Director of Public Prosecutions v Andrews

[2021] VCC 1775

IN THE COUNTY COURT OF VICTORIA

AT LATROBE VALLEY

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

CR 21-01342

DIRECTOR OF PUBLIC PROSECUTIONS

v

AIDEN ANDREWS

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	4 October 2021
DATE OF SENTENCE:	19 October 2021
CASE MAY BE CITED AS:	DPP v Andrews
MEDIUM NEUTRAL CITATION:	[2021] VCC 1775

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	MS C. J. DUCKETT
For the Offender	MS L. ANDREWS

HIS HONOUR: 

1Aiden James Andrews, you have pleaded guilty to one charge of recklessly causing injury contrary to s18 of the Crimes Act. The maximum penalty for this offence is five years' imprisonment.

2You were born on 27 January 1993.  You were 26 years old at the time of the offending and you are now 28 years old.  The victim is Jamie Uncles.  He was 22 years old at the time of the offending and he is now 24 years old.  The two of you know each other.

3I turn to the circumstances of the offending which were set out in the prosecution opening which was tendered on the plea.

4On 21 December 2019 at approximately 9 pm, you and the victim were at the Nambrok Cricket Club Christmas party.  You threw several water balloons at the victim at full pace.  One of them hit him above his hip.  He grabbed a bottle of beer. You said to him, 'I wouldn't do that.'  You turned your back to him and stood near the fire and the victim shook up the beer and sprayed it on you.  He then began to pour some of the beer on the back of your head for a short time.  Your back was still to the victim. 

5You immediately swung around and punched the victim. Your left fist hit the victim's cheek.  On impact, the witnesses heard a crack.  The victim immediately felt his jaw break.  You walked away and the victim's mother confronted you.  The victim's mother drove him to the Sale Hospital to get treatment.  He was admitted to the hospital that evening and was experiencing significant pain.

6The right side of his lower jaw was fractured.  The medical records indicate the likely transection of the alveolar nerve as well, which is a nerve in the jaw region.  On 22 December 2019, the victim was admitted to the Dandenong Hospital.  On 23 December, he underwent surgery where a plate and four screws were inserted into his jaw and one tooth was removed.  He was discharged from the Dandenong Hospital the following day.

7As a result of the incident, the victim had to sleep at a 45-degree angle as he was not allowed to lie on his face for six weeks and he was unable to eat the solid food for six weeks. 

8You were interviewed at the Sale Police Station on 7 January 2020.  You admitted to punching the victim.  You said: 'I just snapped.  I didn't mean to hit him that hard.  I was hoping to hit him in the arm, but being a bit smaller than me, I turned around and faced him just for a quick second and then swung and I accidentally hit him on the cheekbone’; you also said: 'I quickly turned around and faced him.  I was actually meaning to hit him in the arms and knock the bottle out of his hand, but I accidentally aimed a bit higher with my frustration and all that, and basically I got him in the chin.  I wouldn't have thought I would've broken his jaw.'

9Tendered on the plea were victim impact statements from the victim, Mr Uncles, who is present in court today, and his mother, Rachel Delahunty, who is also present, both dated 13 September 2021.

10Mr Uncles' statement was read aloud by his mother.  He said that since the assault he has lived in a state of fear, afraid to be on his own, and now he is always looking over his shoulder. He described the impact on his mental and physical health, saying he suffers depression and anxiety, and he can no longer play cricket because of his jaw.  Ms Delahunty detailed her experience of hearing her son's jaw break and rushing to hospital not knowing the extent of his injury.  She describes caring for the victim following the assault and the difficulties he faces to try and feel safe again.

11I have taken into account the admissible parts of the two victim impact statements and I acknowledge the serious impact of the offending on the victim and his mother and that it is a significant matter in sentencing in this case. 

12Mr Andrews, you were charged on 10 April 2020 and the matter was listed for mention in the Magistrates' Court at Sale in September 2020. After a further mention hearing in February 2021, the matter was listed as a guilty plea on 25 March 2021.  You entered your guilty plea on that day, but the Magistrate refused jurisdiction on the basis the matter was too serious to be heard in the Magistrates' Court.  In my opinion, the Magistrate had sufficient sentencing scope to deal with this matter on that day.

13You pleaded guilty to this matter at the earliest opportunity that followed, on 22 June 2021, but you had earlier indicated you would plead guilty to recklessly causing injury.

14There were no witnesses cross-examined in this case.  I give you credit for the utilitarian value of your plea which has saved the court the time and the resources involved in a trial.  The utilitarian value of your plea is heightened in the current circumstances where the court faces a very substantial backlog of trials resulting from the suspension of jury trials during the pandemic.

15This increased utilitarian value of a guilty plea was recognised by the Court of Appeal in the recent decision of Worboyes 2021 VSCA 169, where the court said:      

Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead.  Such encouragement must come from an actual and palpable amelioration of sentence.

16I accept your guilty plea in the case indicates remorse, and a willingness to facilitate the course of justice, you must receive a significant sentencing discount for your plea.

17You have a relevant criminal history from 2013 when you were convicted of intentionally causing injury and recklessly causing injury.  You were sentenced to four months' imprisonment, wholly suspended for the charge of intentionally causing injury and fined $1,000 for the recklessly causing injury.

18I have not been provided with a summary of these prior convictions, but they must have been of some seriousness to justify a suspended sentence for the intentional injury charge.  Your prior convictions are relevant to the assessment of your moral culpability and your prospects of rehabilitation and they elevate the importance of specific deterrence as a sentencing objective.

19In this case, the victim received an injury that could, in my opinion, comfortably be considered substantial and protracted and therefore sufficient to meet the statutory definition of a serious injury.  He required an operation immediately.  He had a tooth removed.  Screws and a plate were inserted into his jaw.  He could not eat solid food for six weeks and he had to modify his sleeping position for the same period.

20These consequences are serious and are important matters in sentencing in this case.  The impact of your offending on the victim has been very substantial.  The prosecution, however, in choosing to proceed on the charge of recklessly causing injury, accepts it could not prove to a criminal standard that you intended to cause a serious injury, or that you were reckless as to a serious injury, that is, you did not foresee the probability of a serious injury resulting from a punch you threw.  The version you gave in your record of interview is broadly consistent with the resolution of this matter for the offence of recklessly causing injury.  However, I do not accept you were just trying to knock the beer from his hand, and in the end in the interview, I am not sure that your persisted with that version.

21You did not need to throw a punch to do that.  You said in your interview you faced him for a moment and then you swung.  You admit in your interview you knew it was the victim.  I accept you intended to punch him in the head region, but not that you intended to hit him in the jaw with the force that you did.

22You accept by your plea that you foresaw an injury was the probable outcome of your act.  Your assault was one blow, and it was over in an instant.  I accept the defence submission that this was an unpremeditated, impulsive offence committed in the reaction to having beer poured on you.  This does not excuse your response, which was entirely disproportionate, especially in circumstances where shortly before you had been hurling water balloons at the victim.

23In that context, that the victim poured beer on you cannot have been unexpected.  His actions did not come out of the blue.  The punch you threw in response was delivered with substantial force.  The potential consequences of such an act can be very serious, as they were here.  The impact on the victim has been very significant, as I said, and I take it into account in fixing the sentence in this case.

24But I emphasise that I am not sentencing you on the basis that you intended or foresaw a serious injury, or that you were criminally negligent in respect of the serious injury, because to do so would be to punish you for an offence with which you have not been charged.

25The sentencing principle of specific deterrence is important in this case.  You have been down this road of violent offending before, albeit that was now some eight years ago.

26As I said, your previous convictions for the two violent offences are relevant to your moral culpability.  From that prior conviction, you must have been aware of the need to control your temper and the consequences of resorting to violence.  However, the impulsive and instantaneous nature of the assault are factors which serve to reduce your moral culpability. 

27General deterrence is also important given the prevalence of violence between young men.

28You were born on 27 January 1993 and you were therefore 26 years of age at the time of the offending.  You are now aged 28.  You are the oldest of three sibling.  You grew up in Cranbourne and Boronia.  You describe a childhood marked by parental conflict.  You report that your father was an alcoholic and your parents argued constantly.

29Your father was violent.  You apparently felt a responsibility to step in to protect your mother and siblings.  You are still very close with your siblings.  You left school during Year 9.  Your grandmother was a greyhound trainer and you got work in that industry.  You had various jobs in greyhound racing, including assisting trainers with the care of dogs and as a track curator.

30Since October 2020, you have been employed by the Cranbourne Greyhound Racing Club.  You are an assistant track curator.  Your employer, Andrew Fernell, has provided a reference.  He describes you as an 'Enthusiastic, hardworking, and sincere person who is well regarded by all staff.'

31You are now in a relationship with Ms Maddison Toner.  You have been together for 12 months.  You live together in Clyde.  Ms Toner works as veterinarian. 

32You have a history of drug use when you were younger, but it is not suggested that drugs or alcohol were of any significance in this offence.

33Three character references were tendered on your behalf.  Mr Fernell outlined his support for you.  He referred to the importance of your job as an opportunity and a means to support yourself and your partner.  He indicated he believes you are truly sorry for what you did.

34Nicole McCrae, a friend of yours, provided a reference dated 6 September 2021.  She says she has been friends with you for some 12 years and has always found you to be calm, respectful, and easy-going.  She says you expressed sincere remorse for your offending.  She describes you as having been greatly distressed by the incident and the court process.

35Mr Graham Jones is a family friend.  He has known you for 20 years.  He says you have matured greatly since the offence and made changes in your life, such as moving out of your grandmother's home, obtaining full time employment, and taking on more responsibility with your partner.  He says he has always found you to be polite and friendly and says that you are worried about what people will think of you because of this offence.

36I was told on the plea, and I accept, that you attempted to contact Ms Delahunty to express your remorse. 

37A psychological report from Mr David Ball was tendered.  The report indicates you have had episodes of anxiety and depression since childhood.  You have experienced many traumatic events, including witnessing a close friend die from an overdose and the death of other friends in motor vehicle accidents, and you have struggled with unresolved grief from those incidents.

38You have suffered from intermittent but significant suicidal ideation.  You have recently sought assistance for depression, and you commenced taking antidepressant medication approximately two months ago.  A letter was tendered from a counsellor you have been seeing, Ms Jodie Myintoo.  You saw her in March and June of this year in relation to issues of 'well-being, behaviour, and anger management.'  She says you have made a genuine effort to participate in counselling and deal with anger management issues.  You have apparently been back to see her more recently for further counselling.

39It is now 22 months approximately since this offence was committed.  That delay does not seem to me to be attributable to you.  It seems your case made its way slowly through the Magistrates' Court, probably because of the pandemic related delays, and then the final resolution was further delayed by the Magistrate's refusal of summary jurisdiction.

40In the time since that of offence, you have obtained full time employment and you have formed a stable relationship with Ms Toner with whom you now live.  You have attended counselling.  You have expressed remorse for what you did to Mr Uncles.  You have not reoffended.  These are all factors indicative of good prospects of rehabilitation.

41On the other hand, this offence and your prior conviction indicate an inability to control your temper and a propensity to resort to violence. 

42You were 26 when you offended, so you are not a mature, hardened offender by any means.  In my opinion, with assistance, and if you can maintain your current stable lifestyle, you do have the capacity to refrain from further offending.

43I also take into account the restrictive conditions as set out in the defence submissions that currently prevail in the prison system in response to the pandemic as increasing the burden of any period of imprisonment if I was to impose one.  Such restrictions are likely to be in place for the foreseeable future.

44Ms Andrews submitted that having regard to the circumstances of the offending in this case and the various mitigating features, including your plea of guilty, personal circumstances, remorse, the steps you have taken towards rehabilitation, and your prospects of rehabilitation, along with the burden of imprisonment increased by the pandemic that I should impose a community corrections order alone.

45She submitted that the principle of parsimony, which is the requirement that I must satisfy myself that no other sentence is appropriate before imposing a period of imprisonment, dictates in this case the imposition of a community correction order.  Ms Andrews relied on the guideline decision of Bolton v The Queen 2014 46 VR, where the Court of Appeal noted that a community correction order can achieve all of the purposes of sentencing in s51 of the Sentencing Act. The Court said this:

The first question the Sentencing Court should consider is, given that a community correction order could be imposed for a period of years with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence or the offender which requires the conclusion that imprisonment, with all of its disadvantages, is the only option.

46The prosecution submitted, in the circumstances of this offence, and given the increased need for specific deterrence because of your previous conviction, a proper application of the sentencing principles requires an immediate period of imprisonment.  The prosecution submitted a sentence which combines a period of imprisonment with a community correction order was within the range of appropriate sentences.

47I had you assessed for a community correction order and you have been found suitable.  The conditions recommended are supervision, community work, reoffending programs, and mental health.

48In sentencing you, Mr Andrews, I have had regard to general and specific deterrence and community protection.  The sentence I impose is designed to express the court's denunciation of this offending. I have also taken into account the need to establish conditions which facilitate your rehabilitation.  I have had regard to the principle of just punishment.

49I have balanced the gravity of your offence, including the impact on the victim, against the many mitigating factors as best I can.

50Ultimately, it is has been a very fine line, Mr Andrews, but I have decided the answer to the question posed in Bolton is that there is no feature of the offence, or you as an offender, which precludes the imposition of a community correction order and requires the imposition of an immediate period of imprisonment with all its disadvantages.

51I indicate to you, Mr Andrews, that my initial inclination was to impose some period of an immediate imprisonment, but in weighing the gravity of the offence of reckless injury against the mitigating factors in this case – and applying the principle of parsimony, I have decided that a community correction order is the appropriate sentence in this case.

52You are convicted and placed on a community correction order for a period of two years.  That correction order will include the following conditions.  Supervision, mental health programs as directed, offending behaviour programs as directed, and 220 hours of unpaid community work.  I will order that 40 hours of that performed pursuant to the program conditions can be deducted from the unpaid community work.  I will just have that printed out.

53Mr Andrews, all community correction orders have core conditions, and they are these:  you must not commit another offence during the time the order is in force- that is two years; you must comply with any obligations or requirements pursuant to the sentencing regulations; you must report to and receive visits from Corrections as directed; you must report to the Community Corrections Centre within two clear working days of the order starting, that will be Cranbourne Correctional Services at 176 Sladen Street in Cranbourne;  you must let a community corrections officer know within two clear working days if you change your address or your job;  you must not leave Victoria without getting permission to do so from Corrections; and you must obey all lawful instructions from Corrections.

54You must perform 220 hours unpaid community work over the two-year period of this order. Forty hours of treatment and rehabilitation may be deducted from the unpaid community work.  You must be under the supervision of a community corrections officer for two years.  You must undergo any mental health assessment and treatment; That may include psychological, neuropsychological, psychiatric treatment in either a hospital or residential facility if so directed. You must also participate in any programs or courses as directed by Corrections.  Are you prepared to consent to such an order?

55OFFENDER:  Yes, Your Honour.

56HIS HONOUR:  Mr Andrews, I make this very clear to you.  If you breach any of these conditions, that includes any of the core conditions or any of the special conditions, if you think you are getting sick of this order and you do not do the work, you will be in a position where you can be in breach, the order can be cancelled, and then I have to resentence you.  Unless there was some extraordinary circumstances, I would send you to gaol.  Do you understand?

57OFFENDER:  Yes.

58HIS HONOUR:  If you breach it, I will send you to gaol.  If you commit another offence whilst this order is in force, I will send you to gaol.  If you do not do the community work, I will send you to gaol.  Do you understand?

59OFFENDER:  Yes, Your Honour.

60Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to 15 months with a minimum of nine months.  All right.  Has that been signed?  Thank you.

61Can I say this?  Mr Uncles, Ms Delahunty, I have a range of things I have to take into account in arriving at a sentence.  Within the scope of the charge that has been pleaded guilty to here, I have taken into account what I regard is the significant impact on you in arriving at the sentence that I have imposed.

62I thank you for coming today and for your behaviour in court today.  So, thank you, and that's the order that I will make.  All right.  I will adjourn.  Nothing further, Ms Duckett?

63MS DUCKETT:  No, Your Honour.  There's no other orders.

64HIS HONOUR:  All right.  I'll adjourn until 9.30 tomorrow.

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