Director of Public Prosecutions v Boucher

[2017] VCC 1292

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-17-00798

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL BOUCHER

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2017
DATE OF SENTENCE:	8 September 2017
CASE MAY BE CITED AS:	DPP v Boucher
MEDIUM NEUTRAL CITATION:	[2017] VCC 1292

REASONS FOR SENTENCE

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Subject:  Recklessly cause serious injury, possess cartridge ammunition, contravene condition of bail

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. Liaskos	Office of Public Prosecutions
For the Accused	Mr A. Marshall	Stary Norton Halphen

Pages 1 - 8

 

 

HER HONOUR:

1Michael George Boucher, you have pleaded guilty to one charge of recklessly causing serious injury.  The maximum penalty for this offence is 15 years' imprisonment.  You have also agreed to have dealt with by me and pleaded guilty to the following related summary offences, possessing cartridge ammunition, the maximum penalty of 40 penalty units and contravening a condition of bail, the maximum penalty of 30 penalty units or three months imprisonment. 

2You and Ross Griffiths, who was then aged 52, met on or about 21 July 2016 and you became friends thereafter.  Mr Griffiths went to you flat in Richmond a number of times over the following weeks.  You were living in the flat with your then partner Rachel Lloyd.  On Saturday 13 August 2016, you met up with Mr Griffiths at Richmond station at approximately 7.25 pm and then later that night at your flat.  On Sunday 14 August 2016 at approximately 7 am, Mr Griffiths attended at your flat.  You were seen going in and out of the flat's building several times that day on CCTV footage between 4.24 am and 5.34 pm.  Some time between 7 am and 5.34 pm, you assaulted Mr Griffiths.  You punched and kicked him repeatedly all over his body, including to his head.  He was knocked unconscious by the assault and remained in that state until the following morning.  You claimed that you were verbally threatened by
Mr Griffiths immediately prior to the assault. 

3However, the prosecution rely on the statement of the complainant, where no such threats were described but conceded due the complainant's injuries, he was unable to recollect the details of the assault. 

4I am unable to make any finding as to the exact circumstances leading up to this assault, other than that I accept that your actions and/or reaction in assaulting Mr Griffiths in the manner in which you did was an excessive response and you continued to assault him even when he had fallen to the ground and unable to defend himself. 

5At 5.34 pm, you are depicted on CCTV footage leaving the building.  At approximately 5.25 am on Monday 15 August 2016, that is 12 of so hours later, Mr Griffiths woke up in your lounge.  He was disoriented and his sight was blurry with double-vision.  He realised he was still in your flat and became fearful for his safety.  Mr Griffiths saw a lot of blood in the lounge and was unware whether anyone else at the time was in the flat.  He made his way to the front door and jemmied it open with scissors because it was locked and left the flat. 

6Mr Griffiths was seen by security guards at the flat, obviously injured and disoriented.  He sought directions to the police station and attended there, where an ambulance was called and he was taken to the Alfred Hospital.  Security staff spoke to your partner who was in the flat and she told them you had hit Mr Griffiths.  Police attended your flat and observed a large amount of blood on the floor and walls.  Ms Lloyd was present at the flat when police attended. 

7On August 15 at approximately 2.05 pm, you were arrested by police outside the flats.  You were searched and police located 1.303 calibre cartridge ammunition from your pants pocket.  You were not licensed to possess ammunition or exempt from holding a license pursuant to the Firearms Act.  That is one of the related summary offences, possession of cartridge ammunition. 

8When interviewed at Richmond police station, you said you could not recall your actions the day before and that maybe you were at the flat.  You admitted knowing Mr Griffiths but maintained that you had last spoken to him a week or so ago.  You admitted to using amphetamines that night and said you had been using for the last 28 years. 

9As a result of being assaulted by you, Mr Griffiths required surgery for his injuries, the full details of which contained in the prosecution opening, Exhibit A.  The injuries included multiple bleeds to the brain, multiple fractures to the nose, eye socket, clavicle and ribs, bleeding or haemorrhage in the right maxillary sinus, altered consciousness state, swelling and bruising around the eyes, facial lacerations, lacerations to both knees.

10He required emergency and surgical specialist treatment, including emergency neurosurgical opening of the left side of the frontal skull, that is the left frontal craniotomy, with removal of blood collection around the brain, intubation to maintain breathing, intensive care unit admission, multiple specialist assessments, including emergency, orthopaedic, trauma surgical, plastic surgical, eye rehabilitation specialists, intensive nursing and Allied Health, such as physio and social work.

11Dr Jason Schrieber of the Victorian Institute of Forensic Medicine indicated in his report that Mr Griffiths had suffered blunt force applied to the head, which carried the high risk of injuries to essential organs such as the brain and eyes, that the blood accumulation around the brain appeared so life-threatening that emergency specialist surgery with opening the head and skull had to be applied and that without the medical treatment and support, Mr Griffiths condition would have deteriorated and he would have died. 

12Mr Schrieber opined it would take a significant time for bone fractures to heal and that Mr Griffiths was a high risk in the future of having various conditions, including epilepsy, declining cognitive and other physical functioning and mental health issues.  He concluded that Mr Griffiths' future quality of life was likely to be poor. 

13Mr Griffiths prepared a victim impact statement which was read in court.  Unsurprisingly, your offending has had a significant effect on him, with him suffering very serious injuries to the head, which have impacted on his daily functioning.  He has lost confidence and is dependent on others for his care.  He is no longer able to work and has suffered financially.  Additionally, his long-term medical prognosis is questionable, given the high future risk to Mr Griffiths' health and well-being that have been identified by Dr Schrieber. 

14As to your personal circumstances, I received report from Warren Simmons, psychologist, dated 29 August 2017 and I take that material into account.  You are currently aged 42, born on 30 March 1975.  You grew up in Sassafras with your parents and your sister, though you have had limited contact with your family over the last decade. 

15You had some difficulties at primary school with bullying, though you appeared to settle reasonably well into secondary school.  You left school midway through Year 9 and were a talented sportsman, participating in high level basketball and swimming in your age group. 

16Since you were 15 years, you worked intermittently until you were about 29 years at an engineering factory.  Much of your work history was interrupted by your drug abuse and you have been on a disability support pension in more recent times. 

17You have been in a number of relationships, one of which produced two children, though one of them died months after they were born after medical complications, having been born prematurely.  You have a daughter aged 13, Bailey, and although you are not still with her mother, she has encouraged and you have continued to have a relationship with your daughter.  You have had other unsuccessful relationships, all of which have involved mutual drug use. 

18You have long-standing drug abuse issues, commencing with cannabis use when you were only 12 years of age and progressing to all different varieties of drugs, including heroin, GHB and methylamphetamine.  You were using drugs at the time of the commission of this offence.  Although over the years you have completed a number of residential drug withdrawal programs, you have usually relapsed soon thereafter.  You have not been able to engage successfully in any drug and alcohol treatment programs or counselling.  I was informed however, that you have overcome a heroin and methadone habit and that you have not had drugs whilst you have been in custody. 

19I was informed that the trigger for your more sustained significant substance abuse was the death of a young woman a number of years ago and the circumstances of you being with her when this occurred.  This was traumatic both because of the personal experience for you but also the subsequent police and coronial investigation and ill-founded suspicions regarding your involvement. 

20You were admitted to a psychiatric hospital after these events and a formal diagnosis of post-traumatic stress disorder was made.  You have also suffered from depression and anxiety and have received medication for significant periods related to these conditions.  I understand you are currently not receiving any medication. 

21Psychological testing was conducted by Mr Simmons.  You counsel highlighted the unusual results with the significant difference between your verbal and non-verbal skills.  Reference was also made to the finding that your total score put you in the average range of intellectual functioning.  Such an assessment reflected that you do have some potential.  As noted by Mr Simmons in his opinion, you certainly appear to be an articulate and bright man who has the ability to make changes in your life and you have acknowledged that those who know you find it easy to relate to you now that you are substance free.

22You have a significant prior history dating back to 1995, with regular appearances from 2003 onwards.  These offences are mostly related to dishonesty and/or are drug related.  There are, however, some offences involving violence and property damage.  I was informed that you have some outstanding matters in the Magistrates' Court, one involving a serious assault on an intellectually disabled gentleman at a shopping centre in Box Hill and that you are pleading guilty to that charge. 

23Though you are not to be punished for that offence here, it is of concern that it occurred months after these events and whilst you were on bail.  I also note within your criminal history that you have been given a number of opportunities by the court with community based dispositions and suspended gaol sentences, many of which have resulted in breached proceedings and you ultimately being required to serve time in gaol.  You have been incarcerated for various periods in 2003, 2004, 2005, 2007, 2009 and for two months in 2015. 

24You have been in custody in respect of this matter since 26 July 2017.  You were initially on bail for this offence, though one of the summary offences before me relates to failing to report as part of your conditions in February 2017.  Your bail was, however, revoked on 26 July 2017 because of further offending. 

25I take into account your plea of guilty.  You were originally charged with the more serious offence of intentionally cause serious injury and an indication was given that you would plead to this charge early in the proceedings.  There is a significant utilitarian benefit in your plea, saving the community the cost and inconvenience of a trial.  Mr Griffiths was spared having to give evidence of this incident, which would have been a traumatic experience for him. 

26Your plea is also indicative of your acceptance of responsibility for your actions and shows a willingness to facilitate the course of justice.  I accept you are remorseful for your actions.  This is consistent with your plea of guilty and your recognition of the effect of your actions on Mr Griffiths, as you expressed to
Mr Simmons. 

27It was submitted that you relationship with your daughter was important to you and that you were motivated to keep off the drugs and start afresh when you were released.  However, given your priors and outstanding matters and your poor compliance with court orders when you have been given opportunities to address, particularly, your drug issues, I accept, as submitted by the prosecution, that your rehabilitation prospects are not very good or guarded.  As noted by Mr Simmons, given your long history of substance abuse, it would be naïve to expect there to be significant changes without a great deal of time and effort. 

28There were some aggravating features of your offending.  You continued with the assault when Mr Griffiths was on the ground, unable to defend himself.  The injuries to the head suffered by Mr Griffiths required emergency surgery.  You left Mr Griffiths in the flat unconscious and in a pool of blood.  It was not until he gained consciousness some 12 hours later that he himself was able to obtain urgent medical attention.  The long-term impact of your offending on Mr Griffiths has been significant. 

29As to specific deterrence, as mentioned, you have a lengthy prior history and outstanding matters of which have indicated an intention to plead guilty.  You failed to comply with court orders on numerous occasions, including breaching your bail conditions, one of the relevant summary offences before me. 

30Considerations of specific deterrence clearly have application to you.  General deterrence is also an important sentencing consideration.  Those minded to act in the violent manner in which you did need to be aware they will face stern punishment.  Community denunciation and just punishment are also relevant matters to take into account. 

31The prosecution submitted that the only appropriate sentence was a term of imprisonment.  Although your counsel submitted that I should impose a combination sentence, I indicated in the course of the plea that the gravity of this offending and your previous record on court orders was such that I did not regard that course as an appropriate sentencing option. 

32In the alternative, it was submitted you should receive a term of imprisonment with a longer than usual non-parole period to enable you to reintegrate into society with parole.  This submission has less force, given your guarded rehabilitation prospects. 

33The prosecution provided me with VSCA summaries for this offence from 2013.  Though such information provides some guidance, the wide variety of circumstances in which this offence is committed means these sentences are of limited assistance.  I accept, as submitted by the learned prosecutor, that this is an example of this offence that sits towards the top end of the medium range of seriousness.  You continued to punch and kick your victim to the body and head when he was on the ground and left him in your flat unconscious. 

34Taking all relevant sentencing considerations into account, I sentence you as follows.  In respect of the recklessly cause serious injury, the offence on the indictment, you are convicted and sentenced to a term of imprisonment of four and half years.  In respect of the summary offence relating to possession of ammunition, you are convicted and fined $100.  In respect of the breach of bail, you are convicted and fined $200.  That makes  a total effective sentence of four and half years and I set a non-parole period of two and a half years.  Pre-sentence detention, is that 44 days?

35COUNSEL:  Yes, Your Honour.

36HER HONOUR: I declare pre-sentence detention of 44 days. Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have sentenced you to a term of imprisonment of six years with a minimum of four years.  Are there any further matters that I need to address?

37COUNSEL:  I do not believe so, Your Honour.

38HER HONOUR:  No, thank you.  I will just step down.

39COUNSEL:  Thank you, Your Honour.

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