Director of Public Prosecutions v Baker
[2013] VCC 1116
•6 March 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT LA TROBE VALLEY
CRIMINAL DIVISION
Case No. CR-12-02055
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRYSON ALEXANDER BAKER |
---
JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 March 2013 | |
DATE OF SENTENCE: | 6 March 2013 | |
CASE MAY BE CITED AS: | DPP v. Baker | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1116 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Shwartz | |
| For the Accused | Mr B. Johnston |
HER HONOUR:
1 Bryson Alexander Baker, you have pleaded guilty to one charge of recklessly causing serious injury. The maximum penalty for that offence is 15 years' imprisonment.
2 The prosecutor made an application for the taking of a forensic sample from you. The making of that order was not opposed.
3 The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea which was tendered as Exhibit A. In brief, the circumstances are as follows. On the very early morning of Sunday 12 August 2012 you and Mr Jarrod Thornton were at the Saloon Bar in Traralgon. At the time you were 21, Mr Thornton was 20. At about 12.30 a.m. you and Mr Thornton were on the dance floor. There was then a brief verbal exchange between you. After this Mr Thornton turned his back on you and started to walk off the dance floor. As he did this, you struck him once with a clenched fist to the right side of his face. The force of the blow caused Mr Thornton to reel backwards and off the dance floor. You then advanced towards Mr Thornton who was still off balance and falling backwards. You then struck Mr Thornton with a clenched fist to the right side of the face on two more occasions causing him to fall face down on to the ground. You then straddled Mr Thornton and struck him with a fist to the right side of his face and the back of his head on two more occasions.
4 A CCTV recording was shown which shows all except the beginning of this incident. The five punches that you made to Mr Thornton's head on the right side occurred over a period of approximately seven seconds. The punches were of sufficient severity to be heard by security guards over and above the music that was playing at the time. Mr Thornton's head was jolted each time a blow was struck.
5 At 10 a.m. on Sunday 12 August 2012 you were arrested at your home address in Trafalgar. You were interviewed by police. You said that when you were on the dance floor a short time before the assault you were approached by Mr Thornton who brushed against you with his elbow. You said you had not met Mr Thornton before but you knew who he was as you suspected that he had previously egged your car. You said that there was a verbal exchange and that Mr Thornton had taken hold of a bottle from which you said you were drinking. You said that Mr Thornton then approached you and stood within 20 centimetres of your face and continued to speak with you. You said you then struck him with a clenched fist to the face. You struck him a further two occasions causing him to fall backwards and on to the ground. You first said that you stopped the assault once Mr Thornton was on the ground but you later said that you did recall striking him once while he was on the ground.
6 Throughout your record of interview you were co‑operative with police and expressed remorse for your actions.
7 As a result of the assault Mr Thornton was rendered unconscious. He was initially conveyed to the Latrobe Regional Hospital and was subsequently transferred to St Vincent's Hospital where he was diagnosed with a fractured C1 vertebrae and a brain haemorrhage.
8 A victim impact statement from Mr Thornton was tendered as Exhibit C. In his victim impact statement Mr Thornton describes what has happened to him since this incident. He says that his life changed with this event. He describes having been working full‑time earning a good income and being actively involved in his local football club. He also described engaging in other hobbies such as downhill mountain bike riding and going to the gym. Mr Thornton says he has no memory of what happened that night. He says he was in hospital for some weeks including being in rehabilitation, that was in Melbourne, and he then was in hospital in Traralgon for some time. He says he had to go backwards and forwards to Melbourne for various medical matters over several months and will require ongoing reviews over the next 12 months. He says he has headaches and his energy and motivation is low. He says he has not been allowed to play football for at least 12 months and was restricted in various physical activities including what he could do at the gym. In broad terms, he could not do anything that might risk injury to his neck.
9 Mr Thornton could not work for a considerable period of time and lost money as a result of not being able to earn an income. He also lost money as a result of not being able to play football. Mr Thornton says that his sleep pattern has been disrupted. Mr Thornton says that he started work again part‑time in February doing half days but found it difficult. He says that his short‑term memory has been affected and also his ability to engage in tasks that require thinking things through. He clearly has been in the past frustrated by the effects of this injury. He is seeing a psychologist who has diagnosed him with moderately severe depression and symptoms of post‑traumatic stress disorder. Mr Thornton says he hopes his problems will get better but believes he still has a long way to go. He also says that what has happened has diminished his confidence in other people.
10 I have taken into account your personal circumstances in sentencing you. You are now 22 years old. You are single with no children. You live with your parents. It appears that you come from a stable and hardworking family. Your parents and two brothers were in court to support you. You were a good student at school. In Year 11 you completed the VCAL certificate and topped your class in that year. You completed Year 11 and then entered into employment. You did a pre‑apprenticeship. You obtained employment with a joinery company in Trafalgar as a carpet maker and joiner and completed your apprenticeship there. You have been working there full‑time for five years. You play football with a local football club.
11 You have no prior or subsequent criminal history.
12 In sentencing submissions your counsel relied on a number of matters in mitigation. They are as follows:
13 (a) your plea of guilty which was made at the earliest opportunity, (b) your remorse and admissions that you made to the police, (c) your youth, (d) your contribution as a volunteer, (e) that your behaviour was out of character, (f) that you have no prior criminal history, (g) your excellent work history, (h) you have reduced your alcohol intake, (i) you have a stable residence and ongoing employment, and (j) you have excellent prospects for rehabilitation.
14 Your counsel on your behalf acknowledged the seriousness of this offending. He submitted that a Community Correction Order would be the appropriate penalty because of factors in mitigation, particularly your youth and excellent prospects for rehabilitation.
15 The prosecutor submitted that a sentence of imprisonment would be the appropriate penalty despite the factors in mitigation. The prosecutor's instructions were that the appropriate sentence would be a head sentence within the range of two and a half to four years with a non‑parole period of one and a half to two and a half years. The prosecution submission as to sentence was based on the nature of the attack.
16 This incident has clearly resulted in tragic consequences for the victim and his family and also extremely severe consequences for you and your family. The offending is clearly serious. Your counsel says you estimate that you had consumed after football, the day before ten cans of full strength beer or mixed drinks. That is far too much alcohol for anybody to consume.
17 This appears to be an example of a capable and hardworking young man who drinks far too much alcohol and becomes violent towards someone who he thinks has offended against him in some way. Your initial attack was unprovoked and violent. You followed Mr Thornton off the dance floor and continued to punch him. When he fell down face forward you continued to attack him. Mr Thornton was not fighting back. Once he was on the floor he was apparently unconscious and certainly was completely defenceless. Your continued attack on him was vicious and cowardly.
18 You caused Mr Thornton considerable physical harm. There are ongoing consequences for him as he has described in his victim impact statement. The medical report from the Institute of Forensic Medicine which was tendered as Exhibit B confirms the injuries that Mr Thornton suffered and the problems he describes with short‑term memory and recall of information processes in hospital. That report also describes other difficulties he had. It appears from that report that those difficulties improve with treatment. The writer of the report says that it is likely that some neurological deficits will remain to some degree. There are also psychological difficulties described by Mr Thornton.
19 It is to be hoped Mr Thornton will recover fully, both neurologically and psychologically, over time. The injuries he suffered and the consequences for him of this attack have been very severe already. The courts must do what they can to denounce this type of behaviour and impose appropriate punishment. The punishment must send a message that will make others stop and think rather than engaging in physical violence. Alcohol played a part in your offending as it has done in so many similar cases. Young people should realise that excessive consumption of alcohol very often leads to excessive aggression and violence. They should stop drinking as should older persons well before they reach that point. Cases like this illustrate the dangerousness of the combination of alcohol and aggression.
20 I accept that you are genuinely remorseful. You expressed your remorse to the police the next day. You were relatively candid with the police. The references tendered speak of your expressions of remorse. A letter of apology from you to the victim and his family was tendered as Exhibit 2. I accept that you have genuine concern and remorse in relation to the victim.
21 Your employer gave evidence on your behalf. I accept that you are very hardworking with a very good work ethic. Your employer spoke very positively of your capabilities at work. The references and your employer's evidence speak highly of your general character including on the sporting field and engaging in volunteer work.
22 I accept that this offending was out of character for you. You have, apart from this, a very good character, no prior or subsequent history, stable residence, reduced alcohol intake and ongoing employment. I accept that you have excellent prospects for rehabilitation.
23 I note that you have been banned from licensed premises in Traralgon for life. You have also had this matter hanging over your head for a period of time. Those matters constitute some punishment already. You are entitled to a significant discount for your plea of guilty. That plea of guilty has saved the cost and trauma of a trial. I also take your plea of guilty to be an expression of your remorse.
24 You are young and I accept that the principles set out in Mills case have some application to your situation. I accept that you are vulnerable because of your youth and that this will be the first sentence of imprisonment that you have served. You may be susceptible to bad influences of more experienced criminals. It is to be hoped that you will have the strength of character and support to resist those influences. I accept that you will lose your employment if incarcerated. Your employer would apparently be prepared to re‑employ you on your release, but that depends if there is enough work.
25 I consider your youth and prospects for rehabilitation ought to be given significant weight in your sentence but in my view the seriousness of this offending is such that the weight that must be given to sentencing considerations of denunciation, just punishment and general deterrence mean that a sentence of imprisonment is the only appropriate sentence. Specific deterrence ought to be given some weight, albeit limited, in sentencing you. I accept the proposition that a Community Correction Order is not merely a "slap on the wrist". I accept also that a non‑custodial sentence may be appropriate in some cases of recklessly causing serious injury. In my view, this is sadly not one of those cases.
26 I have taken the matters into mitigation, especially your general good character, your youth and prospects for rehabilitation into account in determining the appropriate head sentence and non‑parole period. I have fixed a non‑parole period very much shorter than I would have otherwise because of those factors.
27 Could you please stand up, Mr Baker.
28 On one charge of recklessly causing serious injury you are convicted and sentenced to two years' imprisonment. I fix six months as the period that you are required to serve before being eligible for release on parole. But for your plea of guilty I would have sentenced you to a term of imprisonment of three years.
29 I am making an order for the taking of a forensic sample from you because of the seriousness of your offending and because that was not opposed. That means that somebody will come and take a sample from you by way of a saliva swab. I am required to tell you that you must co‑operate with the authorities. If you do not co‑operate, the authorities are allowed to use reasonable force to take your blood sample. I am sure that you will co‑operate with them.
30 Mr Baker, I hope that you take advantage of whatever opportunities you now get to consider your future and that on your release from gaol that you are able to reengage in employment and to make a very positive contribution to this community.
‑‑‑
0
0
0