Director of Public Prosecutions v Auchettl

[2014] VCC 1168

IN THE COUNTY COURT OF VICTORIA  Revised

Not Restricted

Suitable for Publication

AT MELBOURNE CRIMINAL DIVISION

Case No. CR-13-02459

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYLE AUCHETTL

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JUDGE:  HIS HONOUR JUDGE GRANT

WHERE HELD:  Melbourne

DATE OF HEARING:  21 July 2014

DATE OF SENTENCE:  24 July 2014

CASE MAY BE CITED AS:                DPP v Auchettl

MEDIUM NEUTRAL CITATION:         [2014] VCC 1168

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
FortheDPP	Mr P. Bourke	OPP
FortheAccused	Mr N. Hutton	Mike Wardell

VICTORIAN GOVERNMENT REPORTING SERVICE

7/436 Lonsdale Street, Melbourne - Telephone: [phone]

HIS HONOUR:

1Kyle Auchettl, you have pleaded guilty to one charge of Intentionally Cause Injury  to Stuart McEwan and one charge of Intentionally Causing Serious Injury to  Beau  Borchers.  The  maximum  penalty  for  the  first  offence  is

10 years' imprisonment. The maximum penalty for the second offence is 20 years' imprisonment.

2The prosecutor presented a summary of your offending. It is not my intention to repeat the whole summary. It will be attached to these sentencing remarks as Exhibit “A”.

3Briefly, in the early hours of 9 December 2012 you were in Lydiard Street North, Ballarat. You saw a group of men, some of whom were friends of yours, involved in an altercation with another group of men that included Stuart McEwan and Beau Borchers. I am satisfied that one of your friends, Aaron Giles, was involved in a fight with Mr McEwan. Mr Giles received a bloody nose and a cut lip.

4Your counsel stated that you tried to enlist the support of two police officers to assist your friends but this was unsuccessful. Shortly after the fight ended the second group of men entered a maxi taxi. Abuse continued between the two groups. Someone in the taxi was spitting at your friends. Mr McEwan was one of the men standing in the doorway of the taxi.

5You ran past the doorway of the taxi and slashed Mr McEwan across the neck with a knife. You continued to run on beyond the taxi. The victim did not immediately realise he had been cut by the knife. I can only assume that you targeted Mr McEwan because of his earlier assault upon Mr Giles.

6As the verbal abuse continued, those in the taxi – including Beau Borchers - got out and a further fight developed. Mr Borchers forced Mr Giles to the ground. He kicked him and dragged him to the front of the taxi.  Mr Giles lost

consciousness. You approached Mr Borchers from behind. You did not grab him and pull him away from your friend. Instead, you used the knife in your possession to stab him in the back. You walked away from the area. Someone called out that Mr Borchers had been stabbed and the fight broke up.

7You were arrested a short distance away in Grenville Street. You initially told the police that you were involved in the stabbing and told them where you thought you had thrown the knife. Efforts to find the knife were unsuccessful.

8Both Mr McEwan and Mr Borchers were taken to the Ballarat Hospital.

9Mr McEwan received 12 stitches to a cut to his neck and was discharged that same morning. In his victim impact statement he states that he is constantly reminded of the incident every time he looks at his neck. Apart from the scar, he has made a good physical recovery.

10Mr Borchers suffered a serious injury. He was treated initially at Ballarat before being transferred to the Cardio Thoracic Unit of the Royal Melbourne Hospital. X rays revealed that he had suffered a right lower lobe haemothorax. He was treated over the next four days.

11The injury profoundly affected him for many months. In addition to ongoing pain, he was unable to continue his apprenticeship; he was unable to continue his  involvement in sport; and he fell into a state of depression. It has only been since the start of this year that Mr Borchers has been able to get back into the workforce and resume his sporting interests. He is still suffering psychologically.

12In determining the appropriate sentence, I take account of the fact that both victims have, fortunately, made good physical recoveries.

13When interviewed by the police you exercised your right to remain silent.

There was a contested committal. A defence response to the prosecution

opening was filed prior to the trial commencing. Identity was said to be the primary issue. The trial commenced before me on 16 July this year.

14On the evening of 16 July the police took a further statement from Mr Borchers in which he described how sometime after the assault you arranged to meet with him. You effectively admitted to the stabbing and told him you were sorry for what you had done.

15In his statement of 16 July Mr Borchers explained why he had not told the police about that meeting - “Kyle then asked me not to tell anyone that we had met. I knew that we shouldn’t probably be talking to each other as I knew that I was going to give evidence but like I said earlier I was scared and after closure. I told Kyle that I wouldn’t tell anyone and I knew that if I did it would probably make it worse for Kyle and myself.”

16On 17 July, the statement made by Mr Borchers was provided to your counsel. After speaking with you your counsel made an offer to the prosecution and, after some negotiation, the prosecution accepted the offer. You have now pleaded guilty to two charges.

17The plea has come very late in the day. However, it has meant that a number of  witnesses – including  Mr  Borchers  –  have  not  been  required  to  give evidence  on the trial. You will be given some credit for your guilty plea. In addition, in your post offence conversation with Mr Borchers you stated that you were sorry for what you had done to him. Indeed, the presentation of the fresh statement from Mr Borchers has now resulted in the formal public acceptance by you of your responsibility for the offending.

18Mr Auchettl, these are two serious assaults involving the intentional use of a knife.   Although punishment and   denunciation   are   relevant   sentencing considerations, general deterrence is the paramount sentencing consideration. The sentence I impose must act to deter others from carrying a knife and using it to injure others.

19Mr Auchettl, you should not have been carrying a knife. It was said by your counsel that you were doing so because of threats made by the former partner of your then girlfriend. If you were truly being threatened, you should have reported those threats to the police. You should not have gone out partying late at night armed with a knife. In my experience it is a very brief step from carrying a knife to using a knife, and so it proved in this case.

20In determining the appropriate sentence I must acknowledge those matters that are relevant to your prospects of rehabilitation.

21You are a relatively young man with no prior criminal history.

22You come from a strong and loving family. Family members and family friends are understandably devastated by your current circumstances.

23Throughout your life you have been law abiding and hard working. You left school in year 11 and commenced a pre apprenticeship course in brick laying. You completed that apprenticeship. You have spent your working life in that industry. Those who have worked with you have provided strong references on your behalf.

24A number of letters of recommendation have been presented.  Without exception, they express support for you and shock that you should have committed these two offences.

25Mr Auchettl, many people attended court to support you. No doubt they were all asking themselves how you came to engage in such shocking behaviour; behaviour that they would all say is out of character for the young man that they know. The  answer appears  to  lie  in  the  substances  that  you  had consumed on the night  in question combined with the fact that you were carrying a knife.

26I was told by your counsel that you had consumed alcohol and used cocaine and ice. Although you had apparently used amphetamines on occasions in the

past, this was the first time you had used cocaine and ice. It appears that these substances adversely affected your judgement, causing you to act in a way that was out of character. This, of course, may explain your behaviour, it does not excuse it. It is also a reminder to all young people of the terrible impact the consumption of these drugs can have on a person’s life.

27I am satisfied that you are a man with very good prospects for rehabilitation.

You have no prior criminal history, you have strong family support, you have a very good work history and you have now formally accepted responsibility for what you have done. You are not a young offender but you are still a relatively young man. These are matters to your benefit.

28Mr Auchettl, I am required to balance a number of separate principles when determining sentence. While the matters concerning your prospects for rehabilitation are important, general deterrence is the paramount sentencing consideration. As I said earlier, you have intentionally used a knife to injure one person and seriously injure another. The sentence I impose must act to deter others who  might be  mindful to  act in  the  way that you did  on 9 December 2012.

29Mr Auchettl, on the first charge you will be convicted and sentenced to 18 months' imprisonment. On the second charge you will be convicted and sentenced to 3 years and 3 months' imprisonment. I order that 6 months of the sentence on charge 1 be served cumulatively upon the sentence imposed on charge 2. This makes a total term of 3 years and 9 months. I fix a minimum term of 2 years and 3 months before you will be eligible for release on parole.

30If you had been found guilty by a jury after trial, I would have imposed an effective sentence of 4 years and 6 months with a minimum term before being eligible for release on parole of 3 years.

31I make the disposal order sought by the prosecution.

32I also order that you undergo a forensic procedure for the taking of a scraping from your mouth. You must cooperate with the authorities in the taking of the mouth scraping. If you do not cooperate, reasonable force may be used to obtain a blood sample. I make this order because of the seriousness of the offending; the making of the order is in the public interest and the making of the order is consented to.

33Yes, thank you. You can remove the prisoner. Sorry, before you - - -

34MR BOURKE: Pre-sentence detention, Your Honour, three days.

35HIS HONOUR: Sorry. I will also make a declaration, Mr Auchettl, that you have served three days by way of pre-sentence detention. Yes, thank you, you can remove the prisoner.

36MR HUTTON: As Your Honour pleases.

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