DPP v Hope
[2017] VCC 1315
•12 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01055
CR-16-01056
Indictment No. C1510434
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL HOPE |
| and |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RANGI PUA |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 July 2017 | |
DATE OF SENTENCE: | 12 September 2017 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Hope; Director of Public Prosecutions v Pua | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1315 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE
Catchwords: Intentionally causing serious injury – intentionally causing injury – recklessly causing injury – whether the offence of intentionally cause serious injury is a “prison offence” as defined in the Sentencing Act 1991 (Vic)
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Corrections Act 1986 (Vic); Corrections Regulations 2009 (Vic)
Cases Cited:Stewart v Crowley (2002) 6 VR 479; DPP v De Luca [2016] VCC 1573; Director of Public Prosecutions v Terrick & Ors (2009) 24 VR 457
Sentence:Daniel Hope: 10 years’ imprisonment with a non-parole period of 7 years’
Rangi Pua: 8 years’ imprisonment with a non-parole period of 5 years’
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Fisher | Solicitor for the Office of Public Prosecutions |
| For the First Accused | Mr M Mykytowycz | Ms Nicole Valos, Solicitor |
| For the Second Accused | Mr I Polak | Ms Nicole Valos, Solicitor |
HIS HONOUR:
1 Daniel Hope and Rangi Pua, you are both to be sentenced in respect of a number of offences.
2 Mr Hope, the offences for which I am to sentence you are as follows:
· Charge 1 – Intentionally Causing Serious Injury to Wade Noel Sechtig, to which you pleaded guilty prior to your trial;
· Charge 4 – Recklessly Causing Injury to Tania Marie Wahlert, a charge to which you pleaded not guilty, but were convicted by the jury;
· Charge 5 – Intentionally Causing Injury to Jonathon Patterson Thompson, a charge to which you pleaded not guilty, but were convicted by the jury;
· Charge 7 – Intentionally Causing Injury to Shaun Keenan, a charge to which you pleaded guilty prior to your trial.
3 Mr Pua, you are to be sentenced for the following offences:
· Charge 1 – Intentionally Causing Serious Injury to Wade Noel Sechtig, a charge to which you pleaded not guilty, but were convicted by the jury;
· Charge 4 – Recklessly Causing Injury to Tania Marie Wahlert, a charge to which you pleaded not guilty, but were convicted by the jury;
· Charge 5 – Intentionally Causing Injury to Jonathon Patterson Thompson, a charge to which you pleaded not guilty, but were convicted by the jury;
· Charge 7 – Intentionally Causing Injury to Shaun Keenan, a charge to which you pleaded not guilty, but were convicted by the jury.
4 The circumstances of your offending are as follows.
5 As at 1 October 2015, you were both prisoners in the Grevillea Unit at Barwon Prison near Lara in Victoria (which I will refer to as “the unit”).
6 At about 3.45pm on that day, you had both been in the exercise yard and were informed by prison officers that it was time to return to the unit. Proceeding from the exercise yard to the unit involved entering through a gate into a caged secure area and from there, through a door into the unit itself. As you passed through the secure yard, you Mr Hope were ahead of Mr Pua. Prison Officers Mr Sechtig and Ms Wahlert were a short distance ahead, and close to the door into the unit. As you approached near to where Mr Sechtig was standing, you Mr Hope punched him with force to the facial area multiple times. Mr Sechtig was punched through the door and into the unit. Your assault of him continued once inside the unit in a ferocious manner.
7 Mr Pua, you entered the unit quickly behind Mr Hope and joined in the attack on Mr Sechtig. Both of you continued to assault Mr Sechtig whilst he was on the ground and quite unable to defend himself. He was a much smaller man than either of you.
8 Prison Officer Wahlert also entered the unit and attempted to stop your assault on Mr Sechtig. She was a much smaller person than either of you and she was unable to prevent the assault from continuing.
9 A number of other prison officers quickly arrived at the scene, including Prison Officers Thompson and Keenan.
10 At one point Ms Wahlert pulled out her baton and demanded that you, Mr Pua, get onto the ground. You ignored that instruction. You and Mr Hope continued to assault Prison Officer Sechtig and resist the efforts of other officers to subdue you.
11 You Mr Pua had taken hold of a prison radio from one or other of the prison officers who were attempting to subdue you. Before Ms Wahlert had the opportunity to use her baton, she was struck by the prison radio thrown directly at her by you Mr Pua. It struck her in the centre of her forehead, stunning her.
12 During the fracas that followed, Prison Officer Keenan was struck by you, Mr Pua, around the head and temple area, causing him to stumble backwards. You, Mr Hope, also punched him with force, causing him to fall to the ground.
13 Prison Officer Thompson ran towards you, Mr Pua. You were at that time in the immediate vicinity of Mr Sechtig, who was lying on the ground. Mr Thompson knocked you away from Mr Sechtig. You then struck Mr Thompson numerous times to the head and face, causing him to fall to the ground.
14 By this time, there were a number of prison officers present – some attempting to subdue and handcuff you Mr Pua. Others were attempting to subdue and handcuff you Mr Hope. You both continued to strongly resist.
15 The incident was largely covered by closed circuit television. I say largely, because an area inside the unit to the left of the door leading out to the security yard was obscured by internal stairs. This included the area outside Cell 53.
16 Nevertheless, it is plain from the closed circuit coverage that the assault on Mr Sechtig was one of extreme violence. As a result of the assault upon him by both of you, he suffered multiple injuries, including:
· two fractured eye sockets;
· two fractured cheek bones;
· broken bones in his nose;
· a fractured right collar bone;
· extensive nerve damage to his face;
· a portion of his palate was fractured and detached from his skull;
· a split palate; and
· a number of loose teeth.
17 Mr Keenan, one of the first officers who attended to assist, gave evidence that as he approached where Mr Sechtig was lying in the area around the outside of Cell 53, he had seen both of you stomping with your feet on Mr Sechtig’s head.
18 An issue was raised during your plea hearing as to whether, in the course of your joint assault upon Prison Officer Sechtig you did, in addition to striking him with your fists, stomp with your feet onto his head. This was not captured on closed circuit television.
19 Mr Keenan gave evidence to that effect at the trial and was cross-examined at some length by both of your counsel. He remained adamant that he had clear vision of the two of you and of Mr Sechtig as he approached and observed both of you stomp on Mr Sechtig’s head.
20 Both of your counsel submitted that I should not be satisfied that Mr Sechtig was stomped on by you.
21 The closed circuit coverage shows Mr Keenan approaching at a point where Mr Sechtig and the two of you were briefly out of sight behind the staircase. At that point, I find that Mr Keenan would have had a clear view of the area around Cell 53. I find that there was a brief period of time, adequate for you to have stomped on Mr Sechtig, which occurred at a time when Mr Keenan would have had a clear view of Mr Sechtig and the two of you.
22 Having watched the closed circuit coverage closely and considered carefully the evidence of Mr Keenan, I accept his evidence.
23 I am satisfied beyond reasonable doubt that both of you did use your feet to stomp on Mr Sechtig’s head.
24 I am satisfied that, when you did so, Mr Sechtig was on the ground and not capable of defending himself.
25 Ms Wahlert suffered a fractured left collarbone which must have occurred during her attempts to separate the two of you from Mr Sechtig. She also suffered a laceration to her forehead of 4 to 5 centimetres in length which I accept occurred when she was struck by the radio thrown by you Mr Pua.
26 Mr Keenan suffered abrasions and bruising to his forehead, face, scalp and jaw.
27 Mr Thompson suffered bruising to his right temple, swelling to his right eye, and a graze to his right knee.
28 The assault on the prison officers appears to have been without warning or provocation.
29 The only possible explanation raised at your plea hearing was that, earlier in the morning of that day, a friend of yours had been moved to a different unit within the Barwon Prison and that had upset you. You had both applied to the Governor to be moved to that same unit but your applications were refused. You became angry. It appears that your anger was directed at the Governor rather than any of the prison officers involved in the fracas on 1 October 2015.
30 It should be noted that there was no evidence that Mr Sechtig, Ms Wahlert or any of the prison officers who came to their assistance had anything to do with the move of your friend to a different unit, or with the refusal of your application to also be moved.
31 In a formal Record of Interview conducted 6 October 2015, you Mr Hope stated that you were angry at the time and that you “punched a screw then zoned out”.
32 Later in October 2015, you Mr Pua made a “no comment” interview with police.
33 On 16 October 2015, you Mr Pua wrote a letter to the general manager of Barwon Prison and in it indicated that you were sorry to the officers involved and that you regretted the incident that had occurred on 1 October 2015.
Background – Daniel Hope
34 Mr Hope, by way of background, you are the third of your mother’s seven children, and the eldest of your father’s five children.
35 You grew up in Melbourne and completed primary school. You were expelled from Hume Secondary School in Year 7 for assaulting another student. When you were aged about nine, you were removed from your family home by the Department of Human Services and placed in foster care. You never returned to the family unit. At times you were placed in residential units.
36 You quickly learned to abscond from residential care.
37 You were first arrested for offences against the law when you were aged ten. At the age of fifteen you were living in and out of residential units and soon after lived on the streets.
38 You were detained in the Parkville Youth Justice precinct on five occasions, including an eighteen-month period, ending when you were aged about seventeen.
39 You used cannabis and crystal methamphetamine (Ice) from about the age of seventeen until your arrest in May 2012. You were convicted of a number of offences including three counts of intentionally causing injury, one count of intentionally causing serious injury, theft of a motor vehicle and theft from a shop.
40 You were transferred to adult custody following an assault on youth justice workers.
41 You have had little, if any, employment. You did work very briefly with your father for Gippsland Water in Morwell. This ceased, following a motor vehicle accident in which you injured an arm. There was no evidence of any employment after about 2011.
42 A report from Dr Adam Deacon, consultant psychiatrist, dated 3 July 2017, was tendered on your behalf.
43 Dr Deacon noted that you had, by the time he saw you, been in custody of one sort or another for over five years. He noted that you had engaged in aggressive and violent behaviour from soon after your separation from your family. This was initially in residential care but soon progressed into random, violent acts in the community. He noted that you had been detained in solitary confinement since your offending the subject of these charges.
44 You told Dr Deacon that you were aware that you had anger-management problems. It appears that you have not been offered any intervention despite having made requests for such treatment.
45 Dr Deacon thought that you are likely to become increasingly institutionalised and less amenable to intervention the longer you remain in solitary confinement, and would not be able to implement any acquired social and self-regulation skills while being held in isolation.
46 Dr Deacon reported that you had expressed remorse for your offending conduct, particularly in respect of Mr Sechtig. You told Dr Deacon that you had had no previous contact with Mr Sechtig.
47 Dr Deacon was of the view that you did not appear to have yet developed any persistent major mental problems, but it was likely that you had experienced a form of emerging depression for which you were being treated with antidepressant medication. Although you had partially benefited from that medication, he considered that you continued to be burdened by the marked isolation which you were then experiencing. In particular, he noted that you had not had any direct contact with prisoners for over eighteen months and your social contact was limited to prison officers and family visitors. Dr Deacon considered that the longer you remained in such a setting, the greater the risk that mental problems would arise. He said it was well recognised that prolonged solitary confinement can contribute to the emergence of a range of mental problems, including disorientation, anxiety, depression, paranoia, hallucinations and self-harm/suicidal ideation.
Prior Convictions – Daniel Hope
48 Mr Hope, you have a number of prior convictions in the Children’s Court for offences involving violence dating back as far as 2010. These include convictions for intentionally causing serious injury, recklessly causing serious injury, intentionally cause injury, threatening to inflict serious injury, armed robberies, false imprisonment, common law affray, assault, assault by kicking, and assault with a weapon.
49 Further, in the Sunshine Magistrates’ Court, in November 2014, you were convicted of criminal damage, arson and unlawful assault.
50 In the Geelong Magistrates’ Court in August 2015, you were convicted of intentionally damaging property.
Background – Rangi Pua
51 Mr Pua, you are also aged 23 years of age now. You were aged twenty at the time of these offences.
52 You have effectively been in continuous custody since May 2013, when you were aged eighteen.
53 A report dated 30 April 2017 from Ms Carla Lechner, psychologist, was tendered on your behalf. Ms Lechner set out some details of your family history. You are of Cook Island heritage and the third of five children. Your parents separated when you were about 17. You have not seen your father since being taken into custody in 2013 when you were aged about 18. You told Ms Lechner that you had a good relationship with your mother and your siblings.
54 You grew up in the Western suburbs of Melbourne until the age of nine, when you were sent back to the Cook Islands for about six months, to live with your maternal grandmother. You returned to Australia and completed primary school education. You reported that your father was violent towards you and your siblings.
55 You attended secondary college until the completion of Year 10. Upon leaving school you worked for a brief period at a factory with your mother. You commenced, but did not finish, a mechanics course. You appear to have had no other employment.
56 You reported to Ms Lechner that you smoked marijuana daily from the age of thirteen and had also used heroin, ecstasy, and LSD. However, your biggest problem has been with methamphetamine. You commenced abusing Ice at the age of fourteen. Typically, you told her, you would go on a two-week bender and then sleep for a few days and then repeat the cycle until you were locked up.
57 You also advised Ms Lechner that you drank alcohol nearly every day until being remanded in Barwon Prison. You said you would regularly consume half a bottle of spirits or a slab of beer.
58 You also have been in solitary confinement whilst in prison.
59 Ms Lechner assessed you as having a high-risk level of re-offending in a violent manner and that an intensive level of rehabilitative work while in custody was indicated. Ms Lechner noted that you possibly had symptoms of Attention Deficit Hyperactivity Disorder and residual post-trauma symptoms. She said that the symptoms were strongly suggestive of an attentional disorder that had never been assessed, diagnosed, or treated. She concluded that psychometric testing indicated that you were experiencing symptoms of significantly depressed mood which fulfilled the criteria of a diagnosis of Major Depressive Disorder. She considered you also had a mild level of anxiety and that although your verbal expression skills were in the average range, your abstract reasoning skills were well below par. She considered that you needed assistance in learning to understand your anger impulses and how to control them.
60 You have told Ms Lechner that you joined in the fight at the prison on 1 October 2015 without thinking about and evaluating the possible consequences. She reported that you were regretful for your actions.
61 Ms Lechner considered that your solitary confinement for such a prolonged period was aggravating your mental health problems and that a move to reintegrating you into the mainstream prison population was recommended. She considered that it was imperative that you became involved in intensive treatment programs as soon as possible, capitalising on your current motivation to do so.
Prior Convictions – Rangi Pua
62 Mr Pua, you also have numerous Children’s Court convictions relating to dishonesty and violence. You have numerous convictions for theft, for armed robbery, for recklessly causing injury, recklessly causing serious injury, reckless conduct endangering life, possession of controlled weapons, intentionally damaging property, unlawful assault, and assault in company.
63 You were sentenced by Judge Pullen of this Court on 19 December 2013 (when you were aged 19) on 21 counts of armed robbery, six counts of theft, three counts of arson, one count of obtaining property by deception, one count of resisting police, and one count of possessing a drug of dependence. Counsel provided me with a copy of Judge Pullen’s sentencing reasons at that time which I have read and taken into account.
64 Judge Pullen imposed upon you a total effective sentence of six years, five months and 98 days in respect of those offences.
65 On my calculations, that term would have been completed on 24 August 2020.
66 She directed that you serve a period of four years and four months imprisonment before being eligible for parole.
67 On 1 October 2015, you were still serving that sentence at Barwon Prison.
Sentencing Principles – Applicable to Hope and Pua
68 The purposes for which the sentences may be imposed upon you both are:
(a) to punish an offender to an extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or of a similar character;
(c) to establish conditions within which it is considered by the court that rehabilitation of the offender may be facilitated;
(d) to manifest the denunciation by the court of the type of conduct in which the offender engaged;
(e) to protect the community from the offender;
(f) a combination of two or more of those purposes.
69 With regard to both of your sentences, I have taken into account the matters set out in s5(2) of the Sentencing Act 1991 which require me to take into account a number of matters including:
(a) Firstly, your culpability and degree of responsibility for the offences.
Here, I consider that, in each of your cases, your culpability is high. These assaults were unprovoked and of great violence.
(b) Secondly, the impact on any victim of your offending and any injury, loss or damage resulting directly from it.
Here, victim impact statements of Mr Sechtig, Ms Wahlert, Mr Keenan, and Mr Thompson were tendered and I shall refer to them in just a moment;
(c) Thirdly, whether you pleaded guilty to the offences and, if so, the stage of the proceeding at which you did.
Here, I accept that you both pleaded guilty to some offences but not at a particularly early time.
Mr Pua, you pleaded guilty to Charges 6 and 8 which were, respectively, lesser alternatives to Charges 5 and 7 to which you pleaded not guilty but were convicted by the jury. It follows that your pleas of guilty had little or no utilitarian benefit. The length of the trial and the number of witnesses called were not reduced by your guilty pleas.
I take into account the letter written by you Mr Pua to General Manager of the prison later in October 2015 in which you expressed remorse for the events that occurred that day.
Mr Hope, your pleas of guilty to Charges 1 and 7 may reflect some remorse on your part for your actions. However, those pleas were made in circumstances where the prosecution cases against you on those charges were, in my view, very strong. Further, those guilty pleas were not likely to have resulted in the trial being reduced in length or in fewer witnesses being called. Nevertheless, I do take them into account.
(d) Fourthly, I am to take into account your previous characters;
Here, in both of your cases, your substantial prior convictions do not persuade me to discount your sentences as would be the case if you had been shown to be of good character prior to these offences occurring.
(e) Fifthly, I am to take into account the presence of any aggravating or mitigating factors concerning you or any other relevant circumstances and I will deal with these in just a moment.
Maximum penalties
70 I have noted that the maximum penalties prescribed by Parliament for these offences are as follows:
· Intentionally Causing Serious Injury – 20 years’ imprisonment;
· Intentionally Causing Injury – 10 years’ imprisonment;
· Recklessly Causing Injury – 5 years’ imprisonment.
71 Those maximum penalties are a clear indication of the seriousness with which Parliament views the offences committed by you.
Prison offences
72 Submissions were made at your plea hearing as to whether your offences were “prison offences”.
73 Section 16(1) of the Sentencing Act 1991 provides that every term of imprisonment imposed on a person by a court must, unless otherwise directed by the Court, be served concurrently with any uncompleted sentence or sentences of imprisonment imposed on that person, whether before or at the same time as that term.
74 However, s16(1A) of the Act provides that ss.(1) does not apply to a term of imprisonment imposed on a prisoner in respect of a “prison offence”. The prosecutor submitted that the effect of ss.(1A) and (3) of s.16 is that sentences in respect of “prison offences” are presumed to be cumulative.
75 The prosecutor submitted that your offences were “prison offences”. Your Counsel respectively submitted that your offences were not “prison offences”, notwithstanding that they occurred in a prison.
76 In the Sentencing Act 1991, the term “prison offence” is defined as having the same meaning as in Part 7 of the Corrections Act 1986.[1]
[1]The definition is set out in s3(1) of the Sentencing Act 1991
77 In Part 7 of the Corrections Act 1986, the term “prison offence” is defined as a contravention of the Corrections Act 1986 or the Corrections Regulations 2009.
78 I accept that Part 7 of the Corrections Act 1986 was designed to confer powers upon prison officials to administer discipline within the prison for the commission of offences against the Regulations, and to do so with expedition.[2] However, I do not accept the submission that was made that the bringing of police charges by the Director of Public Prosecutions (as opposed to internal prison charges) on its own, removes an offence from the class of a “prison offence”.
[2]Stewart v Crowley (2002) 6 VR 479 at paragraph [22] per Winneke P
79 It was further submitted by both of your counsel that the provisions should be interpreted narrowly and that such an interpretation of the defined meaning of a “prison offence” does not include any of the specific offences for which you fall to be sentenced.
80 Regulation 50 of the Regulations sets out a list of offences which are “prison offences”. These include, that a “prisoner must not assault or threaten another person”. Your counsel submitted that it was clear that the offence of “assault” was on the list of offences and was therefore a prison offence, but that none of the offences for which you have been convicted were included and they are therefore not “prison offences”.
81 Whilst it is correct that neither of you were actually charged with the offence of assault, it is difficult to conceive that a person could be guilty of intentionally or recklessly causing injury or serious injury to another person without having committed an assault upon them.
82 The interpretation sought by your counsel would, if adopted, mean that a prisoner involved in some fracas whilst in custody would have committed a “prison offence” if convicted of the offence of assault, but would not have committed a “prison offence” if convicted of intentionally causing serious injury, an offence considered by Parliament to be a far more serious offence than that of assault, as is evidenced by the maximum sentences applicable to those offences.[3]
[3]The maximum penalty for the offence of intentionally causing serious injury is 20 years’ imprisonment – s16 Crimes Act 1958; cf the maximum for assaulting a custodial officer on duty is five years’ imprisonment. – s31(b) Crimes Act 1958; cf maximum penalty for common assault is three months’ imprisonment – s.23 Summary Offences Act 1966
83 I would be greatly surprised if this was intended by Parliament.
84 I was referred to the case of DPP v De Luca,[4] a sentencing matter in this Court before the Chief Judge. There, a prisoner had pleaded guilty to the offence of Riot. The prosecutor conceded that the offence of Riot was not a “prison offence” and the matter was not argued. However, I consider the offence of Riot to be considerably different from the offences for which I am to sentence you. Riot would not necessarily involve an assault or the making of a threat to anyone. It might only involve damaging property or disobeying orders.
[4][2016] VCC 1573
85 Nevertheless, I accept the submissions of your counsel that this potentially punitive section should be interpreted narrowly. Whilst these offences occurred in a prison, I am not satisfied that any of the offences for which you are to be sentenced today are truly “prison offences” as defined. It would have been a simple thing for Parliament to have defined the term “prison offence” as any offence committed by a person in a prison whilst he or she was serving a sentence of imprisonment. Parliament has not done so.
86 Despite my serious doubt that Parliament’s intention would have been as your counsel submit, I have determined that there is sufficient doubt about the issue and I shall not sentence you on the basis that any of the offences committed by either of you were prison offences.
87 However, it does not follow that all of those sentences must be served concurrently. The section clearly reserves a discretion to the Court as to the degree to which any sentence may be served concurrently with other sentences imposed and with any sentences currently being served for other offences. On any view, the fact that your offences were committed whilst you were serving a sentence of imprisonment, in a prison, and without provocation, against prison officers performing their normal duties, are aggravating factors of significance.
Aggravating and mitigatory matters
88 It is clear from the Victim Impact Statement of Wade Sechtig that the assault upon him by both of you has had a devastating physical and emotional impact upon him. I have previously referred to the injuries suffered by him. Further, there has been a substantial emotional impact on his family, including his children. He has become hypervigilant, insecure and feels physically vulnerable to further facial damage due to the permanent nerve damage that he suffers from. He has been diagnosed with depression, anxiety and Post-Traumatic Stress Disorder. He has trouble sleeping and he has not worked since the date of the attack on him. He has become a recluse and prefers to stay at home, where he feels secure and safe. He no longer enjoys socialising because it causes anxiety. A simple trip to the local supermarket can cause panic and stress if unanticipated things occur. His family has had to go through the process of seeing him in hospital and waiting for a medical prognosis as to whether he had sustained permanent spinal or brain injuries. Doctors advised him that he was lucky to be alive. He has been advised by a psychiatrist never to return to work in the prison system again. He has understandable concerns about whether he will ever obtain employment. From a physical perspective, his memory has been affected, he has constant facial pain and discomfort requiring medication, his sinus issues resulting from the assault have resulted in him snoring loudly at night which wakes both him and his wife. He notes that it feels like he is wearing a tight mask across his face and a heavy mouth guard. His recreational hobby of cycling has been affected. He is unable to sleep on his preferred side because of pain with pressure on his cheekbone, upper teeth and the area near his left eye. He states that he has facial discomfort every waking moment as a consequence of nerve damage.
89 The Victim Impact Statement of Tania Wahlert indicates that she has suffered mentally, financially, emotionally and physically from the assaults in question. She considers that she has gone from being a confident, self-assured, proud and independent woman, to a shell of the person she once was. She experiences fear when outside her home. She becomes claustrophobic in smaller areas. She suffers from anxiety. She now sees a psychiatrist regularly and is prescribed medication to control her anxiety. Her sleep is affected. She has nightmares of what occurred. The scar on her forehead is a constant reminder of the assault. She has to live with headaches, dizzy spells and constant nerve pain. She underwent surgery to minimise the scarring on her forehead.
90 The Victim Impact Statement from Jonathon Thompson indicates that he also feels insecure and unsafe when walking in the street, especially with his children. Since the assault his marriage has fallen apart. He has also required counselling. He has had sleeping problems. For a time he was unable to work overtime shifts and, as a consequence, has suffered financially.
91 The Victim Impact Statement from Shaun Keenan indicates he suffered multiple head and upper body bruises and abrasions. He also had scars on his cheek and forehead. As a result of the incident, he has suffered anxiety which has caused him to miss social events. He has not suffered financially.
92 I consider that the aggravating features of your offending are as follows.
· Firstly, the offences were committed whilst you were in custody and against prison officers who were merely performing their usual duties in an entirely appropriate manner.
· Secondly, the offences were unprovoked and committed without warning.
· Thirdly, the attack upon Mr Sechtig continued well after it must have been apparent to both of you that he was unable to defend himself.
· Fourthly, even after other prison officers arrived in the unit, you both continued to violently resist attempts to restrain you. Rather, you continued to assault other officers. I cannot imagine what you had in mind to do had those other officers not arrived when they did. What is obvious from the closed circuit film is that you appeared to be in no mind to discontinue or lessen your attack on Mr Sechtig notwithstanding his physical condition.
· Fifthly, none of Mr Sechtig, Ms Wahlert, Mr Thompson nor Mr Keenan were in any way responsible for your apparent anger resulting from the transfer of your friend to another unit at the prison and did nothing to provoke your attack.
93 Your respective counsel submitted that there were matters going to mitigation of both of your sentences and I accept that:
· Firstly, you are both young. You are both immature and probably more prone to ill-considered and rash decisions. Courts recognize the potential for many young offenders to be rehabilitated. Incarceration of a young person in an adult gaol is generally regarded as far from ideal. I use the term young offender in the colloquial sense rather than the technical.
However, I consider that, here, you would have fully appreciated the consequences of your offending conduct. I consider that you would have been well aware of the effect of your attack on Mr Sechtig and other prison officers and the consequences that would follow. Mr Sechtig was not a large man. Ms Wahlert was a woman of small frame. You well knew that you had an enormous physical advantage over both of them. I consider that you well knew that your attack, without warning, was likely to result in serious injuries to Mr Sechtig and that Ms Wahlert and other prison officers were likely to suffer injuries. In that sense, they were soft targets and your attack upon them can be seen as cowardly.
· Secondly, it is clear that you both had a dysfunctional and unstable upbringing. However, as Judge Pullen did in December 2013, I have noted the remarks of the Court of Appeal in the matter of the Director of Public Prosecutions v Terrick & Ors[5] particularly noting the statement of the Court at 488-489:
[5](2009) 24 VR 457 at paragraphs [45]-[62]
“The following propositions emerge from the authorities:
1. The individual circumstances of an offender are always relevant to sentencing.
2.Circumstances of disadvantage, deprivation or (sexual) violence may be explanatory, if not causative, of the offending or (if relevant) of the offender’s alcohol or drug addiction.
3. The (relative) weight to be given to circumstances of disadvantage or deprivation is a matter for the sentencing judge, and will depend on:
(a) the nature and extent of the disadvantage;
(b) the nexus (if any) with the offending; and
(c) the (relative) importance in the particular case of sentencing considerations such as rehabilitation, deterrence (specific and general), community protection and social rehabilitation.
…
8. Where the offender has prior convictions, such that considerations of specific and general deterrence and community protection become increasingly important sentencing factors, the significance of personal circumstances will correspondingly decrease.”
(citations omitted).
In both of your cases, you have significant prior convictions, and it is my opinion that specific and general deterrence and community protection are important sentencing factors here.
· Thirdly, you both have had limited education.
· Fourthly, you are both at risk of becoming institutionalized given your record of incarceration to date.
· Fifthly, the attack was of relatively short duration and no weapon was used in it. I accept that there was no weapon used. However the relatively short duration of the offending behaviour was, in my opinion, due to the number of prison officers who intervened and eventually over-powering you both. Neither of you showed any sign of ceasing your violence voluntarily.
94 Your respective counsel also submitted that your times in prison have been harsher for you compared with others as a consequence of the management regimes imposed upon you. You have effectively been in isolation since your offending. However, there was no evidence before me as to your behaviour in prison or the particular reasons for those regimes. Further, I consider that, in the absence of evidence, it is inappropriate for me to speculate as to the regimes likely to be in place in the future.
Nevertheless, I have taken into account that your time in custody from October 2015 to date appears to have been relatively harsh in both of your cases.
95 Both of your counsel conceded that a sentence involving a period of incarceration was inevitable.
96 I consider that the principles of protection of the community, denunciation of your offending, general deterrence to the prison community, and specific deterrence with regard to you are the important principles here.
97 Notwithstanding my previous comments regarding “prison offences”, I do not consider that the sentences which I propose to impose on the two of you should be served wholly concurrently, principally because of the aggravating factors to which I have referred, and the fact that different victims were involved in the offences.
98 I now turn to the sentences in question.
Sentence - Daniel Hope
99 As at 1 October 2015 you were serving terms of imprisonment imposed by various courts on 7 February 2013, 3 November 2014, again on 3 November 2014, and on 24 August 2015.
100 The prosecutor and your Counsel have advised me that those terms were to have been completed on 23 December 2015, slightly under three months after the assaults in question on 1 October.
101 You have been held on remand since that date.
Serious Violent Offender
102 You were convicted at the Melbourne Children’s Court on 29 September 2010 of Recklessly Causing Serious Injury and on 14 September 2012 of two counts of Intentionally Causing Serious Injury, and further convicted at the Melbourne Children’s Court on 7 February 2013 of one count of Intentionally Causing Serious Injury.
103 It follows, by reason of the provisions of s.6B, 6D and 6E of the Sentencing Act 1991 that:
· You are to be regarded as a serious violent offender.
· It follows that the Court, in determining the length of your sentence, must regard the protection of the community from you as the principal purpose for which the sentence is imposed.
· The term of imprisonment in respect of the offence of Intentionally Causing Serious Injury (Charge 1) must, unless the Court otherwise directs, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on you, whether before or at the same time.
104 On Charge 1, Intentionally Causing Serious Injury to Mr Sechtig, you are convicted and sentenced to eight years’ imprisonment. This shall be the base sentence.
105 On Charge 4, Recklessly Causing Injury to Ms Wahlert, I take into account that it was Mr Pua who threw the prison radio at her whilst you were a short distance away engaged in your own resistance of other prison officers attempting to restrain you. Nevertheless, the jury verdict is consistent with you encouraging Mr Pua in his attack on Ms Wahlert and other officers.
On that charge, you are convicted and sentenced to imprisonment for one year, to be served cumulatively on the base sentence.
106 On Charge 5, Intentionally Causing Injury to Mr Thompson, I take into account that the offending against him was separate from the attack on Mr Sechtig and that Mr Thompson, like Mr Keenan, only became involved because your attack on Mr Sechtig continued for a time after you had entered the unit.
On that charge you are convicted and sentenced to imprisonment for one year, six months of which is to be served cumulatively on the base sentence.
107 On Charge 7, Intentionally Causing Injury to Mr Keenan, you are convicted and sentenced to one year’s imprisonment, six months of which is to be served cumulatively on the base sentence.
108 It follows that the total effective sentence of imprisonment imposed is ten years.
109 I direct that you not be eligible for parole until you have served seven years of that sentence.
110 The prosecutor and your counsel are in agreement that you have served 626 days by way of pre-sentence detention. I direct that that period be reckoned as detention already served under this sentence.
111 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that, had you not pleaded guilty to Charges 1 and 7, I would have sentenced you, on Charge 1, to ten years’ imprisonment and, on Charge 7 to imprisonment for 18 months.
Sentence - Rangi Pua
112 Mr Pua, although you were a willing participant in the attack on Mr Sechtig, I regard you as following the lead of Mr Hope rather than being the primary assailant. You were some short distance behind when Mr Hope first struck Mr Sechtig. You did not need to follow his lead but chose to do so for reasons known only to you. Once you did so, your participation in the attack upon Mr Sechtig was enthusiastic and substantial. The Crown did not allege that your offending was part of a pre-arranged plan with Mr Hope.
113 The sentence imposed upon you by Judge Pullen on 19 December 2013 was due to end on 24 August 2020.
114 On Charge 1, Intentionally Causing Serious Injury to Mr Sechtig, you are convicted and sentenced to six years’ imprisonment. This shall be the base sentence.
115 On Charge 4, Recklessly Causing Injury to Ms Wahlert, you are convicted and sentenced to 18 months’ imprisonment, six months’ of which is to be served concurrently with the base sentence.
116 On Charge 5, Intentionally Causing Injury to Mr Thompson, you are convicted and sentenced to one year imprisonment, six months’ of which shall be served concurrently with the base sentence.
117 On Charge 7, Intentionally Causing Injury to Mr Keenan, you are convicted and sentenced to one year imprisonment, six months of which shall be served concurrently with the base sentence.
118 It follows that the total effective sentence of imprisonment imposed is eight years.
119 I direct that two years of that term be served concurrently with the sentence imposed by Judge Pullen on 19 December 2013.
120 I direct that you not be eligible for parole until you have served five years of the sentence imposed by me. This new single non-parole period is to commence today.
121 The prosecutor and your counsel agree that you have served no time by way of pre-sentence detention.
122 Given the jury verdicts concerning you, I am not required to make any declaration pursuant s.6AAA of Sentencing Act 1991.
123 What ancillary orders are sought, Mr Fisher, in relation to both of the prisoners, if any?
124 MR FISHER: I think they have all - I think the orders have been signed previously.
125 HIS HONOUR: Is that the case, is it?
126 MR FISHER: Yes. I understand there was a forensic - I think there was a forensic procedure order. It was only one disposal order. I think Your Honour attended to that on the last occasion. It was signed and there was no issue with it.
127 HIS HONOUR: I would be surprised if the sample order had not been made long ago.
128 MR FISHER: Yes, it sure has. It is just confined to the disposal order.
129 HIS HONOUR: Have I signed that and given it back to you or not on the earlier occasion?
130 MR FISHER: Yes. My instructor is saying it has come back to the Crown.
131 HIS HONOUR: It has?
132 MR FISHER: It has been signed and received. Yes.
133 HIS HONOUR: Thank you. Am I right thinking there are no additional ancillary orders sought in relation to either man?
134 MR FISHER: No, there are no additional ancillary orders, but there is one matter that I need to address Your Honour on and that is the pre-sentence detention in relation to Mr Hope.
135 HIS HONOUR: Yes.
136 MR FISHER: I think Your Honour declared - - -
137 HIS HONOUR: 626.
138 MR FISHER: 626. It should be 629 days.
139 HIS HONOUR: You agree with that, Ms Mykytowycz?
140 MS MYKYTOWYCZ: Yes.
141 HIS HONOUR: I will just alter that order so it is 629 days by way of pre-sentence detention and I will direct that that period be reckoned as detention already served under this sentence of Mr Hope.
142 MR FISHER: Can I just confirm, in relation to Mr Pua, in relation to Charge 4, six months to be served - - -
143 HIS HONOUR: Just a moment. Charge 4. That is the Recklessly Causing Injury to Ms Wahlert. He was sentenced to 18 months' imprisonment, six months of which was to be served concurrently. In other words, nine months cumulatively.
144 MR FISHER: Yes.
145 HIS HONOUR: No, that is not right either.
146 MR FISHER: No, 12.
147 HIS HONOUR: 12 months cumulatively. Six months concurrent.
148 MR FISHER: Yes, and was it then for Charges 5 and 7, the six months that Your Honour ordered, was that concurrently or cumulatively?
149 HIS HONOUR: Either way, it is the same.
150 MR FISHER: It is.
151 HIS HONOUR: Sentenced to one year imprisonment. I said six months of which was to be served concurrently and I think the cumulative portion
follows - - -
152 MR FISHER: Yes. Thank you.
153 HIS HONOUR: - - - as night follows day - - -
154 MR FISHER: Yes.
155 HIS HONOUR: - - - and the same with Charge 7.
156 MR FISHER: Thank you very much.
157 HIS HONOUR: Any other queries that counsel have?
158 MS MYKYTOWYCZ: No.
159 MR POLAK: No.
160 HIS HONOUR: Thank you. Yes, Mr Hope and Mr Pua can be taken downstairs, thank you.
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