DDP v Cramer
[2012] VCC 1412
•27 August 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00623
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER CRAMER |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 July 2014 | |
DATE OF SENTENCE: | 27 August 2014 | |
CASE MAY BE CITED AS: | DDP v Cramer | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1412 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: R vWinch v R [2010] VSCA 141, DDP v Cook [2004] 141 A Crim R 579
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Plea) For the DPP (Sentence) | Ms S Flynn Mr R Mallia | Solicitor for Office Public Prosecutions |
| For the Accused | Mr D Sexton | Leanne Warren & Associates |
HIS HONOUR:
1 Peter Cramer, you have pleaded guilty to one count of recklessly causing serious injury.
2 The circumstances of your offence are that on 26 July 2013, you and one Anthony Benson consumed alcohol at a city hotel; you then proceeded to the Etihad Stadium to watch a game of football; and whilst there, consumed further alcohol; after the game, the two of you went to another city hotel where you consumed still further alcohol.
3 It seems that whilst at the hotel post-game, you and Mr Benson struck up a conversation with another party. A person neither of you had previously met. During the course of that conversation, Mr Benson mentioned to that person that you had previously battled with depression. Some short time later, and without warning, you struck Mr Benson’s right temple with a beer glass. The impact shattered the glass and caused significant injuries to him.
4 You were immediately restrained by hotel security staff. You were asked by the licensee why you had harmed Mr Benson. You replied that you were sick of him putting you down and making you feel like nothing.
5 A short time later you were arrested by police and interviewed. You told police that you were very drunk at the time and that you did not recall the incident or what had led to it.
6 Photographs of Mr Benson taken soon after the event showed extensive lacerations to his forehead, nose and left eyelid. He underwent plastic surgery soon after, and is currently on a waiting list for further plastic surgery. The impact also involved a gash to the surface of the left eye which was also repaired with stitches.
7 A victim impact statement was made by Mr Benson. He spoke of his experiences in hospital following the incident when he was told by a doctor that the injury to his left eye was a lot worse than had been originally assessed. He regularly thinks still about the incident.
8 He still suffers from blurred vision to that left eye. He has floaters, has difficulty when there is a bright background and has difficulty reading small print. He still has stitches in that eye. After the incident, he was unable to work for approximately three weeks. At that time he was studying for a Bachelor of Laws at Deakin University. Due to the difficulties that he had in reading after the incident, he took time away from the course. He has not yet returned to it but may do so in the future.
9 It was not disputed by either you or your counsel that the injuries to Mr Benson were indeed serious.
10 Reports of Dr Samuel Minge and Scott Barnett, clinical psychologists of Psychology Melbourne, dated 14 March and 29 July 2014 were tendered on your behalf. You have been treated at that clinic on about twenty occasions between August 2013 and July 2014.
11 The report from Dr Minge of March 2014, indicated that incarceration was almost certain to have a deleterious effect on your mental health. It was, he thought, likely to increase your depressive symptoms and increase your anxiety. He noted that, whilst incarcerated, you would lack the immediate support of your then fiancée and family and that any victimisation would be likely to increase your distress and associated suicidality.
12 However, a later report from Mr Barnett of July 2014, he indicated that by June 2014, it had been determined that you did not require any further appointments. You had been advised to seek further psychological assistance in future if you need it. On the basis of the latter report, it is difficult to see how your mental health, depression, or anxiety, is a matter of huge importance in relation to your sentence.
13 In March 2014, you were seen by Mr Jeffrey Cummins for the purpose of providing a report to this court. Mr Cummins did not consider that you had any type of personality disorder. He considered you were of normal and at least average intelligence. You had acknowledged to Mr Cummins that you had had a binge drinking problem whereby you had self-medicated in the sense of using alcohol to manage symptoms of anxiety and depression. Mr Cummins concluded that you were comprehensively remorseful, apologetic and embarrassed concerning the incident. He considered that at the time of offending, you were suffering from both a persistent depressive disorder and a chronic adjustment disorder with mixed anxiety and depressed mood. Specifically, he considered you had an elevated level of anxiety. He noted that you had, prior to the incident, been prescribed antidepressant medication and that you were feeling additionally anxious on the day of the incident because your fiancée was then overseas.
14 In fact, she was not overseas at that time but she was due to leave for an overseas trip the following day. You had been overseas, yourself, until shortly prior to the incident with your parents. It was said on your behalf that you were anxious, at least in part, because your then fiancée was to travel so soon after your own return. I place, and I think indicated this at the time of the hearing, I place very little weight on that submission. Had you been anxious or concerned about your fiancée’s departure, I think it is highly unlikely that you would have spent the night before that departure with a mate at the footy, consuming large quantities of alcohol.
15 Mr Cummins expresses the view that, because of your continuing mental health problems, it would be more onerous for you to serve a jail sentence than for someone who does not have such mental health problems. It is not clear to me that that is a view it is consistent with that of Mr Barnett as previously quoted.
16 Your counsel submitted that a number of principles set out in a Court of Appeal case named Verdins had relevance in your case on the basis of your pre-existing depression and anxiety.
17 I accept that you did suffer from a degree of depression and anxiety prior to your offending. However, it is not a condition that interfered with your ability to work on a full-time basis in a responsible management position. Earlier, you had been able to work for a considerable time in England, again at a responsible management level. On the basis of the history given to Mr Cummins, you did not handle relationship breakdowns well and suffered a degree of anxiety and depression when they occurred.
18 I consider it is likely that you did suffer a degree of embarrassment concerning your earlier treatment for depression and that this contributed in no small part to the manner in which you reacted to Mr Benson’s discussion of these matters with a virtual stranger. In that sense your condition might explain your actions and, to a small degree, probably does reduce your moral culpability for the offence and is of relevance to the kind of sentence to be imposed.
19 In addition, it was submitted on your behalf that the existence of your condition at the present time may mean that a given prison sentence will weigh more heavily on the you than it would on a person in normal health and that prison would have a significant adverse effect on your mental health
20 I am not convinced that it has been established that your current condition is that severe. I hear what was said to me this morning, that you have recently been prescribed further antidepressant medication in the form of Pristiq. However, I do accept that, to an extent, your current condition will mean that prison may weigh more heavily upon you than most persons. Prison will probably exacerbate that condition. They are all mitigating factors when it comes to sentencing considerations.
21 Mr Cummins further notes that a period of incarceration would result in you losing employment, in circumstances where your wife was pregnant and due to give birth to your child. This would indeed be unfortunate for you, your wife and family. However, I do not consider these matters would be properly considered to be exceptional circumstances so as to warrant inconvenience to your family being taken into account when assessing sentence.
22 I am advised today by your counsel that your wife indeed has given birth to your child recently in the last week. And I congratulate you and her accordingly.
23 I have been provided with a number of character references relating to you from a variety of people; your wife; your parents; your brother; a Mr Barra, a previous work colleague; Mr Lopez a friend and former work associate; and Mr Harper, a former employer. Of these, I take particular note of the references of non-family members to the effect that you have never displayed any form of violence or aggression towards others of which they were aware. Each of them describes you as being a hard worker and a charitable person. You are regarded by them as of quiet and friendly disposition and each of them states that they were shocked to hear of the nature of the offence to which you have pleaded guilty.
24 I accept that the comments made in each of those references reflect opinions genuinely held by them.
25 You claim to have no recollection of the lead up to the accident. Although, I am not sure that is entirely consistent with the statement you made to the person at the hotel in the immediate aftermath of it. Nevertheless, the witness, and I presume it is the person you were talking to did tell the police of the comment that Mr Benson made regarding your previous treatment for depression. I accept that it might be thought that that was a tactless statement concerning matters that were personal and which had been spoken of by you to Mr Benson in circumstances where you were entitled to think that they were confidential. One might imagine that you would be disappointed and probably angry by his mentioning such matters to a stranger. Nevertheless, even accepting your possible anger, it provided no reason or excuse whatsoever for the behaviour that followed. I can only surmise that your uncharacteristic behaviour was contributed to, in large part, by your state of intoxication.
26 That you had a drinking problem is not in issue. You have, in the past, sought to handle your own anxiety and depression, it seems, by drinking substantial quantities of alcohol. On any view, that was not an appropriate or safe way in which to handle those problems. And you seem to have acknowledged that this is so.
27 The purposes for which a sentence for a crime such as this are imposed are some in number. Firstly it is to punish the offender to an extent and in a manner which is just in all of the circumstances; secondly, to deter you or other persons in the community from committing similar offences; thirdly, to establish conditions within which it is considered by the court that rehabilitation might be facilitated; fourthly, to manifest the denunciation by the court of the type of conduct in which you engaged; fifthly, to protect the community from offenders such as yourself; and finally, a combination of all of those purposes.
28 By way of prior convictions, you have two convictions for driving a motor vehicle whilst exceeding the prescribed concentration of alcohol, both of these in 2005. In the same year, you also have a conviction for driving a motor vehicle whilst disqualified. You have no convictions relating to violent or aggressive behaviour. Nevertheless, the prior convictions that I have referred to are relevant in that they show, at least on one view, lack of respect for the law.
29 In relation to this offence, I take into account that the nature and gravity of it are high. Your conduct has left a man with permanent scarring and with permanent damage to his left eye. I want to read you a small portion of what the Court of Appeal in this State said in a previous case a few years ago, they referred to
“…the ugly phenomenon known as glassing. “Glassing” is the description which is applied where one person strikes another with a glass or a bottle, typically to the face or head. If the glass item is not already broken, it will almost invariably break on impact, making it a most dangerous weapon.”[1]
[1]R vWinch v R [2010] VSCA 141 at para 1
30 In the same case, the Court referred to the recurrent features of glassing. This is what the President of the Court of Appeal said:
“The typical glassing – of which the present appeal is an illustration – occurs in or near licensed premises. It is usually an act of alcohol-fuelled aggression, in disproportionate response to an actual or perceived slight. The typical offender is young and of generally good character, and is full of remorse after the event. The consequences of glassing are, almost invariably, very serious. Striking to the face or head with a bottle or glass carries a high – and obvious – risk of serious injury. The victim of a glassing almost always suffers serious lacerations; often has permanent facial scarring; and suffers physical and psychological damage which is typically long term and often permanent.”[2]
[2]Supra at para [32]
31 If I could just add that the President of the Court of Appeal may have wll have been talking about this very case.
32 I want to read you one further, a small proportion from another case determined by the Court of Appeal:
“Even absent clear motive for the offence …, the principle of general deterrence would nevertheless, continue to be of considerable importance … given that its primary rationale is to deter others from engaging in like offending conduct. Violence in the context of physical fights and assaults or near places like hotels, bars and clubs seems to have become more prevalent in the community in recent times and I consider that it is important that the those who propose to engage in such conduct … should be made aware through the sentencing process that courts will not treat such conduct lightly but will, in the appropriate case, impose condign punishment on the offender. The enjoyment and relaxation of those attending such venues should not be marred by such incidents.”[3]
[3]DDP v Cook [2004] 141 A Crim R 579 at para 14
33 Most cases of glassing, as I understand it, involve someone who is either not known by the offender or who is known and disliked by the offender. In this case, you assaulted your friend. There was no apparent motivation or at least no motivation which would go anywhere near explaining your aggression.
34 It emerged in evidence that you are currently drinking between six and twelve standard drinks per week. That consumption might not, for some people, be of concern. However, you now know that you have inexplicably behaved in a violent manner causing serious injury to another person in circumstances when you were in an intoxicated state.
35 You apparently have no memory of the incident. However, this only goes to emphasise the danger of you consuming alcohol. Persons who, as a consequence of intoxication, constitute a danger to themselves and to others, rarely know the difference between a safe and an unsafe level of alcohol intake. The effect of alcohol makes it difficult for such a person to know when he or she is crossing the line. Mr Cummins’ view was that you are a person who should abstain from alcohol, full stop, in the future and you heard him give that evidence. You should carefully consider that advice, for your sake, the sake of your family and for the sake of the community.
36 In ordinary circumstances, I make it plain that this offence would attract an immediate term of imprisonment.
37 The maximum penalty for recklessly causing serious injury, until September 1997, was ten years' imprisonment; at that time, the maximum penalty was increased to one of imprisonment for 15 years. It is evident that at that time, parliament was expressing the view of the community that heavier sentences should apply to such an offence.
38 Your counsel puts a number of submissions to me as to why I should not send you to prison immediately. Firstly, he said there was no evidence of any previous behaviour, intoxicated or otherwise, of violence or aggressiveness on your part; secondly, that you had previously suffered from depression and previously been prescribed antidepressant medication. I accept that the information that you provided to the victim concerning that prior depression was given in confidence and that it would have been upsetting for you to hear him refer to such matters to a stranger. As I have said before that pre-existing condition may be, in no small part, an explanation, but by no means a justification for your behaviour. Thirdly, it was put at the time that you were about to become a father. I take it that that would be changed now to the fact that you have become a father, with added responsibility and the like falling on to you. It was put, and still is the case, that your family circumstances are stable. Fourthly, that you seem to have reached an understanding that alcohol has in no small part been responsible for the incident in question. And fifthly it was put that you have good prospects for rehabilitation.
39 In those circumstances, your counsel submitted that a genuine alternative to sentencing you to imprisonment by way of sentencing you to a community correction order pursuant to Part 3A of the Sentencing Act.
40 I have received a report from Community Correctional Services dated 14 August 2014. I note that the author of that report considers that you are a person suitable for such an order. It is recommended that conditions be included in such order for unpaid community work; treatment and rehabilitation in respect of alcohol; a supervision condition; mental health assessment and treatment; and offending behaviour programs.
41 Taking all of those matters that I have referred to into account, I have determined to make a community correction order for a term of 18 months with a number of conditions but I would only make such order if you consented to it.
42 I will now outline the conditions that I intend to oppose. Firstly, there are what might be known as the usual terms, mandatory terms set out in s.45(1) of the Act. Namely, I will read them out, (a) that you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment; (b) that you comply with any obligations or requirements provided by regulations; (c) that you must report to and receive visits from the Secretary to the Department of Justice or his or her nominee during the period of the order; fourthly, that you must report to the Community Corrections Centre specified in the order, and we will come to that in a moment, within two clear working days after this order coming into effect, that is by Thursday of this week; fifthly, that you must notify the Secretary of any change of address or employment within two clear working days after that change; sixthly, that you must not leave Victoria unless with the permission of the Secretary, leaving Victoria means going to Albury, Cobram, et cetera. Do not leave Victoria unless you have permission to do so, or you would be in breach; and finally, that you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with this order, pretty general.
43 In addition, there will be specific conditions that you must perform unpaid community work of 150 hours during the course of the 18 months of this order. Secondly, you must undergo treatment directed by the Secretary with regard to assessment and treatment including testing for alcohol abuse or dependency. Any program that addresses factors relating to your offending behaviour, whether that be something like anger management or something along those lines. And thirdly, in relation to mental health assessment and treatment including psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility. Residential facility or hospital, obviously, only if the secretary considers that it is necessary in all the circumstances. And it is to be anticipated that such an order would not be made on other than medical advice.
44 Thirdly, I order that there be a condition that you should be supervised, monitored and managed as directed by the Secretary in accordance with s.48E of the Sentencing Act.
45 Mr Cramer, do you consent to such a community correction order?
46 OFFENDER: I do.
47 Now I should say this, that there would be many people in this community who would say that such an order should never have been made in a case such as yours, so I will say why I have made it.
48 Firstly, that there is no evidence of any previous behaviour, intoxicated or otherwise, of violence or aggression on your part. Secondly, you have previously suffered from depression and have previously been prescribed antidepressant medication and I accept that the information that you provided to the victim concerning that depression and treatment would have been upsetting for you to hear him refer to such matters to a stranger. Thirdly, you are a person who is recently married and who is in the last few days become the father of a young child. Fourthly, that you appear to have reached an understanding that alcohol has been, in large part, responsible for the incident in question, and finally that you have good prospects for rehabilitation.
49 Peter Cramer, you are sentenced to a community correction order for 18 months from this date. The order shall contain the conditions to which I have previously referred.
50 Pursuant to s6AAA of the Sentencing Act, I declare that, had you not pleaded guilty to this charge, I would have sentenced you to imprisonment for a term of 18 months with a minimum non-parole period of 12 months.
51 Ancillary orders sought?
52 MR MALLIA: There are none sought by the prosecution.
53 HIS HONOUR: Nothing under 464ZF?
54 MR MALLIA: No, the retention will become automatic upon conviction of a sample that was taken at - - -
55 HIS HONOUR: It has been taken.
56 MR MALLIA: Yes, Your Honour.
57 HIS HONOUR: All right, thank you. Anything else that I need to address? Yes thank you, you are free to go Mr Cramer, I need only say this, that were you to return to a court such as this facing a crime involving violence or aggression at any stage in the future, there would be essentially no doubt whatsoever that you would go to prison for a lengthy period. I will now sign the community correction order and you are required to sign it also.
58 MR SEXTON: May I approach my client?
59 HIS HONOUR: Yes.
60 MR SEXTON: Your Honour, Mr Cramer has just corrected his current address on the top of the document and otherwise has signed the document.
61 HIS HONOUR: Yes, thank you.
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