrence was not as relevant as it may have been in the case of a premeditated violent crime.
26 All this could have been avoided, simply could have been avoided, had you complied with the reasonable request of the victim and his brother that you leave the premises because they had become too crowded. Instead, you lost control of your temper and caused terrible serious injury. This characteristic of failing to control your drinking and manage your anger has played out in effectively the same way in the previous violent incidents in Queensland and South Australia I have described. Rather ominously, you told the psychologist, “if you can’t run you fight, and you do not fight to lose”. Such an attitude has in the past led you to prison and in this case, it will do so again. Because you failed to control those two aspects of your personality, the victim’s life and well-being has been shattered and it may be that he will never fully overcome the negative effects of your conduct.
27 I must also consider current sentencing practice. I have been referred to and considered the Sentencing Snapshot for this offence and will deal with the detail in a footnote in the revised reasons.[8] While these sorts of figures are of general assistance, their limitations are well-known, particularly as the facts and circumstances of individual cases are not disclosed. Your counsel also referred to three cases where the Court of Appeal ultimately accepted that a combination of imprisonment with a community correction order was appropriate for what counsel described as serious examples of recklessly causing serious injury. I regret to say that I am unconvinced that these cases assist here; each can be properly distinguished from yours. I will not analyse them now but will briefly deal with each in a footnote in the revised reasons.[9]
[8]Sentencing Advisory Council Sentencing Snapshot (No.157) June 2014. Between 2008-09 and 2012-13, there were a total of 579 people sentenced in the higher courts for causing serious injury recklessly, of which 53 per cent received a period of imprisonment. Of those, a total of 309 received a principal sentence of imprisonment, with terms ranging from 3 months to 6 years (after appeals are taken into account), while the median sentence was two-and-a-half years imprisonment. The most common range of imprisonment was less than 3 years (109 people).
[9]The first, Marocchini v The Queen [2015] VSCA 29, concerned very different facts and circumstances to the present. The offender was a mature 45-year-old with no prior convictions and an unblemished social record. The offences arose out of a domestic dispute with his wife whose injury had “healed perfectly” and she had reconciled with him. The next was Deng-Mabior v The Queen [2015] VSCA 179 where the offender stabbed his former partner twice to the chest while struggling to disarm her after she had obtained the weapon to defend herself in the first place. The offender was a thirty-four-year-old Sudanese man who had a far more disadvantaged background than this offender in that he had been a soldier during the civil war and was suffering from a complex Post-Traumatic Stress Disorder as a result of that service, which included flashbacks of different horrors he had experienced which, in turn, led to an increase in alcohol use. The Court of Appeal accepted that it was a rare case where alcohol had reduced his moral culpability, as it was used as a form of self-medication to deal with his psychological condition. An early plea of guilty had been entered, and although the offender had prior convictions for contravening a family violence order and assault concerning the complainant, he had an absence of any significant history of violence and had never been to prison before. It was also not clear that the injuries, although serious, were long-lasting. The final case was Graeske v The Queen [2015] VSCA 229 where the offender assaulted his opponent during a football match. Significantly, no weapon was used, just fists, although serious injury was caused. The offender was 21 at the time of offending and had prior convictions for violent offending, but he had never been to prison, only once to a youth justice centre. The case turned on the failure of the parties and the sentencing judge to consider a combination sentence of imprisonment with a community correction order as an available disposition.
28 Your counsel submitted that notwithstanding the objective gravity of your offending and your significant forensic history, there should be a disposition of imprisonment for two years or less, combined with a community correction order. Particular reliance was placed on your youth and the fact that you had not had the benefit previously of a community-based disposition and that you would benefit from an intensive program within the community to address your personal difficulties. Particular reliance was placed on Boulton, in which the Court of Appeal made clear that the punitive nature of a community correction order, coupled with its rehabilitative support, can be imposed, with or without imprisonment, even for serious offending.[10] Counsel particularly relied upon the combination of – the psychologist’s opinion that you are a moderate risk of re-offending, an opinion that I have already rejected; the absence of cognitive or intellectual disabilities or major psychological illness; your capacity to develop insight, given your reading skills and interest in informative material and acceptance of the need for treatment for alcohol addiction, impulse control and anger management as an essential condition to your rehabilitation.[11]
[10]Boulton & Ors v The Queen [2014] VSCA 342.
[11]See generally the written submissions of the offender, exhibit 2, paragraph 1(c).
29 The prosecution submitted that a term of imprisonment beyond that already served was necessary. It contended that whilst a period of two years’ imprisonment combined with a CCO was within range, it was not submitting that a sentence of greater than two years was not appropriate, indeed, it said such a sentence was also within range and open to the Court.[12] The prosecution submitted yours was a very serious example of the offence and that you had put yourself in this predicament by failing to have followed the advice of your hosts and left the premises without committing the offence. While it was acknowledged you are still a relatively young person, you have a lengthy, relevant and serious criminal history, the last two sanctions involving lengthy terms of imprisonment. The Crown particularly noted the warnings that had been given to you by the sentencing judges in Queensland and South Australia, which you have obviously disregarded. As it said, a point must come when protection of the community and just punishment become paramount sentencing considerations, notwithstanding an offender’s youth. While it was correct to say that previous sanctions had not involved community-based dispositions, supports both in and out of custody were available to you and there was nothing stopping you from taking advantage of such support, even though it was not part of a court-enforced order. I agree with all of these observations.
[12]The prosecution explained that it was not making a “concession submission”, where, in accordance with the DPP’s policy the prosecution is conceding the availability of a more moderate choice between two sanctions but, rather, that it was making a “sentencing floor submission”, which identifies the least severe form of sentence necessary to serve the purposes of sentence but not, as I understand it, one that advocates the least punitive result. See: Director’s Policy – the Crown’s role on plea and sentence hearing, 13 April 2015, particularly [84], and generally [82]-[90] (exhibit M).
30 I can understand that a CCO would probably be more beneficial to you than supports to be found in prison. But, your needs are not the only consideration; the important principles of general and specific deterrence, protection of the community, just punishment and denunciation are all important sentencing considerations. The essential question is whether a sentence of 2 years’ imprisonment, the maximum that can be combined with a CCO, is appropriate. Giving the prosecution submission on sentence all due consideration, I do not consider such a disposition would be appropriate, in light of the gravity of your offending, its profound and enduring victim impact and your serious criminal history for similar offending.[13] However, in fixing sentence, I acknowledge that imprisonment must always be imposed as a last resort; I must have regard to the mitigating circumstances; to the need for your ultimate rehabilitation; and to the principle of proportionality, all of which I have done. And I must avoid the passing of a crushing sentence on you.
[13]The Court of Appeal has acknowledged in a number of recent cases that the combination of imprisonment and a CCO will not always serve all the relevant purposes of sentence in a particular case, see: Hutchinson v The Queen [2015] VSCA 115, [17] per Priest JA, with whom Ashley JA agreed; Ellis v The Queen [2015] VSCA 320, [42], per Whelan JA and Cavanough AJA; Atanackovic v The Queen (2015) 326 ALR 159, 197 [159]-[160] per Weinberg, Kyrou and Kaye JJA; and Gul v The Queen [2016] VSCA 82, [41]-[43], [50]-[51] per Priest, Coghlan and Kyrou JJA . Of course, the offender is not to be punished more severely because of his criminal history, but it may be taken into account as an indicator of his moral culpability, his prospects of rehabilitation, his dangerous propensities, the need for community protection and the increased importance of specific deterrence, see: Sianas v The Queen [2016] VSCA 84, (27 April 2016), [34] per Priest JA, with whom Osborne JA agreed.
31 Finally, on behalf of the community, I strongly denounce your offending.
Sentence
32 Mr Wac, please stand up. On the charge, you are convicted and sentenced to 5 years’ imprisonment. I fix a period of 3½ years’ imprisonment, before which you shall not be eligible for release on parole. I declare that the period of 352 days’ presentence detention be treated as having already been served on that sentence and direct that that declaration be entered in the records of the Court. But for your plea of guilty, I would have sentenced you to 6 years’ imprisonment, with a minimum of 4½ years.
33 I shall make the agreed disposal order. Please sit down. I hand down that signed order. I ask counsel whether there are any matters arising?
34 COUNSEL: No Your Honour.
35 Mr Wac, you need to go with the prison officers now. Thank you, please remove the offender. [offender removed].
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