Director of Public Prosecutions v Black

[2020] VCC 650

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 18-00648

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYLE BLACK

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	14 May 2020
DATE OF SENTENCE:	19 May 2020
CASE MAY BE CITED AS:	DPP v Black
MEDIUM NEUTRAL CITATION:	[2020] VCC 650

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon	Office of Public Prosecutions
For the Accused	Ms A. Hancock	Stary Norton Halphen

HER HONOUR:

1Kyle Black, you have pleaded guilty before me to one charge of recklessly causing serious injury, one charge of common assault, and one charge of resisting an emergency worker.  The facts underlying this offending are as follows.

2It occurred on the evening of 29 April 2017, when the complainant, Brendan Haynes, and his partner, Sophie Johnson, with one other friend, attended The Union Club, which is a nightclub in Colac.  They arrived at about 11 o'clock, drank some alcohol, listened to music and stayed until the venue closed at 3 am.  Neither Mr Hayes or Ms Johnson or their friends recalled any incident at the club. 

3After leaving the club, they walked across Murray Street, towards a taxi rank, planning to catch a taxi home to a friend's house.  You, Kyle Black, had also left Thee Union Club just after 3 am with two friends, and also walked the corner of Murray and Gellibrand Street, where you stayed for about three minutes, before walking towards the taxi rank where Mr Hayes was. 

4Once you arrived at the taxi rank, you gestured towards Mr Hayes, who at that stage was walking back towards Ms Johnson and his friend.  You walked up to
Mr Hayes, grabbed him by the neck with your left hand, Mr Hayes attempting to retreat.  You released your grip on his neck and instead grabbed his T-shirt.  One of your friends grabbed Mr Hayes' beanie from his head. 

5Ms Johnson pushed your friend away and stepped in between you and
Mr Hayes, breaking your grip on him.   You turned to Ms Johnson and were then struck by Mr Hayes to the side of your heard.  You grabbed Mr Hayes and threw him to the ground.  As he fell, one of your friends hit Mr Hayes once to the head.  Another friend of Mr Hayes intervened by pushing your friend away from Mr Hayes, before stepping away himself and raising his hands in a defensive manner. 

6You then straddled yourself over Mr Hayes' prone body and punched him three times to the side of the head with a closed fist, this appearing to knock Mr Hayes unconscious.  Another friend of Mr Hayes grabbed your arm from behind, preventing a further punch.  At this stage, Mr Hayes was lying on the ground with his arms straight beside him.  Ms Johnson was screaming at her friends to do something. 

7You kept your grip on Mr Hayes' T-shirt, lifting him up and dropped him to the ground, causing his head to hit the concrete footpath.  You tried to hit Mr Hayes again, as another friend of Mr Hayes tried to pull him from the back; that friend fell to the ground.  You continued to punch Mr Hayes, who was then motionless and unresponsive, about six times to the head. 

8Ms Johnson then stood in between you and one of your friends, putting her hands to his chest to prevent the friend from moving forward.  Another friend of Mr Hayes stood up and was able to pull you away from Mr Hayes, who at this stage was lying on his front, still and unresponsive on the footpath.  Your actions underly Charge 1 on the indictment, recklessly causing serious injury.

9You then threw punches at the retreating friend.  That friend's name was Cody Minogue.  Some punches connected with the side of Mr Minogue's body, these actions underlying Charge 2 on the indictment, common assault.

10Two police officers, Howie and Suckling, happened to be driving nearby in a police van and saw you fighting, and Mr Hayes motionless on the ground.  They stopped and broke you and Mr Minogue apart.  Mr Suckling approached you, you were taken to the ground, arrested, handcuffed and cautioned.  Mr Minogue was also arrested and restrained at that stage, and further police arrived.

11At this stage, Ms Johnson was holding Mr Hayes' head, he appeared to be unconscious and his face was swollen and bleeding.  Police formed a belief that you and your friends were drunk, and you were sent home in a taxi and told police would be in contact. 

12An ambulance was called, which took Mr Hayes to the Colac hospital.  On examination, he was found not to have any recall of the incident at the taxi rank, he had a left frontal haematoma and left orbital swelling, multiple displaced fractures in the left cheekbone, and he was referred to the maxillofacial team at Geelong Hospital, until then being treated with antibiotics. 

13CT scans taken at the Geelong Hospital revealed considerable soft tissue swelling over the left cheek, extending to the left eye, an underlying displaced fracture to the left cheek bone, and further fractures at the bony ridge, that is the lower margin of the left eye socket.  The doctor who examined him gave the opinion that to have caused this fracture, significant force would have had to been used. 

14Mr Hayes saw a surgeon at Geelong Hospital, which required three visits because the enquiry was to see if he needed surgery, which it ultimately was not.  Mr Hayes had a lump under his eye for three months, swelling, headaches and pain.  He was diagnosed with post-traumatic stress disorder in September 2017, which was caused by a traumatic event, namely the alleged assault by you.  Mr Hayes' physical and psychological injuries, taken together amounted to a serious injury. 

15Police obtained CCTV footage from the taxi rank and arranged for you to attend the police station at Colac on 11 May 2017.  During that interview, you said you had been hit by a man at the Union Hotel:

'He remembered this vaguely and was told more about it the next day.  He said a girl spat in his face and then when he saw Mr Hayes, he believed he was a man from the pub who would hit him.  It made him feel angry.  He recalled confronting him, but it was fairly blurry'. 

16You were unable to remember specifics of the incident, 'did not recall striking any police', and I should add that your behaviour towards police when they sought to arrest you on that night underlay the charge of resisting an emergency worker.  It is the prosecution case that you were drunk at the time of the offending, which significantly contributed to it occurring. 

17The maximum penalty for recklessly causing serious injury is 15 years' imprisonment, the maximum penalty for common assault is five years' imprisonment, and the maximum penalty for assaulting - resisting an emergency worker - I am sorry, I do not have that here - I think it is two years' imprisonment.  I may have to change that. 

18You were charged on 11 May and there was a committal mention at the Geelong Magistrates' Court on 3 November 2017, where a settlement offer was made, but not at that stage responded to.  Ultimately, on 2 February 2018, a committal was listed, and on 26 March, you were committed for trial, entering a plea of not guilty. 

19Ultimately, this matter was listed for trial, but a settlement offer by defence was put on 2 November 2018, which was accepted, and the matter was settled, and you were arraigned on 13 November 2018.  The matter thereafter was not reached in the November, January, February, March and April circuits of 2019.

20I received a victim impact statement from Brendan Hayes, who wrote about being unaware of what had happened whilst he was in the emergency department.  He said he was shocked when he saw the injuries he received on his face.  After being discharged, he went home Melbourne, spent a week in bed, and when his children finally saw him, they did not recognise him, which caused him great distress.  He wrote:

'I felt and continue to feel a lot of emotion, such as helplessness, frustration, distress and angry, to name a few.'

21He said he did not know you and that he was not someone who liked to get involved in conflict:

'To have someone brutally assault me so badly and impact my life the way it has over absolutely nothing, and not being able to remember the assault leaves me frustrated.'

22He continues to have trouble sleeping, at the time was unable to work, and had difficulty interacting with his family.  Ms Johnson gave evidence on the plea, attesting to the fact that Mr Hayes had returned to work, but continued to suffer an emotional aftermath, that essentially being great shortness of temper, difficulty with emotions, and generally was described as someone whose personality had considerably changed.  As I stated, he has been diagnosed by a psychologist as suffering a condition of post-traumatic stress disorder. 

23The situation with Mr Hayes is that he and his partner have two children, but also foster Ms Johnson's two teenage siblings, so this is a man who has extended generosity to others in his life, and it is clear that your actions have had a serious and ongoing effect upon him. 

24At the time that you were committed for trial, you faced a charge of committing gross violence in company, which was eventually reduced to the charge of recklessly cause serious injury. 

25I now turn to your personal circumstances.  You are 27 years of age; you were 24 at the time of this offending.  You are the second of four children born to your parents, and you grew up on a large farm in Portland and enjoyed a happy childhood until your parents separated when you were 12, then difficulties arose. 

26Your mother took you and your two younger siblings and moved to Winchelsea, leaving your older brother with your father.  Thereafter, you saw little of your father and your brother, because your mother would not allow it, until Bethany Child Services intervened. 

27You attended Bayview College, Portland, in Year 7 and 8, then Colac secondary school, from which you were expelled when you helped a friend take weapons to hunt rabbits on a school camp.  You then attended Oberon High School in Geelong between Years 9 and 11.  You there experienced an amount of bullying because news of your expulsion from Colac High School was widely known. 

28You also had difficulties with your mother, who eventually kicked you out of home when you were 15, and you now have little to do with her.  You completed Year 11, aged 17, then took up employment at firm which manufactures agriculture equipment.  You worked there for seven years as a workshop manager. 

29After being charged with these offences, you had to take up too much time from work in order to attend legal and other appointments, and so you resigned.  For a while, you started your own business as a metal fabricator, then began work as a truck driver and general farmhand, which employment you still undertake, having done this since August 2018. 

30You have been in a relationship with your partner, Hannah Bell, since 2017, and you now live with her family.  At the first hearing of the plea on 16 May 2019, you were supported by your father and Ms Bell and your employer, who gave evidence on the plea as to your hardworking nature and value to his company. 

31Your employer also said that you spoke openly of your offending, expressing severe remorse for it.  He described you as an otherwise easy-going, well-regarded young man, and essentially felt that this violent behaviour on that night was out of character for you.

32In May 2019, I received an impressive array of references, including one from your former employer, John Nukey, who has known you for 14 years.  He praised your qualities as a valued employee and described your offending as completely out of character.  Other references from family and friends also spoke of your remorse over your offending, and their own surprise at your offending in this violent way. 

33Additionally, it appears you have been involved, more than ordinarily, in community activity from a young age, volunteering with the CFA since you were 16.  One reference spoke of your supports to the Lions Clubs over years, and generally, you referees spoke of you as well in terms of your hardworking and respectful nature.  And as I have said, generally speaking, and there are a large number of references, the general tenor was of surprise at this offending.

34Following being charged, you began attending a counsellor, Caroline Prince, who in her report, dated 20 March 2018, noted that you have never taken illicit drugs, nor had a particular problem with alcohol, but at the time of this offending, did occasionally binge drink on weekends.  She described you as a prosocial person and a young man who ordinarily disliked violence.  You said you were extremely remorseful for your actions, noting that your memory of the night was impaired by your alcohol intake. 

35Ms Prince said that you had showed empathy for your victim, she said you were a young man who had engaged well but had limited skills in coping with major life events, which you did by suppressing feelings and keeping busy.  She said you possessed a 'prosocial and caring values and presents as a very respectful and straightforward man'.

36She said it appeared that normally your response was to be passive and to withdraw, and she said the only explanation for your offending on this evening was intoxication. 

37Indeed, this is a basis on which the prosecution puts its case, and I do accept that your offending on this evening, which was terrible and violent offending, was nonetheless out of character, and I accept it was caused by the large amount of alcohol that you had drunk on that night.  This is not an excuse, but I do accept it is an explanation, and I do accept it is not normally behaviour you would engage in. 

38At the original hearing in May last year, the prosecution sought the imposition of a term of imprisonment.  This was an understandable submission, in light of the gratuitous violence you showed on that evening.  However, due to the exceptional nature of the reference material in the psychological report, I decided instead to defer sentencing in this matter for 12 months to allow you to prove yourself.

39Again, on the hearing several days ago, I received a further raft of impressive references attesting to the strides you have made in that time.  You continued your counselling with Prince, you are still in a committed relationship with
Ms Bell, you reside with her family, and work long hours for the same employer, drinking very little.

40In her report, dated May 2020, Ms Prince stated that you had engaged well and in a significant way to express your feelings of empathy, and that you had shown no problems in managing your anger.  She wrote, 'Kyle presents as a decent, caring and hardworking young man'.  She said you were sickened by your crime and vigilant in working on precipitance that may have contributed to it.  She wrote, 'Kyle genuinely wishes to make amends for his actions and ensure he never again commits an act of violence'.  She concluded that you no longer require therapy. 

41Your employer, Mr Richmond, who gave evidence on your behalf at the first plea, wrote a second positive report, noting your efforts during the bushfire crisis, when you worked on weekends to deliver hay to fire ravaged properties.  Your partner, Ms Bell, and her sister both wrote of your continued remorse, your hardworking nature, which includes you now leasing land on which you breed cattle.

42Another friend, Ms Maddy Crouch, who is a financial manager for Radstock Rural Services, wrote of your participation in charitable fundraising events, your expressions of remorse for your offending and general good character, as did the director of that company and presumably her husband, Robert Crouch. 

43I received several other references from persons of responsibility in your community, all attesting to your ongoing efforts to remain hardworking and out of trouble, and also that you continue to speak openly of your crime.  Overall, I have now received two sets of extremely impressive references from an array or respectable, responsible prosocial people in your life.  The reports from your counsellor,
Ms Prince, were equally impressive. 

44I am satisfied this most serious offending was very much out of character and caused by the excessive amount of alcohol you had drunk on that night.  I am satisfied you are extremely remorseful for your actions, and that your risk of re-offending is extremely low.  I am satisfied that you have excellent prospects of rehabilitation, surrounded by a host of protective factors, including family, friends and work. 

45Additionally, there has been no recurrence of the offending that brought you before this court, that offending having occurred more than three years ago.  I am satisfied that the principles of community protection and specific deterrence have no application in your case. 

46I also note that in 2019, I asked that you write a letter of apology which, as I understand, been forwarded to the informant to be given to Mr Hayes, should he wish to receive it.  I found this to be an impressive letter of remorse.  You described your own actions as violent, extreme and undeserved:

'I know the experience would've been frightening and painful, and that your physical recovery would've been frightening and painful.  I will always be sorry and ashamed for my behaviour towards you.' 

47You stated that you felt disgust for your behaviour, that you were ashamed and sorry to have hurt Mr Hayes and those in his life.  You stated, 'No one deserved to be harmed in the way you were harmed'. 

48Importantly, you wrote:

'Having learned even more about the type of man that you are, someone who loves and provides for his family, and also provides a safe home to other children through fostering them, I have deep remorse, guilt and sadness over my actions.  I hope you are still able to care for your family and other children.'

49You said that you did not know if your letter would mean anything or help
Mr Hayes in any way, but that you wished that it could.  You concluded:

'I want you to feel safe and go out in public, to be well and able to provide for and care for your family and to be without pain.  But no, I can't fix what I've done.  I just want you to know that I am really sorry and that I do care.'

50I regarded this as a sincere expression of remorse, and in line with the plethora of independent material I received about your remorse in this matter. 

51Ordinarily, a person who commits the gratuitous and extremely violent actions and assaults that you engaged in, on this night would have to expect to be sentenced to a term of imprisonment.  I am satisfied, however, that you fall into that exceptional category where a court does not need to take this action.  In my view, a Community Corrections Order would adequately respond to both the mitigatory and punitive factors that have arisen in your case.

52I also note that you have very little in the way of prior criminal history.  You were dealt with in the Portland Magistrates' Court in 2013 for a charge of dangerous driving, pursued by police which, on its face, it looks like quite a serious prior conviction.  Your counsel explained to me the circumstances of that offending, which I do not regard as being indicative of your having a violent nature or of not being a prosocial person.

53She explained to me that you were driving a car which, unbeknownst to you, was unregistered and bore false number plates, but panicked when police sought to have you pull over and you thereafter took off.  That offending occurred, now, around six to seven years ago, and so, I have said, I do not regard it as relevant to the sentencing exercise before me. 

54I do need to say, as I have already said, that it is important that you understand this offending was extremely serious, involving gratuitous violence on a completely innocent bystander, who continues to suffer from the effects of this assault upon him.  As I have already said, ordinarily, only a term of immediate imprisonment would be an appropriate response. 

55However, in the circumstances of your case, I am satisfied, as I have said, that a community corrections order adequately answers the dictates of both the punitive and mitigatory factors that have arisen in your case. 

56In sentencing you, I take into account your plea of guilty, what I accept to be true and deep remorse for your actions.  I accept that you are otherwise a hardworking and law-abiding prosocial young man, as I have already stated.  You have undertaken the onerous task of continuing to prove yourself for more than a 3 year period, you have taken advantage of the opportunity that the court has given you.

57You have been assessed for a community corrections order and you have been found suitable.  You were regarded by the assessing officer as presenting a low risk of general re-offending.  It was the view of the Community Corrections officer that I only need deal with you by way of a special condition for treatment and rehabilitation for alcohol use. 

58However, it is clear that you have attended upon Ms Prince for an extended period of time.  It was her view that you did not present as having any problems with drug or alcohol use.  It would seem you have very much learned your lesson in that regard, that alcohol was not a problem for you, except that you engaged in binge drinking. 

59Can I say, Mr Black, you need to be very much aware, as I am sure you are, of the appalling effects excessive alcohol consumption has upon you.  It seems to have turned you into a person that you ordinarily never would be.  You do not, in my view, present as somebody with difficulties with alcohol.  I do note, particularly now, in the conditions of COVID-19, any capacity that there might be to place you on an order for treatment would be limited.  It is not my view that community moneys need to be spent on you; I am satisfied that alcohol is not a difficulty for you. 

60However, I am going to order that you undertake community work.  I know you are very hardworking and a busy young man and this is going to be difficult for you, but there does need to be a punitive aspect to this community corrections order. 

61For the present time, Corrections are not organising community work, but they ultimately will.  And the length of this order will mean that undoubtedly, the time will come where you can undertake such community work.  Before I can place you on a community corrections order, I must advise you of the conditions to be attached to this order. 

62They are, firstly, that you must report to the Community Corrections officer within two working days of the making of this order, that is by Thursday of this week.  The order will last for two years.  Whilst on this order, you must not commit another offence punishable by imprisonment. 

63Whilst on the order, you may not leave Victoria without the permission of the Community Corrections office.  You must report any change of address or employment within 48 hours of the making of this change.  You must report to and receive visits from the Corrections office.  You must not attend upon the Community Corrections office under the influence of drugs or alcohol, you must obey all lawful directions of the Community Corrections office. 

64I am going to order that you undertake 250 hours of unpaid community work.  Are you prepared to enter this order, Mr Black?  Hello?

65OFFENDER:  Yes, Your Honour.

66HER HONOUR:  Thank you.  All right, the situation is that because this is a remote sentencing, as it were, I am going to leave the Bench, my associate will explain to everyone how she is going to print the order up and get it to you, and I will then sign it.

67Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of two years and order that you serve 12 months before becoming eligible for parole.  Thank you very much.  Is there anything else that I need to attend to?

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