R v O'Brien and Hudson
[2012] VSC 592
•12 December 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No.0123 & 0126 of 2012
| THE QUEEN |
| V |
| WAYNE O’BRIEN AND |
---
JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 November 2012 | |
DATE OF SENTENCE: | 12 December 2012 | |
CASE MAY BE CITED AS: | R v O’Brien & Hudson | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 592 | |
---
Plea of guilty – Intentionally causing serious injury – ‘Hate Crime’.
Young offenders – Unprovoked, prolonged, vicious attack on an Asian student.
Hudson: 10 years 6 months imprisonment – Minimum 8 years. Extensive Prior record.
O’Brien: 4 years 6 months imprisonment – Minimum 2 years 6 months. No prior record.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Silbert S.C. | Office of Public Prosecutions |
| For the Accused O’Brien | Mr J Williams | Victoria Legal Aid |
| For the Accused Hudson | Mr S Maglia | Greg Thomas Lawyers |
HER HONOUR:
Wayne O’Brien and Shannon Hudson, you have each pleaded guilty to one charge of intentionally causing serious injury to Minh Duong on 27 June 2012. You were arrested and charged on 28 June 2012. At the committal mention on 21 and 28 September 2012, you both indicated an intention to plead guilty and the matters proceeded by way of straight hand-up brief. Accordingly, you are each entitled to, and will receive, an appropriate reduction in your sentence for the plea of guilty, together with early stage at which it was indicated, particularly as it saved the victim, Minh Duong, the ordeal of giving evidence in this court.
Mr Duong was a 21 year old Vietnamese international student who was studying at Swinburne University. He was employed part-time, as a store attendant at a 7‑Eleven Service Station in Moonee Ponds and, on the night of this incident, he was walking home from that job, when the attack occurred.
Wayne O’Brien, you have no prior convictions at all, and you are currently aged 20, as you were at the time of the offending, having been born on 30 April 1992.
Shannon Hudson, you have a significant number of prior convictions or appearances of relevance. You are currently aged 21, and you were 20 at the time of offending, having been born on 28 September 1991.
Shannon Hudson, as indicated, you have significant prior convictions and appearances. Whilst a large number of those prior offences were dealt with in the Children’s Court and ‘without conviction’ penalties were imposed, they are still relevant matters for the purpose of determining an appropriate sentence. Your first recorded appearance was at the Dandenong Children’s Court on 9 May 2008, when you would have been 16 years old. There were two charges, the first being the theft of a bicycle, the second being recklessly cause injury, and you were released on an accountable undertaking for six months and directed to complete the Positive Lifestyle Course run by the Salvation Army. You were next before the Dandenong Children’s Court on 30 January 2009, for possessing a controlled weapon without excuse, for which you were fined $300. On 15 October 2009, you were before the Melbourne Children’s Court for armed robbery, shop stealing and graffiti, and you were, without conviction, released on a Youth Supervision Order to participate in counselling, as directed by Youth Justice.
On 21 May 2010, by which time you were aged 18-and-a-half, you appeared before the Melbourne Magistrates’ Court for shop stealing, attempted escape from police custody, carrying a controlled weapon without excuse, intentionally damaging property and assaulting and resisting police, for which you received an effective term of two months’ detention in a youth training centre. In June 2010, a month later, you were again before the Melbourne Children’s Court for intentionally damaging property, robbery, assaulting police, criminal damage, public transport offences and graffiti and released on a nine month Youth Supervision Order, to attend at the Northern Metro Youth Justice Unit, with special conditions that you engage in counselling in drug and alcohol services.
Five months later, on 25 November 2010, you were before the Melbourne County Court on two counts of armed robbery and one count of recklessly causing injury. You received a sentence of detention for 18 months in a Youth Justice Centre for each charge of armed robbery and six months detention for the charge of recklessly causing injury, which with concurrency was a total of 27 months, for which you had already served 134 days by way of pre-sentence detention.
Again, a month later, you were before the Melbourne Magistrates’ Court on 7 December 2010, for affray, intentionally causing injury, theft from shop, drinking liquor on a railway vehicle, going equipped to steal, using cannabis – for which you received a total of four months detention in a youth training centre for all offences, to be served concurrently.
Somewhat inexplicably, you were back before the Melbourne Children’s Court on 20 January 2011, when you were aged 19, on one charge of recklessly causing injury and without conviction, you were released on a six month good behaviour bond. On 16 May 2011, you were dealt with at the Melbourne Magistrates’ Court for theft from a shop and fined $200.
There were two other periods of offending that are relevant, but do not fall into the category of prior convictions, but were matters rightly dealt with by your counsel as being matters relevant and appropriate to be considered in sentencing you for this offending, particularly in respect of your prospects of rehabilitation. Those two matters are contained within Exhibit 4. The first page of which is the ‘Summary of Circumstances’ and it relates to your offending on 18 June 2011, the second is headed ‘Summary of Charges’ and relates to your offending on 4 November 2011.
The first matter of the 18 June 2011, occurred at a bus stop near a railway station where you, and a number of other co-offenders, approached a young man and asked for a cigarette. When told he didn’t have any, you and your co-offenders repeatedly punched him to the face, whilst demanding he give you his wallet and mobile phone. This occurred over a period of time and you and your co-offenders rummaged through his property, removing some property, smashing other parts and all the while continuing to assault him. You took $20, a cask of wine and a pouch of tobacco. The victim was hospitalised, with lacerations, swelling and bleeding to his left eye and cheek area, his whole face was swollen and red. You were arrested on 24 July 2011 for the offence, stated you had no recollection of the incident, as you had consumed alcohol throughout the day and you were intoxicated.
The offending on 4 November 2011, occurred when you and your girlfriend were at the Queen Victoria Gardens in St Kilda Road, once again consuming alcohol. After an argument developed between yourself and your girlfriend, you became angry and began running in and out of the traffic on St Kilda Road. You then took the handbag belonging to your girlfriend, used it to smash the rear window of a Toyota Corolla, you then went to the rear passenger window, again used the handbag to hit the window which caused it to crack. You left, walked across the park, your girlfriend picked up the bag, used it again to strike the window, which then shattered, she then followed in your direction. When you went back into the park, you walked towards a male, a 79 year old man, you struck him to the back of his head with your fist, which caused him to fall face first onto the pavement, creating injuries that included a broken nose and abrasions to his forehead. You ran away and you were subsequently arrested; which now brings me to the offending on this occasion.
The circumstances of this offending are outlined in the Crown summary of prosecution opening and I will refer to the salient parts of that opening. The two of you attended the Pathway School in Port Melbourne and had become part of what was called the Crazy Whiteboys, which originally appeared to be a graffiti gang, but had, according to you Mr O’Brien, morphed into a Neo-Nazi group. You had been staying at Mr Hudson’s apartment for approximately three weeks at the time of the offending, which was located at No. 4 18A Bloomfield Road, Ascot Vale.
On Wednesday 27 June 2012, the two of you, together with another younger male by the name of Beau Graham, who was then aged 17, spent some, or a substantial part of your day, consuming alcohol at different locations in and around Melbourne. The last place being the Space Hotel in the city. At about 10pm the three of you left and caught a tram back to Ascot Vale intending to go to the apartment of Mr Hudson. Minh Duong was on his way home from his employment at the 7‑Eleven and was walking home along Rothwell Street in Ascot Vale, near the intersection of Bloomfield Road, listening to music through his Apple iPhone 4.
You, together with Graham, approached from the other side of the intersection, on the opposite side of the street and quite near to Mr Hudson’s apartment. One of you, it is not known which one, ran across the road and without any warning, or indeed any provocation, struck Minh Duong in the face. His glasses were lost and he fell across a small brick fence that he had been walking next to, which was about two foot high and separated the garden bed of a block of flats from the street. The two of you, and Beau Graham, then repeatedly kicked and punched Mr Duong, whilst he was in this position. At one point, whilst Beau Graham held Mr Duong’s arm down and pinned him on the ground, the two of you punched and kicked him to the head and left arm area. You demanded, after a period of time, that he hand over his iPhone which had fallen to the ground after your initial assault. He attempted to find the phone and eventually did so, handing it over to one of you, he was at that time screaming and begging for mercy – saying things such as ‘don’t hit me any more don’t, I gave you the phone already’. Despite this, you continued your brutal assault upon this young man. At the same time as this physical assault was occurring you Mr O’Brien, at least, were also making racist comments consistent, it would appear, with your Neo Nazi beliefs that you held at the time. You made statements such as ‘you fucking gook’ and ‘you yellow dog’. It is unclear if you Mr Hudson also made similar statements at that time.
Mr Duong made many attempts to try and get away, to stand up and escape, but each time was returned to the ground. He was terrified and believed he was going to be beaten to death. He lost all feeling in the left side of his face, and having observed the photos of Mr Duong, that is unsurprising. He tried to escape into the garden bed, but was grabbed by the legs and dragged across the fence and out into the street. He tried holding onto the small brick fence, over which he had been pushed, but such was the force used, that the fence itself gave way, with several bricks coming loose and falling onto the footpath.
You, Mr O’Brien, admitted in the statements that you made to the police that you had a significant involvement at this point. You kicked him to the face, at least once or twice at this time, also, you Mr Hudson, struck him knocking him back down to the ground, whilst you Mr O’Brien, grabbed him by the hair and said to him ‘you don’t fuck around here’.
Mr Duong repeatedly asked what you were doing and why you were doing that to him. You just continued to rain blows upon him, before he managed at one point to get up and run away. However, you were able to chase him down. One of you grabbed his jacket, he slipped out of that and continued to flee. He was then grabbed by at least two of the three of you and pulled backwards, causing the polo shirt he was wearing to be torn off his body and him to fall heavily onto his back. He was dragged, by his arm and leg, back along the street towards the brick fence.
You then continued to punch and kick him to the head, face and the body. Once again, it is unknown which of you, but at least one of you, at some point struck Mr Duong with a sharp weapon repeatedly. This caused distinctive stab wounds to his arm and his lower back, and the weapon used for that attack has not been located. Eventually, Mr Duong lost consciousness, and lay in the gutter. Despite that, it would appear that the assault continued.
In a particularly chilling episode of violence, you, Mr Hudson, picked up one of the bricks that was lying loose on the ground – Mr O’Brien in his statement said, he tried to stop you by saying ‘don't worry about it, come on man, lets just fucking go’ but you persisted, you lifted the brick up over your head, with both of your hands and then brought it down on the top of Mr Duong’s head, with such force that the brick itself broke in half. Mr Duong’s body was then in the street, in the gutter, in a large pool of blood. You Mr Hudson then told Mr O’Brien and Beau Graham to go into your apartment, which was only about 15 metres away. Mr O’Brien tried to get you to come into the apartment, by making comments such as, ‘come on he’s fucked’ but you Mr Hudson told him, ‘no, I’m not finished - there’s more bricks’.
You Mr O’Brien, together with Beau Graham, went into apartment and you Mr Hudson following a short time later, holding Mr Duong’s white iPhone. You were trying to unlock it and ultimately it was Mr O’Brien, who turned the phone off, so that it could not be traced by police. You Mr Hudson put the phone in your bedroom wardrobe. You all then spent quite some time trying to clean your bloodstained clothing and footwear, to try and conceal some evidence of the assault, although those efforts seemed somewhat amateurish.
The screams and cries of Mr Duong, for help, were heard by many, many residents. And there were numerous calls to 000 seeking the assistance of police. They arrived at approximately 11.25 and found Mr Duong, semi sitting in the gutter outside the apartment building at 18A Bloomfield Road, he was naked from the waist up, he was covered in blood, unable to speak, only semi-conscious and had severe facial and head trauma. The paramedics arrived shortly after to look after him. The police attended at the apartment, and spoke, firstly, with you Mr Hudson and you denied any knowledge of the incident, and then they spoke to you Mr O’Brien - you having come to the door as a result of the police asking if there was anyone else at the premises. You stood next to Mr Hudson with your hands inside your pockets, because you still had the blood of Mr Duong over your hands. It would appear that after that, you all had a number, of what you would describe as, calming-type bongs and went to sleep.
The police arrested you at approximately 6.10 in the morning, and located the white mobile iPhone, as well as numerous items of bloodstained clothing and footwear.
You, Mr Hudson, declined to answer any questions in regard to the offending, and gave false explanations for items such as the blood, the iPhone and the red marks on your knuckles.
You, Mr O’Brien, were also interviewed and you made full admissions, including that racial taunts were made, that all three of you were in it and that you had all had a lot to drink. But you also said at Question 143: ‘I can't blame it all on the alcohol, I blame it on myself’. You talked about the victim being assaulted and ‘copping’ at least 60, 70-more hits, before the bricking. You described Mr Hudson hitting Mr Duong over the head with a brick, as being like a sledgehammer and you said, the assault would have lasted about 10 minutes, during which you just felt anger.
In relation to the issue of why this occurred, I will refer just briefly to what you Mr O’Brien said in your record of interview at question 143:
Q. Why were you boys doing that?
A.Why were doing it, why were … I were punching – fuck man to be honest I don’t know, I don’t fucking know man. We don’t like fucking we, I like to – I fight people when they start me, no randoms or anything like that, I can’t blame it on the alcohol cos fuck that’s no fucking excuse, that’s a piss-poor excuse. I blame it on, on myself and my own actions – you know what I mean. I can’t say I didn’t do anything, I was standing across the road in a ball having a cry saying, it was all Shannon, it was all Beau. It wasn’t all Shannon, it wasn’t all Beau and it wasn’t all me. It was fucking all of us.
Q. Yep. Yep. One hundred percent.
A.And fucking like I can’t, I can’t like look at those fucking photos and like they’re like you know fucking he’s a gook know what I mean, I can’t say like ‘fuck this skinhead shit’.
Q145.Was that part of it.
A.Virtually.
Q146.Sorry.
A.Virtually – yeah.
Q.So what, what was said before it happened along those lines – anything.
A.No, nothing along those lines just fucking.
Q.Then how, how do you know it was part of it for the other boys?
A.Because we’re all skinheads.
Q.Can you explain the concept to me as I was stupid and I didn’t know what that meant.
A.Alright. Well you’re not, you’re not fucking stupid, no, no.
Q.I know mate, I just want you to explain it to me.
A.No. It’s just like …don’t like you know Asian people, any descent, don’t like Jews and I don’t like Negros – you know what I mean but I can’t hate because I go to school with a Jamaican dude. He’s African, you know what I mean. What you reckon I’m just going to walk into school and smash him just cos of the colour of his skin – it’s fucked up shit, you know what I mean. I go to school with a Jew and he’s nice, he doesn’t do anything wrong by me, so.
Q.And is this something you discuss with the other boys. These ideas I suppose you can call them.
A.Na, na.
Q.So you’re saying that was probably part of the reason for it. The other two started this whole – do you know what the reason was for them?
A.I’ve no idea. You’re going to have to ask them. Yeah, I don’t know. But I’ve never gang bashed someone like never seen someone being bricked and I’ve never seen someone like so close to fucking death, like that’s … like I said yeah my own brother got murdered and shit. I don’t want this cunt to die. I don’t care like if he’s Asian or whatever – man – like you can just picture like – me, myself, I was like my brother died man I was like skating to high cliffs and bridges and shit like that, I was suicidal, I wanted to die. If this dude dies his Mum’s probably going to do the fucking thing the exact same thing my Mum did and try, try to you know, try to do stupid things to heal the pain. And like we all did but fuck it’s fucking stupid. It shouldn’t have happened at all.
The victim in this case, Minh Duong, was taken to the emergency department at Royal Melbourne Hospital, having been assessed as being in a critical, life-threatening condition. Due to severe swelling, around his brain and face, surgery was not able to be performed until 48 hours after admission, as the swelling had to reduce. Mr Duong suffered the following injuries and it is important that the level of his suffering be understood:
1.Multiple lacerations to the head, face and body, which included a 10cm laceration to the top of the skull.
2.Severe swelling of the brain.
3.Comminuted left frontal depressed skull fracture.
4.Comminuted fracture to the left zygoma and pterygoid plate.
5.Comminuted orbital wall fracture, comprising the left medial lateral and orbital floor.
6.Fractures through the anterior wall right maxilla.
7.Right occipital fracture.
8.Small fracture in the top area of his spine.
9.A torn left cheek and lip requiring stitches and plastic surgery.
10.One stab wound to the left forearm which required stitches.
11.Two stab wounds to the lower back requiring stitches, one of which penetrated the organ cavity and nicked the bowel, risking, as a result, serious infection.
12.Loss of several front teeth.
13.Numerous crooked teeth which will require realignment or removal.
14.Severe swelling and facial hematomas.
15.Pain and soreness to the head, face, jaw, arms and back.
16.Bleeding to the face, head and body.
Mr Duong stayed in hospital for only seven days, before being discharged for out-patient treatment, including plastic surgery. He was required to wear a neck-brace for six to eight weeks, whilst the fracture at the top of his spine healed. He has had further facial reconstructive surgery and continues to receive ongoing medical treatment, particularly in relation to his jaw and dental problems.
Mr Duong made a victim impact statement, which is best described as a very restrained document.
The victim impact statement was handwritten and was read aloud to the court. The victim himself did not attend the proceedings. He has trouble speaking now, as a result of the damage to his jaw and dental area, he is fearful of strangers, he is no longer confident in communicating with people, due to those difficulties. How he described it in his victim impact statements is, as follows:
Because of some scars in my face and lost teeth I feel not being confident to communicate to others. It makes my works and relationship fall down.
And further:
The injuries from the crime affected to my life badly.
He is also significantly financially penalised as a result. He is exceedingly fearful about travelling home or around at night on public transport, which also involves walking. He has bills from the hospital, he has on-going dental costs associated with this, he is an overseas student supporting himself in this country, by employment. That employment could not continue for some period of time. He has difficulty with it. There are many ongoing consequences for this young man. The photos of the injuries, particularly to his facial area, are horrendous. He is almost unrecognisable as a human being.
You are both incredibly fortunate that he did not die. The beating that he was given by you was remorseless, violent and sustained. It was an unprovoked attack on a young man walking home from his part-time employment, doing nothing more than listening to music. He did not say or do one thing to provoke any of you, except to be there.
This is appalling behaviour; the community expects, and rightly so, that the punishment for an offence of this nature will be appropriate, or as the courts often refer to it, ‘condign’ meaning punishment appropriate to the seriousness and circumstances of the offending. This is an example of the offence of intentionally cause serious injury, of a very high level. Whilst it is not serious injury of the very highest level, and it is always possible, to imagine worse case scenarios, it is and will be dealt with as an offence at the higher level, of an offence of this nature.
One of the factors that must be considered are the matters set out in s 52AC(2)(d)(aaa) of the Sentencing Act 1991:
(2) In sentencing an offender a court must have regard to –
(a) …
(d)The offender’s culpability and degree of responsibility for the offence; and
…
(d)(aaa)Whether the offence was motivated (wholly or partly) by hatred for or prejudice against a group of people with common characteristics with which the victim was associated or with which the offender believed the victim was associated; …
The Act sets out a number of matters that the court must take into account in sentencing an offender, and this is one of the matters that a court must have regard to, if it is satisfied that, as is alleged in this case, the offence was motivated either wholly or partly by racial hatred.
In the statement of the victim, there are many references to the comments that were being made to him at the time of his beating, in respect of his race. There are various admissions in both the interview and the statements made by you Mr O’Brien to the police on the morning and subsequently, to the effect that this was in part racially motivated and you admit to making statements such as ‘you fucking gook’, ‘you fucking yellow dog’, together with references about not being or belonging in this country.
Mr Hudson you made no comment to the police in respect of the offending but, through your counsel, accept that there is in your case, at least partially, a racial hatred motivation.
As a result of that concession, I am satisfied to the required standard, being beyond reasonable doubt, that there was a part-motivation of prejudice of a racial nature in respect of this continuing assault. I am not satisfied that it was entirely or even predominately racially motivated, as when I look at your history, Mr Hudson it does not appear that your attacks and robberies upon various innocent members of our community, from the quite young to the quite old, are racially motivated.
What is apparent is that you are certainly a young man with a severe problem, in terms of your inability to control your violence. Whilst I accept what your counsel says about your motivation being partly related to racial hatred, in my view you have what appears to be, a general, hatred towards the community at large. I am of the view that, a lot of your discussions and talk about skinheads and white supremacy, and your Heil Hitler signs were not really understood by either of you. They merely demonstrated young men who for some reason are angry, not just at those from another country, but at the world at large.
The increasing anger being displayed by young members of our community is one that is hard to fathom. In some ways you have more available to you than any young people before you have ever had, but you fail to be satisfied with it. There are information, entertainment, educational opportunities, and many other matters available to young people. Even though I accept you do not come from advantaged backgrounds, neither of your backgrounds are so bereft of affection or support from your families, adopted or otherwise, that there was absolutely no opportunities available for either of you. Neither of you seem to have taken advantage of any of the countless opportunities or assistance that have been offered to you over the years through different support organisations, you have unfortunately focused more upon your anger and resentments, than upon your opportunities.
Whilst all sorts of psychiatric names and conditions are attached to all of this anger and rage, at some stage our society needs to work out why there are so many angry and unhappy young people, particularly males. The anger is almost invariably accompanied by vast quantities of alcohol and some form of illegal drugs, as was the case for each of you, and as it appears to have been in all of your previous matters Mr Hudson. The consequences of all of this anger and rage, is appalling violence being inflicted upon innocent members of our community, who just happen to be nearby, or equally enraged and alcohol affected young men.
Upon looking at your history, Mr Hudson, this is, at the very least, the ninth person in our community that you have assaulted, in some form or another, and usually with all of them suffering, what I would describe as significant injuries. Although I do not have the details, there are eight separate incidents for which you have appeared in court, charged with recklessly causing injury or intentionally causing injury, each of them relating to a different person. Additionally there are three charges of armed robbery and at least one other of robbery, in which I have no knowledge of the details of what you did to those people that you robbed. All of this you have done between the ages of 16 and 20. It is an horrific record for someone of your age and it has culminated in this violent, dreadful assault upon Mr Duong.
You, Mr O’Brien, have no criminal history and that will serve as a significant benefit to you, by comparison to Mr Hudson. Your behaviour on the night is to a degree indistinguishable, except your step further, Mr Hudson, of taking a brick and smashing it on to the skull of Mr Duong. That behaviour can best be described as depraved – indifferent, to whether he lived or died and it makes your behaviour worse than Mr O’Brien’s behaviour on that night. Both of you need to understand that your behaviour was deplorable, unforgiveable and will not be tolerated by a just and decent society and the courts have an obligation to reflect that.
The maximum penalty for this offence is 20 years imprisonment and I shall bear that in mind when determining the appropriate penalty to be imposed upon each of you. It is my view, in respect of you Mr Hudson, that one of the major considerations in the determination of your sentence, is the protection of the community from your violence.
Although I am satisfied that, there was a partial racial motivation in your attack, I am also satisfied that racial hatred, was in reality, a very small part of the motivation for your offending. It is my view, that this attack would, in all likelihood, have occurred irrespective of the nationality of the person walking down the street. The fact that the victim was Vietnamese, just allowed you to yell and scream your vile language via racial taunts, rather than just yell and scream filthy names at your victim.
There are a number of factors that need to be considered in mitigation of your penalty and one of those matters is your individual backgrounds and histories. Dealing firstly with you, Mr O’Brien, you are the second youngest of five boys, your parents separated when you were aged around two or three, and I note your younger brother is the product of a different relationship of your mother, and no details of that relationship have been supplied to the court. You have not seen your father, since the funeral of your brother, Christopher, some five years ago. It would appear that the separation was a result of domestic violence, and your father, who was American, left the family home. You have no real memory of any violence having occurred between them, due to your age.
You were raised in the suburb of Highett by your mother, with the assistance of your older brother, Shane, who took on the role of assisting your mother by being the disciplinarian. This unsurprisingly resulted in a degree of conflict between you. You attended Moorabbin Primary School and Sandringham Secondary College, being in Year 9 when your brother died. You stayed with two different foster families on numerous weekends as a child as a way of assisting your mother. Your relationship with your older brother was fraught and you were often in conflict with him. The reference to the death of your brother Christopher is of some significance, as he was brutally murdered, when you were around 15. Christopher was an intellectually impaired young man of 22, with an intellectual age of approximately 14, whose affairs were managed by the State Trustees who was no longer living at home. He was, over a period of some days, effectively tortured and ultimately beaten to death and thrown into a creek. It was a cruel, callous and brutal death and it has undoubtedly caused you great sorrow. A number of those involved pleaded guilty to differing offences and the major offender, Likiardopoulos, was convicted by a jury in 2009 and received a substantial sentence of imprisonment.
You were a user of cannabis, which your counsel submitted grew into physical dependence over a period of time. He said at the time of your offending, you were smoking approximately a gram of cannabis a day. You left school at the age of 16 to obtain employment. You worked in a car-wash full time for approximately 12 months, which was located near to where you resided with your family. You worked there with a friend who, when you were aged 17, died of a cerebral aneurism. I am not satisfied as to the accuracy or your dates, and it appears that although the events are consistent, you have referred to substantially different time periods for all of your working and travelling activities, when reporting to different persons. Your counsel informed me that, you then travelled interstate. Travelling around Australia, including Tasmania, but all of that was somewhat vague. I am really unsure as to how long you were away, what you did or where you went. You returned to reside with your mother and family in Highett, after you had travelled around Australia hitchhiking, but left again, as you were unable to get along with your mother and your brother, who disapproved of your cannabis smoking and alcohol intake. I was informed that you were, as a younger man, a talented skate boarder, but that somehow ceased at some unknown stage. You apparently returned to Victoria sometime in 2011 and at the commencement of 2012, you enrolled in an education program referred to as a VCAL Program, an Adult Education Program at Pathways in Port Melbourne, through the St Kilda Youth Service. You had previously done a Hospitality Employment and Training Program referred to as HEAT. You were described as homeless whilst doing the VCAL program, and SKYS were attempting to find you accommodation. Your counsel informed me that you did not return to your home to reside, due to the distance between Highett and your course in Port Melbourne, as well as your older brother still being at home.
It appears that alcohol was a factor on this night and had been in the past. You were residing at the flat of your co-offender Shannon Hudson and had been living there for approximately three weeks. You knew the third co-offender and had known him for quite some time. You had known Mr Hudson for approximately a year. All of you during this time were consuming large amounts of alcohol. In relation to your participation in the Crazy White Boys your counsel submitted that you had not been involved in that milieu for a very lengthy time. You shaved your head about a week prior to this offending, after you had become involved with an older man that you met with Mr Hudson. That man being in his 30s. Your involvement in relation to these racist attitudes was, of but short duration and clearly exacerbated by the use of cannabis and alcohol on the day, all of which is disinhibiting. It was clear during your record of interview with the police, that you realised the gross stupidity of those racist views and the reality of your offending behaviour and its huge consequences for Mr Duong.
I have received a report from Mr Jeffrey Cummins, clinical forensic psychologist. In his opinion and conclusions, Mr Cummins had this to say,
In my opinion at the time of offending he was suffering from a mental illness in the form of a chronic adjustment disorder with mixed disturbance of emotions and conduct. In my opinion at the time of offending he was also most probably suffering from a post traumatic stress disorder. In any case, he is now suffering from a reactive adjustment disorder with depressed mood and this adjustment disorder has developed in response to his offending behaviour and his empathy for the victim and his concern about his legal situation.
There is nothing in the report of Mr Cummins that in any way links that opinion to the actual offending. Your brother was murdered in 2007, in March. This offending occurred in June of 2012, some five years later. There is nothing in the report to indicate how either the chronic adjustment disorder, or the post traumatic stress disorder, had any impact in terms of causative relationship with the offending in which you participated and without that there is no basis upon which your sentence should be moderated in relationship to that aspect.
As to your having a reactive adjustment disorder with depressed mood, according to the report of Mr Cummins, it appears that that reactive adjustment disorder with depressed mood has been a development, as he put it, ‘in response to your offending behaviour and your empathy for the victim and your concern about your legal situation’. As I comprehend that statement by Mr Cummins, it means that you are depressed and unhappy about how you behaved, what you have done to the victim and you are concerned about what is going to happen to you. Whilst this may technically be a diagnosis, I find that none of that is of any assistance in terms of determining the appropriate penalty and will not cause me to moderate my sentence upon you.
You are remanded in protection at this stage and that is likely to continue as, you have not only made full admissions in your record of interview, you have made statements which were capable of being used by the Crown as evidence against your co-offenders. That may make your life, and your time to be served in prison, more difficult and more onerous than the average person, and accordingly your sentence will be moderated by that fact. Further the law says that you are entitled to receive a significantly reduced sentence due to your cooperation with the authorities and your willingness to give evidence in the case.
Shannon Hudson, you are aged 21 and you were 20 at the time of offending, and a youthful offender. You have taken no issue with the contents of the statements made by Mr O’Brien as to their truthfulness and accuracy and concede the particularly aggravating factor of the ‘bricking’ of the victim on that night by you. You also conceded that this offending was partially motivated by a racist attitude.
In regards to your personal history, your biological mother died when you were approximately 2 years of age from either alcohol or drug associated issues. Your biological father, Walter Hudson, had significant substance abuse problems also and was a career criminal, he has had nothing to do with you since a very young age. You were removed from your mother and father at about six months of age and placed in foster care in Bairnsdale until you were adopted by the Forrest family, when you were two years of age. Your adoptive parents who live in the country also have a daughter, who is their biological daughter, aged 14. There was no domestic violence, child abuse or substance abuse in their house. It appeared to be a normal household with caring parents. You became aware that you were adopted when you were between five and six years of age. You attended Pearcedale and Tooradin Primary schools and a Social Adjustment Centre at Doveton Heights Primary School, from there you went to Koo Wee Rup Secondary College, Blackwood School in Drouin; a behavioural centre, and then Cranbourne Secondary College – from which you were expelled towards the end of Year 9 for smashing a window.
You were diagnosed with ADHD when you were approximately five years of age and prescribed Ritalin, dexamphetamine and Zoloft over your school years. But as you described it to Ms Mathews, with little effect. You were constantly expelled, suspended or in detention. You believed people at school used to provoke you just so that you would fight, which you did very easily. You did not enjoy school at all. You did some work, including welding but you were sacked. You tried roof tiling, you were sacked from that job for not turning up. You moved out of home in 2009, when you would have been aged approximately 18. You commenced your trouble with the law from about 2008, but markedly escalating from late 2009 through to 2010. You left home after fighting with your parents, as you described, it over rubbish. You led an itinerant lifestyle; sleeping at friends, in the park or wherever you could prior to your incarceration in a juvenile justice system. You have been, as you described it, locked up a number of times and have lived predominantly in the northern suburbs, when not in custody. You’ve had no long term relationships of any note. You described commencing to smoke cigarettes around the age of 14, marijuana at the age of 15 and alcohol. Since the age of 17, you have used methylamphetamine about once or twice a week, ecstasy and hallucinogenics experimentally, and between 7 to 14 grams of marijuana a week.
You described spending most of your CentreLink benefits on substances, including alcohol. You have received court ordered assistance from about 2009 onwards and I am in possession of a court report prepared by Lisa Warren, Clinical and Forensic Psychologist, in a report ordered on 15 September 2009 by the Children’s Court. A further report dated 22 November 2010, by Gina Cidoni and a report, again by Gina Cidoni, dated 1 March 2012.
Your fallout with your parents, according to the first report, was over your lifestyle choices, about your drinking, your peer group and your conduct. In the words of your adopted Mum you ‘make wrong choices, get in with bad people and that you do not recognise the need to stay out of high risk situations’. During September 2008, until February 2009, you worked on a neighbour’s farm in what was described as one of the most settled periods of your time with the family. Your biological mother was reported to have drunk heavily throughout her pregnancy, and it is unknown whether you suffer from foetal alcohol syndrome, as you have never been tested. You do not however present with any of the distinctive facial features often found in persons with that syndrome. The reports indicate that you were disruptive from early childhood, with behavioural problems first surfacing when you were in kindergarten. The reports further indicate that you were suspended several times when you were in senior school, for physical altercations with different fellow students. Your time in the Blackwood Annex of the Drouin Secondary College allowed you to make some progress, about coping with the demands of high school, but that was again lost when you returned to the main school. You went on a school trip to Japan with Cranbourne Secondary College, and your behaviour was of such a level, that the school thought they may be unable to maintain the hosts relationship.
The most important thing noted was, that you had very little appreciation of the impact of your behaviour on persons around you. Your behaviour at work was not much of an improvement from your behaviour at school. Although you tended to enjoy farm work, the most successful participation in which you’ve been involved was in the Air Cadets, with your mentor reporting to your mother that you had responded well to the structure and discipline of that lifestyle. Despite your enjoyment of this period in your life, you were still incapable of resisting your violent urges, and you were asked to leave the cadets after chasing a fellow cadet, who had annoyed you, around the Barracks with a brick.
The report from Ms Warren in 2009, indicated that you had experienced what were referred to as dark thoughts; fantasising about inflicting serious wounds upon a person and how they might look, it was described as the type of fantasising typically seen in the more psychopathic offender. When you were dealing with the offences that you were facing in the Children’s Court you admitted, when you were interviewed without the presence of your mother, that you felt somewhat disquiet about feeling little or no remorse for the infliction of injuries. Ms Warren’s opinion of you when you were aged 17 years and 11 months was:
Shannon Hudson Forrest is a complex young man. He carries deep scars from the mistakes of his biological parents. He has struggled with personal challenges that emerged in his early years. These include an attention deficit, poor frustration tolerance, limited empathy for others, and a learned eagerness to use violence as a method of relieving anger. He has conditioned himself to feel relief in the immediate aftermath of violence. In his words he is “glad its [the anger] over”. Shannon readily admitted that his violent acts have increased in severity across his childhood. He appreciated that this would not abate without treatment and a concerted effort by him.
You were somewhat prophetic in relation to that, Mr Hudson, as your behaviour and your violence has continued and escalated over the years. You have a full scale IQ of 78 when 93% of people your age would do better. Ms Cidoni, in one of her reports on psychological testing, found that your profile included depressed mood, anxiety, interpersonal sensitivity, paranoid ideation, hostility, and your psychotism scale was significant.
Since mid-2011, when you were released on parole from youth detention, you have been interacting with psychologist Lawrence Harvey from the Adolescent Forensic Health Service, based at the Royal Children’s Hospital. Mr Harvey reported to Ms Cidoni, which was noted in her report of March 2012, that you had attended consultations regularly, that there had been a stabilisation in recent months with your move to Ascot Vale and a reduction in your substance abuse. She recorded in that same report that your mental health problems included paranoid ideation, depressed mood, anti-social tendencies and difficulty managing your anger. It was proposed that there should be neuro-psychological testing, but that has not in fact taken place. She found that you were developing a sociopathic trend.
Finally, there is a report in relation to your mental health situation from Pamela Mathews, forensic psychologist.
I would have thought that a report or information from Mr Harvey, who had been treating you over at least a nine month period, would have been of most assistance to the court, but that has not been provided.
Ms Mathews provides a similar history to those provided previously. You told Ms Mathews that you were not depressed, anxious or suicidal and not receiving any medication. Ms Mathews sees your adoption at the age of two as leading to reactive attachment disorder, which she says explains to a degree your alienation from your family. She says your intelligence causes you to have problems in respect of reasoning and problem solving, as it makes it difficult for you to assess the consequences of your behaviour. She also believes you would be more likely to be easily influenced by others. Your history of attention deficit hyperactivity disorder she says, is related to your inability to impulse control. All of those matters lead to the foundations for an emerging borderline personality disorder and she says that you have a moderate to high risk of violent reoffending.
In her report Ms Mathews refers to statements made by you about your attitude to undertaking drug, alcohol or violence intervention programs, that are quite concerning, when you stated:
I find none of these things help unless you want to change, I’m not ready yet, when I am ready I will change, I’ve got to find something happening in my life, at the moment there is not much there for me on the outside, if I had something to look forward to, that’s when I will change, no one wants to employ someone with a criminal record it makes it difficult.
Unfortunately, I agree with her. You have a very high prospect of reoffending and that is a significant factor that I must take into account in dealing and determining the appropriate sentence to be imposed upon you.
I must balance all of the factors to which I have referred in respect of the sentences that I impose, including the mitigatory factors of your plea of guilty and the early stage at which it occurred. In respect of you Mr O’Brien, your remorse which I accept to be genuine, your cooperation with the authorities and your preparedness to give evidence, your lack of prior offending, your age and your prospects of rehabilitation, which I find to be reasonable. In respect of you Mr Hudson, I find that there is some, but limited, remorse for your actions, that you are a youthful offender. I find your prospects of rehabilitation to be poor.
In respect of the issue of general and personal deterrence, the issue of general deterrence is very important, for all of the reasons outlined earlier about the community’s right to walk the streets of their city in safety, and in respect of specific deterrence, in respect of you Mr O’Brien, I find that whilst there is a need for personal deterrence, it is a limited need. In respect of you Mr Hudson, I find there is a high degree of need for specific deterrence, in light of your offending history, your lifestyle and your reported lack of desire to change that lifestyle or pattern of offending.
I also have to impose a sentence that is just and appropriate and in light of your respective ages, not a crushing sentence. The issue of parity with your co-offender, Beau Graham, who was dealt with in the Children’s Court, is not relevant for the purpose of sentencing you as adult offenders. In terms of the issue of parity between you, once again the issue of parity can have no application, as your circumstances, as I have outlined in these sentencing remarks, are distinctly different.
You Shannon Hudson are currently serving a sentence and I have taken that matter into account, and I intend that the sentence I impose will be served concurrently with the sentence you are currently undergoing and I will impose a new overall minimum term before which you will not be eligible for parole.
Wayne O’Brien you are convicted and sentenced to be imprisoned for a period of four years and six months, I direct that you are to serve a minimum period of 2 years and six months before becoming eligible for parole.
Shannon Hudson you are convicted and sentenced to be imprisoned for a period of 10 years and six months, and I direct that your new minimum period to be served before becoming eligible for parole is 8 years. I further direct that the sentence is to be served concurrently with the sentence that you are now undergoing.
Pursuant to Section 6AAA of the Sentencing Act, I declare that the sentence I would have imposed but for your pleas of guilty are: Wayne O’Brien – 6 ½ years with a minimum of 4 ½ years. It should also be noted that the sentence was significantly reduced for his preparedness to give evidence and the consequences that that flow from that. In respect of Shannon Hudson, the sentence would have been 12 years and six months with a minimum of 9 ½ years.
Pre-sentence Detention for O’Brien – is 167 days not including today and such is to be noted in the records of the court.
There is no Pre-sentence Detention for Hudson as he is serving another sentence.
The application for retention of Forensic sample 464 ZFB(1) is granted unopposed.
---
0
0
0