Director of Public Prosecutions v Carrigan
[2013] VCC 753
•12 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00369
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LIAM CARRIGAN |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 May 2013 | |
DATE OF SENTENCE: | 12 June 2013 | |
CASE MAY BE CITED AS: | DPP v Carrigan | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 753 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Guilty plea - Recklessly causing serious injury - glassing
Cases Cited: Winch v The Queen (2010) 27 VR 658
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Hogan | Solicitor for Office Public Prosecutions |
| For the Accused | Mr B Wilkinson | Brendan Wilkinson |
HER HONOUR:
1 Liam Carrigan, you have pleaded guilty to one charge of recklessly causing serious injury which has a maximum penalty of 15 years' imprisonment. The maximum penalty reflects the level of seriousness of this offence.
2 The learned prosecutor opened the matter as follows:
3 You are thirty years old, and on my calculation you had just turned that age at the time that you committed the offence.
4 On Friday, 30 November 2012, the victim, Benjamin Martin, and you attended a birthday celebration for a mutual friend, Matthew Vella, at the Central Hotel in Beaconsfield. You and the victim did not know each other.
5 At about 10.30 pm, the victim was in the outdoor area of the hotel, standing near a small table with another male and you. You were engaged in general conversation. The victim left the table and when he returned, a person by the name of Yvonne Constantine was there. The four of you then conversed and it appeared to the victim that you were all “getting on all right”.
6 Benjamin Martin then saw his brother and his brother’s girlfriend, who joined him and conversed with Mr Martin and Ms Constantine. One of your friends approached the group. He was very intoxicated and put his arm around Ms Constantine. She moved away. You then said to Mr Martin, “Are you having a go?” You repeated this question and became louder and louder. The victim then looked at you, apparently not understanding what you were talking about. He said that you then said, “What, do you want me to glass you?” The victim did not understand what you were talking about and recalls responding with something like, “Yeah”. Mr Martin said he believed that everything was fine between you and him at that time.
7 You then picked up your beer glass from the table and smashed it into Mr Martin’s face. His face started bleeding immediately. He stepped back and asked you, “What’s your problem?” You did not respond. A security guard guided the victim into the kitchen and you were escorted out of the hotel by security staff.
8 Ambulance and police attended soon after this. Police saw you standing inside the hotel, holding your left hand with a cloth. The cloth was dripping with blood and there was blood on the floor where you were standing. You gave police your details and after being cautioned you said, “He swung at me first. Is he pretty bad?” You were then taken to hospital by ambulance, as was the victim.
9 The victim suffered the following injuries:
(a)A 2 centimetre cut to the forehead, above the eyebrow with clean edges, through to the bone;
(b)A 2.5 centimetre cut below the lateral end of the left eye, with jagged edges, through to the bone;
(c)A 1 centimetre cut at the lateral end of the left eyebrow, with jagged edges;
(d)A 1.5 centimetre horizontal superficial cut on the bridge of the nose; and
(e)Two superficial cuts at the angle of the jaw on the left side.
10 The victim was treated with antibiotics and pain relief and then referred to a plastic surgery team for repair of facial lacerations. I have viewed the colour photos of his injuries which were most alarming. Fortunately for the victim and for you, there was no actual damage to his eye. However, as I said in discussion at the plea hearing, this was more good fortunate than good management on your part.
11 On 4 December 2012, you attended the Pakenham Police Station and were interviewed in relation to the offence. You said, amongst other things:
“I got in an argument with a bloke, heated words … it started to escalate a bit, above arguing. I've seen him move, and I've reacted, so I've thrown a punch, and not realising, I had a glass still in my hand, ‘cos I was pretty drunk, and I've hit him. And then I didn’t realise that I hit him with a glass until afterwards.”
12 At the plea hearing on your behalf, Mr Wilkinson indicated that the account of the victim was accepted and your assertion that you did not realise that you had a glass in your hand, was therefore not relied upon by defence. I sentence you on this basis.
13 You also told police you had consumed at least 15 schooners of heavy beer over the course of the evening and that you could not recall what the argument was that you said you were having with the victim. You said “It was probably something stupid”. You also said that you thought the victim was starting a fight with you and you reacted.
14 Further, you told police:
“And I don’t wanna be that person, so I've – trying to change now.” I don’t wanna – I won’t drink … I've booked in for a psychologist to see what’s wrong with me. ‘Cos normal people don’t fight anyway.”
15 Mr Carrigan, your offending is most serious. Although the victim did not provide a Victim Impact Statement, I have viewed photographs which show that his face is scarred – fortunately, his eye was not injured and he has not been as disfigured as some. This was a vicious, unprovoked attack upon a young man who was doing no more than trying to engage in conversation. Your conduct must be punished and denounced. Further, I must give significant weight to the principle of general deterrence in a bid to deter others from behaving as you have.
16 In your favour, you have no prior convictions and from an early stage you have expressed appropriate remorse and insight into your offending. You demonstrated your remorse and insight by arranging for psychological treatment as soon as you left the hospital, after having your hand attended to. You have also conveyed your apology to the victim and his family via the Court and you have engaged in an alcohol and drug awareness program as well as an anger management program in a bid to ensure that you never re-offend.
17 I take into account in your favour that you entered a plea of guilty to this charge at the earliest stage. Therefore you are entitled to a significant discount in the sentence you would otherwise receive as you have saved the victim and other witnesses the time and trauma of giving evidence and you have saved the community the time and expense of contested proceedings. I am also satisfied that your plea of guilty is also indicative of genuine remorse.
18 I take into account your background. You come from a family which is strongly supportive of you and you have a solid work history. It would appear that at the time you committed this offence, you were still coming to terms with your father’s death and with the breakdown of a long term relationship which had ended in 2008. Amongst other character witnesses, your mother gave evidence in support of you and provided a character reference. It would appear that your father was violent towards you on a number of occasions when you were a child and there was a good deal of conflict in the household. Notwithstanding this, you were able to complete your secondary education and go on to tertiary training as an electrician, having initially commenced TAFE studies in information technology. I was told that you are due to undertake a final exam to qualify you as an electrician which you are required to pass by 22 November 2014.
19 You have a solid work history, having worked for the past eight years as an electrician. Mr Layton spoke highly of your reliability and dedication when you worked for him and I have no doubt that you continued to do so after his company was purchased by a subsequent employer.
20 I also take into account that you inflicted injury on yourself when smashing the glass and underwent surgery for nerve and tendon damage, staying in hospital for four days.
21 It appears that you have resorted to alcohol at significant levels from time to time since you were fifteen years old. I understand that you again resorted to alcohol abuse following separation from your long term partner and the death of your father. Obviously, when you committed the offence for which I now sentence you, you were heavily intoxicated but you have been able to moderate your drinking habits since, with the assistance of counselling.
22 Mr Wilkinson relied on a report from Dr Trevor Corran, psychologist, dated 10 May 2013. Dr Corran has been treating you since December 2012 after you were referred by your general practitioner. It is to your credit that you made these arrangements upon leaving hospital with your mother only days after the offending.
23 I take into account the assessments and diagnoses of Dr Corran who says that you are suffering from alcoholism/alcohol substance abuse disorder which is in early remission and you are also suffering an adjustment disorder with mild to moderate depressed mood. Dr Newton, who saw you on one occasion, found that you were suffering heightened anxiety and depression when he saw you. I take into account that you are suffering from these conditions which will make time in gaol more difficult than for someone without these conditions. Further, it appears that, despite your lack of prior convictions, you have battled to a degree with controlling your anger which you have also sought to address through counselling.
24 I accept that you are of otherwise good character as is attested to by the character evidence which was received at the hearing. This incident aside, you have a good deal to contribute to the community if you are able to deal with your difficulties concerning alcohol, and perhaps in continuing to deal with anger management and demons of the past. You have already made a good deal of progress in this regard which counts in your favour. I put you on notice, Mr Carrigan, that the offence for which I now sentence you had a good deal to do with your level of intoxication. If you choose to become intoxicated in the future and commit further offences, then your decision to abuse alcohol may be considered by a sentencing judge in the future as an aggravating feature.
25 I assess your prospects of rehabilitation as being very good in light of your lack of criminal history, family support, strong work ethic and the positive steps to address behaviours which have contributed to your offending.
26 Mr Wilkinson submitted that I ought impose a three month gaol term in combination with a Community Corrections Order. The Crown submitted that an immediate term of imprisonment was warranted. They submitted that a range of between two and three years head sentence with a non-parole period of 14 to 19 months was appropriate in all the circumstances of your case.
27 Mr Carrigan, as you will have appreciated from discussion at your plea hearing, offences of this nature are far too prevalent and the Victorian Court of Appeal pronounced in 2010 in the matter of Winch v The Queen (2010) 27 VR 658 that in future sentences for glassing offences as an instance of recklessly causing serious injury should be higher, as a general rule. In that case the learned Maxwell P and Redlich JA said, amongst other things:
“……………A person who comes to be sentenced for recklessly causing serious injury, on a plea of guilty for a glassing offence – even with all the mitigating features to which we have referred – should proceed on the assumption that he or she will be required to spend a significant period of time in actual custody.” [55]
28 That case ought be seen in the context of a preponderance of suspended sentences which had been imposed in this Court up until that time, although this was not always the case.
29 Your counsel provided me with a number of cases and a table drawn from them concerning the offence of intentionally causing serious injury and submitted that in light of these sentences, the sentencing range put forward by the Crown for recklessly causing serious injury was too high. Having considered Mr Wilkinson’s submissions in this regard and the decisions upon which he relied, I am afraid that I am unable to agree. In my view, the sentencing range put forward by the Crown is appropriate and in line with what the Court of Appeal said in relation to this species of recklessly causing serious injury. However, in light of the strong mitigating features in your case, I am prepared to give you a slightly lower non-parole period than the lower end of the Crown range so as to maximise your chances of returning to the community as a positively contributing member.
30 Before I proceed to sentence, Madam Prosecutor, could I confirm with you whether there is pre-sentence detention in this matter.
31 MS JANKOVIC: There is, Your Honour, 86 days.
32 HER HONOUR: Thank you.
33 Please stand up, Mr Carrigan.
34 First, I make a forensic sample order which is by consent. I make the order because of the seriousness of the offending, and because you have consented to the order being made and I consider that it is in the public interest to do so. I should warn you that if you do not cooperate with the authorised officer in providing a forensic sample which will be by way of a swab to the mouth, then the officer may use reasonable force in order to take the sample.
35 In relation to Charge 1, recklessly causing serious injury, you are convicted to sentenced to two years imprisonment but I order that you serve 12 months' imprisonment before becoming eligible for parole.
36 If not for your plea of guilty, I would have sentenced you to three years imprisonment with a non-parole period of two years.
37 I declare that you have already served 86 days by way of pre-sentence detention. Please take a seat for a moment.
38 Is there anything arising from those remarks?
39 COUNSEL: No, Your Honour.
40 HER HONOUR: Thank you. Yes, you may remove Mr Carrigan, thank you.
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