Director of Public Prosecutions v Bradley

[2017] VCC 1778

IN THE COUNTY COURT OF VICTORIA        Revised
                   Not Restricted
     Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00827

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEE BRADLEY

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	15/11/17;29/11/17
DATE OF SENTENCE:	29/11/17
CASE MAY BE CITED AS:	DPP v Bradley
MEDIUM NEUTRAL CITATION:	[2017] VCC 1778

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	OPP
For the Accused	Mr De Kretser

HIS HONOUR:

1       Lee Bradley, you have pleaded guilty to one charge of negligently cause serious injury.  

2       The maximum penalty for this offence is 10 years' imprisonment.

3       I have heard a summary of the offending.  It is not my intention to repeat the whole summary.  It has been tendered as Exhibit A in the plea proceedings.

4       Briefly, at 5.30pm on 30 August 2015, you were driving your vehicle north along Ellen Street, Springvale.  The victim was driving his vehicle west on Heather Grove, Springvale. The victim did a right hand turn across the path of your vehicle.  You were annoyed at being cut off and you started tooting your horn. As the victim turned left into Heritage Road he stopped his car, got out, and stood in the middle of the road and started yelling and waving his arms at you. You stopped behind his car and got out of your vehicle, approaching the victim in an aggressive manner.  An argument ensued and you both pushed each other two or three times.  You then pushed the victim causing him to stumble and fall to the ground, striking his head on the road or curb.  You returned to your car and left the scene.  

5       As a consequence of his head hitting the road or curb, the victim was rendered unconscious.  His friends and members of the public came to his assistance. He was taken to the Alfred Hospital where he was found to have suffered a fractured skull and swelling and bruising to the brain. A craniectomy was performed.  This intervention saved his life.  He remained in hospital until mid-January 2016 and was required to wear a helmet to protect the area where a piece of his skull had been removed.  In April 2016, the piece of skull was replaced in a further procedure.  The victim was involved in multi-disciplinary community based rehabilitation over the following eight months.

6       The victim saw Dr Palit in January 2017.  He advised the doctor that he felt close to normal.

7       Dr Palit last assessed the victim on 17 March 2017.  He noted that the victim reported continuing physical and cognitive improvement, having returned to independent function with regards to self-care, mobility, driving and management of finances.  There appeared to be no issues with regard to routine and familiar tasks.  However, the doctor explained that the victim had not returned to work, that his walking did not appear normal and that his family reported concerns about his ability to pursue new and higher tasks.

8       Mr Bradley, although the victim made a gradual and strong recovery over time, he still had some residual deficits more than 18 months after sustaining serious injury at your hands.  In an impact statement, which can only be described as understated, the victim describes his struggle over the last two years to return to a normal life.  The injury suffered by the victim, and the time and effort required for recovery, are matters of great weight in this case.  They explain why general deterrence, denunciation and just punishment are such important sentencing considerations. 

9       Your counsel submitted that in assessing your level of culpability, it is necessary to assess the context of the offending and the degree of negligence that you displayed.  He submitted that the degree of negligence it is at the lower end of the scale for offences of this type.  I agree with that submission.  The circumstances of the offending are unusual, in that it was the victim who stopped his car, got out and stood in the middle of the road.  He waved his arms and yelled at you.  In this sense, it was the victim who risked provoking some sort of interaction with you.  

10      When you approached the victim, there was an initial argument and pushing and shoving on both sides.  You did not punch the victim.  However, you did push the victim with sufficient force to cause him to stumble and fall.  The act of pushing the victim was, you admit, criminally negligent.  In this regard, it is important to remember that you were much younger than the victim (he was a 63 year old man) and you were also than the victim.  Even so, I do accept that this behaviour was at the lower end of the scale of seriousness for offences of this type.

11      I now turn to those matters relevant to your background and matters raised in mitigation.  You 38 year olds.

12      You have a limited, dated and irrelevant criminal history.  You have no history of violence.

13      

You come from a background of trauma and abuse.  In his report dated

11 September 2017, your treating psychologist Dr Petrulis says this about your childhood.

"Mr Bradley was molested multiple times as a child from age 9 to 15 years old. Mr Bradley states that he thinks he got over it.  But I consider Mr Bradley as a survivor of sexual abuse, and his mental health still needs exploration and treatment.”

14      Your parents separated when you were three years old and you told Dr Petrulis that you felt that you were not truly loved by your family. Your difficulties were compounded by a diagnosis of Attention Deficit Hyperactivity Disorder as a child and you were maintained on medication for a number of years.

15      You left home at the age of 15 when you commenced your first job.  This could not have been easy for you.  

16      You have an excellent work history.  Given the hardships in your early life, this is very much to your credit.  A number of references were tendered testifying to your good character and strong work ethic.  The referees all state that your offending is out of character.  

17      You have worked in the caravan industry for approximately 17 years.  You were with one company for 15 years before moving to your current employer, Amazing Caravans, in early 2016.  Your employer attended court to support you.  You are a highly regarded employee.

18      Dr Petrulis identified a number of protective factors that speak towards your very good prospects for rehabilitation.  You have an exemplary work history, you are involved in community activities, you have the support of co-workers and friends, you have stable and supportive accommodation and you are capable of learning from your mistakes.  He assesses your risk of re-offending as very low.  I accept that assessment.

19      Dr Petrulis also notes that you have been attending upon him for counselling since the commission of this offence.  He recommends ongoing counselling focused on your past sexual abuse, post -traumatic Stress and ADHD.

20      You have entered a plea of guilty.  The plea is an acceptance of responsibility. After reading the various references and the report of Dr Petrulis, I am satisfied that you are genuinely remorseful for what you have done.  Your plea has also saved the victim from the trauma of giving evidence and saved the community the cost and expense associated with a criminal trial.  You will be given appropriate credit for all these matters.

21      Delay is a matter of some significance. It is no fault of yours.  You were charged on summons on 28 August 2016.  This was nearly twelve months after the offence occurred.  It was it seems, initially proposed that the matter be heard in the Magistrates’ Court.  A magistrate determined that the matter should be uplifted to this court.  A committal case conference was held on 28 April 2017.  The matter resolved as a guilty plea to a more serious charge and listed for plea on 15 September 2017.  After further discussion between your current counsel and the prosecutor, the matter was taken out of the list for further directions.  The matter came before me as a sentence indication hearing on 15 November 2017. You have now entered a plea of guilty to the charge of negligently cause serious injury.

22      The fact that this matter has been hanging over your head for over two years is a matter to be taken into account.  You have remained offence free during this period.  

23      This is a difficult sentencing exercise.  The victim has suffered very serious injury at your hands.  That needs to be recognised.  However, there are some unusual features of the offending that reduce its gravity.  In addition, there are very strong matters in mitigation and you have very good prospects of rehabilitation.  Given these circumstances, I have concluded that this is one of those rare cases where, notwithstanding the seriousness of the injury suffered by the victim, the various purposes of sentencing can be appropriately achieved by the imposition of a community corrections order. 

24      Can you please stand, Mr Bradley?

25      You are convicted and sentenced to be released on a community corrections order for a period of two and a half years.  The conditions of the order are that you perform 350 hours of community work; that you be under supervision for the period of the order; that you attend mental health assessment and treatment as directed and that you attend offender behaviour programs.  You must report to the Dandenong Office of Corrections before 4 pm on Friday 1 December 2017.  The address of the Dandenong Office of Corrections will be on the forms that will be given to you shortly.

26      Mr Bradley, had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a term of nine months' imprisonment, with a twenty-seven month community corrections order to follow.  I grant the prosecutor's application that you undergo a procedure for the taking of a forensic sample.  That sample will be a buccal swab.

27      You are required to attend at the Springvale Police Station within the next 56 days, for the taking of the sample.  You must cooperate in the taking of the sample.  I must warn you that if you do not cooperate with the authorities in the taking of the sample, reasonable force can be used to obtain it and indeed, the sample that can be obtained can be a blood sample.  Do you understand?

28      OFFENDER:  Yes, Your Honour.

29      HIS HONOUR:  All right.  You can be seated there for a moment.

30      MR ROPER:  Just on that question, Your Honour, I do have a draft order.

31      HIS HONOUR:  Yes.

32      MR ROPER:  I'll hand up draft orders for Your Honour's signature.

33      HIS HONOUR:  Yes, thank you Mr Roper, I'll sign those orders now.  I'm happy for Mr Bradley to step out of the dock and come and take a seat behind his counsel - - -

34      MR de KRETSER:  Thank you, Your Honour.

35      HIS HONOUR:  - - - while the forms are prepared for signing. 

36      HIS HONOUR:  There's nothing more gentlemen?

37      MR de KRETSER:  No, Your Honour.

38      MR ROPER:  No, Your Honour.

39      HIS HONOUR:  Yes, thank you Mr Rochford.

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