Director of Public Prosecutions v Carroll
[2022] VCC 270
•9 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02358
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY CARROLL |
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JUDGE: | Her Honour Judge Ellis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 February 2022 | |
DATE OF SENTENCE: | 9 March 2022 | |
CASE MAY BE CITED AS: | DPP v Carroll | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 270 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: One charge of recklessly cause injury – one charge of resist emergency worker on duty- one charge of affray- summary charge of unlawful assault- plea of guilty- no prior criminal history- prospects of rehabilitation- delay;
Legislation Cited: Crimes Act 1958 (Vic), Summary Offences Act 1966 (Vic), SentencingAct 1991 (Vic);
Cases Cited:R v Verdins (2007) 16 VR 269, Worboyes v R [2021] VSCA 169;
Sentence: Aggregate fine of $2000 without conviction.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Rutherford | Office of Public Prosecutions |
| For the Accused | Mr G. Steward | Tony Hargreaves & Partners Lawyers |
HER HONOUR:
1Anthony Carroll, you have pleaded guilty to a number of charges on Indictment J12586451, namely:
·One charge of recklessly cause injury, contrary to s 18 of the Crimes Act 1958, which carries a maximum penalty of five years' imprisonment.
·One charge of resist an emergency worker on duty, contrary to s 31(1)(b) of the Crimes Act 1958, which carries a maximum penalty of five years' imprisonment. This is a rolled up charge.
·One charge of affray, contrary to s 195H of the Crimes Act 1958, which carries a maximum penalty of five years' imprisonment.
2You have also pleaded guilty to one related summary charge of unlawful assault contrary to s 23 of the Summary Offences Act 1966, which carries a maximum penalty of 15 penalty units or three months' imprisonment.
Circumstances of offending
3The circumstances of your offending are set out in a detailed Summary of Prosecution Opening on Plea, marked Exhibit A. The offending in this case took place on 10 June 2018 and involved two co-offenders: your wife, Kathleen Carroll, and your friend Michael Kohler.
4At approximately 3.35 pm on Sunday 10 June 2018, you, along with your wife, Kathleen, and friends, Michael and Joanne Kohler, attended the Ball Court Hotel in Sunbury. You all remained there throughout the afternoon and evening, consuming alcohol. At approximately 9.15pm, you were informed that the hotel was closing and 'last drinks' were called. You took issue with being told that the venue was closing and expressed your dissatisfaction to the assistant manager.
5The group of you left and went to the Royal Hotel, also located in Sunbury. The duty manager, James Bennett, was behind the bar serving drinks. Shortly after your arrival, a member of your group ordered a drink and offered to pay via EFTPOS. Mr Bennett advised that payment via EFTPOS was not accepted in the gaming room. At this point, you became argumentative. You returned to the bar to pay for the drinks in cash and continued to argue with Mr Bennett about the EFTPOS situation. Mr Bennett informed you that this would be your last drink. As you became more aggressive, Mr Bennett took away the beer he had served and made the decision that you should not be drinking anymore.
6You then began arguing with Mr Bennett about his RSA (Responsible Service of Alcohol), stating that you could not be kicked out. Mr Bennett asked a fellow staff member, Robyn Williams, to get security due to your behaviour. Crowd controller, Maneshwar Singh, then entered the hotel and spoke to your group. He asked your group to leave the venue after you had finished your drinks. Mr Singh then had a conversation with you and asked you to leave the premises. At this time, you were observed to be in Mr Singh's face and were described as 'not using a good tone of voice'.
7At 10.18 pm, Mr Bennett called the Sunbury Police Station and requested attendance of police due to your aggressive behaviour and refusal to leave. While this was occurring, an off duty crowd controller, Haithem Shlaimon, approached Mr Kohler. Mr Shlaimon attempted to convince Mr Kohler to leave, without success. Mr Kohler and Mr Shailom joined Mr Singh and yourself at the bar. At this point, you are described as being aggressive and were heard saying to Mr Singh, 'You can't stop me', 'I'm Aussie', 'Fuck off', 'Punch me. Hit me'.
8Your wife attempted to push you away from Mr Singh. Mr Kohler then intervened and placed his hand on Mr Singh's chest. Mr Singh pushed Mr Kohler away from him with two hands to the chest. You then moved towards Mr Singh and placed him in a headlock or bear hug. You both fell against a gaming machine (Affray: Charge 3).
9
You continued the bear hold, while Mr Kohler also grabbed onto Mr Singh.
Mr Singh was subsequently punched four to five times to his head, face and back. Mr Bennett and Mr Shlaimon attempted to intervene, however, you continued to maintain hold of Mr Singh, holding him in this position for approximately one minute and 47 seconds.
10Mr Singh was eventually able to break free from your hold and sought refuge behind the bar. You and Mr Kohler attempted to get behind the bar area but were unsuccessful. Mr Kohler continued to threaten Mr Singh and then threw bar items, including wine glasses at him.
11At the same time, your wife, Ms Carroll, had become involved in an altercation with staff member, Ms Williams. Ms Carroll punched Ms Williams to her left cheek and also struck her across the face, causing her glasses to fall off. Another patron of the venue witnessed this occurring and attempted to stop Ms Carroll. A struggle then ensued. Ms Williams fought back and pulled Ms Carroll to the ground by her hair. You witnessed this, and proceeded to grab Ms Williams by the shoulders, throwing her to the ground.
12At 10.22 pm, Sergeant Andrew Williams, Protective Service Officer's (PSO's) Andy Lemos and Scott Galaboff entered the hotel. At the time of arriving at the hotel, they observed you attempting to push your way through to the bar staff area. You were blocked by Mr. Bennett but managed to gain access to this area. PSO Lemos then entered the bar area, in attempt to move you away. You told Mr. Bennett, 'You are fucked. I am a local cop'. You pushed PSO Lemos from behind his left shoulder. You also grabbed PSO Galaboff by the left arm and attempted to pull him away from the bar (Resist Emergency Worker on Duty: Rolled up Charge 2).
13PSO Lemnos then returned to the bar area, and you grabbed him again by the left arm. You pushed PSO Lemos backwards, shoving him away from the bar. This pushing and shoving lasted for 55 seconds before PSO Lemos succeeded in pushing you out of the gaming area and into the foyer (Continuation of Resist Emergency Worker on Duty: Rolled up Charge 2).
14You and your co-offenders were subsequently pushed out of the hotel by police. At 10.44 pm, after several attempts to re-enter the venue, you and your co-offenders were forced away from the venue by police. You eventually left the area.
15As a result of the offending, Mr Singh suffered a minor laceration to his forehead and a graze to his right wrist (Recklessly Cause Injury: Charge 1).
16Ms Williams received a graze to her right wrist, bruises, scratches, and soft tissue injuries (Related Summary Charge: Unlawful Assault).
17Your wife, Ms Carroll, was charged in relation to her offending. She pleaded guilty to one charge of recklessly cause injury and one charge of affray at Broadmeadows Magistrates' Court.
18Your other co-offender, Mr Kohler, was also charged in relation to his offending. He pleaded guilty to one charge of affray, resist an emergency worker on duty, recklessly cause injury, and one charge of criminal damage at Broadmeadows Magistrates' Court.
Victim Impact
19No victim impact has been prepared for the plea. As noted, Ms Williams and Mr Singh were injured during the offending.
Procedural History
20You were charged on the day of your arrest, namely 10 June 2018. The matter proceeded as a contested committal where you were committed to stand trial on these charges, and also on a more serious charge of intentionally causing injury, which is no longer proceeding. The matter was set down for a trial to commence on 9 March 2022. The matter was listed for a sentence indication hearing on
25 February 2022. On that occasion, the prosecution indicated the way in which they would be prepared to resolve the matter and that they would submit that a non-custodial disposition would be within range. After hearing details of the matters to be put in mitigation, I indicated that I would be prepared to sentence you without imposing a conviction. Following that, through your counsel, you advised that you would be prepared to plead guilty to the charges on the new indictment. Accordingly, the trial was vacated, and the matter set down for plea and sentence on 9 March 2022.
Prior Criminal History
21You come before the court with no prior criminal history and no charges pending.
Personal Circumstances
22Your counsel, Mr. Steward, has prepared written sentencing submissions on your behalf which were supplemented in the course of a comprehensive plea.
23You are now aged 61. You have been married to Kathleen Carroll for 35 years and together you raised four children, the eldest of which is 34 years. Sadly, in November 2018, a few months after this offending, you lost your youngest child, your son Jessy, who passed away at the age of 27 after a long battle with a brain tumour.
24You grew up in Airport West and are the eldest of four boys. You were educated at St Bernard's College in Essendon up until Year 11. In 1980, you joined the Australian Army. You were a qualified leopard tank operator and, in 1982 a qualified Corporal with the Military Police.
25You then entered the Victoria Police Academy from which you graduated in December 1986. What then followed was a long and distinguished career spanning over 30 years, in which you rose to the rank of Sergeant. During that time, you received over 30 citations, and received the 10 year good behaviour medal, National Service Medal and Australian Police Medal. You have had two periods where you were seconded with the Australian Federal Police and served as a peacekeeper in East Timor and Timor Leste in March 2000 and August 2006, respectively.
26You have also been awarded the United Nations Medal and the Police Overseas medal - first and second clasp. You received a Divisional Commendation in 2007 for outstanding professionalism and leadership, where you went beyond your normal duty to work as a team in preventing the suicide of an individual suffering from a mental health crisis (Exhibit 9). I have had regard to the letters of appreciation that you received in the course of your duties as a police officer (Exhibit 3). As a consequence of these charges, you were stood down. Eventually on 29 December 2021 you retired due to ill health.
27Given your esteemed career and years of dedicated service to the community, your conduct on this occasion was extremely out of character. I have considered the sentiments expressed in the character references prepared by friends and family who have known you for many years, and speak of you as a hardworking, honest man who is dedicated to his family. A man who has always been calm and served the Sunbury community through your dedication to work. Your friends note that you have accepted responsibility for your conduct. As you would well appreciate, the sort of antisocial behaviour that you exhibited warrants the court's condemnation. You would know, better than most, the sort of things that protective services officers, just like police, are frequently confronted with when dealing with people who are intoxicated and agitated. For you to conduct yourself in this manner seems something of an aberration.
28Having said that, your counsel submits, and I accept, that at the time of these events, you had been under considerable pressure. You son, Jessy, had been diagnosed with an aggressive form of non-Hodgkin lymphoma while he was living in the United Kingdom four years earlier. He developed tumours throughout his body. You and your wife travelled to the UK until he was stable enough to travel home where he underwent treatment, which included chemotherapy, radiation treatment and a bone marrow transplant. Jessy was told in early 2017 that he had just weeks to live. His treatment was expensive, and his cricket club raised a large amount of money to help fund his treatment. It appeared that he had been able to remarkably overcome his illness through a particular trial drug and was in remission. Tendered on the plea was a newspaper article from March 2017 (Exhibit 11), describing the success the treatment had achieved.
29However, the treatment bought him time, but not life. Jessy's tumours returned throughout his body, including to his brain and he underwent radiation in December 2017. From May 2018, your son was in and out of hospital and he was admitted to Peter MacCallum Cancer Centre. It was shortly after this admission to Peter MacCallum that you committed the offending for which you are now before the court.
30I note that in the months between May and November 2018, your son continued to receive treatment, including many chemotherapy sessions. But his health deteriorated significantly, and in October 2018 it had become apparent that the only option left for him was to receive palliative care at home - which you and your wife provided. A letter from Dr Michael Dickinson from Peter MacCallum Cancer Centre (Exhibit 8) dated 19 October 2018 paints a vivid picture of the devastation experienced by your son and your family at this time. Dr Dickinson had anticipated that an extraordinarily difficult couple of weeks lay ahead for Jessy. I have no doubt this would have been the case.
31Although this letter is dated some months after the offending, it is very clear that the period in which your son was ill and receiving treatment was an incredibly traumatic and stressful period for you and your family. Your son died on
17 November 2018 at the age of 27. One can only imagine the immeasurable grief and loss that you and your family experienced as a consequence.32A week before this offending, your wife had undergone spinal fusion therapy on her neck vertebrae. You had been caring for your wife. Your concerns about her health compounded the stressful conditions under which you were already operating as a consequence of your son's grave illness. Furthermore, according to psychologist Bernard Healy, you were suffering from post-traumatic stress disorder at the time of this offending, a condition that had been present for a number of years preceding this event. I will say more about this in a moment. I do note however, that in the account that you gave to Mr Healy, your description of events differs to the sequence of events that are visible on the CCTV footage, in particular with respect to the timing of when your wife was knocked to the ground.
33Your counsel has submitted that on the evening in question, you and your wife were out with friends in what should have been an opportunity for you to unwind, relax and socialise. You had all been drinking alcohol. Your group had consumed three or four bottles of red wine and you yourself had consumed a number of beers. Unfortunately, it seems that the pressures under which you were operating came to the surface once you had become intoxicated. This culminated in the display of aggression that gave rise to this offending.
34As a consequence of these charges, you were suspended from the police force without pay from mid-2018. This required you to seek alternative work which was extremely difficult during the COVID-19 pandemic in 2020 and 2021. You felt particularly upset that, despite your many years of dedicated and meritorious service, you felt you had in effect been shunned by the police authority for 'one incident of indiscretion'. You retired from the police force in 2021 and, with your retirement application you were granted backpay, long service leave and other entitlements. However, as a consequence of your period of suspension you lost approximately $250,000 in pay. In recent times, you have worked assisting your son in his electrical contract business.
Mental health
35Tendered in the plea were three reports prepared by clinical psychologist Bernard Healy. You began seeing Mr Healy in June 2018 a few days after the offending and you have continued to see him regularly. In the report dated 11 March 2021 (Exhibit 5), Mr Healy opines that you suffered from PTSD over a number of years as a result of your active service and many incidents managed in the police force. He notes that you were exposed to highly threatening situations in the course of your duties, but in particular during your two active service periods in East Timor.
36In his view, at the time of this offending, you were experiencing a substrate of general post-traumatic stress disorder and that this overall condition was exacerbated further by the rapid deterioration of your son's health. Mr Healy notes that whilst your son was undergoing multiple treatments at Peter Mac Cancer Centre, you internalised your rising stress in an effort to provide a source of strength for your family, for your wife and children.
37Mr Healy considers that your emotional state reflected not only an exacerbation of PTSD symptoms but also the emergence of marked depression and varied considerably raised levels of anxiety. He considers that your impulsive actions reflected a disinhibition linked in part to the intake of alcohol, but also in relation to the overwhelming stress, depression, and anxiety that you were experiencing at this time.
38Your counsel, Mr Steward, submits that principles established in R v Verdins[1] are enlivened here. Specifically, it is submitted that at the time of the offending you were suffering these psychological conditions, some of which had been fairly long-standing, but were heightened with the ongoing decline of your son's health.
[1] (2007) 16 VR 269
39Mr Healy opines that there is a link between your offending behaviour and your condition. In Mr Healy's view, without that condition, one would not have anticipated such reactive behaviours in the face of some frustration of distress. In his opinion, the severity of those symptoms would most certainly have affected your mental capacity at the time of the offending. Your condition, he believes, further disinhibited and affected your ability to understand the wrongfulness of your actions at the time and to think clearly and make reasoned decisions. Further, it affected your capacity to make appropriate judgments and control your emotions.
40Although it is difficult to disentangle the role that the consumption of alcohol must have played, I accept that your PTSD, anxiety, and depression played a significant role in this offending. To that end, I accept that your moral culpability is reduced to the extent that it affects what is considered to be a just punishment. It also means that both general and specific deterrence are moderated as a consequence of your mental health issues, which are still ongoing.
41In Mr Healy's view, you will need to continue with supportive therapy. To your credit, you have realised the importance of engaging in counselling and not internalising your emotions; to seek help where you need it.
Prospects of rehabilitation
42Mr Healy notes that as best you can, you have demonstrated insight into your offending behaviour, particularly in the context of your disturbed mental and emotional state. He considers that you have demonstrated a genuine self-reproach over your conduct which was quite uncharacteristic. In the report dated 22 January 2019 (Exhibit 4), Mr. Healy noted that you appeared to be mortified over what had happened on this occasion.
43He is of the view that your prospects of rehabilitation are quite sound and that with ongoing therapy, the likelihood of any further offending is quite low. Taking into account your exceptional work record, lack of prior criminal history, the fact that you have the support of your family, that you have engaged with ongoing therapy and have indicated a desire to continue to do so, I am of the view that your prospects of rehabilitation are extremely good, if not excellent.
Plea of guilty
44I take into account your plea of guilty. Although this was not a plea entered at the earliest opportunity, given that you ran a contested committal, it is nonetheless of significant utilitarian value. You have spared the community the significant expense of a trial and importantly, you have spared the witnesses and victims the ordeal of having to give evidence. Your plea demonstrates a willingness to facilitate the course of justice. It is also evidence of remorse.
45Your plea of guilty has an additional utilitarian value, given that it was entered during the COVID-19 pandemic, where the court has faced a substantial backlog of trials resulting from the suspension of jury trials. Accordingly, as the Court of Appeal articulated in Worboyes v The Queen,[2] your guilty plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the pandemic's effects. As a consequence, your guilty plea should result in a perceptible amelioration of sentence. You are entitled to a substantial discount in your sentence, both for the plea of guilty itself and taking into account that this plea of guilty has occurred during the pandemic.
[2] [2021] VSCA 169.
Delay
46The offending here occurred over three and half years ago. You elected to have these charges heard in the County Court, and the matter proceeded with a committal, as was your right. As a consequence of the COVID-19 pandemic there have been considerable delays in having this matter listed for trial. I am conscious that a delay in the resolution of these matters would have placed additional stress upon you.
Nature and gravity of the offending
47Mr Carroll, your behaviour on this occasion was completely unacceptable. You were intoxicated. You were aggressive. Crowd controller Maneshwar Singh was simply going about his duties and was on the receiving end of your aggression. He sustained an injury in the course of the altercation which included you placing him in a headlock/bearhug, and you both fell against a gaming machine. These events were no doubt frightening for Mr Singh and equally concerning for others who witnessed the affray. However, the prosecution acknowledges that the affray was not of a gravity at the higher end. It lasted just under two minutes. Furthermore, resisting emergency workers who are simply going about their duty in maintaining public order is also shameful. And I denounce your conduct.
Relevant sentencing factors
48I must have regard to various sentencing principles, and I have done so. The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation, and protection of the community. I am required, pursuant to the Sentencing Act 1991, to take into account various factors when formulating an appropriate sentence in your case. I have had regard to the principles of general deterrence. Those who might be inclined to engage in similar behaviour should understand that the courts view this sort of offending seriously. Similarly, the court's denunciation is an important consideration.
49At the sentence indication hearing, I was asked to give an indication as to whether I considered a conviction was necessary in the circumstances. The prosecution submitted that a conviction was warranted given the seriousness of the offending. Your counsel submitted that having regard to your personal circumstances as existed at the time of the offending, your diagnosis of PTSD and the stresses that you were operating under, combined with your previously exemplary character and years of dedication to public service as a police member, that I ought not impose a conviction in this case. Your counsel referred to me to a number of sentences imposed in this court (namely DPP v Repac,[3] DPP v Fowler[4] and DPP v Gutierrez[5]) each of which had involved an assault by a police officer and each of which resulted in a penalty that did not attract a conviction.
[3] [2022] VCC 175
[4] [2020] VCC 738
[5] [2017] VCC 1640
50Section 8 of the Sentencing Act 1991 gives the court a discretion as to whether or not to record a conviction. In exercising that discretion, the court must have regard to all the circumstances of the case. This includes the nature of the offence, and the impact the recording of a conviction might have on the offender's economic and social well-being or on his employment prospects. Although the offending is serious, you have led an otherwise unblemished life. I accept that you are a person of good character. Your services to the community are acknowledged and you are well regarded by those who know you. Your conduct on the evening in question was indeed highly out of character. It also occurred in the context of you being under an incredible amount of stress and concern over your son's health. Although this was heightened by your level of intoxication, it seems the offending was relatively spontaneous in circumstances where events escalated quickly, albeit that this was largely of your own making.
51A conviction may impact upon your ability to find further employment now that you are retired from the police force. It would also make the prospects of any overseas travel difficult.
52After hearing detailed submissions by your counsel and submissions made on behalf of the prosecution, I indicated that I would be prepared to deal with this matter without imposing a conviction. I am satisfied that having regard to all of the circumstances, in the exercise of my discretion, the proper course to take is to impose a disposition without recording a conviction against your name.
53Turning to penalty, your counsel has submitted that it would be open to the court to sentence you to an adjourned undertaking without conviction. That, as a consequence of your suspension from work, you have already suffered a significant loss of income. During your suspension there were times when you could not pay your mortgage and you had insufficient money to provide for yourself and your wife. Your wife was unable to work due to her experiencing depression. You relied upon the assistance of family to help you financially.
54However, I must also have regard to matters of parity. I note that your wife, Kathleen Carroll, pleaded guilty to one charge of recklessly causing injury and one charge of affray and was sentenced to an adjourned undertaking without conviction and fined $500. Mr Kohler pleaded guilty to one charge of affray, resist emergency worker, recklessly causing injury and criminal damage. He was convicted and fined an aggregate amount of $3500. I note that the basis of those charges were not that dissimilar to the circumstances which found the charges here.
55Of course, I do not know Mr Kohler's personal circumstances. I understand he came before the court without a prior criminal history. The sentence that I am imposing is already different to that imposed against Mr Kohler by virtue of the fact that he received a conviction. However, as I have already pointed out, I have taken into account and given considerable weight to both your personal circumstances as were operating at the time of this offending, and indeed to your outstanding character and dedicated community service. Ultimately, however, I have formed the view that a fine in this case is appropriate.
56Accordingly, Mr Carroll, the sentence will be as follows. On all charges you will be fined an aggregate sum of $2000 without conviction.
Section 6AAA
57But for your plea of guilty, I would have imposed a sentence with a conviction, likely a more substantial fine.
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