R v Silver [2006] VSC 154

20 Once back at the house McCamley washed blood from his hands and Silver instructed C and to get into the car, which she did. When she climbed in she saw that Morrow was already sitting on the driver side of the rear seat behind Feeney and so she sat next to him in the middle of the rear seat. Morrow later told police that he had got into the car because Silver and McCamley told him to do so. He said that they did not threaten him but told him to: "Get in the fuckin' car. Get into the car" and that they were yelling and sounded serious about it. Silver got in after C and sat in the front passenger seat and McCamley got in last and sat in the rear seat behind Silver.

21 Once in the car, Silver directed Morrow and C to hand over their mobile telephones and Silver put them in the glove box where they could not be used. He emphasised the point by telling them that none of them could back out now. C later told police that she could hear banging coming from the boot and concluded that Mr Webster had been put in the boot. But Morrow told police that he had not heard any noise and that he did not realise that Mr Webster was in the boot until the car got to its destination.

22 There is evidence that music was playing on the car's sound system and that it may have obscured the sounds of banging. But at some point along the way Silver and McCamley spoke to each other about killing Mr Webster and about options for disposing of Mr Webster's body. It follows that, even if Morrow had not seen Mr Webster put into the boot and even if he did not hear any banging, he knew from that point that Mr Webster was in the boot and that Silver and McCamley had it in mind at least to hurt him some more.

23 From the house, Feeney drove at Silver's direction up Dorset Road into Boronia Road, then east along Albert Avenue to Colchester Road, then north to Canterbury Road, then east along Canterbury Road to York Avenue to Monbulk Road, then south along the Monbulk Road, through Monbulk to the Emerald Monbulk Road, then south to the Belgrave Gembrook Road, then east to an unsealed road, Ure Road, and then finally along that to a point deep within the Gembrook State Forest where Ure Road intersects with a smaller unsealed road called Soldiers Road. That trip is likely to have taken at least an hour.

24 Along the way they stopped at a petrol station on Canterbury Road and Feeney got out to put petrol in the tank. As he operated the petrol pump he heard Mr Webster say to him from the boot that Feeney had to help Mr Webster and Feeney responded quietly that he would help him if he could but that Mr Webster would have to give him a chance.

25 Later still, at a point closer to the intersection of Ure Road and Soldiers Road, Feeney stopped the car again at Silver's direction and Silver then got out alone and went to the boot and hit Mr Webster in the teeth with the metal base ball bat, breaking two of Mr Webster's incisors.

26 When Feeney finally reached the intersection of Ure and Soldiers Road Silver said that: "They will never find him out here" and told Feeney to stop the car, which he did. McCamley, Silver and Morrow then got out of the car and stood near the boot while Feeney opened it from inside the car.

27 As that occurred Silver handed the baseball bat to Morrow and asked: "Are you going to do this or am I going to have to do it?" Morrow replied that he would do it. But it seems as if he did not intend to do it. Morrow later told police that he did not want to hit Mr Webster with the bat and that his purpose in taking the bat was to deter Silver from using it on Mr Webster.

28 As the boot opened Mr Webster saw Silver standing close to the boot and Morrow approximately two feet away at the near side of the car holding what appeared to Mr Webster to be a short metal bar. Silver told Mr Webster to get out of the boot. Mr Webster decided then to make his escape and as he came out of the boot he hit Silver in the face and fled down the road and into the bush.

29 Morrow followed, but fell over. He later told police that he had done so deliberately in order to give Mr Webster a better chance of getting away. Silver and McCamley also gave chase but Mr Webster got away to a point where he could keep watch on them without being found. Feeney turned the car around and drove it generally in the direction in which Mr Webster had run, but as he later told police he took care to point the headlamps of the car away from where he thought that Mr Webster would be hiding, hoping to prevent his capture. After about 15 to 30 minutes without result, all present agreed to call it a night.

30 Feeney drove the car away from the scene and back towards home. Along the way, Silver threw Mr Webster's mobile telephone out of the car and, later in the journey, Feeney stopped the car at a bus stop in the Gembrook-Belgrave Road and he, Silver, McCamley and Morrow got out of the car and there discarded all bloodied items from the boot. McCamley and Silver urged C that she should not tell anyone about the incident.

31 Feeney drove Silver home to a residential address in Wantirna and McCamley then directed Feeney to the addresses of several associates where it was hoped that they might be able to clean the car. But each of those proved to be of no avail and in the end they cleaned the car at a public car wash before dispersing for the remainder of the night.

32 Mr Webster was picked up by a passing motorist the next morning, Tuesday 14 December 2004, at about 8.00 am on the Woori Yallock Road, Nangana after walking approximately five kilometres from the point at which he escaped. He was taken from there to a service station and subsequently by ambulance to the Maroondah Hospital. Upon admission he was found to have substantial cuts, bruising, grazes, chipped teeth and an 18 centimetre laceration to the head which required stitching.

33 Feeney was arrested on 16 December 2004 and conveyed to the Boronia Police Station. He was interviewed and made substantial admissions as to his involvement. He assisted police with their enquiries and participated in a re-enactment and provided police with a written statement in relation to his involvement. He was charged and released on bail.

34 Morrow was arrested on 17 December 2004 and conveyed to Boronia CIU for interview. He was co-operative with police procedures and admitted his involvement in the offences. He was charged and subsequently remanded in custody, but after four months in prison he was released on bail.

35 McCamley was arrested on 20 December 2004 and conveyed to Boronia CIU for interview. He was co-operative with police procedures but chose to make a no-comment interview. He was charged and remanded in custody but after almost three months he too was released on bail.

36 Silver attended at the Knox Police Station by appointment on 22 December 2004 and was arrested and interviewed in relation to the offences. He was co-operative with the police and made substantial admissions as to his involvement. He was charged and remanded in custody but after three months he was also released on bail. Later he breached the conditions of bail by travelling interstate for a friend's funeral and on 17 August 2005 his bail was revoked.

Nature and Gravity of the offences

Intentionally causing serious injury

37 The maximum sentence for the offence of intentionally causing serious injury is 20 years' imprisonment [1] and the inherent gravity of the offence is such that even cases falling in the mid range of seriousness are liable to attract a penalty of a significant part of 20 years' imprisonment. Offences of intentionally causing serious injury under the influence of alcohol are likely to attract substantial penalties too; for, as the Court of Appeal has said repeatedly, those who when disinhibited by alcohol engage in acts of unbridled violence in public places must expect condign punishment.[2]

38 This is such a case. The offences of intentionally causing serious injury committed by you Silver and McCamley were unprovoked acts of violence, committed under the disinhibiting effects of alcohol in a public place. Your offences call for a substantial sentence to mark the court's denunciation of your conduct and to provide adequate general and specific deterrence against its repitition by you and others.

Victim impact

39 The sentences to be imposed upon you must also take account of the effects of your offending on Mr Webster. In addition to the two broken incisors to which I referred, Mr Webster suffered a deep 18cm laceration to the left frontal area of his scalp, bruising to his right forearm and bruising to his right distal thigh. Given that he was hit repeatedly with a metal base ball bat and a house brick, it is remarkable that he is not dead or at least permanently maimed. As it is, according to his victim impact statement, he still bears scars from the attack, he suffers back pain and sore knees, recurring headaches and blood noses and he does not have the $2,000 needed to repair his broken teeth. Understandably, he is fearful that he might be attacked by someone else and, consequently, he is apprehensive about going out or being with other people, and that is productive of stress and anxiety.

40 C has also filed a victim impact statement in which she speaks of having suffered from considerable emotional trauma resulting from the events of the night of the offences. She states that she suffers from nightmares and is in fear that those who were responsible may come after her for informing on them to the police.

41 It was submitted by counsel for Silver and McCamley that C was not a victim within the meaning of the the Sentencing Act 1991. They argued that she did not suffer injury, loss or damage as a direct result of the offences committed and therefore that she did not come within the definition of "victim" in s.3 of the Act.

42 But in my opinion she is a victim within the meaning of the definition. As I see it, the notion that a person is not victim unless he or she have suffered as a direct result of an offence is not dissimilar to the idea which one finds in the law of statutory insurance that loss or damage is not compensable unless directly caused by or arising out of an insured event. In the insurance cases what is contemplated is a direct or proximate relationship between cause and effect[3] and, in my opinion, the definition of "victim" in the Sentencing Act envisages a similar degree of proximity or relationship between crime and effect. That view of the matter also draws strength from the decision of the Appeal Division in R v Miller [4] in which it was said that the court should not strive to put a narrow construction on the definition of "victim" but rather should approach the question on a practical case by case basis. [5] Thus it was held that the members of the small rurual community in which a crime was committed were capable of being victims of the crime within the meaning of the definition.

43 In C's case there is a strong proximate relationship between the offences and her suffering. She was present when the offences were committed and she suffered emotional trauma because she was present and was alarmed by what occurred. In those circumstances there is every reason to conclude that she comes within the ambit of the section.

44 Objection was, however, also taken to passages of Mr Webster's and C's statements on the basis that they contained an amount of inadmissible material and as it seems to me that objection is well founded. It is accepted that content other than that which goes to the detrimental effects on a victims' well being is inadmissible and accordingly I exclude those parts from consideration.

False imprisonment

45 The maximum sentence for the offence of unlawful imprisonment is ten years' imprisonment [6] and your offences of unlawful imprisonment are towards the more serious end of the scale. They involved the forcible transportation of the victim in a car boot at a time when the victim was known to be seriously injured, for a lengthy period of time, and in comtemplation of further injury to be inflicted at the point of destination. From Mr Webster's point of view it must have been a terrifying experience which may well have profound long term physical and emotional effects.

Aggravating factors

46 I treat the use of the baseball bat and a brick as factors which aggravated the offences of intentionally causing serious injury. The evidence is that McCamley alone used the brick and that Silver alone used the baseball bat. But inasmuch as you were acting in concert in the attack on Mr Webster, each of you is responsible for your own acts and for the acts of each other.

47 I treat the fact that it was believed that Mr Webster was to be further bashed at the end of the drive as a factor which aggravated the offences of false imprisonment.

48 I also treat the consumption of alcohol and the role it played in the offences as a factor which aggravated all of the offences committed. The evidence is that each of you had had a considerable amount to drink and I conclude that your consumption of alcohol had much to do with the aggression, violence and lack of rational thought with which the offences were committed.

Culpability

(i) Beau Thomas Silver

49 Beau Thomas Silver I regard you as one of those who is principally responsible for what occurred. Your degree of culpability and responsibility is high. Whatever the reason, you were the one who suggested the plan to bash Mr Webster and you played an active role in the enterprise by pursuing Mr Webster when he first attempted to flee and by inflicting really serious injury by hitting him with the baseball bat. You were also an active participant in the plan to imprison Mr Webster in the boot for the ride to Gembrook and according to the evidence you were principally responsible in persuading others to go along with that plan. You alone got out and further assaulted Mr Webster when noise was heard coming from the boot en route to Gembrook.

50 Your youth and relative immaturity mean that, morally, you may not be judged as harshly as McCamley. But at the same time, you were 21 years of age when the offences were committed and thus no longer a child, and by reason of your previous convictions you already had experience in the criminal justice system. You knew therefore what would be the consequences of criminal behaviour of the kind in which you engaged - indeed to the point of threatening Ms C that she was not to tell the police - and you went ahead regardless

(ii) James Edward Feeney

51 James Edward Feeney, it appears to me that your involvement in the false imprisonment of Mr Webster was more a case of being concerned about reaction if you refused to go along with the plan than of wishing to hurt Mr Webster. That is suggested by the way in which you attempted to staunch the flow of blood from his head when he was placed in the boot and that you told him when filling the car at the petrol station that you would endeavour to help him if you could. It is implicit too in the fact, stated in your record of interview, that when Mr Webster escaped you drove your car to points where you thought he would not go in order to lead McCamley and Silver away from him and thereby allow him the opportunity to escape. There is also some evidence in your favour, although not admissible against Silver or McCamley, that you sought to get them to give up their pursuit of Mr Webster and thus allowed him the chance to survive, by telling McCamley and Silver that you believed that Webster had been so badly injured that he was unlikely to make it out of the forest.

52 In retrospect it may be seen that you had at least two clear chances to help Mr Webster which you did not take - the first when Silver and McCamly asked you to get the car, and you might easily have driven to the closest police station and summoned assistance; and the second when you were driving Mr Webster in the boot back to the house, before setting off on the trip to Gembrook, and you could easily have then driven him straight to a hospital. Your failure to take either opportunity puts in doubt your sincerity about wishing to help Mr Webster and about going along with Silver's and McCamley's plans only because of fear. On the other hand you were only 19 at the time of the offences and without any prior convictions and so far as I can tell without any previous involvement in criminal behaviour. That being so, I dare say that you may have been scared of Silver and McCamley and consequently were not thinking very clearly.

(iii) Michael Edward McCamley

53 Michael Edward McCamley your age and maturity mean that you must shoulder a large part of the responsibility for what occurred. You were 27 years of age when the offences were committed and you too had had more than enough experience with the criminal justice system to understand that your conduct would constitute serious criminal offences for which you would be liable to substantial punishment. Like Silver, you were an instigator of the attack on Mr Webster and you were responsible for the infliction of some of the worst of his injuries. Indeed, your choice of a brick to inflict injuries on an unarmed man marks your offending out as particularly savage and strengthens the view that in your case there is a need for condign punishment to mark the court's denunciation and to provide adequate general deterrence against further offending of the kind. You also played a principal role in persuading Morrow and Feeney to go along with your plans and, while you are not to be sentenced for that, but only for the offences with which you are charged, that conduct to some extent informs the context in which the gravity of your offending falls to be assessed.[7]

(iv) Christopher David Morrow

54 Christopher David Morrow, in your case as in Feeney's, there is some reason to think that your involvement in the false imprisonment of Mr Webster was more the result of being scared about being the odd man out than of wishing to hurt Mr Webster. It may also be said in your favour that you played a calculated role in allowing Mr Webster to escape when the boot of the car was opened. But that does not relieve you of responsibility for what occurred. The fact that you did so little to help your friend against Silver's and McCamley's attack on him is troubling, to say the least, and the fact, as I find, that you went along with placing Mr Webster in the boot of the car after he had been attacked and injured, and knowing that it was intended to hurt him some more when you got to the final destination, means that you are certainly no less culpable than Feeney.

Character and antecedents

(i) Beau Thomas Silver

55 Beau Thomas Silver, you have a criminal record, although it is limited. On 28 July 2003 you were convicted before the Magistrates' Court at Ringwood of one charge of theft for which you were fined $1,000 and your driver's licence was cancelled and you were disqualified from obtaining any such licence for a period of six months. On 27 August 2003 you were convicted before the Magistrates' Court at Bairnsdale of 10 charges of burglary, 10 charges of theft and 9 charges of obtaining property by deception for which you were sentenced to be released on a community based order for a period of six months with a special condition to perform 120 hours of unpaid community work. I treat as factors in your favour that apart from this offence you have not been convicted of any offences after 27 August 2003 and that you do not have any previous convictions for violent offences. The burglaries, thefts and obtaining property by deception were committed in order to feed a drug habit and I was told that the bulk of the burglaries were of garden sheds, in some cases more than once.

(ii) James Edward Feeney

56 James Edward Feeney it is a significant factor in your favour that you do not have any prior criminal convictions.

(iii) Michael Edward McCamley

57 Michael Edward McCamley, you have a significant criminal record which stretches back to 1995. On 13 January 1995 you were convicted before the Magistrates' Court at Box Hill of three charges of burglary, two charges of theft, one charge of failing to answer bail and one charge of destroying property for which you were sentenced to fines totalling $2,100. On 13 November 1995 you were convicted before the Magistrates' Court at Dandenong of counts of burglary, theft, possession of a drug of dependence (cannabis L) and attempting to obtain property by deception, and sentenced on all charges to be released on a community based order for a period of 12 months with special conditions. On 21 March 1996 you were brought up before the Magistrates' Court at Prahran for breach of the order for which you were fined $500. On 30 January 1997 you were convicted before the Magistrates' Court at Ringwood of a charge of theft and fined $200. On 9 September 1999 you were convicted before the Magistrates' Court at Ringwood of two charges of theft and one charge of destroying property and were sentenced on all charges to be released on a community based order for a period of 12 months with special conditions to undergo testing for drug and alcohol abuse, assessment and treatment for same, medical, psychological and psychiatric assessment and treatment as directed. You successfully completed that order. On 26 November 1999 you were convicted before the Magistrates' Court at Melbourne on charges of burglary, causing injury recklessly and causing serious injury recklessly, for which you were sentenced to a term of imprisonment for a period of six months on each charge, to be served concurrently with each other and wholly suspended for a period of two years. On 5 May 2004 you were convicted before the Magistrates' Court at Ringwood on a charge of theft and fined $250.

58 In addition to those prior convictions it may also be noted that on 8 August 2005 you were convicted before the Magistrates' Court at Melbourne of one count of intentionally causing serious injury, for which you were sentenced to a term of imprisonment of 12 months to be served by way of community based order, and one count of criminal damage, for which you were sentenced to a term of imprisonment of four months to be served by way of an intensive correction order. Those offences were committed on 23 November 2004 in company with Morrow and another man named Kendall. The three of you drove to the home of Morrow's ex-girlfriend, and when her present boyfriend, a Mr Davidson, arrived in his motor vehicle, you with Morrow and Kendall approached Mr Davidson, pulled him from his motor vehicle and assaulted him by both punching him and kicking him. When Mr Davidson then broke free and fled, you and Morrow and Kendall smashed every window in Mr Davidson's car.

59 It is a factor in your favour that you were not convicted of any offence during the period between 26 November 1999 and 5 May 2004. But the offence of which you were convicted on 5 May 2004 marked a relapse, and that was followed closely by the offences of which you were convicted in August 2005, which represented a more serious manifestation of that relapse. It is also of concern that despite previous convictions for recklessly causing serious injury for which you were treated most leniently, you have now committed much more serious offences of intentionally causing serious injury and false imprisonment. It is evident that you failed to learn from your previous mistakes and to avail yourself of the opportunities afforded you by the lenient way in which you were treated in the past. Consequently, more is now required in the way of punishment and specific deterrence.

(iv) Christopher David Morrow

60 Christopher David Morrow, you too have a number of significant prior convictions. On 10 November 2003 you were convicted before the County Court at Melbourne of two counts of armed robbery and one count of attempted armed robbery. I am told that those offences were committed in the car park of a MacDonald's restaurant after you perceived the victims to have been giving one of your friends a hard time as he worked cleaning up the restaurant. You used a cigarette lighter shaped like a pistol to obtain money which I gather you used in purchasing amphetamines. In the result you were sentenced to be released on a community based order for a period of 24 months with a special condition to perform 300 hours of unpaid community work. On 28 October 2004 you were convicted before the Magistrates' Court at Ringwood of a charge of causing injury recklessly for which you were fined $1000. The circumstances of that offending are not as clear although your counsel said that it occurred in the context of some sort of scuffle outside a 16th birthday party. The fact that you were fined suggests that the Magistrate did not necessarily think it to be an especially serious offence, but it is of particular concern that you breached the conditions of the Community Based Order imposed on 10 November 2003 by committing further offences before its completion. According to the pre-sentence report prepared at my request, you began the Community Based Order with good intentions but then declined into depression and allowed the choice of inappropriate peer group acquaintances to distract you from your stated intentions.

61 You then committed the further offences of intentionally causing serious injury and criminal damage in company with McCamley on 23 November 2004, and finally the offence for which you now stand to be sentenced.

Personal circumstances

(i) Beau Silver

62 Beau Silver, in your case Mr Ian Joblin, Forensic Psychologist, has provided a psychological assessment report dated 16 March 2006.

63 According to his report, you were born on 28 September 1983 and are therefore 22 years of age. Your sister was murdered shortly before your birth and your natural father was murdered when you were only three years old. Your mother then established a relationship with another man which lasted until about the time that your reached the end of grade 5 at primary school and then a further relationship with a member of a motor cycle gang. You were bullied at school because of your name and you were the butt of jokes concerning your mother's relationship with a member of a motor cycle gang.

64 Towards the end of grade 5 your mother moved away and you then lived with your grandparents until you completed year 7 and part of year 8 at secondary college, and then you returned to live with his mother and continued your education at another secondary college until year 10. But you were a poor student and you were asked to leave the school before you completed year 10, and as a result you were left with literacy problems. After leaving school you worked for a time for a contract fencer and later on building sites as a labourer and concreter, and you have a positive attitude to work. It is said that you have rarely taken unemployment benefits and to your credit you have achieved the ability to read and write by part time-study at TAFE.

65 On the other hand, you have a serious problem with alcohol, which you have drunk since you were 17 years of age, and you are a chronic every day user of cannabis, a sometime user of amphetamines, and an occasional user of ecstasy. You committed the offences of burglary of which you were convicted in August 2003 to obtain money to feed your alcohol and cannabis dependence.

66 Mr Joblin considers that you are a very troubled young man who, although not psychotic, is on the borderline of a personality disorder. He also says that while you are not retarded you exhibit degrees of slowness and flatness which are predominantly the result of personality deficits. Mr Joblin is of opinion that those problems have developed as a result of your unstable upbringing and the lack of a father figure, and that they could worsen, but he says that it is possible that with maturation some of your dysfunctional symptoms could disappear. Mr Joblin reports that your attitude to your offences is appropriate, in that you are aware that matters got totally out of hand and that the assault on Mr Webster was disproportionate to any provocation he may be thought to have offered. But as against that your insight is limited in a fashion which reflects obvious difficulties from a psychological and psychosocial perspective.

67 Mr Joblin observes that it is difficult to conceive of anything which the Parole Board would be able to offer you in terms of rehabilitation, although he also says that the longer you spend in custody the greater your psychological and psychosocial problems are likely to be. In Mr Joblin's opinion you have the potential to be rehabilitated, and he reports some motivation in that direction, but it is significant that you have not been able to put offending behind you in the past and it would seem that the chances of doing it this time are not particularly good.

68 One recent positive influence in your life, however, is your relationship with new partner Ms Kim Johns, who gave evidence on your behalf on the plea, and the birth of your first child to Ms Johns on 22 March 2006. Thus whilst in gaol on remand you have completed a range of courses directed to your rehabilitation and worked full time in the laundry and it is said that you now look forward to your eventual release in order to make a life together with Ms Johns and your son.

(ii) James Feeney

69 James Feeney, in your case Dr Bernard Ryan, a medical practitioner with special interests in psychiatry and alcohol and substance abuse, has provided a report which is based on the six occasions that he has seen you since May 2005.

70 According to his report, you left school in year 10 because you were "bored" and you went for a year to work on the Newcastle Waters cattle station in the Northern Territory as a jackeroo before returning to Melbourne to work in a succession of unremarkable jobs. You also have a history of amphetamine abuse, which is said now to be in remission, and depression, which has now been successfully treated.

71 You attended a psychologist two weeks prior to the offences complaining that you felt disinterested, not wanting to go to work, and happier to "go out with the boys". You were drunk and preparing to hang yourself from a tree when your mother found you in January 2005. At the time you had a past history of irritable bowel syndrome, and smoked twenty cigarettes a day, and you described yourself a drinking "a fair bit" of rum and bourbon.

72 You used amphetamines in the second half of 2004 and you were using them at the time of the offences. At the same time, you were being treated for depression with the anti-depressant "Zoloft". For one or other reason, you failed to take that drug in the period immediately prior to the date of the offences and Dr Ryan is of opinion that the sudden cessation of the anti-depressant medication in association with your amphetamine dependence could have significantly reduced your ability to identify your best interests and to make decisions consistent with those interests. In Dr Ryan's opinion, depression and psychoactive substance dependence were, therefore, the principal triggers for your offending. That dependence is, however, now in remission.

73 Dr Ryan's view is supported by the opinion of Dr Constantin Jigau, who has been your general practitioner since 21 October 1996. Dr Jigau states that you presented on 29 November 2004 with symptoms of major depression, anxiety, panic attacks and sleeping disorder. You were therefore started on Zoloft 50 mg/day and referred to a consultant psychiatrist, Dr David Sturrock who saw you on 30 November 2004 . Dr Sturrock confirmed the diagnosis of major depression and doubled the dose of Zoloft to 100 mg/day. But the possible adverse side effects of Zoloft include impaired concentration, abnormal thinking patterns, agitation and nervousness, and Dr Jigau is of opinion that your depression and possible side effects of Zoloft could have been the main contributing factor to your abnormal behaviour in committing the offences on 14 December 2004.

74 Since the offences, your medication has been changed to Cipramil to avoid a repetition of such an occurrence, and you are now under the care of another psychiatrist and your condition is rapidly improving.

75 Dr Ryan notes that, upon examination in May 2005, your affect was reactive but not completely appropriate in that, while you were aware of the serious nature of the crime with which you were charged, you said that you were "just the driver" and that "[you] had feared that if [you] did not go along with the others they would 'turn on' [you]". You tended to blame your participation in the crime on amphetamine abuse rather than taking responsibility and demonstrating remorse, although you did say that you would apologise to the victim if you had the opportunity to do so and that you would "think again" if a similar situation arose.

76 Contrastingly, over the time that Dr Ryan has had you under his care, he has observed you to become "warmer and much more likeable". Dr Ryan reports that you now have a permanent position in technical support/customer service with a mobile phone outlet which you enjoy, and that you plan to make a career with that company. You have also formed an enduring relationship with a young woman who bore you a son in December 2005, and you and she now live together with your family.

77 In Dr Ryan's opinion, therefore, you have demonstrated that you have the capacity to hold down a job and to abide by the conditions of your bail and to maintain a relationship and assume the responsibilities of parenthood, and Dr Ryan is of the view that there is no reason why you cannot continue to live in that fashion indefinitely, should you choose to do so, although you would benefit from continuing psychotherapy.

78 Dr Ryan's opinions are supported by evidence given on your behalf by your mother as to the positive way in which you have changed since the offences. You and your partner now have a three month old child and you have a strong incentive to succeed. You are working six days a week and have re-established your ties with your old network of friends. You are a keen horseman and belong to the Victorian Trail Riders Association and you participate in their events each month at Strath Creek.

(iii) Michael Edward McCamley

79 Michael Edward McCamley, in your case Ms Amelia Berg, Leading Community Corrections Officer, Oakleigh Community Correctional Services, has provided a pre-sentence report as to your suitability for a sentence of imprisonment to be undertaken by way of a further Community Based order.

80 It states that you were born on 8 March 1977 and are therefore now 29 years of age. You have a sister who is nine years older than you, and with whom you have always got on well and who has always been supportive of you, and a twin brother with whom until recently you did not get on well but in the last nine or ten months have developed a good relationship. None of your immediate family has a criminal record.

81 According to your own account, you had a happy childhood and your parents were always supportive and encouraging and, although your father died in 2000, you are still in regular contact with your mother. You have a son aged four years, who lives with the child's mother, and a daughter aged seven years, by another woman, who is now married to your brother. I was told that you had custody of the elder child for some three to four years before the commission of the offences for which you stand to be sentenced. There were however then some difficulties the result of the child's mother's relationship with your brother, although it is said that they have since been resolved.

82 You attended St Michael's Primary School in Ashburton and later Glen Waverley High School but you began to lose interest in school in or about year 8. That was between the ages of 12 and 13 at around the same time that you began drinking alcohol and smoking marijuana. By the time you were 14 years of age you had progressed to daily heroin use and you were also making occasional use of amphetamines. You dropped out of school after completing year 10.

83 Following school, you worked for a time as a furniture removalist but you found that work too hard for your liking. You then moved to Western Australia and for a time you worked sporadically as a labourer. But your drug use began to impact adversely on your ability to work in paid employment and eventually you returned to Melbourne. You then began a methadone programme when you were 18 years of age and you remained in the programme for some three years. But at the end of that time you began using amphetamines (a combination of speed and ice) on a daily basis and thereafter overdosed on those drugs some three or four times. The first two occasions were particularly serious, resulting in your admission to Upton House for treatment for drug-induced psychosis.

84 You have Hepatitis C+ the result of intravenous drug use and you suffer from depression and anxiety, and in the past you have suffered from suicide ideation. It is said that that is no longer the case but you are currently prescribed Deptran, an anti-depressant medicine, and you find that to be beneficial in relieving your anxiety.

85 It is reported that you successfully completed the hours of unpaid work required under the community based order and intensive corrections order which were imposed on you in August 2005 and that you actively participated in the supervision process pertaining to those orders and were able to identify the pre-cursors to your offending behaviour as being your use of illicit substances, lack of consequential thinking skills and lack of conflict resolution and anger management skills. It is also said that you have to date made positive progress toward goals and strategies aimed at achieving an offence-free lifestyle, including completion of the Salvation Army Positive Lifestyle Programme at the Melbourne Magistrates' Court and have participation in the Bail Support Programme .

86 Ms Berg reports that you have had the rules and regulations pertaining to a Community Based Order explained to you, and that you have indicated your understanding and willingness to comply if such an order were made, and she considers that you are suitable to undergo such an order at this time. You are, however, assessed as being at medium risk of re-offending according to the Victorian Intervention Screening Assessment Tool, based upon your drug use, mental health and lack of consequential thinking, and it is reported that you would benefit from further drug and alcohol counselling as well as an assessment to determine whether any further psychological intervention is required.

87 Evidence was given on the plea that following your release on bail in April 2005, you made very substantial progress towards rehabilitation through the Credit Bail Programme by ceasing the consumption of alcohol and illicit substances, maintaining abstinence and participating in a range of programmes including drug and alcohol counselling, anger management, and positive life-style programmes.

(iv) Christopher Morrow

88 Christopher Edward Morrow, in your case Ms Eleonora Crisafulli, the Senior Community Corrections Officer, Ringwood Community Correctional Services, has provided a pre-sentence report dated 20 October 2005 as to your suitability for a sentence of imprisonment to be undertaken by way of a further Community Based order. I have also been provided with a report of Ms Elizabeth Warren dated 17 September 2003 and a further report of Ms Warren dated 7 April 2006.

89 According to Ms Crisafulli's report, you have a troubled psychological history. Your natural father was a violent man and he and your mother divorced when you were only five years of age. Although your mother remarried, and you have always had a very good relationship with her and your step-father, in 2000 you sought to return to live with your natural father (when your mother and step-father moved from South Australia to Melbourne) and you were so distressed when your natural father rejected the initiative that you attempted to commit suicide by cutting your wrists.

90 You completed year 10 and part of year 11 at school before commencing an automotive apprenticeship in 2002, but you experienced what you perceived to be a culture of intimidation at your workplace and you resigned before these offences became known to your employer. Thus at the time of the offences for which you stand to be sentenced and until recently you were unemployed.

91 During the period of the Community Based Order which was made against you in November 2003 you were diagnosed as suffering from depression and you were prescribed anti-depressant medication, but you failed to take the medication as prescribed and that led to a further decline in your psychological condition. You also had two brief periods of living away from home in private rental accommodation, during the second of which you committed the offences for which you are now to be sentenced, and on each occasion you became increasingly unwell and your behaviour more chaotic.

92 Ms Crisafulli assesses you as high risk according to the Victorian Intervention Screening Assessment Tool, with poor emotion regulation and inappropriate peer group associations, and she states that you still appear unable to comprehend that it is your thinking and thus your responses which have led you to high risk behaviours and involvements with negative peer associations. According to her observations, you continue to justify your actions, thereby demonstrating that you have gained little insight into your own thinking.

93 Ms Crisafulli says, however, that your lifestyle has of late taken on a more positive focus. Evidently, your parents have stepped in in a big way and have asserted a considerable measure of control and motivation. They are to be commended. Not only have they seen to it that you complied with your bail conditions, which include a curfew between the hours of 9 pm and 6 am and daily reporting to police, but due to their efforts you are now in fulltime permanent employment with United Group Services in South Melbourne, which is a facilities management company where your mother used to be employed. You now work there five to six days a week, travelling with your parents each way each day, leaving home at 7.15 am and not returning to home until 6.30 pm each night, and you have recently been appointed to the permanent position of Operations Assistant for Victoria and Tasmania based on your consistent and reliable performance. Your employers are so satisfied with you progress that they have agreed to fund your part time further study next year towards an industry qualification in facilities maintenance.

94 You now also have a steady girlfriend who lives with you and your parents and she is studying for the VCE. Understandably, Ms Crisafulli says, your mental state and self esteem have improved markedly as a result of returning home and participating in family life, receiving medical treatment for your depression and applying yourself to fulltime employment.

95 Ms Crisafulli remains of opinion that you have not yet demonstrated a full understanding of the negative links and impacts of your identified risk factors, and that you are therefore at high risk of re-offending. But Ms Crisafulli does not recommend a further Community Based order. She notes that you are resistant to the idea, and that your attitude is regrettable inasmuch as it will deprive you of the opportunity to obtain further support within the community and appropriate treatment options to assist in modifying your lifestyle. But she observes that there would be difficulties in you complying with the conditions of such an order and at the same time meeting your full-time work commitments and, as she puts it, to make such an order could well be setting you up to fail.

96 Ms Warren's reports are in the main consistent with Ms Crisafulli's analysis and supportive of the view that you stand a good chance of complete rehabilitation, particularly in light of your recent change of attitude and lifestyle. But Ms Warren notes that you have failed in the past to live up to expectations and that one must now be more circumspect about concluding that you will succeed.

97 Your mother, Dale Joan Hutchins, gave evidence on your behalf on the plea which served to fill in some of the factual background to the behavioural changes that you have exhibited from time to time and she expressed the view that, whereas when you became involved in street offences during 2003 you were depressed and lacking in self esteem, you are now a totally different person. She stated that in her opinion the four months which you spent in gaol before being granted bail had a devastating effect on you and provided the motivation which was needed to turn you around and set you on the path to recovery.

98 Your mother's evidence was backed up by Mr Kim Gray, formerly of United, who played a large role in getting you work at United and is of the opinion that you have performed outstandingly there and that if you continue in the same way you could go a long way in that company.

Guilty plea

99 I take into account in favour of each of you that you have pleaded guilty and I consider that your pleas entitle you to a significant discount on sentence. In the case of Beau Thomas Silver, James Edward Feeney, and Christopher David Morrow, I also take into account the substantial admissions which you made to police when interviewed and I treat your concessions as signifying genuine remorse. Your apparent wish to have the matter dealt with and put behind you as swiftly as possible is an important indication of your prospects of rehabilitation.

100 Michael Edward McCamley you did not make admissions, as was your right, and you are not to be penalised for that. But it follows that I do not see in you the same signs of remorse that I see in the others and that will be reflected in the sentence which I am to impose on you.

Current sentencing practices

101 Current sentencing practices applicable to the offence of intentionally causing serious injury suggest that sentences of more than 15 years may be imposed in the case of the most serious instances of the offence, and that sentences in the range of five years to 12 years may be appropriate in the case of serious offences falling short of the most serious (where the injuries inflicted are not life threatening but where there are aggravating features such as the prior convictions and the involvement of alcohol and drugs). As it appears to me, the offences of intentionally causing serious injury to which you, Michael Edward McCamley and Beau Thomas Silver, have pleaded guilty fall within the latter class, subject to the discounts on sentence which you will be allowed for your pleas of guilty.

102 The statistics available for sentences imposed for wrongful or unlawful imprisonment are not as clear-cut. The nature of the offence is such that much depends upon the particular circumstances of each case and consequently sentences may range from only a few months up to close to the ten year maximum. But as already stated, I consider that the offences of wrongful imprisonment to which you have pleaded guilty are serious cases of the offence, inasmuch as they involved the forcible transportation of the victim in a car boot at a time when he was injured, and for a lengthy period. Like the offences of intentionally causing serious injury, they fall within the middle of the range.

Conclusion

(i ) Beau Thomas Silver

103 Beau Thomas Silver, despite the things which have been said in your favour, the starting point must be that your offences of intentionally causing serious injury and false imprisonment are serious offences which necessitate substantial punishment. There is a clear need for denunciation and general and specific deterrence and for punishment which is proportionate to your wrongdoing. As against that I am required to balance the effect of your plea of guilty, the degree to which you have demonstrated remorse, your prospects of rehabilitation and what I am persuaded is a need for leniency the result of your difficult past and substance dependency.

104 Balancing those competing considerations as best I can, I have, determined, that you should be sentenced on the count of intentionally causing serious injury to Justin Webster (Count 3) to a term of imprisonment of four years; and on the count of false imprisonment (Count 1) to a term of imprisonment of two years and six months. On the count of theft of the roll of scotch tape to which you have pleaded guilty (Count 1) I propose to sentence you to a term of imprisonment of one month.

105 As to the question of cumulation, I consider that there is a degree of overlap between the offence of intentionally causing serious injury and the offence of false imprisonment, inasmuch as they both arose out of what may be seen as one continuing incident of criminal behaviour. But in my judgment there is also an extent to which the two offences are discrete and warrant separate punishment. The offence of intentionally causing serious injury was completed before the journey to Gembrook. What followed was all to do with the offence of false imprisonment, in your case including the further assault upon Mr Webster. In the result I have determined that one year of the sentence imposed on Count 3 should be served cumulatively on the sentence imposed on Count 2.

106 The offence of theft (Count 1) is also discrete and thus I consider that it too should be served cumulatively on the sentence imposed on the count of intentionally causing serious injury and upon the one year of the sentence to be imposed on the count of false imprisonment which is to be served cumulatively on the sentence imposed on the count of intentionally causing serious injury. In the result there will be a total effective sentence of five year's and one month imprisonment.

107 In view of Mr Joblins' opinion, I am unable to conclude that your chances of rehabilitation are particularly good. That said, however, I am mindful of Mr Joblins' observation that the longer you spend in custody the greater your psychological and psycho-social problems are likely to be. There is too the added consideration that you now have a strong incentive to rehabilitate yourself in order to live with your partner and child. As it is you are still relatively young, and you have spent little time in prison to date, and so I think that you do still have a chance of rehabilitation if you choose to take it.

108 Given, therefore, your youth, personal circumstances and the possible benefits of an early release, I have determined to set a non-parole period of three years' imprisonment.

(ii) James Edward Feeney

109 James Edward Feeney, for the reasons which I have given I accept that your participation in the offence of false imprisonment was not as culpable as that of either Silver of McCamley. As I have said, I think that there is substance in the view that you went along with it, to some extent at least, out of a sense of apprehension as to what might be the consequences for you in the event that you did not. In your case it is also necessary to bear in mind the possible effects of your psychological condition at the time of offending. It remains that you committed a serious offence, the occurrence of which you had at least two opportunities to prevent, and for which therefore you must accept a significant degree of responsibility. But as against that it is necessary also to take into account in your favour your plea of guilty, your high degree of co-operation with police, what appears to me to be genuine remorse and what I assess to be a relatively low probability of you offending again.

110 All things considered, I have determined to sentence you on the count of false imprisonment to a term of imprisonment of two years and on the count of theft of the role of adhesive tape, to a term of imprisonment of one month, the two sentences to be served cumulatively, thereby making in your case for a total effective sentence of two years and one month imprisonment.

111 Given, however, your age; lack of prior criminal convictions; the factors which led to your offending; the improvements in your state of health and approach to life since then; and the way in which you are now devoting yourself to work and improvement, I am persuaded that the best chance of your rehabilitation lies in a completely suspended sentence. I propose therefore to order that the whole of the total effective sentence of two years and one month imprisonment be suspended for a period of two years and one month.

112 Before so ordering, I am required by law to ensure that you understand the purpose and effect of the order and the consequence that may follow if you commit another offence punishable by imprisonment during the operational period of the sentence. The purpose of suspending the sentence of imprisonment is to enable you to continue you to work and develop as you have showed that you are capable, and thereby to afford you what I assess to you best chance of rehabilitation. You should understand that this is in all probability your last chance to avoid prison. A wholly suspended sentence of imprisonment is taken to be a sentence of imprisonment for the purpose of all enactments except an enactment providing for disqualification for loss of office or the forfeiture or suspension of pensions or other benefits. Furthermore, if at any time during the period of two years and one month for which the sentence is suspended, you commit in or outside Victoria another offence punishable by imprisonment, you will be guilty of an offence for which you may be proceeded against on a charge filed by an appropriate person at any time up to three years after the date on which the offence is alleged to have been committed. That means that you would be brought back to court, possibly even before me, and if on the hearing of such a charge you were found guilty, the court could restore the sentence held in suspense and order you to serve it. In short, if you commit another offence during the next 25 months which is punishable by imprisonment, you will expose yourself the risk in respect of the offence of false imprisonment of being imprisoned for a full two years and one month period. Do you understand? Are you prepared to accept the conditions of the suspended sentence which I have proposed?

(iii) Michael McCamley

113 Michael Edward McCamley, despite all that which has been said in your favour, I regret that I cannot afford you the option of a further community based order. Notwithstanding Ms Berg's assessment of your suitability to undertake such an order, the seriousness of the offences which you have committed and the primary sentencing considerations of denunciation, general deterrence and proportionate punishment which apply in cases of intentionally causing serious injury foreclose the adoption of that course. A community based order may not exceed two years in duration, and in my judgment an order of that duration would be an inadequate punishment for offences of the seriousness which you have committed.

114 Bearing in mind the competing considerations to which I have referred, and balancing them as best I am able I have determined that you should also be sentenced on the count of intentionally causing serious injury to Justin Webster (Count 2) to four years' imprisonment and, on the count of unlawful imprisonment (Count 3), to two years and six months' imprisonment, of which one year should be served cumulatively on the sentence imposed on Count 2. In your case that makes for a total effective sentence of five years' imprisonment.

115 Were it not for recent developments I should have thought it necessary that you serve not less than three years and six months before being eligible for parole, a period longer than I propose to set for Silver, principally because of your greater age and prior criminal convictions.

116 But having regard to the evidence which was given on your behalf by Mr Robert Allen, your case manager at the Credit Bail Programme, and in light of the way in which you complied with stringent bail conditions and devoted yourself to rehabilitation programmes on bail for the better part of a year, there is some substance in your counsel's submission that you should be treated as having in effect already served a period of home detention. You are due credit for what you have already achieved by way of rehabilitation and you are to be encouraged to continue down that path. Allowing credit for what you have achieved so far and the prospects of rehabilitation which it implies, I set a non-parole period in your case also of three years beginning this day.

(iv) Christopher David Morrow

117 Christopher David Morrow, there is a degree of inconsistency between the objective evidence and such of the subjective evidence as is admissible against you. It leaves me uncertain about your complicity in the attack on Mr Webster. I suspect that you were more deeply involved than you admit, and my suspicions about that are reinforced by the nature of the offending for which you were dealt with on 28 August 2005. But that said, I am required to sentence you on the basis that a matter may not be taken into account against you unless proved beyond reasonable doubt and, on the evidence before me, I am not satisfied that your culpability or responsibility was any greater than Feeney's. The principle of parity thus dictates that on the sole count of false imprisonment to which you have pleaded guilty I should sentence you also to a term of imprisonment of two years.

118 You are, however, older than Feeney and as I have noticed you have a number of prior convictions, and you stand a higher chance of re-offending. Indeed, according to Ms Crisafulli's assessment, you are at high risk of re-offending. Unlike Feeney too, you have already been given a number of chances in the form of community based orders and other non-custodial dispositions, and yet you continued to offend, seemingly oblivious to the consequences or perhaps because you assumed that you would continue to be dealt with leniently. But for your recent change in attitude, your failure to avail yourself of previous chances would necessitate that at least some part of the sentence that I am to impose on you should be served by way of an immediate term of imprisonment.

119 It does appear, however, that the four months which you spent remanded in custody may have woken you up to the need to act responsibly and to get on with your family and your work. Thus with your parent's help you have put behind you the idle existence and errant associations that were thought to have led to the subject offence and with considerable hard work and initiative you have managed to achieve many of the improvements that the CBO in 2003 was designed to bring about but failed to deliver.

120 Consequently, I accept the submission made by your counsel that as matters stand your best chance for rehabilitation, and thus in the end the best option from the community's point of view, may be to allow you to continue as you are. Therefore, bearing in mind your age, the progress which you have made to this point, and what I assess now to be your motivation to succeed if given another chance, I have determined that all of the sentence to be imposed on you, except for the period of pre-sentence detention already served, should be wholly suspended for a period of two years.

121 Once again, however, before so ordering I am required by law to ensure that you understand the purpose and effect of the order and the consequence that may follow if you commit another offence punishable by imprisonment during the operational period of the sentence. You have heard me explain the purpose of suspending the sentence of imprisonment. In your case the net result is that if at any time during the period of two years for which the sentence is suspended, you commit in or outside Victoria another offence punishable by imprisonment, you will be guilty of an offence for which you may be proceeded against on a charged filed by an appropriate person at any time up to three years after the date on which the offence is alleged to have been committed. If on the hearing of such a charge you were found guilty, the court could restore the sentence held in suspense and order to serve it. In short, if you commit another offence during the next 24 months which is punishable by imprisonment you will expose yourself the risk of being imprisoned for the full period of the sentence as then unserved. Do you understand? Are you prepared to accept the conditions of the suspended sentence of imprisonment which I propose.

Sentences

Beau Thomas Silver

122 Beau Thomas Silver you are convicted of one count of theft of a roll of adhesive tape (Count 1); one count of intentionally causing serious injury to Justin Lee Webster (Count 2); and one count of unlawful imprisonment of Mr Webster (Count 3), in respect of which I now sentence you as follows:

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties