R v Thackray
[2017] VSC 561
•20 September 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0024
S CR 2017 0025
| THE QUEEN |
| v |
| JOHN SAMUEL THACKRAY |
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JUDGE: | WEINBERG JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 September 2017 |
DATE OF JUDGMENT: | 20 September 2017 |
CASE MAY BE CITED AS: | R v Thackray |
MEDIUM NEUTRAL CITATION: | [2017] VSC 561 |
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CRIMINAL LAW – Sentence – Two charges of intentionally causing serious injury, one charge of intentionally causing injury, and one charge of theft – Guilty plea – Random attacks on victims – Two offences involved stabbing unarmed victims numerous times in or near their homes – Serious ongoing consequences for victims – Offender suffers from serious mental illness with psychotic symptoms – Prospects of rehabilitation guarded at best – Sentenced as serious violent offender – Protection of community paramount consideration in sentencing – Sentenced to total effective sentence of 14 years’ imprisonment with non-parole period of 11 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Tinney SC | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr L Barker | Emma Turnbull Lawyers Pty Ltd |
HIS HONOUR:
John Samuel Thackray, you have pleaded guilty to two charges of intentionally causing serious injury, one charge of intentionally causing injury, and one charge of theft. The maximum penalty for intentionally causing serious injury is 20 years’ imprisonment, for intentionally causing injury 10 years’ imprisonment and, for theft, also 10 years’ imprisonment. I must now sentence you for that offending.
Circumstances of the offending
Charge 1 – Attack upon John Anderson
On Friday 18 March 2016, at approximately 7:10 am, Mr Anderson was leaving his house in South Yarra to take his car to be serviced. As he left the rear door of his home, he saw you sleeping on the ground with your head resting on a plastic bag, full of clothing.
Mr Anderson approached you and said in a soft, non-threatening manner, ‘Could you please move along buddy, time to go.’ You got to your feet. He then said ‘Come on, time to go, buddy.’ You asked, ‘Who are you?’, to which he replied ‘I am the owner.’ You then asked, ‘Are you?’, and he said that he was.
During this brief conversation, you had both walked towards the rear of the property, and were less than a metre apart. Mr Anderson noticed that you seemed to be rummaging in your bag. From the events that transpired, I infer that you were reaching for a knife that you were carrying in that bag.
Without any warning, or the slightest provocation, you commenced a brutal attack on Mr Anderson with that knife. You first stabbed him to the chest, knocking him to his knees. You then inflicted a series of further blows to his chest area. He later said that he was not aware that a knife was being used during this attack, but described the stabs as ‘hard, vicious blows.’
Mr Anderson yelled out ‘please stop’ and ‘help’ a number of times, before saying ‘please take what you want and go’. He was unable to fight back, but did raise his arms in an effort to protect himself.
You then ran away, leaving behind a green singlet and a Moomba brochure.
Mr Anderson was able to crawl back through the rear door of his home, and seek assistance from his wife. She called 000, and the police and an ambulance arrived shortly afterwards. He was taken to the Alfred Hospital, and seen to have three stab wounds to the chest, two to the back, one to the right shoulder, one to the left armpit, one to the left wrist, and one to the right elbow. He was diagnosed with an injury to the right ventricle of the heart, and what was described as a ‘cardiac tamponade’.[1] Emergency surgery was carried out.
[1]Compression of the heart produced by the accumulation of blood in the pericardial sac.
Dr Maaike Moller, a forensic physician, who did not examine Mr Anderson, but who reviewed his medical file from the hospital, said:
By the time the ambulance arrived, some fifteen minutes after the injuries were sustained, John Anderson was already showing signs of haemodynamic (blood flow) compromise. Within one hour of the alleged incident John Anderson was undergoing heart surgery at a major trauma centre by a professor and the director of cardiothoracic surgery. Were it not for the exceptionally rapid access to gold standard care, he would certainly have died.
As regards Mr Anderson’s prospects of rehabilitation, Dr Moller said:
It is likely that John Anderson will take a number of months to recover from his injuries, if indeed he does make a recovery. During the rehabilitation process he will have experienced severe pain and limitations on his physical function, as well as the risks of developing further complications.
Mr Anderson’s Victim Impact Statement, and that of his wife, speak eloquently of the trauma, and lasting harm, that your attack upon him has had.
Charge 2 – Attack upon Shaun Foo
On Saturday 30 July 2016, at about 6:00 pm, Mr Foo and his wife, Melissa Teo, left their apartment in South Yarra and walked along the path to the rear of the property. They saw you loitering around the cars in the apartment car park. Mr Foo challenged you, shouting out ‘Hey, what are you doing?’ You charged at him, and he retreated and called police. You ran away. Mr Foo chased you, but was unable to continue for long because of an injury to his leg. He then returned to his apartment.
Mr Foo informed his wife, who had gone inside by that stage, that the man who had been loitering in the carpark was still in the area, and that the police were coming. He then went outside to wait for their arrival, taking with him a golf club. As he waited at the front of his property, you attacked him. You struck his face, saying ‘That’s what you get for calling the police.’ As he reeled back from the blow, he swung the golf club at you, striking you to the arm or body. He fell to the ground and you stabbed and slashed him a number of times, with a knife, to the face, head, upper body and legs, while he lay helpless on the ground. He called out several times for help, before kicking out at you, and causing you to fall. He then managed to crawl back towards the apartment, closing the gate behind him. His wife opened the door, and let him in.
You tried to break down the gate to get into the property, before fleeing the scene. You sustained an injury during the attack, and left a trail of blood when you ran away.
Mr Foo was subsequently taken to hospital by ambulance. He had sustained multiple deep stab wounds to his face, head, body, and legs. He has been left with lasting effects as a result of your attack. He suffers from ongoing pain in his leg, and consequently walks with a limp. As well, he has pain in his shoulder, which reduces the movement of his left arm. He has a permanent hole in his chest, and scarring to a number of areas, including his face. He has been traumatised by this incident, and is continuing with counselling, as his Victim Impact Statement makes clear.
Charges three and four - attack upon Prem Dhiman and theft of flavoured milk
Earlier on the same afternoon of the attack upon Mr Foo, on 30 July 2016, Mr Dhiman was working as a manager at the Vogue Plaza Woolworths Supermarket in South Yarra. At about 5:20 pm, he was walking towards the storeroom when he saw you pick up a bottle of flavoured milk, and put it in your pants. He then went to the service desk and made a security call to alert you to the fact that you were being monitored. He returned to the aisle where you were standing. You picked up a can of corn, and charged at him. You threw the can at his head from a distance of about a metre. Fortunately, he had time to react and turn his head away. The can struck him to the back of the head, and he fell unconscious to the floor. Although treated by ambulance officers at the scene, he did not need to be hospitalised. There is no Victim Impact Statement from him. Nonetheless, the attack upon Mr Dhiman was itself a serious, and quite unprovoked act of violence on your part.
Identification and arrest
Through police investigations, it became apparent that all three attacks were connected. Police obtained the CCTV footage from Vogue Plaza, and surrounding businesses. They were able to track your movements as you left the supermarket area.
Mr Anderson had provided a detailed description of his attacker to the police, which had assisted in the composition of a sketch. Mr Foo’s description accorded closely with that given by Mr Anderson. CCTV footage of the suspect responsible for the attack on Mr Foo had been located, and released to the media. When Mr Anderson saw that footage on the news, he contacted the informant, and told him that he believed that Mr Foo’s attacker was a very close match for the man who had attacked him.
On 4 August 2016, police identified you as the male depicted in the CCTV footage and images. Once you had been identified, a DNA analysis was conducted of the saliva found on the singlet left at the scene of the first attack. It was determined that your DNA was on that singlet.
Police also learned that you had previously been a tenant in an apartment in Arthur Street, South Yarra, close to the scene of the first attack. Additionally, police attending the scene of the second attack followed the trail of blood, which you had left, to the laundry room at the back of that block of apartments. A significant amount of blood staining was located there. As the laundry was not visible from the street, it was unlikely that someone without knowledge of the building would readily have found his way there.
Background and circumstances
You are presently aged 33. Your life has been difficult. When you were aged about 10, your parents separated in acrimonious circumstances. At the age of 11 you were made a ward of the state, and subsequently lived in foster care and at an institution known as ‘Boys’ Town’ in Beaudesert, Queensland. Your first brush with the law occurred when you were less than 14. More recently, your life has been marked by drug abuse and mental illness.
You have an older sister, who is 38 and lives in Queensland. You also have an older brother, who is currently serving a term of imprisonment in New Zealand for drug offences. In addition, you have a younger sister, who is a psychological registrar. She too lives in Queensland. While you are, and have for many years been, totally estranged from your parents, and from your older siblings, you maintain some contact with your younger sister, who is commendably supportive of you.
Your life in foster care was turbulent. You spent every second weekend with your foster family. For the rest of the time, you were housed and schooled with about one hundred other boys at Boys’ Town. It appears that discipline was harsh, conformity was mandated, and the atmosphere was threatening. It was not surprising that you had difficulty adapting to life at that institution. It seems that you were a solitary boy, with few friends. You ran away a number of times and, from a young age, lived on the streets. You were charged under Queensland’s vagrancy laws when just 15.
You finally left Boys’ Town aged 16. Your education had been rudimentary but you were treated as having completed Year 10. You were involved in numerous court appearances in Queensland before you reached the age of 18. Your offending included mostly property offences, and criminal damage. You spent about four months in total in Brisbane’s youth justice facility during this period.
You dabbled with recreational cannabis from about the age of 15, but did not use other drugs at that stage. Your life has been largely transient from about 2002. When you were about 19, you moved to Sydney and lived with your brother. You undertook a 12 month course as a personal trainer, and it seems you spent much of your time training at a gym. You also worked in sales at Just Jeans for one to two years. I was told that you had hopes of resuming a career as a personal trainer when you are eventually released from prison.
From about the age of 21 you worked as a security guard at various nightclubs in Sydney. You claim to have had no mental health problems throughout that period, and to have had no particular problems with drugs at that stage.
In 2007, you were involved in an incident on a train whereby you assaulted transit officers, causing them actual bodily harm. You received a two year good behaviour bond.
In 2009, you moved to Melbourne, residing initially in hostel accommodation in the city, and you subsequently lived in shared houses around town. During this time, your drug use increased and began to spiral out of control. You were introduced to methamphetamine (‘ice’) and you continued to use that drug right up until the time of the commission of these offences. It seems clear to me that your use of ice over an extended period has had a profound effect upon you, exacerbating your psychotic condition, and rendering you prone to irrational acts of extreme violence.
Your life remained isolated and solitary. I was told you had never been in a relationship. You gravitated towards criminals and criminality. Your offending in Victoria was summarised for me by your counsel in his helpful outline of plea submissions as follows:
Mr Thackray has no recollection of these matters, but a document provided by the Crown outlines the circumstances of Mr Thackray’s offending in Victoria. Those offences are:
a.15th February 2011 — Mr Thackray was travelling on a train when a child accidentally bumped him with his school bag. Mr Thackray yelled at the child. Another passenger on the train intervened and Mr Thackray stood up and began punching the victim to the head and body before shoving him into a wall.
b.10th November 2012 — Mr Thackray attended at a home in Highett and kicked in the front door. He dragged away the female victim who was inside. The victim was dragged outside of the house and down a laneway. She managed to break free of Mr Thackray and was assisted by an off-duty police member.
c.12th November 2012 — Mr Thackray approached the passenger side of a stationary truck and removed an Australian flag from it. The driver of the truck approached Mr Thackray and asked him to return the flag. Mr Thackray assaulted the truck driver with a flurry of punches. The victim fell to the ground. Mr Thackray stood over the victim and continued to assault him before running from the scene.
d.13th November 2012 — Mr Thackray forced entry to a house in Moorabbin by smashing a glass door with a brick. Inside, he stole two knives from a knife block in the kitchen before leaving.
e.13th November 2012 — Mr Thackray boarded a bus and approached the driver. He demanded the driver hand over cash. Mr Thackray grabbed all of the coins within reach and again demanded ‘notes’ from the victim. The driver opened the till and showed that there were no notes inside. Mr Thackray then punched the driver to the head causing injuries. Mr Thackray left that bus and boarded another. Again, he demanded money from the driver. This driver refused and Mr Thackray began punching him to the head before leaving the scene. Police located him nearby.
f.15th November 2012 — Mr Thackray was on remand at the Melbourne Custody Centre. At 1.07am, Mr Thackray walked to his cell-mate’s bed. He jumped onto the cell-mate and pinned him below with his body. He placed both hands around the victim’s neck and choked him. The cell-mate broke free and pressed the intercom button. Guards attended the cell and separated the pair.
g.5th May 2013 — Mr Thackray attended Melbourne Magistrates’ Court at approximately 8.04pm. He kicked a large hole in a window and climbed through. He went to a storeroom and took a large painting. He returned to the broken window and kicked it further making the hole larger. He left the Court with the painting. Mr Thackray went to other shop fronts on Lonsdale Street and smashed windows. Approximately 20 minutes later, he went to St Francis Church (corner of Little Lonsdale and Elizabeth Streets). He broke into the church through a side door and damaged internal doors and windows until he was disturbed. Police attended and arrested Mr Thackray. When he was searched, a pair of scissors were in his pocket.
You were admitted to the Acute Assessment Unit at Thomas Embling Hospital in November 2012, where the possibility of psychosis was considered, but nothing definitive was diagnosed. That is probably because you were, and are, uncooperative with those who would seek to help you. You were eventually released from prison in mid-2014.
You say that you have only a hazy recollection of the period following your release from prison. You lived in crisis accommodation in North Melbourne for about six months, and continued throughout using drugs. You were also living, at various times, on the street. That continued until your arrest on 7 August 2016. You say that you have only a vague memory of the incident involving Mr Dhiman, and you claim that you have no memory at all of the incidents involving Mr Anderson and Mr Foo, a claim that the Crown does not accept.
Psychiatric Assessments
Dr Adam Deacon, a consultant psychiatrist, has provided two reports regarding your mental state. The first is dated 14 March 2017, and the second, 11 May 2017. He assessed you on three separate occasions in 2017, 23 January, 3 February and 3 April. He also reviewed your Thomas Embling Hospital files. Dr Deacon was asked to consider whether you might have available to you a mental impairment defence. He concluded, however, that there was no sufficient basis for any such defence.
Dr Deacon did, however, note that you had been diagnosed at one time with schizophrenia, and that you had previously been considered ‘residually psychotic, unreliable taking medication and insightless’.
It seems that, initially at least, Dr Deacon had doubts as to whether you were fit to stand trial. He noted your somewhat bizarre behaviour, as well as your dishevelled, unkempt, belligerent and hypervigilant nature, and your earlier diagnosis as suffering from chronic paranoid schizophrenia. He concluded, however, that at least as at late April 2017, you were fit to stand trial.
Dr Deacon further noted that you had been prescribed medication, and that this seemed to have a beneficial effect. Nonetheless, he said that your guardedness made it difficult to determine whether you had underlying positive symptoms of schizophrenia, such as delusions and hallucinations.
Clearly, you lack insight into your mental condition. You do not accept that you have a serious psychotic disorder, which you plainly do. Dr Deacon observes that you are, however, willing, at least at this stage, to take prescribed antipsychotic medication, as it assists your sleep and calms your overall mood.
Summing up Dr Deacon’s reports, your counsel paraphrased his views as follows:
Mr Thackray appears to have experienced a marked decline in his mental health over at least the last few years. When he was incarcerated in 2012 he displayed signs of possible emerging psychosis, but a definitive diagnosis could not be confirmed. When he was psychiatrically assessed following this period of incarceration in 2016 he was noted to display characteristic signs of psychosis leading to a provisional diagnosis of Chronic Paranoid Schizophrenia. Mr Thackray has proved very difficult for Dr Deacon to psychiatrically assess …
[Mr Thackray] has displayed enduring features of a psychotic disorder, namely schizophrenia, through this period of incarceration. Whilst methamphetamine may have coarsened the underlying process psychotic illness, his presentation is not consistent with a circumscribed drug-induced psychosis … Mr Thackray’s mental state at the time of the offences is largely unknown and difficult to verify. Speculatively he experienced a psychotic illness through the period of offending, but there has not been corroborative evidence to substantiate this assumption … Mr Thackray was very likely to have been mentally unwell at the time of the offences in the form of a psychotic illness, but given the lack of reliable self-report and objective evidence of altered mental functioning, it is not possible to opine that he can be considered for a mental impairment defence …
Dr Deacon concluded that you had responded reasonably well to prescribed antipsychotic medication. Your admission to Thomas Embling Hospital allowed you to be closely monitored and treated. There was objective evidence of an improved mental state, albeit you continued to be afflicted with a negative syndrome characteristic of schizophrenia. Your prognosis must be regarded as highly problematic.
The Victim Impact Statements
The Victim Impact Statements from Mr and Mrs Anderson, as well as Mr Foo, are powerful indications of just how much devastation you have caused by your actions.
Mr Anderson writes that your offending has had a significant negative effect on his general wellbeing. He is now less patient with people, and easily frustrated. He says he is highly stressed, and less likely to participate in simple social interactions. This has affected his relationship with his wife, causing arguments and stress. He is deeply suspicious of others, apart from his close circle of friends. He avoids interactions as he fears they may cause potential disagreements and even violence. He no longer enjoys exercising outdoors, for fear of what might occur. He also says that he has trouble sleeping, and has concerns over his safety in his own home.
Mr Anderson also writes of the nine physical scars that remain on his body as a result of the attack, which serve as a constant reminder of what you did to him. He says that the stab wound to his wrist has left him with significant nerve damage. His grip and dexterity are greatly reduced, so he often drops things when using his left hand.
Mr Anderson also says that he is concerned about his prospects of regaining employment, as well as his ability to contribute at the level and capacity that he was previously performing at.
Mrs Anderson speaks of the emotional trauma that the attack upon her husband has had upon her. She says that she is still receiving psychological treatment and therapy. She also writes of having missed employment opportunities while her husband was in hospital. It is not surprising that she expresses bitterness and resentment towards you.
Mr Foo speaks of the impact that your attack upon him has had upon his life. He says that he does not feel safe. He was once a highly social person, but now rarely goes out at night, and when he does he is anxious and easily agitated. He speaks of the effect that the attack has had upon his marriage, and the stress it has caused. He notes that his wife has sought counselling as well. He used to swim regularly, but now no longer does. He is extremely self-conscious of the scars over his face and body.
Mr Foo says that the attack has had a significant impact on his ability to run his business, causing him substantial financial loss. He and his wife have had to move from their home, as living there constantly reminded them of your attack.
Mr Foo also says that the stab wounds you inflicted have left him, at times, in excruciating pain. Additionally, the injuries have restricted his ability to perform many of the tasks involved in his daily work.
Submissions on your behalf on plea
Your counsel, in his helpful submissions on the plea, readily conceded that the attacks on Mr Anderson and Mr Foo were extremely serious. It was an aggravating feature of each of them that they were committed at the homes of the victims, places where they were entitled to feel safe. The attacks were sustained, brutal and extremely violent. Moreover, they were carried out with the use of a knife, a lethal weapon.
In addition, the attacks were random, senseless, and entirely unprovoked. The injuries sustained were life-threatening, and the consequences for each victim were ongoing, and tragic.
By way of mitigation, it was submitted that neither attack had been premeditated, but rather had been spontaneous and random. While they were sustained, they were over very quickly. At least in the case of Mr Anderson, it was said that you appeared voluntarily to have desisted from continuing the attack. Moreover, these offences were committed by you alone and not in company. While the injuries were life threatening and had resulted in ongoing suffering, they were not ‘catastrophic’ in the sense of quadriplegia or permanent brain damage.
Overall, it was submitted that, though this offending was very serious, it should not be viewed as falling within the worst category of offending of this type. It was conceded that general deterrence had to play a central role in the sentencing process, and that denunciation and just punishment should also loom large. It was accepted that your prospects of rehabilitation are, at best, guarded, having regard to your long history of drug abuse, mental illness and offending generally. It was said that you were fortunate to have the support of your younger sister.
It was submitted, as is obviously the case, that you are entitled to the benefit of some reduction in sentence because of your guilty plea. There was no actual committal hearing, and the victims were spared the ordeal of having to relive the trauma of the attacks upon them. I was told that you had to be restrained by your counsel from pleading guilty, at committal mention, to the more serious charges of attempted murder, which of course would have carried a heavier maximum penalty.
Counsel observed that as soon as Dr Deacon provided his report to the effect that there was no sufficient basis for a defence of mental impairment, you gave instructions to plead guilty to the present charges. You did so at the earliest practicable opportunity.
It was perhaps surprising that your counsel did not specifically seek, on the plea, to invoke at least some of the principles in Verdins[2] on your behalf. As I understood his submissions, he formed the view that none of these principles would have any direct application to you, at least as regards reduced moral culpability, because it could not be established by appropriate evidence that your mental state had a ‘realistic connection’ with your offending.[3]
[2]R v Verdins (2007) 16 VR 269.
[3]R v Vuadreu [2009] VSCA 262, [37].
That concession seems to have been based upon Dr Deacon’s opinion that your mental state at the time of these offences was ‘largely unknown’, and ‘difficult to verify’. Dr Deacon added that speculatively you experienced a psychotic illness throughout the period of the offending, but he found it difficult to substantiate this assumption.
To the extent that your counsel eschewed reliance upon Verdins because Dr Deacon considered that there was insufficient nexus between your mental state and your offending to justify a full defence of mental impairment, and therefore also insufficient nexus to enable you to rely upon Verdins, his approach seems to me, with respect, to have been misconceived. The test for mental impairment has a significantly higher threshold to overcome than does the test for Verdins. The two should not be conflated.
Nonetheless, counsel did invite me to reduce the sentence I would impose upon you based upon your entire life history, stemming from your dysfunctional and severely disadvantaged childhood, lengthy period of drug use, and very real mental health problems. He argued that, without necessarily attaching the Verdins label to these matters, your moral culpability for this offending should be viewed as lessened.
Counsel also argued that imprisonment would be more onerous for you than for most others. He noted that, whilst at the Melbourne Remand Centre, you had been subjected to a lockdown regime following the 2015 riots. He noted that, since you were taken into custody in August 2016, you have not received a single visitor. Finally, he pointed out that you require twice daily medication in order to ameliorate your serious psychiatric illness, and that this too will make your time in custody more burdensome.
Submissions on behalf of Crown
It was submitted on behalf of the Crown that, although yours is not a case that calls for a disproportionate sentence, pursuant to s 6D(b) of the Sentencing Act 1991, you pose a continuing and very real danger to the community. It was submitted that I should regard the protection of the community from you, as the principal purpose for which you are to be sentenced.[4]
[4]Sentencing Act 1991 s 6D(a).
It was further submitted that, as regards the attack upon Mr Foo, you are to be dealt with as a serious violent offender. That means, of course, that the ordinary presumption in favour of concurrency between discrete sentences does not apply.[5] At the same time, it was properly acknowledged that the principle of totality was not to be ignored.
[5]Ibid s 6E.
The prosecution submitted that you should receive lengthy terms of imprisonment on each of charges 1 and 2, and that there should be substantial cumulation between them. It was submitted that the sentence on charge 2 should be greater than that on charge 1. That was because, in relation to Mr Foo, you chose to return to the scene before stabbing him, making your conduct all the more egregious. I understand the force of that submission. However, I do not think it necessary or appropriate to give effect to it here. Both your attack upon Mr Foo and that upon Mr Anderson seem to me to be of similar objective gravity and to warrant essentially the same punishment.
The Crown further submitted that you should receive a moderate term of imprisonment on charge 3, with some measure of cumulation upon the sentences imposed on charges 1 and 2. I accept that submission. Your attack upon Mr Dhiman was separate from your subsequent attack upon Mr Foo, and itself warrants a term of imprisonment. That is particularly so, having regard to your lengthy record of violence.
The Crown acknowledged that the charge of theft warranted nothing more than that a conviction be recorded. That was a proper concession, though I am still somewhat mystified as to why a charge of theft of some flavoured milk was included in an indictment containing charges of such extreme gravity.
Conclusion
Although I approach the task of sentencing you on the basis that you were suffering from a serious mental illness at the time of each of these attacks (almost certainly aggravated to some degree by your persistent use of ice) and that your moral culpability must be viewed to some extent as lessened, that does not mean that you should now receive lenient treatment.
I accept that any sentence I impose upon you must be limited, at least to some degree, by the strictures of the High Court regarding the principle of proportionality.[6] In Veen v The Queen [No 2], Mason CJ, Brennan, Dawson and Toohey JJ said:
The principle of proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen [No.1] that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender.[7]
[6]See generally Veen v The Queen (1979) 143 CLR 458 and Veen v The Queen [No 2] (1988) 164 CLR 465.
[7](1988) 164 CLR 465, 472 (citation omitted).
The principle laid down in Veen [No 2] was articulated by the High Court in Hoare v The Queen as follows:
a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances.[8]
[8](1989) 167 CLR 348, 354 (emphasis in original, citation omitted).
In R v Young, the Victorian Court of Criminal Appeal said:
for as long as any member of the court can remember it has been the law in Victoria that an offender must not be sentenced to a more severe punishment than is appropriate or proportionate to the offence which he has committed.[9]
[9][1990] VR 951, 953 (citation omitted).
However, s 6D(a) of the Sentencing Act 1991, which governs the approach that must be taken when sentencing a serious offender such as yourself, specifies that protection of the public must be the principal purpose for which you are to be sentenced.
Of course, that does not mean that you should be sentenced disproportionately to the gravity of your offending. I emphasise again, in that regard, that the prosecution could have sought a disproportionate sentence in your case,[10] but understandably declined to do so. Accordingly, the sentence that I am about to impose will not, I trust, be disproportionate to the gravity of your offending in the light of its objective circumstances, but will be severe.
[10]Sentencing Act 1991 s 6D(b).
You are, as matters stand, a very real danger to the community. The offences for which you are to be sentenced have had the most profound consequences, so far as the victims are concerned. They call for strong denunciation, and just punishment.
Your case leaves me with no alternative but to seek to ensure that the community is protected from you for a very long time.
You are sentenced as follows:
On charge 1, nine years’ imprisonment (base sentence).
On charge 2, nine years’ imprisonment.
On charge 3, two years’ imprisonment.
On charge 4, convicted and discharged.[11]
Four years of the sentence on charge 2, and twelve months of the sentence on charge 3 are to be served cumulatively upon each other and upon the base sentence. That makes a total effective sentence of 14 years’ imprisonment. I fix a non-parole period of 11 years.
[11]Ibid s 73.
Pursuant to s 6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty you would have received a total effective sentence of 17 years’ imprisonment with a non-parole period of 14 years.
For the sake of completeness, pursuant to s 6F of the Sentencing Act 1991, I will cause to be entered into the records of the Court in respect of charge 2 the fact that you were sentenced for it as a serious offender.
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