Director of Public Prosecutions v Williams

[2024] VCC 846

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-01965

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYRAN WILLIAMS

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	21 May 2024
DATE OF SENTENCE:	6 June 2024
CASE MAY BE CITED AS:	DPP v Williams
MEDIUM NEUTRAL CITATION:	[2024] VCC 846

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:

Legislation Cited:  Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic); Corrections Act 1986 (Vic)

Cases Cited:DPP v McLean (2022) VCC 246; DPP v Simmons [2023] VCC 498; DPP v Pritchard [2023] VCC 1665; DPP v Baea [2023] VCC 2235; Roach v The Queen [2020] VSCA 205; Yat v The King (2024) VSCA 93; R v Males (2007) VSCA 302.

Sentence:Seven years and four months imprisonment; non parole period of four years and eight months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Washington	Office of Public Prosecutions
For the Accused	Ms D. Caruso	Barwon South West Lawyers

HIS HONOUR: 

1Tyran Williams[1], you have pleaded guilty to one charge of Intentionally Cause Injury pursuant to s18 of the Crimes Act 1958. The maximum penalty applicable is 10 years (level 5) imprisonment.

[1]I understand you prefer to use your family name McLean.

2Intentionally causing injury is a category 1 offence under the Sentencing Act 1991 (the Act) where the victim is a custodial officer on duty and the offender knew, or was reckless as to whether the victim was such a person.

3Section 10AA(4) of the Act requires that a term of imprisonment of not less than six months be imposed unless the court finds that under s10A that a special reason exists.  Your counsel at the plea did not submit on your behalf that a special reason exists.

4Further, as the offence was against a custodial officer in a prison setting, the Crown submits that it constitutes a 'prison offence' under s16(3) of the Act, which provides for mandatory cumulation of every sentence of imprisonment imposed on a prisoner in relation to a prison offence on any uncompleted sentence of imprisonment, unless otherwise directed by the court because of the existence of special circumstances.

5You are currently serving a sentence of six years and six months, with a non-parole period of four years imposed by her Honour Judge Dalziel on 2 March 2022.[2]  After taking account of presentence detention in that matter, but for the sentence in this matter, you were initially eligible for parole in July 2024.

[2] DPP v McLean (2022) VCC 246.

6You have admitted your prior criminal history, which is relevant to the sentencing consideration in this case. I shall say more about your history later in these remarks.

Circumstances of Offending

7The Crown tendered the summary of prosecution opening as Exhibit A. A summary of your offending is as follows:

8At the time of this offending, you were on remand at Port Phillip Prison. The victim in this matter was a correctional officer on duty at that prison.

9On 7 December 2021, there were numerous calls made over the announcement speaker for you to attend the officer's station as you were being transferred to the MRC.

10You ignored these announcements and remained seated at the table at the back of your unit in the prison. The victim then approached you and advised you of the transfer. You got up from where you were seated and approached the victim.

11You got close to the victim and punched the victim to the face and pushed him backwards. You scuffled with the victim and continued to throw punches at the victim before he fell to the ground. You continued to assault the victim whilst he was on the ground, punching him to his face and body.

12Two other corrections officers, Ms Stack and Mr Lafoula responded and put themselves between the you and the victim. You were directed to leave by Ms Stack and to return to your cell. Mr Lafoula stood in front of you to stop you from getting close to the victim. You then swung your arm at Mr Lafoula.

13At this point, first response arrived and locked down the unit. The entire offending was captured on CCTV footage and was tendered as an Exhibit on the plea.

14The victim received bruising to the corner of his left eye, a cut and swollen bottom lip as well as pain to his shoulder.

15The victim made a victim impact statement dated 16 May 2024. He stated that he did not want the report read aloud in court. I will respect his right to privacy, and I will not recite its contents. It is sufficient to say that your criminal actions have had a severe psychological effect on the victim, and he has not returned to work since the assault.

16You were interviewed by the supervising correctional officer on duty at the time of the assault. When you were asked why you assaulted the victim, you stated that you did not want to go to the MRC.  Your counsel characterised this as an implied admission to your offending.

Objective Gravity and Moral Culpability 

17The maximum penalty of 10 years' imprisonment marks the offence you committed as inherently serious.  Moreover, Parliament has determined that the court must impose an immediate term of imprisonment, and one of not less than six months.  Ms Caruso responsibly conceded that no special reasons existed to except you from the operation of this provision.

18In addition to this, s16(3) Sentencing Act provides that every term of imprisonment imposed on a prisoner in respect of a prison offence must, unless special circumstances exist, be served cumulatively (on top) of any uncompleted sentence.  Again, no exceptional circumstances have been argued to apply to this case.

19I have considered the relevant provisions of the Corrections Act1986 (‘Corrections Act’) and Part 6 of the Corrections Regulations2019 (‘Corrections Regulations’), which is headed ‘Prison Offences’. Rule 65 provides that a prisoner must not assault any person. I have read His Honour Judge Gamble's comprehensive ruling on the meaning of 'prison offence' in the sentencing remarks of DPP v Baea[3]  and I have also considered the obiter remarks of the Court of Appeal in DPP v Roach,[4] which were thoroughly considered and discussed by Judge Gamble.

[3]DPP v Baea [2023] VCC 2235.

[4]Roach v The Queen [2020] VSCA 205.

20After considering the matter independently, I am satisfied of the correctness of Judge Gamble's analysis and conclusion that an assault committed by a prisoner on a prison guard and charged under the Crimes Act can constitute a 'prison offence' for the purposes of s16(3) of the Sentencing Act.

21More specifically, I am satisfied by your conduct captured on CCTV footage, and by your plea of guilty to that conduct that, as a prisoner, you assaulted another person within the meaning of the Corrections Regulations and the Corrections Act. I am satisfied that the term 'prison offence' has the same meaning in the Sentencing Act as in those enactments.

22Accordingly, I am satisfied that the sentence I impose for this offending should be served cumulatively on the sentence you are undergoing.

23This is a serious example of this type of assault. Your victim was at work, going about his lawful duties. The CCTV footage shows that he approached you unarmed, and in an entirely non-threatening manner. You were not provoked in any way. When you stood up, you had the element of surprise. You repeatedly punched the victim to the head when he was unprepared and defenceless. He could not even get his hands over his head to provide protection. As he backed away from you, you stepped in to continue your attack. You only stopped punching and threatening the victim when two further guards intervened. You further threatened the male intervening guard, and you were stopped when the female guard placed herself between you and the others.

24Your criminal conduct was a senseless and brutish reaction to a worker who was just doing their job. Having said that, I conclude that the objective seriousness of your offending, whilst high, is not at the high end of the spectrum.

25Your moral culpability is very high.

26Your offending must be met by principles of general and specific deterrence, denunciation, just punishment and a measure of protection of the community. Your conduct must inevitably be met by a period of imprisonment, which must be proportional, taking account of these objective factors and other factors which I will come to shortly.

Personal Circumstances

27Your personal circumstances were stated by her Honour Judge Dalziel in your previous sentence in this Court in DPP v McLean on 2 March 2022. Your counsel at the plea before me, Ms Caruso, fully adopted her Honour's remarks as an accurate background of your biography and submitted that your circumstances remain largely unchanged.

28You are now 23 years old and will turn 24 in November this year.

29I quote from her Honour's remarks in that matter now.

You have one younger sister and two older brothers. 

Your parents separated when you were around four years old, with you and your mother moving to Melbourne to be closer to her parents.  You report that your father had been violent towards your mother, with psychotic episodes of violence by him, including choking your mother and pulling a knife on you.  Your counsel [that is at the earlier plea] says that violence was normalised for you from a young age.

You finished Year 10 via a TAFE program and at the time of th[e] offen[ding] [that is the 2022 offending] you were part way through a carpentry apprenticeship.

You were exposed to abuse of drugs from an early age, and yourself started smoking Cannabis at around 13 and methylamphetamine from age 15.  Your first appearances in the Children's Court are in 2016, when you were still 15.

Your criminal history in that Court involved violence, drugs, dishonesty and driving offences.  When sentenced to a Youth Supervision Order in 2016 you were directed to participate in drug and alcohol counselling.  When receiving the same type of order in 2017, that was not a special condition.  Your criminal record after the July 2017 was minor, compared to the past offences and the offences for which you are now … sentenced.

30Nevertheless, you have numerous appearances before the Children's Court on two charges of recklessly cause injury in 2016, and charges of assault, recklessly cause serious injury, recklessly cause injury, affray and assault in 2017. You had never been sentenced to a period of detention for these matters or any prior matters until Judge Dalziel sentenced you in March 2022.

31I continue with her Honour's remarks:

I was told that between 2017 and 2019 you were working and had completed three of a four year carpentry apprenticeship.  Further, after you were bailed on the 2019 charges, you were not charged with any other offence until the April 2021 matters. 

A reference from your mother written in February 2021 described how hard it was for you to grow up without a male role model and that your behaviour changed once you started high school. She said that you struggled with feelings of unhappiness, anxiety and depression, masked by you adopting an intimidating persona.  She spoke of the progress she had observed in you whilst you were on bail over 2020, and that you were working on strategies to have more self-control in your approach to life.

32After this incident you were transferred to Barwon prison. You are a long-term management plan prisoner. On this regime, the time out of your cell is extremely restricted. I was told your conditions became even more severely restricted after a second incident, leading to 23 hour a day confinement whilst you were at Barwon prison, this time involving another prisoner, on 20 July 2023.  As this matter remains outstanding, I will not let it influence my sentencing consideration. However, I have noted the conditions under which you are serving your current sentence.

33I am told that you were prescribed Avanza whilst in custody in 2019 and that when taking this medication, you are calmer and less impulsive.

34In addition to her Honour's remarks just stated, your counsel adds that you continue to be prescribed and take (now) Mirtazapine and see a psychiatric nurse about once a month.

35Further to this, you have put your name down to participate in courses and education relating to your offending and your anger issues. Your counsel advises however, that access to these courses is limited to you given your current management status.

36Upon release, you have expressed a desire to return to work in the construction industry and you instruct your counsel that such work will be available to you. You intend to live with your mother with whom you remain close and who visits you in prison monthly, alongside your younger sister. You speak to them each week via zoom.

37I received the psychological report of Laura Fleming dated 14 May 2021, prepared in relation to the offending dealt with before her Honour Judge Dalziel.

38Ms Fleming at that time diagnosed you with Alcohol Use Disorder, Cannabis Use Disorder, Stimulant Use Disorder, Sedative, Hypnotic or Anxiolytic Use Disorder and Post-Traumatic Stress Disorder.  Ms Fleming points to your PTSD symptoms as being particularly relevant to your violent offending and she states:

They (PTSD symptoms) can fluctuate in intensity and frequency, however are particularly prone to exacerbation under situations of perceived threat, extreme stress or comorbidity with other mental health issues or substance use … Mr McLean [that being your preferred name] will likely react in an aggressive manner to avoid any feelings of helplessness or vulnerability.

39Your history of alcohol and polysubstance abuse is said to have stemmed from your attempts to self-medicate for your untreated PTSD.  Ms Fleming suggests that in order to curtail your aggressive reactions and develop healthier coping strategies that are not substance related, you would benefit greatly from intensive psychological intervention.

40Neither the report of Ms Fleming or the submissions made by Ms Caruso suggest or submit that any of the limbs of Verdins should be invoked in the sentencing consideration.

Sentencing Submissions

41Ms Caruso, who appeared on your behalf at the plea, submitted that the following factors should operate to mitigate your sentence:

(i), the delay since the offending occurred. The matter was incorrectly listed in the summary stream. This was not remedied until June 2023. You were referred to new lawyers in August 2023 and with their assistance, the matter resolved quickly to a plea of guilty. Ms Caruso submits that given the state of the evidence, especially the CCTV footage, criminal charges have always been inevitable. You should have had the opportunity to be sentenced in a much more timely manner.

(ii), The plea of guilty was entered at the earliest time.  The facts were never disputed, and it was only when new lawyers were engaged that you were able to meaningfully enter plea discussions;

(iii), The management conditions under which you have served your time in custody have been extremely onerous.  I accept the principle enunciated in Males[5] by Maxwell P, and then referred to in the case of Yat,[6] that it is permissible for a sentencing judge to take into account the burdensome conditions of custody, even where those conditions arise from the prisoner's own misbehaviour.

(iv), Ms Caruso submits the principle of totality applies, such that I must have regard, not only to the sentence I impose for this matter, but also to the overall sentence that you have already and must serve when this is added into the mix.

(v), Ms Caruso submitted that although you were not technically a young offender, you were and still remain a young man. As such, I should have some regard to the principles enunciated in cases such as Azzopardi, though that I should at least presume that you have some prospects for rehabilitation because of your young age.

(vi), Finally, it was submitted on your behalf that I should impose a straight sentence rather than a head sentence with a non-parole period.

[5]R v Males (2007) VSCA 302.

[6]Yat v The King (2024) VSCA 93.

42Ms Hogan, who appeared for the Crown, submitted that an immediate term of imprisonment is within range, requiring mandatory cumulation and the fixing of a new non-parole period.

43The Crown concedes that your early plea of guilty, and the delay in this matter are significant mitigating factors. The Crown also concedes the principles in Yat referred to by Ms Caruso – that is, that the burdensome nature of your time in custody is a mitigating factor even when it is the offenders own making.

44Ms Hogan referred me to the sentencing remarks of Judge Trapnell in Simmons[7] where a sentence of 18 months, with six months to be served cumulatively was imposed on a similar charge, committed in similar circumstances. The accused in that case was 19 years of age at the time of offending. I was then referred to Pritchard,[8] a sentence imposed by Judge Gamble where a sentence of 27 months with 18 months to serve was imposed.

[7]DPP v Simmons [2023] VCC 498.

[8]DPP v Pritchard [2023] VCC 1665.

45In the end, I must not be overly influenced by the sentences imposed in other cases. I must impose a sentence which takes into account the objective factors and the matters in mitigation (so far as I can) relevant to your offending.

Analysis

46I consider that each of the first five matters raised on your behalf by Ms Caruso should be given effect to mitigate the sentence that I impose upon you.

47Judge Dalziel considered in March 2022 that you still had some prospects for your rehabilitation. You committed this offence before Judge Dalziel sentenced you in March 2022.  Your prospects for rehabilitation rest firstly on your own determination to keep out of trouble and keep out of prison, but largely upon the interventions that will be necessary to provide you with community support on your release. Without those professional psychological and community supports, together with your own resolve to stay out of trouble and out of prison, your prospects for rehabilitation will worsen.

48Although it is made more difficult by your status as a management prisoner, you must take the opportunities (if offered) to complete courses which may assist your eligibility for parole.

49I have determined that a sentence with a non-parole period should be ordered in this case. Given that you are undergoing a sentence where the non-parole period (subject to a grant of parole) is due to expire on 4 July 2024, it is necessary to also fix a new non‑parole period.

Orders

50Accordingly, I make the following orders:

51On the charge of intentionally cause injury, you are convicted and sentenced to a term of 16 months' imprisonment. I determine that 10 months of that sentence should be cumulated on the sentence you are currently undergoing, and therefore fix a total effective sentence of seven years and four months (that is a total sentence of 88 months). I fix a new non parole period of four years eight months before you are eligible for parole.

52The 6AAA declaration is but for your plea of guilty I would have imposed a sentence of 22 months for your offending.

53I note that there is no PSD as you are already undergoing sentence.

54I also note that Mr Young is on the line, and I wish you well going forward with your recovery, Mr Young.

55Now Ms Washington, are there any other orders sought?

56MS WASHINGTON:  No, Your Honour.

57HIS HONOUR:  Thank you.  I will now adjourn.

58COUNSEL:  As Your Honour pleases.

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