R v Hall
[2023] VSC 151
•27 March 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0343
| THE KING | Crown |
| v | |
| JACK HALL | Accused |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 February 2023 |
DATE OF SENTENCE: | 27 March 2023 |
CASE MAY BE CITED AS: | R v Hall |
MEDIUM NEUTRAL CITATION: | [2023] VSC 151 |
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CRIMINAL LAW – Sentence – Young Offender – Intentionally cause serious injury in circumstances of gross violence – Joint offence with one co-offender – Plea of guilty – Worboyes considerations – Harsh conditions of confinement – Prisoner already serving a lengthy sentence – Totality – Parity.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Dickie | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr M McGrath with Ms A Buckley | Giorgianni and Liang Lawyers |
HER HONOUR:
Introduction
Good morning. I should just put on the record that I did receive submissions on the effect of s 16(3) of the Sentencing Act and I indicated the way I would approach that issue in the returned correspondence to the parties.
Jack Hall, you have pleaded guilty to the offence of intentionally causing serious injury to Derek Collett in circumstances of gross violence on 14 August 2020. The circumstances of gross violence are constituted by the fact that you continued to cause injury to Derek Collett after he was incapacitated.
The maximum penalty for this offence is 20 years’ imprisonment.[1] It is a Category One offence under the Sentencing Act and the Court must impose a term of imprisonment unless specified matters apply.[2]
[1]Crimes Act 1958 (Vic) s 15A(1).
[2]Sentencing Act1991 (Vic) s 5(2G). On 22 March 2023 the Court sought written submissions on the applicability to Mr Hall’s sentence of s 16(3) of the Sentencing Act 1991 (Vic) relating to "prison offences" which requires cumulation of the sentence imposed on any uncompleted sentence unless the Court finds there are exceptional circumstances. The Defence submitted that s 16(3) does not apply, but that if it did exceptional circumstances were made out from a combination of factors, including: Mr Hall's youth; that at the time he committed the present offence he had not been yet been sentenced by Chettle J; the need to avoid a crushing sentence; the need to ensure adherence to the principle of totality; and the need to avoid unfairness to Mr Hall in circumstances where the co-offender Daniel Condon's sentence was moderated because of his earlier imprisonment and; considerations of totality. The Crown's position was that although the current offence was able to be characterised as a prison offence it should not apply because exceptional circumstances were conceded based on a combination of factors, including: parity and fairness in respect of the sentence imposed on Daniel Condon; youth; the avoidance of a crushing sentence; and adherence to totality. I determined that in light of the Crown's concession as to exceptional circumstances and my own findings, even if s 16(3) was relevant to the present offence, exceptional circumstances were made out on all the grounds identified by the parties and on the basis of all the circumstances of the case both subjective and objective.
At the plea hearing, the prosecution tendered a Summary of Prosecution Opening for plea;[3] an outline of prosecution sentencing submissions;[4] a summary related to a series of offences dealt with by Judge Chettle of the County Court on 10 November 2021[5] (I will refer to those offences as ‘the Geelong offences’); the sentencing reasons of Judge Chettle for the Geelong offences;[6] CCTV footage of the attack on Derek Collett from cameras placed at Barwon Prison;[7] and the victim impact statement of Derek Collett.[8]
[3]Dated 4 November 2022 (Plea Exhibit P1).
[4]Dated 2 February 2023 (Plea Exhibit P2).
[5]Dated 12 October 2021 (Plea Exhibit P3).
[6]Plea Exhibit P4, being the sentencing reasons relating to the offending referred to in Exhibit P3.
[7]Plea Exhibit P5.
[8]Plea Exhibit P6.
On your behalf, the following documents were tendered: Defence sentencing submissions;[9] letter of Tenille DeLorenzo, forensic psychologist at Caraniche;[10] psychological report prepared by Carla Lechner for the plea hearing regarding the Geelong offences;[11] letter written by your mother, Georga Hall, for the current proceeding;[12] and letter of apology prepared by you for the current proceeding.[13]
[9]Dated 30 January 2023 (Plea Exhibit D1).
[10]Dated 29 September 2022 (Plea Exhibit D2).
[11]Dated 25 October 2021 (Plea Exhibit D3): This report was prepared for the sentencing hearing before Judge Chettle which concluded in November 2021.
[12]Dated 29 January 2023 (Plea Exhibit D4).
[13]Dated 27 January 2023 (Plea Exhibit D5).
I have had regard to all of the abovementioned materials in considering your sentence, along with the sentencing remarks of Beale J on 29 July 2022 when he sentenced your co-offender, Daniel Condon.[14]
[14]R v Condon [2022] VSC 425.
Outline of the offending
At 12:53pm on 14 August 2020, in company with your co-offender, Daniel Condon, you were party to a very serious assault on Derek Collett in a yard at Barwon Prison. It is this assault which founds the current proceeding. I will sometimes refer to Derek Collett, as Derek as I will refer to him often in these reasons.
You were aged 21 at the time of the assault, and your co-offender, Daniel Condon, was aged 22. Both you and Daniel Condon were housed in the Illawarra Unit of Barwon Prison. You entered the Illawarra Unit on 7 July 2020, having been remanded in custody for the Geelong offences since 16 March 2020. Daniel Condon had been in the Illawarra Unit since May 2020.
Derek Collett was 45 years of age at the time of the assault on him. He had been transferred to Barwon Prison on 13 August 2020. He was allocated to the Cassia Unit. Upon his arrival there, he spoke to a prisoner who appeared to be of African descent. That prisoner responded aggressively so Derek walked away.[15]
[15]Plea Exhibit P1 [4].
At 12:49pm on 14 August 2020, CCTV footage shows you and Daniel Condon leaving the Illawarra Unit and entering the Cassia Unit foyer. The pair of you met with Derek who had just left his cell to get some medication. Derek Collett had never met you or Daniel Condon before. You asked him if his name was Derek, and when he said it was, you said, ‘What’s your problem with the African?’ Derek replied that he did not have a problem. You replied, ‘Come on, mate, we’re trying to help you’, and enticed him to go for a walk with you and Daniel Condon towards the chapel.[16]
[16]Plea Exhibit P1 [7].
You and Daniel Condon accompanied Derek along the concrete path in the exercise yard in the direction of the movement control compound. You told Derek that you were ‘friendly with the Africans’ in the unit.[17] Derek was walking between you and Daniel Condon.[18]
[17]Exhibit P1 [8].
[18]CCTV footage (Exhibit P5); Exhibit P1 [8].
At 12:53pm, you suddenly swung a clenched fist at Derek, contacting the right side of his head and knocking him down onto the path. He landed on his stomach. While he was on the ground, Daniel Condon used a sharpened metal dinner knife to stab him nine times to the lower back, upper back, flank and abdomen. Meanwhile, you kicked, punched and stomped on Derek multiple times, including stomping on his head.[19] At the end of the assault, one of you stomped on his right hand and said, ‘Stay down, you dog, and die’. Daniel Condon threw the knife into the adjacent garden bed, and you and Daniel Condon walked away, leaving Derek helpless on the ground. The attack, which lasted for 16 seconds, was wholly captured by nearby CCTV cameras.[20]
[19]Exhibit P1 [10]–[11].
[20]Exhibit P1 [13].
The prosecution case is that, before the assault, you and Daniel Condon must have agreed in advance that you would assault the victim. This is not disputed by you. However, the prosecution accepts that you might not have known that Daniel Condon was armed with the knife that he used in the assault or that he intended to use it. Further, the prosecution accepts that there might not have been any agreement in advance to cause a serious injury to Derek Collett. However, once Daniel Condon produced and used the weapon in your presence during the joint assault, you encouraged and assisted him to intentionally cause serious injury to Derek by remaining present and kicking and stomping on Derek while he was being stabbed multiple times by Daniel Condon.
Immediately after the incident, you and your co-offender walked away and met up with other prisoners, and you returned to your cell at 12.57pm.
Derek Collett managed to get to his feet and staggered towards the movement control compound, where he sought help. He collapsed and a Code Black was called, at which point ambulance and police were requested. At 1.15pm, paramedics attended and Derek was flown by air ambulance to the Royal Melbourne Hospital, arriving at 3.25pm. He subsequently underwent emergency surgery.
Prison officers located the knife used in the stabbing, which was identified to be a sharpened metal dinner knife from Daniel Condon’s prison-issue cutlery set.[21] The blade of the knife had been sharpened into a point at the tip of the blade, and a piece of blue cloth had been wrapped around the handle.[22]
[21]Plea Exhibit P1 [21].
[22]Plea Exhibit P1 [22].
You were interviewed on 16 August 2020 about your role in the offending, but gave untruthful and unhelpful answers which are not relied on by your counsel.
Victim Impact
As described by the prosecution in their opening for your plea hearing, Mr Hall suffered multiple serious injuries in the attack on him.
There were nine stab wounds, consisting of six wounds to his back, one to the left flank, one to his right lateral abdomen and a penetrating injury to the abdomen. The injuries to the chest were deep and impacted both lungs. The abdominal injuries were also deep, resulting in extensive bleeding and multiple organ injuries, including a splenic laceration, lacerations to the descending colon, a 13 mm left renal laceration and a 2cm left diaphragmatic laceration.[23] Immediate surgery on Derek included a splenectomy and repair of other injuries. He returned to surgery the next day for a relook laparotomy and then was transferred to ICU for three days. He was given antibiotics and pain relief medication.[24]
[23]Plea Exhibit P1 [15].
[24]Plea Exhibit P1 [25].
There is no doubt that, without the surgical and interventional procedures, Derek would have died from his injuries. There is a future risk of abdominal organ and tissue adhesions and life threatening digestive system blockage and there are scars.[25]
[25]Plea Exhibit P1 [26].
Derek, in his victim impact statement, referred to ongoing difficulties as a result of the attack on him.[26] For example, he described ongoing bowel problems and psychological impacts, including being extremely fearful, depressed and isolated. Derek will continue to suffer psychological harm as a result of the attack and physical discomfort. The impact for him has been very significant.
[26]Plea Exhibit [11].
Role in the offending
For the purposes of sentencing you, the prosecution posits that Daniel Condon was the principal offender in the attack on Derek. Beale J sentenced Daniel Condon to eight years’ imprisonment with a non-parole period of five years for his role in the offending.[27]
[27]Plea Exhibit [55]–[56].
Daniel Condon, unlike you, was caught by s 10(1) of the Sentencing Act, which required the imposition of a minimum non-parole period.[28] You are conceded by the Crown to be in a different position having regard to the different basis on which you have been dealt with relative to Daniel Condon.[29]
[28]See Sentencing Act 1991 (Vic) s 10(2)(a).
[29]Section 10(1) of the Sentencing Act does not apply to a person who is involved in the commission of an offence within the meaning of s 323(1)(a) or (b) of the Crimes Act 1958 (Vic) and in this case the prosecution allege that Mr Hall encouraged or assisted Mr Condon to commit the offence.
Gravity of offending
Nevertheless, this was a serious example of the offence to which you have pleaded guilty. It is relevant to the objective gravity of your crime that Derek continues to suffer from his injuries both physically and psychologically. It was fortunate indeed that Derek received timely emergency surgery.
Further, there was a plan to lure the victim to a location where the pair of you could assault him. Although you did not personally wield the knife, it was you who initially knocked Derek to the ground. The decision to assault Derek was not the result of any provocation from Derek whatsoever. Furthermore, even after Daniel Condon commenced stabbing Derek, you continued to assault Derek in a very violent manner when it was quite apparent that he was isolated from anyone who could have intervened to assist him. The fact that you encouraged and assisted an assault with a lethal weapon once Mr Condon produced that weapon, and that the assault involved two adult men attacking another within a prison setting, are all factors which make this a very serious assault.[30] The fact that the assault continued when the victim was incapacitated is an element of the offence itself and therefore is not an aggravating feature of the offence as such.
[30]See Nash v The Queen (2013) 40 VR 134, 137 [10].
Procedural history
You were charged for the present offending on 23 February 2021, but faced a more serious charge at that time.[31] On 17 May 2021, a plea offer to a lesser charge was made on your behalf but it was rejected. The matter was then set down for committal.
[31]You and Daniel Condon had each been charged with the offences of attempted murder, intentionally causing serious injury in circumstances of gross violence, and recklessly causing serious injury in circumstances of gross violence: First Summary Of Prosecution Opening, filed 21 March 2022.
Meanwhile, on 10 November 2021, Judge Chettle sentenced you for the Geelong offences, and imposed a total effective sentence of five years and nine months’ imprisonment with a non-parole period of four years. Six hundred and four days of pre-sentence detention was declared. I will come back to the Geelong offences when I discuss your criminal and forensic history.
On 26 November 2021, a further plea offer was made on your behalf in respect of the current proceeding, which was rejected. A one-day committal hearing took place on 29 November 2021 and you and your co-offender were committed for trial on charges that included a more serious charge than the one to which you have pleaded guilty.
On 27 April 2022, Daniel Condon pleaded guilty to the charge of causing serious injury in circumstances of gross violence and he was sentenced by Beale J on 29 July 2022.[32] The basis of his plea differed from your case as he was dealt with as the principal offender.[33]
[32]R v Condon [2022] VSC 425.
[33]It was accepted by Mr Condon that the circumstances of gross violence included continuing to cause injury after Mr Collett was incapacitated, but also having planned in advance to engage in the conduct and at the time of the planning having been reckless as to whether the conduct would cause a serious injury and/or a reasonable person would have foreseen the conduct or be likely to result in a serious injury.
In April and May 2022, there were further attempts between your lawyers and the Crown to resolve your matter. On 14 September 2022, a further plea offer was made on your behalf and rejected, but discussions continued. On 26 September 2022, the matter finally resolved and you were arraigned on the current indictment. You pleaded guilty the following day.[34]
[34]On 27 September 2022. The matter was then adjourned for plea and sentence.
In light of the above mentioned timeline, it cannot be said that you pleaded guilty at the earliest time, and it is notable that the victim in this case was required by you and your co-offender to be cross-examined at committal. However, the prosecution accepts that the charge to which you ultimately pleaded guilty was on a reduced basis of culpability than the charge you would have been facing at trial if the trial had commenced as planned in October 2022. I note that the charge that you were facing had already been downgraded from the charge you and your co-offender had been committed on.[35]
[35]Each of the accused were committed on charges that included attempted murder.
Regardless of the fact that your plea of guilty was not an early plea, it is still deserving of considerable weight, as will be discussed further below.
Juvenile and adult prior offending
At the time of entering your plea of guilty, you admitted prior convictions.
You were born on 8 April 1999, and your first court appearance was in the Geelong Children’s Court in 2014 when you were 15 years of age.[36] In February 2015, you were placed on a Youth Supervision Order for dishonesty and burglary offences. There were some further offences dealt with in April and June of that year.[37] You were then dealt with in July of that year and detained in a Youth Justice Centre (‘YJC’) for two months. Early in 2016, you received a six-month YJC order for a range of theft and driving-related offences and bail contraventions. Your offence history through 2014 to 2016 included numerous charges involving breaches of earlier court orders including breaches of bail and court dispositions.
[36]You were sentenced for a range of offences including unlicensed driving, car theft, possess prohibited weapon without approval, property offences, dishonesty offences and bail contravention offences. You were not convicted and placed on probation for 12 months.
[37]The dispositions imposed were, respectively, a good behaviour bond and a 12 month Youth Attendance Order.
In January 2017, you were sentenced in the Geelong Children’s Court to four months detention in a YJC for a range of offences[38] and further on 27 April 2017, 12 months YJC was imposed.[39] On 4 July 2017, a further four months of YJC detention was imposed for the offence of riot.[40] The following year on 17 January 2018, you were sentenced to your first term of adult imprisonment for two months for reckless conduct endangering life and other offences[41] combined with a Community Correction Order (CCO) to commence upon your release from prison. You subsequently breached that order. On 13 July 2018, you received 18 months’ imprisonment with a non-parole period of 12 months for charges involving burglaries and car thefts, driving offences and other less serious offences. You were granted parole after the expiry of the non-parole period of 12 months but immediately breached parole by further car theft, burglary and driving offending. You were then returned to custody and remained there until 24 February 2020 when you were released and shortly afterwards committed the Geelong offences.
[38]Car thefts, thefts, burglary, bail breaches and proceeds of crime offending.
[39]That offending involved charges of recklessly causing injury and reckless conduct endangering serious injury, as well as burglary and driving-related offences.
[40]On 4 July 2017.
[41]Also including burglary car thefts and driving whilst disqualified.
The Geelong offences
The Geelong offences involved a number of car theft and driving offences that caused danger to emergency workers and others, along with aggravated burglary, theft, possession of a firearm[42] and several summary offences.[43] These offences were all committed between 10 and 16 March 2020, when you were only 20 years of age. In fact, the most concerning offending from the March 2020 matters happened on two specific dates; 10 March 2020 and 15 March 2020.[44] You were arrested and remanded in custody on 16 March 2020 and have remained in custody ever since.
[42]Also some ammunition.
[43]The summary offences were transferred from the Magistrates' Court, and included driving offences, failure to stop on police request, and possession of cartridge ammunition; Exhibit P4 [2].
[44]The 10 and 15 March offending involved stealing cars, on one occasion entering a residence where someone was asleep in the house to steal car keys and evading police officers who attempted pursuit and apprehension (including at one stage driving at 140 kph in a 60 kph zone leading police to call off the pursuit, and also involving low impact collisions with police vehicles whilst trying to avoid or get past vehicles that had been positioned to apprehend him).
You were sentenced to a stern sentence for the Geelong offences by Judge Chettle on 10 November 2021.[45] The pattern of your offending as a juvenile and young adult tended to involve car thefts, illegal pursuits and property-based offending. You have obviously put the safety of others at risk in some of these episodes, but it is notable that there is only one prior conviction that is clearly referable to direct physical violence towards another person. This leads me to consider whether by the time you have completed the sentences for the aggregate of the Geelong offences and the current offence, you might be ready to mature and reform yourself. You are, after all, still a young man.
[45]Four charges of theft, two charges of damaging an emergency service vehicle, one charge of aggravated burglary, one charge of conduct endangering persons, two charges of aggravated recklessly exposing an emergency worker to risk by driving, three charges of attempted theft, one charge of being a prohibited person possessing a firearm, and one charge of possession of a drug of dependence; Exhibit P4 [1].
The Geelong offences do not constitute prior convictions regarding the matter before me as you had not been convicted and sentenced for them prior to committing the current offending but they form part of the totality assessment I must undertake.
Personal background and subjective factors
In a letter to the Court your mother said that she was only 22 when she met your father and, soon after, she had three children, your two older sisters and yourself. She described your father’s descent into drug use and how he became extremely violent and abusive towards the family forcing her to flee and go into hiding. Your father was sent to gaol after he assaulted your grandfather, causing the loss of one of your grandfather’s eyes.
When you were two-and-a-half years of age, your mother met your stepfather and she later married him. Whilst there was no violence in that relationship, your stepfather was a truck driver and was not home much. Your mother considers that you lacked a male role model throughout your childhood. She said that you attended Corio West Primary School and were recommended by teachers for paediatric assessment. This led to a diagnosis of Attention Deficit Hyperactivity Disorder (‘ADHD’) for which you were prescribed medication.[46] Your mother felt the medication was beneficial for you but by the end of Year 9, you had stopped taking it and things started to go downhill. She described how you ended up in youth detention. Despite attempts at alternative schooling in trades such as bricklaying and concreting during periods when you came out of detention, your mother felt that your rehabilitation was impacted by drug-taking on weekends leading you back into youth detention.
[46]Report of Carla Lechner (Exhibit D3).
Your mother feels that you have been caught up in a vicious cycle which is made worse by drug use. However, she believes that you are remorseful over the current offending. She and your sisters remain strongly supportive of you. Your mother is concerned that the isolation you are experiencing in prison as a result of how you are being managed is worsening your mental health.
Psychological report of Ms Lechner
Carla Lechner prepared a psychological report for the sentencing hearing regarding the Geelong offences dealt with by Judge Chettle. Ms Lechner’s report has utility for the current hearing due to the fact that you committed the current offending not long after you were arrested for the Geelong offences and because you have been in continuous custody both before and after the sentencing hearing before Judge Chettle.
Ms Lechner described a number of features of your background that align with the matters described in your mother’s letter to the Court. You told Ms Lechner that your mother brought you up, and you did not regard your stepfather as a father figure. You said that in your teen years, your biological father’s family got in contact with you against your mother’s wishes. You described your father, who died in 2003, as having been ‘on drugs, in gaol, on steroids’.
You told Ms Lechner that since leaving school, you were in trouble in the Children’s Court jurisdiction and completed Year 10 and 11 schooling whilst in youth detention. You described being ‘in the system’ and that the longest period you had been out was for 12 months at the age of 16 to 17 years. You conceded previous breaches of youth parole and being returned to custody. You said you were released from custody in February 2020 at which time you admitted being angry with the world and going on a rampage.
You also told Ms Lechner that, at the time of her assessment of you, you were being housed ‘in the slot’ and that you had been there for a lengthy period. I was told by your counsel that you were placed in the management unit as a result of the stabbing of Derek Collett. This meant you had no access to programmes or work, you were only allowed out into the yard once a day, meals were brought to your cell, and you were only allowed one phone call a day. You described yourself to Ms Lechner as being ‘on the verge of institutionalisation’.
Ms Lechner considered that you have struggled with identity formation and establishing a sense of belonging, and that you felt caught between your mother’s side of the family and your deceased father’s family. She also described your history of poor impulse control and emotional and behavioural regulation due to your ADHD (DSM-5).
Ms Lechner referred to the periods of your life spent in custody and your chronic drug addiction that seemed to be a form of self-medication, as well as providing you with peer acceptance. She described you as a person who was cognitively socially and emotionally immature, with a limited capacity for reflective and consequential thinking. On psychometric testing, she found that the ADHD condition diagnosed in childhood likely persisted into adulthood, with the potential need for further treatment. You were also described also as having an opioid and stimulant use disorder (DSM-5) in remission in a controlled environment, as well as having a low mood reactive to your conditions in prison.
It was noted by Ms Lechner that you had engaged with a psychologist from Forensicare and were beginning to explore questions relating to your sense of self, values and future direction. As mentioned, although the Lechner report was prepared for your previous plea hearing, it contains valuable information for the matter before the Court.
I accept the defence submission that your childhood and family background disclose a number of aspects of disadvantage and dysfunction relevant to your subjective circumstances. The case of Bugmy v The Queen[47] is often cited as relevant to childhood or adolescent abuse, neglect or disadvantage. There will always be a spectrum of such disadvantage with the most serious and profound abuse and neglect featuring at one end of that spectrum. Whilst you have not suffered abuse or neglect of a kind that gives rise to Bugmy principles, you have had a disrupted childhood, despite having a loving and supportive mother who worked hard to provide for you. Unfortunately, your father’s legacy and the intervention of his family left you feeling emotionally conflicted as a result of torn allegiances. I take into account your subjective circumstances including aspects of dysfunction and disadvantage even though I do not consider they give rise to Bugmy principles as such.[48]
[47]249 CLR 571.
[48]See Roosevelt Newton v R (a pseudonym) [2023] VSCA 22.
I also accept that it is likely that ADHD has impacted your development, your education and your overall functioning and has likely contributed to the cycle of juvenile offending and youth detention that has marked your adolescence. I will attribute modest weight to the impacts of your ADHD on your development and functioning in your formative years and now. Your ADHD is a factor that may make your imprisonment more burdensome for you than for those not suffering that condition.[49] It is to be hoped that appropriate counselling and if required, medication, for your ADHD will help you learn to control your impulses and find ways to use your life productively when you are released. I regard it as vital that you receive the treatment and rehabilitation you need to avoid becoming institutionalised in the way discussed by Ms Lechner.
[49]R v Verdins (2007) 16 VR 269.
Management regime in prison
Your counsel informed the Court that in the time since Ms Lechner’s assessment in October 2021, you have continued to be housed in a management setting, spending 23 hours a day locked down in your cell. I was told that you have recently been transferred from Barwon Prison to the Metropolitan Remand Centre, but that a management regime has been applied to you there as well.
It is unclear to the Court why you were placed in Barwon Prison after being remanded for the Geelong offences and prior to the current offence being committed. Your counsel informed the Court that you were previously one of the young offenders who, as a child, was transferred to Barwon Prison when there were riots at Parkville Youth Detention Centre but that may not explain why you were placed at Barwon Prison.[50]
[50]Transcript of proceedings, Director of Public Prosecutions v Jack Hall (Supreme Court of Victoria, S ECR 2021 0343, Jane Dixon J, 3 February 2023) 29-30. (The transfers were the subject of legal action dealt with by this Court in December 2016.)
Ms Lechner referred to research indicative of the risks of continued confinement in supermax-like prison settings and expressed the opinion that you are at high risk of becoming institutionalised in the absence of developing appropriate coping skills and strategies in the community. She referred to potential detriment caused by ongoing restrictive conditions. Whilst her opinion was prepared for your County Court sentencing that took place in November 2021, the fact that you have remained under a similar management regime makes her opinion even more valid now.
I intend to mitigate your sentence because of the harshness of the arrangements that you have been experiencing in management units since the offending. However, I am also mindful of the case of Byrne v R,[51] in which the Court of Appeal discussed the relevance of violent prison behaviour that leads to the imposition of a management regime and the importance of general and specific deterrence for prison assaults.
[51][2020] VSCA 289 at [21], [22] (‘Byrne’).
That being said, your circumstances can be distinguished from the offender in Byrne because the offender in that case was found to have an ongoing propensity for committing violent offences.[52]
[52]Byrne [19]. The case of Byrne concerned a prison attack committed by a 25 year-old man who was at the time serving a sentence for attempted murder. The sentence for attempted murder related to an incident in which the offender had stabbed a stranger six times in an unprovoked and frenzied attack. In addition to his conviction for attempted murder, the offender had committed many other violent and weapons offences spanning a period of 10 years.
Significance of plea of guilty
In your favour, I take into account your plea of guilty which has had important utilitarian benefit, especially while the courts adjust to listing backlogs caused by the pandemic.
It is relevant in mitigation that you have been in custody during the worst of the pandemic restrictions that prisoners were subjected to, giving rise to consideration of all of the factors referred to in Worboyes v The Queen.[53] These onerous conditions have been compounded by the harsh management regime applied to you since the attack on Derek Collett.
[53][2021] VSCA 169.
Youthfulness and Rehabilitation prospects
The time you have spent in solitary confinement will have given you time to reflect about the future direction of your life. I accept that your letter of apology is a reflection of a genuine desire to change. You have also expressed your remorse for the offending to your mother and you appear to accept that you have disappointed her.
Rehabilitation is an important purpose of sentencing, especially where young offenders are concerned. Although the seriousness of the offending reduces the extent to which your youth can be treated as mitigatory, it remains an important consideration.
There are some positive signs, including the remorse you have expressed,[54] and the fact that you appear to have been sincerely engaged in counselling with Caraniche. It seems that you will continue to engage in counselling at the Metropolitan Remand Centre. It is in your favour that you have the ongoing support of your mother and sisters. I therefore regard your prospects of rehabilitation as reasonable.[55]
[54]Letter of apology dated 27 January 2023 (Exhibit D5).
[55]I differ in my assessment of your prospects for rehabilitation from Judge Chettle. By the conclusion of the sentences imposed by this Court and by Judge Chettle much time will have passed, allowing for reflection, maturity and reform. The observations I have already made regarding rehabilitation suggest that this process may already be underway.
Purposes of sentencing
Nevertheless, the offence for which you stand to be sentenced was a vicious and cruel attack on an unsuspecting fellow prisoner and must be strongly condemned. All of the purposes of sentencing are relevant in your case: just punishment, specific and general deterrence, rehabilitation, denunciation, and protection of the community.[56]
[56]Sentencing Act 1991 (Vic) s 5(1).
Parity
I have paid special regard to the sentence imposed on your co-offender by Beale J.
In my view, you should receive a less severe sentence than Daniel Condon due to your lesser role in the offending.[57] You were not the person who wielded the knife. It was Daniel Condon who had sharpened and prepared that weapon from his own prison-issue cutlery set and used that weapon in the assault. I am bound to sentence you on the basis that you were not aware of his plan to use the knife in the assault before the assault commenced. You are also not caught by the mandatory sentencing provision of the Sentencing Act that applied to your co-offender.
[57]Regarding parity considerations based on role see eg, R v Sibic (2006) 168 A Crim R 305, 316–17 [33]–[34]; Mokbel v The Queen [2011] VSCA 106, [58]–[60]; Marku v The Queen [2012] VSCA 51, [48]–[49].
You were slightly younger than Daniel Condon when this this serious crime was committed, but this aspect carries only modest weight. Whilst your offence history shows a persistent pattern of re-offending Condon’s history for violent offending appears worse; it included a particularly serious example of an armed robbery and intentionally causing injury.[58]
[58]Referred to by Beale J in R v Condon [2022] VSC 25 at [38]–[40].
Current sentencing practices
Like Beale J, I have been guided by comparable cases for offences of this kind, including cases involving prison assaults.[59]
[59]I have had regard to the Victorian Sentencing Manual, ‘4.1 – Intentionally causing serious injury in circumstances of gross violence’ Judicial College of Victoria.
Totality
Totality is a relevant consideration in your case, having regard to the existing sentence you are serving and the continuous period you have been in custody since being remanded on 16 March 2020. Had you not been charged with the current offending, your earliest release date for the sentence imposed by Judge Chettle would have been 16 March 2024 and you would have completed that sentence by 16 December 2025.
In Mohamed v The Queen[60] (‘Mohamed’), the Court of Appeal described the task of approaching the issue of totality for a prisoner already undergoing a significant prison sentence at the time of determining a further sentence. The Court referred to the foundational principle that a sentence should be proportionate to the aggregate criminality involved in all the offending under consideration.[61] The Court noted the difficulty in arriving at a total sentence which is proportionate to the offending where the aggregate criminality is composed of quite different offences committed on different occasions.[62] The Court referred to the case of R v Mangelen,[63] which described the task as one of evaluating the overall criminality and ensuring appropriate relativity between the totality of the criminality and the totality of the effective length of the sentences to be and which have been imposed:
If the total sentence is an unjust or inappropriate measure of the total criminality involved, the sentence which the offender is required to serve will be moderated so that the aggregate of sentences imposed by reason of cumulation is not greater than any sentence required to fulfil the totality principle. The principle is to be applied to both the fixing of the head sentence and the non-parole period.
[60][2022] VSCA 136.
[61]Referring to the case of DPP v Bowen [2021] VSCA 355.
[62]Mohamed [7].
[63](2009) 23 VR 692: [2009] VSCA 63.
I am cognisant of the need to avoid imposing a crushing sentence on you,[64] paying special heed to your youthfulness and the importance of rehabilitation for young offenders.[65] The Court of Appeal in Mohamed also referred to the words of Kourakis J in R v Cramp where his Honour said:
Where there are reasonable prospects of rehabilitation, and the requirements of punishment and deterrence otherwise allow, care should be taken not to impose a sentence which leaves the offender in a state of despair in which he abandons any inclination to reform. Where there are prospects of rehabilitation, a sentence that destroys any real capacity for the offender to reform should not be imposed unless the protection of the community demands it.[66]
[64]Mohamed [74]–[77].
[65]Mohamed [75].
[66](2010) 106 SASR 304; [2010] SASC 51; see also Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen [2011] VSCA 372 [61]–[62].
I am required to fix a new non-parole period[67] and have tailored your sentence to reflect the importance of rehabilitation, whilst also reflecting the overall criminality involved in the offending for which Judge Chettle sentenced you and the offence committed with Daniel Condon.
[67]Sentencing Act 1991 (Vic) s 14.
Sentence
Mr Hall, please stand.
For the offence of intentionally causing serious injury in circumstances of gross violence, to which you have pleaded guilty, I sentence you to seven years’ imprisonment.
I order that three years of the sentence be served cumulatively upon the sentence of five years and nine months imposed by Judge Chettle,[68] leading to a total effective sentence of eight years and nine months. That means your total effective sentence will now expire on 16 December 2028. [69] If you are not granted parole you will have served most of your twenties in prison for the combined offending arising from the Geelong offences committed in March 2020 and the current offence committed in August 2020.
[68]On 10 November 2021.
[69]The prosecution also observed that because you are currently serving a sentence and earlier periods of detention were reckoned as part of the sentence imposed by Judge Chettle for the Geelong offences, no formal declaration of pre-sentence detention is required in the current proceeding.
I will fix a new non-parole period that applies to both the sentence you are currently undergoing for the Geelong offences and the sentence I am now imposing. I fix a new non-parole period of six years. You will now not be eligible for parole until 16 March 2026.
I make no declaration of pre-sentence detention as it was already declared and taken into account by Judge Chettle.[70]
[70]In sentencing you on 10 November 2021, Judge Chettle declared 604 days already served by way of pre-sentence detention.
I declare that but for your plea of guilty, pursuant to s 6AAA I would have sentenced you to 10 years’ imprisonment with a minimum of seven years and a half years.[71] Thank you, you can sit down again, Mr Hall.
[71]Sentencing Act 1991 (Vic) s 6AAA.
Any matters at all, Counsel?
MR DICKIE: I think there was just a disposal order, Your Honour, by consent.
HER HONOUR: There was a disposal order, was there, in this matter?
MR DICKIE: Yes, your Honour, it was forwarded through. I think it was resent on Thursday I think, Your Honour, by consent, but it can be dealt with later I’m sure, Your Honour.
MR McGRATH: I don’t expect there will be an issue with that, Your Honour. From memory, I think it was agreed upon on the last occasion.
HER HONOUR: Yes, all right. Hopefully, Mr McGrath, your client will have absorbed some of what the Court has said.
MR McGRATH: Yes. I’ll go through that with him.
HER HONOUR: All right, thank you.
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