Director of Public Prosecutions v Betrayhani
[2018] VCC 1964
•29 November 2018
| IN THE COUNTY COURT OF VICTORIA AT GEELONG SITTING AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00977
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEONARD BETRAYHANI |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF TRIAN ARRAIGNMENT: | 6 August 2018 | |
DATE OF TRIAL: | 7-10, 13-17 and 20-24 August 2018 | |
DATE OF PLEA HEARING: | 23 October 2018 | |
DATE OF SENTENCE: | 29 November 2018 | |
CASE MAY BE CITED AS: | DPP v Betrayhani | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1964 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Accused convicted of one charge of recklessly causing serious injury at trial – serious brain damage to victim caused by a single “king hit” punch causing victim to fall to ground and strike head on footpath – no apparent remorse – some past violent offending – supportive family and good work history – total effective sentence, 4 years’ imprisonment with non-parole period of 3 years
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Moore | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr L Hartnett | Dean Cole & Associates Solicitors |
HER HONOUR:
1 Leonard, Betrayhani, following a jury trial of almost three weeks, you were found guilty of one charge of recklessly causing serious injury, which carries a maximum penalty of 15 years’ imprisonment. The jury found you not guilty of the more serious charge of intentionally causing serious injury.
2 The circumstances of the offending were as follows: On Saturday, 6 August 2016, you were in Apollo Bay visiting your girlfriend, Suzanne Connolly, who was employed as the interim manager for the Comfort Inn, which is situated on the Great Ocean Road in Apollo Bay, next door to the Brewhouse Hotel. The hotel, itself, is on the corner of the Great Ocean Road and McLaren Parade. After consuming some alcoholic beverages and having dinner, you and Ms Connolly arrived at the Brewhouse Hotel at approximately 10.30pm.
3 There were a considerable number of people at the hotel listening to some local musicians who were performing. Amongst the patrons listening to the music was your victim, Mr Stephen Morrow, then aged sixty-six years, who was accompanied by several members of his family.
4 At approximately 11.30pm, there appears to have been some exchange between yourself and an off-duty member of the hotel staff, Joshua Collier. CCTV footage from Camera 3 inside the hotel, shows you having thrusted both arms out to their full length and forcefully pushed Mr Collier, who was facing you, so that he went backwards for a couple of metres. There were quite a number of patrons in the area where you pushed Mr Collier and, ultimately, he appears to have grabbed hold of Stephen Morrow to steady himself. Stephen Morrow (and possibly some other patrons) appears to have remonstrated with you[1]. Shortly thereafter, as shown on CCTV footage from Camera 5, which was above the exit from the hotel onto McLaren Parade looking back into the public bar area, Stephen Morrow is seen to motion to you to go outside and a number of males appear to follow, some immediately and others more gradually as they get up from seated positions at the bar. Ms Connolly and another female, Jennifer Holmes, and a few other males appear to have left the hotel a very short time afterwards, heading in the same direction, namely, towards the McLaren Parade exit. However, on that same camera footage, Mr Stephen Morrow is seen to have returned back inside the hotel with Ms Jennifer Holmes approximately 1 minute and 14 seconds after he had been seen motioning to the you to go outside the hotel.[2] Although the evidence was that the time of evening shown on the footage was not correct, there was no suggestion that the intervals of time were inaccurate. Mr Morrow is seen motioning to you to go outside at 0.38.01 and to return back inside at 0.39.15.
[1]CCTV footage from Camera 3 inside the Hotel, part of Exhibit “C” at the trial.
[2]CCTV footage from Camera 5 inside the hotel, part of Exhibit “C” at the trial.
5 Footage from Camera 2, which was situated outside the front doors of the hotel on the Great Ocean Road, pointing downwards and somewhat towards the Comfort Inn, shows that Stephen Morrow left the bar/lounge area of the hotel, again, at a time shown on that camera to be 0.45.16.18.[3] Stephen Morrow is seen to have left the main entrance of the hotel, carrying what appears to be a glass of beer in his right hand, and to have walked up towards the McLaren Parade corner of the hotel. Meanwhile, according to the evidence before the jury, there appear to have been a number of confrontations taking place in McLaren Parade outside the hotel, where there were no CCTV cameras.
[3]CCTV footage from Camera 2, part of Exhibit “C” at the trial.
6 Your offending conduct consisted of punching Mr Morrow to the head as he stood on the footpath outside the hotel on McLaren Parade. The evidence before the jury was that your punch forced him to fall backwards, striking his head on the footpath. He was unconscious for a time but, when he regained consciousness he declined medical assistance and wanted to go home, so was escorted home slowly and in a circuitous route, in a confused state, by his son, Virgil Morrow. On a couple of occasions along the way home, Mr Morrow declined the assistance of an ambulance but, ultimately, paramedics in an ambulance followed Mr Morrow the last short distance to his home. There, he collapsed and was muttering gibberish. He became agitated and clinically deteriorated, and needed to be intubated by the paramedics and was airlifted to the Royal Melbourne Hospital. Evidence was given that he had suffered a left subdural haematoma with a midline shift, a left front intra-parenchymal haemorrhage, a left temporal pole haemorrhage, a small traumatic frontal subarachnoid haemorrhage and a non-displaced right occipital fracture at the back right part of his head, where his skull meets his neck.
7 When Mr Morrow arrived at the Royal Melbourne Hospital, he underwent an Emergency decompressive hemicraniotomy, which involved actually cutting the skull and taking it away so that pressure could be relieved on his brain. The bony part of his skull was preserved in the freezer until such time as the pressure reduced. Until it was put back, he had to wear a helmet to protect his brain.
8 Evidence was given by Dr Castle, a rehabilitation specialist at the Royal Talbot Hospital, where Mr Morrow was ultimately transferred from the Royal Melbourne Hospital on 24 August 2016. She stated that Mr Morrow was suffering post-traumatic amnesia and became easily agitated and overstimulated, had some weakness in the right side relating to his brain injury and required supervision for mobility, and was at high risk of falling because his balance was poor. His cognitive state deteriorated and, by 6 September 2016, he appeared to be even more confused, and his speech was slurred, and he was unsteady on his feet. He had to be transferred back to the Royal Melbourne Hospital for further tests and then came back to Royal Talbot on 14 September, where he underwent an extensive period of assessment and rehabilitation.
9 Dr Castle stated that Mr Morrow had post-traumatic amnesia of approximately 55 days from the time of the incident, indicating a severe traumatic brain injury, and that he would have permanent cognitive changes to his thinking. He has very severely impaired attentional skills, is easily distracted, needs frequent prompting, difficulty with higher level attentional tasks, very severely reduced speed-processing problems with information and significantly impaired memory and new learning skills. Dr Castle described him as suffering severe executive dysfunction with impaired ability to reason and difficulties with such things as planning, problem-solving, reasoning and judgement, and his high-level complex cognitive tasks were significantly impaired. He was also impulsive and disinhibited and required close supervision in personal activities such as showering and dressing. He was ultimately released from Royal Talbot on 9 November 2016 and was transferred to the Apollo Bay Hospital Nursing Home Wing. He came back to the Royal Talbot on 27 March 2017 for a review, by which stage he had been discharged into the care of his son, Jesse, who supervises all of Mr Morrow’s activities. Mr Morrow is dependent upon his son for all domestic tasks, such as cooking, cleaning, bed-making, washing his clothes and all community activities. He suffers a disorder of initiation in that he has a lack of enthusiasm for doing activities, which Dr Castle considered was related to this traumatic brain injury. His traumatic brain injury is a permanent condition.
10 At the trial you ran a defence of self-defence. As is your legal entitlement you had provided a “No comment” record of interview to police and did not give evidence at your trial. However, your counsel put to witnesses that you had been the subject of a brutal attack by multiple people, who had kicked and punched you on McLaren Parade, and this attack was ongoing at the time you punched Mr Morrow. With the exception of your girlfriend, Ms Connolly (who was the subject of an unreliable witness direction due to having given some three differing versions of events), no witness supported such proposition. Clearly, the jury verdict indicates that your defence was rejected.
11 Much of the plea hearing was devoted to your counsel endeavouring to minimise the seriousness of your offending behaviour. Mr Harnett submitted that, notwithstanding the jury verdict, the Court should be satisfied that you had been seriously assaulted in McLaren Parade causing you to suffer, amongst other things, a very serious injury to your left eye by way of orbital fracture, which was incapacitating you a the time you struck Mr Morrow. Mr Harnett submitted that this, in combination with consequential Post-Traumatic Stress Disorder and depression, warranted a merciful disposition by the Court because the circumstances of your offending were unpremeditated and unusual.
12 There were six eye witnesses to your assault upon Mr Morrow:
(1)Ms Ange Whitwell, who was a work colleague of your girlfriend at the Comfort Inn, stated that she had been inside the hotel and was walking down towards the toilet on the McLaren Parade side, when she heard a scuffle outside. She went out the door and saw you standing in the doorway with a cut above your eye. She was looking around for Ms Connolly, then she noticed you in the middle of the road with someone who had hold of you, and she realised that the other person was trying to stop you from being involved in some altercation. She heard you say “Where’s the fucking old cunt?” four or five times, although, on one occasion, she said you used the word “bastard” instead of “cunt”. She said you sounded angry and aggressive. You were twisting and turning and broke free from the person who was holding you and walked over to a grassy area on the other side of the road. She said you stood up on the kerb and looked around, and your eyes focused on something and you walked across the road. As you got halfway across the road you had your fists back and she saw you punch Mr Morrow, who was just standing on the footpath looking up the street, not in your direction. She said you had been looking around asking “Where’s the fucking old cunt?” and then you moved fast across the street and hit him once. The blow was extremely hard and he fell backwards “like dead straight”. She went straight to Mr Morrow and he was not conscious, and had a bit of blood coming out of his mouth, and his breathing sounded really rattly.
(2)Mr Dale March, a fire fighter who was visiting Apollo Bay, stated that he was standing in the bar area of the hotel, looking out one of the arched windows onto McLaren Parade, when he became aware of a bit of a commotion outside. He saw “an elderly gentleman” (Mr Morrow) walk up to the window he was looking through and, straight away, saw a man come across the street and hit him with some force so that he hit the deck straight away. It was one blow to the head and he saw Mr Morrow drop. Mr March went to attend to Mr Morrow, who appeared unconscious. He left him with family to attend another man nearby on the ground, Adam Wilson, whom you apparently hit after Mr Morrow.
(3)Ms Inara Bruders, is the daughter-in-law of Mr Morrow. She gave evidence that she had been dancing with Mr Morrow and then she stood back from the dance floor in between songs. Shortly afterwards, she noticed Mr Morrow walking around the corner of the hotel from the Great Ocean Road into McLaren Parade. She said he stopped outside one of the arched windows and she saw him put his hands in the air and described him holding his hands out a waist level with his palms up in a questioning manner. She saw a shadow of a group of people across the road in McLaren Parade and then one of them left the group and came charging at Mr Morrow quite fast and hit him in the face. It was a direct hit and seemed to get Mr Morrow on the lip. Mr Morrow was facing away. She said he did not step back or put his hands up to block himself. She assumed that he was knocked out before he was hit because he fell backwards and hit his head on the concrete directly after being hit. He struck the back of his skull on the concrete footpath. He was unconscious and had blood coming out of both ears.
(4)Mr Virgil Morrow, your victim’s son, gave evidence before the jury that he had been on the dance floor with friends when he made an observation through a window of the hotel. He saw his father walk past, going around the corner from the Great Ocean Road to McLaren Parade. He saw his father walk around the corner and then stand there and then saw a man come and hit him in the head. He saw that the person who hit him had come from the other side from the right and stated that his father looked as though he had been knocked out from the blow and was unconscious as he fell and landed on the concrete. He was just near the edge of the kerb. He ran out to his father, who was lying on the ground unconscious and there was blood coming out of his ear.
(5)Mr Peter Zueschner, a local plumber, gave evidence before the jury that he was getting a drink at the bar when he heard a heap of people kind of run out behind him towards McLaren Parade. He got up and walked outside onto the footpath and the first person he saw was you, although he did not know you at the time. He said you seemed angry and had some blood of your left cheek and you asked him if he had hit you. He said he had not. He said there was a lot of commotion with everyone yelling and screaming. He saw Mr Morrow on the footpath up towards the Great Ocean Road and he looked pretty angry, so he asked him to come back inside with him, but other people took him away and he did not see where he went. Mr Zueschner started walking up McLaren Parade away from the corner of Great Ocean Road. He turned around and saw Mr Morrow was looking straight at him and, then, you came out of nowhere and smacked him, fair hit him square in the face, but out of Mr Morrow’s peripheral sight. Mr Zueschner said he had a clear view of what occurred. He described you as hitting him more to one side of his face near the temple. It was a punch and it caused Mr Morrow to fall backwards. He said he heard a thud and it was Mr Morrow’s head hitting the concrete. The punch seemed fairly hard. Mr Morrow had been looking up McLaren Parade away from the corner of the Great Ocean Road and you had come from Mr Morrow’s left. He ran straight up to Mr Morrow and supported his head.
(6)Mr Kane McGowan was a local man from Apollo Bay who had worked in hotels for 20 years and did some part time work at the Brewhouse Hotel. He was working for the hotel on the night of the incident. He stated that, on this evening, he saw Steven Morrow get hit and fall to the ground and get knocked out and saw another man also get hit and knocked out. The other man’s name he found out was Adam Wilson. He said that he went outside to the footpath and could not remember seeing Mr Morrow or seeing him go back into the hotel. He said there was a scuffle, with a few people involved, and lots of people trying to pull others away. He saw you there involved in the scuffle outside the door that led onto McLaren Parade. He said the initial scuffle lasted for a minute or two and you were involved in that and then it broke into a separate incident. He thought there was an isolated incident out on the roadway of McLaren Parade between a man called Chris Pritchard and yourself, although he did not know Chris Pritchard at the time. He said that you and the other man were hitting each other, punching each other. He saw Mr Morrow come from the Great Ocean Road and walk down McLaren Parade and stand in front of two arched windows of the hotel. He said there was a fight happening between two people and the fight came towards where Mr Morrow was and then you hit Mr Morrow. He thought that you and Chris Pritchard had been in the fight and you were walking backwards and turned around and Mr Morrow was there and you hit him. He thought Mr Morrow was facing you when you hit him and you were moving back towards the hotel. He said Mr Morrow had not done anything to you. He was stationary and you punched him to the head and it was hard enough to make him unconscious. He said Mr Morrow went stiff immediately as he was standing and fell backwards and hit his head. He heard his head hit the ground and he did not move after that and then you went and hit another man, Adam Wilson, who was also outside the hotel on McLaren Parade.
13 There were a number of witnesses who did not actually witness you delivering the blow to Mr Morrow’s head. Mrs Susan Johnson, a visitor to Apollo Bay, stated that she was inside the hotel when she saw the older man (Mr Morrow) intervene after a bit of pushing and shoving and saying stop it and take it outside. She had assumed he was either the manager or a member of staff. Then, she looked out one of the arched windows onto McLaren Parade and saw you with blood on your face in the middle of the road and there were quite a few youths and girls around you and she thought to herself, “why the hell don’t you just run back to the motel” (where she had seen you earlier on in the day as she and her husband were guests there). Then, she looked again and saw the older man lying straight on the footpath outside the window and another younger man running around the corner saying to someone, whom she could not see, “What the fuck have you done?”
14 Mr Jayce Biddle, a local man from Apollo Bay, told the jury that his friend, Adrian Daley, was in a bit of “scruff” on McLaren Parade with someone a couple of metres back from the door. He did not know the other man, who threw a jumper punch which glanced Adrian. Adrian retaliated with the same thing, but missed. Mr Biddle then grabbed Adrian and kept pushing him up McLaren Parade away from the Great Ocean Road. They stayed up there for a while and he returned to find Mr Morrow laid out on the ground with all his family around him. There was another man a couple of metres from Mr Morrow who was not moving either. He identified you as the person who had jumper punched Adrian Daley and said that you were doing a fair bit of pushing of his friends and a couple of others. He never saw anyone push you at any stage.
15 Mr Christopher Prichard, a chef at a local restaurant, said that he went out onto McLaren Parade and he and others tried to break up a fight. A local called Andrew Kennedy was engaging in a bit of “scrap” with a man he believes to be yourself within a metre of the hotel exit onto McLaren Parade. He stated that he pulled the person he believes to be you away from Andrew Kennedy by grabbing you by the back of your belt. You and Andrew Kennedy were wrestling and things got fuzzy and he was not sure what had happened, but he faced up to you and ended up “getting clocked”, although he did not know whether you were responsible for that. He got up and went inside and washed blood off from his elbow area. He stated that, when you and Andrew Kennedy had been engaging with each other, there had been a number of other people standing around in sort of a circle. He agreed that he had told the police it was chaos with people going everywhere and people screaming and it was insane and that there were fights going on and blows exchanged and a lot of people were told to go inside the hotel.
16 It is not in contention that, after you punched Mr Morrow and also another man, Mr Wilson,[4] and laid both men to the ground in McLaren Parade, you and Ms Connolly set off towards the Comfort Inn and were followed by about three men. This was captured on CCTV footage from outside the Brewhouse Hotel on the Great Ocean Road.[5] You and Ms Connolly proceed to the driveway of the Comfort Inn and there was clearly an altercation between you and a couple of others near the entrance of the driveway. Further down the driveway, it would appear that approximately four men set upon you and were punching and kicking you and, for part of the time, you seemed to be on the ground. Others arrived and appeared to be trying to pull people away from the fight. Some of this is captured on CCTV footage from the Comfort Inn. The CCTV footage shows you being extremely reluctant to move away from the fighting. Even after your girlfriend, Ms Connolly, had succeeded in encouraging you back down a pathway and inside the door of her unit at the Comfort Inn, you struggled away from her hold by extracting yourself from your T-shirt and went charging back, endeavouring to engage with those people with whom you had been fighting. At some stage thereafter, police attended and sprayed you with capsicum spray inside Ms Connolly’s unit.
[4]No charge relating to the assault upon Mr Wilson was before the jury. Mr Wilson is now deceased and it is not suggested that his death was in any way related to your assault upon him.
[5]CCTV footage from Cameral 2, part of Exhibit “C” at the trial.
17 It is difficult to know which evidence was accepted by the jury. However, it is plain that you were engaged in antisocial conduct by pushing Joshua Collier some metres in a relatively crowded bar interfering with other patrons inside the hotel. You appear to have been in an aggressive, hyped-up state, because there is evidence that you were engaged in altercations outside with three different people: Andrew Kennedy, Adrian Daley and Christopher Pritchard. You then punched and knocked out, not only Mr Morrow, but also Mr Wilson, both of whom were standing on the footpath on McLaren Parade outside the Brewhouse Hotel, and not engaging in any aggression towards you.
18 As mentioned, Mr Hartnett urged the Court to find that you had been set upon by a mob outside the Brewhouse Hotel and had received a serious eye injury before you punched Mr Morrow. He urged that the Court should accept Mr McGowan’s evidence that, immediately before you punched Mr Morrow, you were moving backwards in an altercation with another man. He submitted that Mr McGowan was the most reliable witness. as he had not been drinking and would be expected to be a reliable witness.
19 I cannot be satisfied that the jury would have found Mr McGowan to be any more reliable than any of the other witnesses. He seemed to have a poor memory for a number of things. Mr McGowan could not recall the names of people whom he initially noticed in the scuffle outside on McLaren Parade. He made it plain that his primary focus was to diffuse the situation.[6] He also seems to be at odds with the other eye witnesses who say that Mr Morrow was not looking in your direction when you struck him. Mr McGowan was plainly wrong when he said that you were engaging with Mr Pritchard immediately before you turned around and punched Mr Morrow. The evidence established that, by then, Mr Pritchard had gone back inside the hotel. Further, Mr Pritchard was not a person known to Mr McGowan.
[6]Transcript (“T”) 844
20 In any event, Mr McGowan did not support your counsel’s proposition that you were being attacked or forced backwards by multiple people when you turned around and struck Mr Morrow. Mr McGowan said that, at that stage, it was an isolated incident between yourself and the man whom he thought was Mr Pritchard. He did not say that you were under attack from Mr Pritchard, as distinct from the two of you exchanging punches.[7] Moreover, he stated that, at that stage, it was not as chaotic on McLaren Parade as when he had first gone out there. He disagreed with your counsel’s proposition that you had been on the ground in McLaren Parade being kicked and punched and attacked by a number of people.[8]
[7]T853
[8]T863-4
21 As previously stated, it is plain that the jury did not accept your defence of self-defence. They were satisfied beyond reasonable doubt that you engaged in a conscious and voluntary act of punching Mr Morrow, causing him serious injury albeit that you did this recklessly, rather than intentionally. Whether or not they accepted Ms Whitwell’s evidence that you yelled out “Where’s the fucking old cunt?” (or “old bastard”), I am unable to determine. However, I am satisfied beyond reasonable doubt, in accordance with the jury’s verdict, that you walked in the direction of Mr Morrow and king hit him while he was not looking in your direction and was not presenting a threat to you or attacking you in any way. I am satisfied beyond reasonable doubt that this occurred very soon after Mr Morrow had gone outside the hotel for the second time.
22 After that, some locals, Andrew Kennedy, Kyle Briggs, Mick Zeuschner and Gregory Brown were involved in an altercation with you at the Comfort Inn. Each of them were charged with affray and dealt with in the Magistrates’ Court. Without conviction, each of them were fined several hundred dollars. Prior to this occurring, there was evidence of a trail of blood along the Great Ocean Road footpath outside the Brewhouse Hotel to the Comfort Inn. A number of witnesses referred to you having blood on your face or all over your face beforehand. Ange Whitwell saw a cut above your eye as you were standing in the doorway of McLaren Parade when she first went outside.[9] Susan Johnson saw blood on your face when she looked out the window onto McLaren Parade and, later, as you and Ms Connolly walked along the Great Ocean Road back to the Comfort Inn, she said you had blood all over your face.[10] Peter Zueschner said that, when he first went out onto McLaren Parade, you had a smudge of blood on your left cheek, as though you had tried to wipe if off.[11] Peter Telford said that when he first walked out to McLaren Parade he saw you with blood running down the left hand side of your face and later agreed it was blood streaming down your left eye, but did not agree that you looked to be badly injured, but just looked like you had been hurt. He subsequently agreed that the blood was running down the left hand side of your face coming from your eye area and temple.[12] Mr Keith Murray described you as having blood smudged all over your face prior to you being assaulted at the Comfort Inn.[13]
[9]T105
[10]T267, 269, 272
[11]T777
[12]T872, 885-6, 889
[13]T443
23 The prosecution conceded in front of the jury that it was possible that your eye had been injured in McLaren Parade. I accept that as a possibility. However, I cannot be satisfied on the balance of probabilities as a mitigatory factor that you were incapacitated by injury at the time that you struck Mr Morrow. After you struck him, you were clearly capable of walking hand in hand with Ms Connolly from the corner of the Brewhouse Hotel down the Great Ocean Road towards the Comfort Inn and are seen on CCTV footage gratuitously upending a sandwich board advertising sign outside the front of the Brewhouse Hotel. You turned around to confront those local males who had pursued you, apparently to avenge your assault upon Mr Morrow. You appeared keen to engage with them and were hyped-up. To use the Prosecutor’s words to the jury you were, “fighting like a tiger” even after you had been assaulted by those locals at the end of the driveway of the Comfort Inn. The CCTV footage of the attack upon you at the Comfort Inn[14] looks ugly and more ferocious than anything described as happening to you on McLaren Parade outside the Brewhouse Hotel.
[14]Exhibit “D” at the trial.
24 Dr Profitt gave evidence that he examined you at Geelong Police Station on 8 August 2016 at 8.00pm after you had been in custody initially at the Geelong Hospital and given Oxycodone for pain relief earlier that day. He stated that you had a linear abrasion of about 5 centimetres on the right forehead, a subconjunctival haemorrhage to the left eye, superficial abrasions of the left cheek, black eyes and an unusual marking on the right forehead above the right eye, a pattern bruise that may have been caused by an imprint of a shoe or some other object, together with superficial abrasions to the skin, the knuckles of the left and right hands. He stated that you were subsequently referred to St Vincent’s Hospital for management of an orbital fracture of your left eye. Your counsel stated that you have sustained ongoing deficits as a result of this injury.
25 At the plea hearing a report from Dr JJ Khong, ophthalmologist, dated 16 October 2018 was tendered as Exhibit “1”. This report noted that you had suffered a left orbital blow out fracture and bruising of the left macula and had presented to his clinic on 18 October 2016 with constant double vision and a sunken left eye as a result of extensive displaced medial wall and orbital floor fractures and reduced visual acuity in the left eye. On 26 October 2016, you underwent a general anaesthetic in order to have an open reduction and internal fixation of the orbital fractures and he noted that the orbital fracture repair was extensive. Post-operatively you developed a watery left eye, had ongoing blurring vision in the left eye and double vision in the left side gaze and a raised tear meniscus in the left eye. You had a completely blocked left tear duct and deviation of your left nasal septum. On 2 June 2017, you underwent endoscopic surgery to unblock the tear duct and subsequently were noted to have ongoing intermittent jabbing pain behind the left eye and double vision in the left extreme side gaze, although the watering of your left eye had settled. Dr Khong noted that you have been left with a mild visual impairment in the left eye, although your visual acuity is within the limit for being able to drive a private or commercial vehicle. You have also been left with 2 millimetres of residual enophthalmos, or a sunken eye, on the left which was attributable to the orbital fractures and this causes some facial asymmetry.
26 In addition, a report by Mr Bernard Healy, psychologist, dated 29 August 2018 was tendered as Exhibit “2”. He opined that you suffered Post-Traumatic Stress Disorder and a persisting level of moderate depression resulting from the assaults upon you, although I here note that I consider that your history to Mr Healy that you were directly punched and kicked by four to five assailants over a period of half an hour is exaggerated and does not sit well with your own history to him that you suffer some difficulties with memory about what transpired at the time. No person or persons have the right to take the law into their own hands. The assault upon you by the four men at the Comfort Inn was unlawful. I take into account that you have suffered some form of extra curial punishment by way of your eye injury and psychological injuries. However, it is noteworthy that Mr Healy’s report makes absolutely no mention of any remorse by you. Your injuries, whilst in no way legally justified, pale beside the dire plight of your victim, Mr Morrow. Indeed, in the first few days after your assault upon Morrow it appeared as though his injuries may be fatal. You are very lucky not to have ended up facing a homicide charge.
27 There has been absolutely no explanation for your thuggish conduct in delivering such a hard, forceful punch causing devastating injury. Parliament has assigned a maximum penalty of 15 years’ imprisonment for this offence, which is an indicator of its gravity. I regard your behaviour in having committed this offence, even though you did not intend the actual injuries and deficits ultimately sustained by Mr Morrow, to be a serious example of the charge of recklessly causing serious injury. You were a fit young man in his thirties. You attacked, without any provocation, a man aged 60, some three decades your senior, who was simply standing on the footpath observing what was going on.
28 There were no security staff on duty at the Brewhouse Hotel on the night of the incident. Mr Morrow was an elder of the Apollo Bay community. The evidence before the jury is that he did not often attend the hotel and was not much of a drinker. Your aggressive thrust of Mr Collier in the lounge area of the hotel directly impacted upon the capacity of a number of patrons to enjoy the social atmosphere of listening to local musicians. One of the persons upon whom it impacted was Mr Morrow, as Mr Collier had come in contact with him as Mr Collier was trying to stop himself from falling over backwards. My interpretation of the CCTV footage, which shows Mr Morrow motioning you outside, is that he was endeavouring to be a peacemaker and telling you to take any aggression outside the hotel. This was also the impression of Mrs Susan Johnson, who told the jury that she saw the older man with the ponytail intervene and say “Stop it” or “Take it outside”, and she thought that he was the manager or staff. Mr Morrow returned inside the hotel, but again exited and went around the corner. By this time, it was apparent that you and another or others were engaging in confrontational and aggressive behaviour. There is no evidence that Mr Morrow was in any way encouraging any attack upon you. On the basis of the evidence of five of the six eye-witnesses, I am satisfied beyond reasonable doubt that you struck Mr Morrow as he was looking away from your direction. It was a cowardly king hit, which gave him no time to protect himself.
29 You have shown no remorse for your conduct. Indeed, Mr Morrow was compelled to shuffle into the witness box to give evidence that he had no memory of what had occurred that night and has no memory subsequently for some three or four months. He stated that he used to work as a leather worker, selling his crafts at Apollo Bay and other local markets, but since his head injury, he has been unable to engage in this at all. He stated “I’m still a bit slow”. He remembered having 140 or 150 staples in his head, which he said looked like a railway track, and he said his memory was “a bit crook”. He can remember things from when he was a kid but cannot remember someone’s name if they spoke to him yesterday. He suffers aching in his legs, his chest is sore, his nose “doesn’t sort of run properly”. His son, Jesse, has had to become his official carer. He stated that he is unable to use a bankcard or an automatic teller machine anymore, and cannot hold a driver’s licence. Under cross-examination from your counsel, he stated “I lost a fair bit of memory” on that night. Mr Morrow’s son, Virgil, had to relive the ordeal of finding his father unconscious and trying to escort him safely home, as he was so confused that he would not go in an ambulance. Similarly, his daughter-in-law, Inara Bruders, had to give evidence of what she observed of the strike to her father-in-law and tending him whilst he was unconscious, lying flat on his back on the footpath.
30 It is plain that the long-term effect of the injury that you recklessly caused to Mr Morrow has been devastating. Tendered as Exhibit “B” was a victim impact statement made by Jesse Morrow, on behalf of his father, and another victim impact statement made on his own behalf, together with a victim impact statement by Dylan Morrow, another son of your victim. These statements refer to the loss of Mr Morrow’s mental capacity, his extremes of irrational, repetitive, agitated and angry behaviour caused by his inability to understand the situation, which is extremely difficult for the family to deal with. At times, he cries in distress for extensive periods and is no longer emotionally connected with his own children or grandchildren, whereas before your assault upon him, he was a very important part of all their lives. He has also lost the relationship with his partner of a decade as he is unable to relate emotionally or sexually to her since your crime. He has aged significantly, lost a great deal of physical strength and the decrease in his eye/hand coordination has prevented him working as a highly skilled leather craftsman, which has impacted upon him emotionally and financially. As previously mentioned, he is not able to drive a car. He is no longer able to read as he cannot retain information, whereas before his head injury, he was a prolific reader who took great pleasure in discussing ideas and politics. He can no longer play the blues harmonica, which had been a lifelong interest for him. He has been profoundly diminished as a human being. Every day is the same. He has lost great pleasure, is a ghost of his former self, and his long-term future is bleak.
31 Mr Jesse Morrow speaks of how caring for his father has taken a great physical, emotional, social and financial strain on him. He described the trauma of getting the phone call from his brothers about his father’s injury and going to the hospital and being told that it was highly unlikely that he would survive, and being admitted to say goodbye to his father and being a given a bag of cut off blood and urine soaked clothes and possessions of his father. Further down the track, he had to make application to VCAT in order to be able to act on his father’s behalf, and had to apply for Centrelink benefits and do all the things that a person with a severe traumatic brain injury is no longer able to do. He feels anger, frustration and an overwhelming sense of sadness and dread, and his relationship with his own partner has suffered, as has his sleep. He continues to work with his general practitioner and psychologist to try to deal with the many issues that he must face because of his father’s injury. He has lost his full-time landscaping and building work, and has had very little time for his recreational pursuits of sailing, hiking and gardening. The time and travel involved in visiting his father and looking after his affairs has been very expensive for him and he is struggling financially. He grieves the loss of the strong and able father who taught him so much and with whom he could talk and laugh.
32 Many of the sentiments expressed by Jesse Morrow are echoed in the victim impact statement of Dylan Morrow. He describes the shock of seeing his father lying knocked out on the footpath with blood coming out of his ears, and holding him as he got colder and colder, and how his father has changed into a totally different person and he has lost the great mentor that his father was to him. The stress of what has occurred has impacted on his other relationships, his two children have lost the loving relationship that they enjoyed with their grandfather, and he suffers a range of psychological deficits, nightmares, sleep deprivation and depression which have affected his working life and cause him still to require counselling.
33 You are presently aged 39 years, having been born on 15 October 1979. You come before the Court with a number of prior convictions.
·On 8 March 2000, you appeared at Broadmeadows Magistrates’ Court on charges of possessing a handgun without a licence and making a threat to kill. Without conviction, you were sentenced to a community-based order for a period of 12 months.
·On 17 June 2003, you were brought before the Broadmeadows Magistrates’ Court for failure to comply with that community-based order. The breach was found proven and you were again ordered to undertake a community-based order for a period of 12 months, commencing on that day.
·On 2 August 2004, you appeared before Melbourne Magistrates’ Court on charges of recklessly causing injury, unlawful assault, making a threat to kill, failing to answer bail and criminal damage. Without conviction, you were ordered to undertake a community-based order for a period of 12 months. Apart from unpaid community work, you were ordered to undergo assessment and treatment for alcohol/drug addiction and to submit to medical or psychological assessment and treatment as directed.
·On 14 October 2004, you appeared at Sunshine Magistrates’ Court on charges of driving whilst your authorisation was suspended, resisting police, failing to state your name/address on request and driving at a speed in excess of the limit. On the charge of driving whilst authorisation was suspended, you were convicted and sentenced to one month’s imprisonment, to be wholly suspended for a period of 12 months. You were fined $800 on the other charges and your licence was suspended for a period of 6 months.
·On 26 November 2007, you appeared at Melbourne Magistrates’ Court on charges of recklessly causing injury and assault in company. You were convicted and sentenced to a period of 5 months’ imprisonment, to be served by way of intensive correction order.
·On 15 October 2013, you appeared before Melbourne Magistrates’ Court on charges of refusing to undergo an assessment for drug impairment and hindering police. You were convicted and fined $1,200 and disqualified from driving for a period of 4 years on the first charge, and convicted and fined $300 on the second charge.
34 It is of concern that you have prior convictions for antisocial behaviour of a violent nature, particularly assaults. Tendered as Exhibit “A” by the prosecution were a number of summaries relating to your prior offending.
·The charges for which you were dealt with on 8 March 2000, apparently involved yourself and the driver of a vehicle both being charged in relation to the assault of a cyclist. The driver is said to have verbally abused the victim while pointing what appeared to be a handgun at him and you were charged as a co-offender.
·The charges for which you were dealt on 2 August 2004 involved you attending Royal Melbourne Hospital in order to get Ventolin. You were described as being jumpy/agitated and under the influence of a drug. You lay on the floor of Accident and Emergency and staff tried to help you up. When another civilian went to assist you, you became violent and punched him to the head several times. Staff took your victim behind the nurses’ station for protection, but you were still trying to get at him over the counter. The staff, themselves, were in fear of being assaulted and activated an alarm, which caused metal screens to go up. You then punched through a glass door and climbed through, cutting an artery in your arm. You threatened to kill the civilian and were chased around the hospital, and ultimately apprehended by security.
·The charges for which you were dealt with on 26 November 2007 involved an incident where it appears that you had been asked to leave licensed premises after interfering with a previous removal. Apparently security staff were escorting you through the back-of-house loading dock, where there was some difficulty with the security door. It would seem that others known to you interfered violently with those security staff attempting to restrain you, and punches and shouting occurred, resulting in three security staff being taken to the Royal Melbourne Hospital by ambulance to have their injuries attended to.
35 I do note, as submitted by your counsel, Mr Hartnett, that these offences of violence occurred some years ago, the last one having been some 10 years prior to the subject offending. However, I also note that the more recent offending of which you were convicted in October 2013, involved a refusal to undergo assessment for drug impairment whilst driving, as well as hindering police. Mr Healy took a history from you that you had never had an alcohol abuse problem and, although you had used illicit drugs in the past, you had not done so for over 10 years. Your counsel stated that you had instructed him that you had not taken illicit drugs on this night. There is no reliable evidence about what alcohol you had consumed, as Ms Connolly gave different accounts about this.
36 Your hyped-up conduct on the night of your offending is cause for concern, particularly given that, at the time you were 36 years old – only 2 months off your 37th birthday. One witness, Mr Keith Murray, stated that, even though you had blood smudged all over you face before you were attacked by the men at the Comfort Inn, you were very aggressive and egging them on as well as vice versa.[15] Even though you were outnumbered, he described your “energy” and the fact that you seemed “super aggressive”, and he described you as “trying to hit those boys as much as the other way around”.[16] You appear to have lacked any self-control, even when Ms Connolly almost had you inside her unit.
[15]T443
[16]T445
37 Given your cowardly and unwarranted attack upon Mr Morrow and your failure to accept responsibility for it or exhibit any remorse, I regard your counsel’s submission that this Court should exercise mercy by sentencing you to a term of imprisonment in combination with a Community Correction Order to be an unmeritorious submission. Such a sentence would be inadequate to reflect the gravity of your offending. In particular, Mr Harnett’s submission that the evidence showed that you only caused a split lip to Mr Morrow, which was indicative of the lack of force of the punch, was extraordinary in circumstances where the jury found that you had recklessly caused serious injury and the evidence as to the force of the punch being sufficient to cause Mr Morrow to go to the ground unconscious was overwhelming.
38 The Court must denounce your conduct and place emphasis upon general deterrence so that others who might be minded to behave in such an unwarranted aggressive and antisocial way will know that they will meet with just punishment. Courts must vindicate the rights of a victim like Mr Morrow and try to protect the community through sentences designed to deter others generally and you specifically. Although I do note that you have not engaged in any subsequent offending, so perhaps lesser emphasis on specific deterrence is warranted now than otherwise might have been the case 2 years ago.
39 The Court has heard that your parents are decent and hardworking people. They have stood by you and were in Court to support you for every day of your trial and, also, at the plea hearing. Your sister, is a good person who also attended Court when she could. She is married with children and also works. You have had the benefit of a stable background and education to Year 12 level, but it would seem, according to Mr Healy’s report, that you have had some difficulty settling and deciding upon your career. After you completed Year 12, you started a hospitality course, but lost interest after 12 months. You then commenced a spray painting apprenticeship, but this was difficult for you because of your asthma. You then undertook two years of equine studies, but then changed to undertake a landscape gardening apprenticeship and commenced your own business back in 2010 or 2011. However, you later moved to Western Australia, where you worked for a time in the mining industry servicing machinery, before returning to Victoria in 2013 and deciding, again, to pursue your trade as a landscape gardener. It is to your credit that you appear to have been hardworking in the past and I understand that, subsequent to this offending, you have pursued your interest in horses whilst residing at a rural property.
40 Tendered on your behalf were a number of character references (Exhibit “3”). You were apparently raised in the Assyrian Church although your counsel stated that your attendance at Church had not been as regular in recent years as previously. There is a reference from Reverend Father Korkis Toma, who states that you have agreed to become a more proactive Christian by becoming involved in the Ministry program, however, your counsel stated that this had not occurred. A member of the Assyrian Council of Victoria, Wilson Kando, states that you are a very helpful, caring and humble person who has volunteered in assisting new arrivals to integrate into Australian society. Other people, friends and relatives, speak of you being a respectful person, a man of integrity and someone who is kind and caring. One reference refers to you helping out at a Vinnies store in Sunshine in 2010 and 2011. A number of references emphasise how you have assisted your parents in caring for your younger brother, who suffers from depression and schizophrenia, as well as having cared for your grandmother when she was alive. You are described as someone whom others look up to, and not a violent person.
41 It is difficult to reconcile the qualities referred to in the references with your behaviour for which I must sentence you. I must say, I wonder whether the authors of the references are aware of your criminal record. Mr Valentine Aghajani, a migration agent, states that he has always known you to be helpful, quiet, honest and caring. He particularly states “Based on the discussions I had with Leonard regarding his charges, he has expressed remorse and deepest regret, particularly its grave repercussions for his family and his career.” Unhappily, it seems that your main concern about your offending is the impact that it has had on you and your family, rather than expressing remorse and accepting responsibility for the grave harm that you have occasioned to Mr Morrow and his family. Nevertheless, it seems that you do have a number of good qualities which, along with your supportive family and good work history, mean that you should have reasonable prospects of rehabilitation. I note, also, that you complied with your bail conditions, which included weekly reporting for approximately 15 months and, as I have said, you have not committed any subsequent offending. However, given your lack of acknowledgment of your offending and that the reason for it remains largely unexplained and that you have exhibited violent behaviour in the past, albeit not for some time, it is difficult for me to categorically state that your prospects of rehabilitation are good.
42 In all of the circumstances, there can be no doubt that the only appropriate sentence is a term of imprisonment. You are not entitled to any discount by reason of having pleaded guilty. However, I am conscious that it is your first time in custody and I have taken into account the extra-curial punishment that you have suffered by way of your eye injury and Post-Traumatic Stress Disorder and depression resulting from the assault upon you. These factors are likely to make serving a term of imprisonment more burdensome than for someone who does not suffer such factors. I have taken this into account.
43 On one charge of recklessly causing serious injury, you are convicted and sentence to be imprisoned for a period of 4 years.
44 I direct that you serve a period of 3 years before becoming eligible for parole. I declare a period of pre‑sentence detention of 78 days to be time reckoned as already served under the sentence imposed this day.
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