Director of Public Prosecutions v Chapman
[2019] VCC 1596
•4 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01004
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEAN WARREN CHAPMAN |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 2 October 2019 | |
DATE OF SENTENCE: | 4 October 2019 | |
CASE MAY BE CITED AS: | DPP v Chapman | |
MEDIUM NEUTRAL CITATION: | [2019] VCC | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty to 1 charge of recklessly causing serious injury and one associated summary charge of committing an indictable offence whilst on bail – unprovoked assault by intoxicated offender by punching victim to head causing victim to strike head on pavement and lose consciousness, fracture his nose and create a full thickness injury to his upper lip requiring immediate surgery – evidence of ongoing physical and psychological consequences for victim – early pleas of guilty with some evidence of remorse – offender had prior conviction for recklessly cause injury in similar circumstances of intoxication to an innocent victim – offender 24 years old with good family and other support – probably reasonably good prospects of rehabilitation if offender addresses substance abuse issues
Legislation Cited:
Cases Cited:
Sentence: Total Effective Sentence of 3 years and 1 month’s imprisonment, with a non-parole period of 19 months. s6AAA Declaration: 4 years and 3 months’ imprisonment with a non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Mildenhall | Solicitor for the Director of Public Prosecutions |
| For the Offender | Mr A Lewin | Emma Turnbull Lawyers |
HER HONOUR:
1 Dean Warren Chapman, you have pleaded guilty to one charge of recklessly causing serious injury, which carries maximum penalty of 15 years’ imprisonment. You have also consented to a related summary charge being transferred from the Magistrates’ Court to the County Court and have pleaded guilty to it. This is a charge of committing an indictable offence whilst on bail, which carries a maximum penalty of 3 months’ imprisonment.
2 The circumstances of your offending are summarised in the prosecution opening (Exhibit “A”). On Saturday, 22 December 2018, your victim had been celebrating his thirtieth birthday with a group of approximately 15 friends. They left Hopscotch Bar on Riverside Quay, Southbank, at approximately 11.00pm. Your victim was standing outside smoking a cigarette and having photos taken with his friends. At approximately 11.13pm, you approached your victim’s group. You were aggressive and a member of his group pushed you away. The groups then separated. A short time later, CCTV footage (Exhibit “C”) shows that your victim was walking away when you came up beside him and, without warning, punched him to the head causing him to fall to the ground and strike his head on the concrete pavement. This is the charge of recklessly causing serious injury.
3 Following your assault upon your victim, you ran from the scene, but were pursued by his friends and ultimately apprehended by police. You were so affected by alcohol that, well over four hours later, a medical practitioner gave an opinion that you were not fit to be interviewed.
4 On 14 June 2018, you had been placed on bail for offences of driving in a manner dangerous and intentionally damaging property. You were still on bail for those offences at the time of committing the charge of recklessly causing serious injury. This is the basis for the related summary offence of committing an indictable offence whilst on bail.
5 Your victim suffered loss of consciousness as a result of your assault and heavy bleeding to the face. He was taken by ambulance to the Alfred Hospital. There he was found to have suffered a full thickness upper mid line lip laceration, photographs of which were tendered as Exhibit “B”. This was a very nasty gaping wound dividing your victim’s upper lip completely in two just below his nose. He required emergency surgical repair for it. Your victim also suffered a displaced left nasal bone fracture which required a nasal bone splint and a chipped upper left first tooth, as well as a collection of blood on the left back of his scalp and a closed head injury with possible concussion and slurred speech. He required a CT scan and x‑rays and medication, which included antibiotics and a tetanus vaccination booster. He remained in hospital for four days.
6 It is plain that your criminal attack upon your victim has had significant consequences for him. In a Victim Impact Statement made on 24 January 2019 and a subsequent statutory declaration dated 13 September 2019, your victim stated that, after the sutures were removed from his lip, it was not aligned and he is unable to have his top lip fully meet his bottom lip. Prior to the assault, he had perfectly aligned teeth as he had worn braces for a number of years. His teeth are now out of alignment and his upper left first tooth has a sharp edge which makes it difficult for him to eat without hurting himself with the sharp tooth. He still has issues chewing food because of both his lip and teeth issues. He also still has a bump on his head from hitting his head on the pavement. In addition, he understands that his nose is not internally completely aligned from the hairline fracture and he still has difficulty blowing his nose properly. He has endured considerable physical pain and suffering.
7 Your victim states, also, that he has suffered considerable anxiety and depression which have required him to seek counselling from a psychologist who has diagnosed Post-Traumatic Stress Disorder. He has ongoing fears for his security and trouble trusting people. He limits his social outings because he is no longer so comfortable in public spaces. He finds it difficult to catch public transport or walk around streets in a crowded place, as he is afraid. He finds he is constantly looking out for himself and cannot relax and be at ease.
8 Your victim has suffered other consequences, as well. He had just finished his Master’s degree and had a successful career in banking. He had to take two weeks off on sick leave initially and, when he returned to work, he found that he was unable to concentrate and understand spreadsheets, so had to take additional sick leave and annual leave as a result of the problems from the injuries you caused. He had been due to undertake a managerial uplifting skills course to enhance his career and has had to defer undertaking this course. He used to have a part time job as an Uber driver. Apart from losing significant income over the busy Christmas and New Year holiday period, he has now ceased this second job as he has a fear of intoxicated passengers and concerns about his security. Thus, your offending has impacted significantly upon his income.
9 In addition, because of your victim’s injuries he was suffering post-concussive symptoms for approximately nine months after the assault. He finds that if he runs for 5 minutes, he becomes dizzy and is unable to play cricket anymore. Generally speaking he has suffered extreme mood swings, poor health and, as he is from overseas with no family or relatives in Melbourne, he has found it difficult to deal with the aftermath of this assault on his own and has suffered social isolation and an inability to return to any social gatherings at the venue where the assault occurred. These are all foreseeable and understandable consequences of your criminal conduct upon a decent, innocent young man who was simply out enjoying his thirtieth birthday with his friends when you attacked him.
10 You are presently aged 24 years, having been born on 15 May 1995. It is of concern that you have one relevant prior conviction on 11 August 2015 for recklessly causing injury, of which you were convicted and ordered to undertake a community correction order for a period of 18 months, with the condition of performing 250 hours of unpaid community work, and also fined $1,000. This offence occurred on 8 March 2014. You and an unknown male had an argument on the steps outside Flinders Street Station. Your victim had attempted to stop the argument and you pushed him to the chest. Your victim walked away and you and one of your companions followed him, and you then punched your victim to the face while your companion stood behind your victim, holding him. You pursued your victim and punched him to the face, knocking him to the ground, resulting in him hitting his head on the concrete, and you and your companion then ran away, picking up a bottle which you brandished as a weapon before you left the scene. Your victim was transported to St Vincent’s Hospital where he was found to have suffered a fractured jaw and graze to his elbow.[1]
[1]See Summary of Offending, Exhibit “E”
11 It is an aggravated feature of the offending for which I must sentence you, that you were on bail at the time, apparently for an offence involving you performing noisy burnouts in a car park and another offence of breaking three windows of a bus shelter.
12 In a plea on your behalf by Mr Lewin, it was conceded that your violence towards your victim on 22 December 2018 occurred when you were heavily intoxicated. It was urged, on your behalf, that the Court should find that your offending was relatively spontaneous, not committed in the company of others, not a sustained attack, and that your victim’s injuries were at the lower end of the spectrum for serious injury.
13 Mr Lewin said you grew up in a stable family. Both of your parents and your older sister were in Court to support you. You completed schooling to Year-10 level and have held a variety of jobs over the years of a labouring-type nature. Most recently, you were employed operating a forklift on the docks. Your counsel stated that you had a continuous work history since leaving school and had never been in receipt of Centrelink benefits.
14 Your counsel stated that you had always lived at home with your family and have been in a stable relationship with your girlfriend for six years. However, you had a background of problematic alcohol abuse, as well as abuse of Xanax and Ecstasy. He conceded that the earlier injury charge, of which you were convicted in 2015, also occurred in the context of intoxication. You apparently completed the community correction order for that offence, which involved only unpaid work and no treatment conditions. Mr Lewin stated that you had never had any alcohol-specific counselling or treatment, except for a course undertaken in custody. He conceded that such counselling, along with anger management, would be appropriate.
15 Mr Lewin conceded that denunciation and general deterrence were important principles in sentencing you for this offending but urged, given you had now been in custody for 10 months and had time to reflect upon your conduct, that there had already been some specific deterrence.
16 Your counsel relied upon the report of Mr Tim Watson-Munro, psychologist, dated 20 September 2019 (Exhibit 1). Mr Watson-Munro had noted that your consumption of alcohol had gradually escalated from your mid-teenage years and, in the lead-up to your arrest, you generally consumed between and three and five cans of mixed spirits per day, and over a weekend would consume up to a slab of mixed drinks. You acknowledged alcoholic blackouts had occurred on occasion. He noted that you had detoxified whilst in custody and were employed gainfully in the kitchen at Ravenall Correctional Centre.
17 Mr Watson-Munro did not think that you suffered from any major psychiatric or psychological disturbance, but that you do have a mild and recurring Depressive Disorder. He stated of you:
“He appeared to have some developing insight to the dynamics surrounding not only the current offending but indeed his prior behaviour. He recognises that alcohol has a dramatic and negative impact upon his judgement, consequential thinking and impulse control. Arising from this he expressed a willingness for professional intervention.”
He went on to state:
“He expressed appropriate remorse for his actions and acknowledged the significant injuries sustained by the victim.”
He noted that your family and girlfriend support you by visiting you regularly in custody and that, as you have now been free of drugs and alcohol for some months, you are in a good position to respond to appropriate therapeutic intervention such as Cognitive Behaviour Therapy.
18 On your behalf it was urged that the Court should place significant emphasis upon your rehabilitative prospects because of your relative youth. Your counsel urged that your pleas which were early ones should be regarded as remorseful pleas, noting that, apart from Mr Watson-Munro, a couple of the authors of references on your behalf (Exhibit “2”) mentioned that you had expressed remorse for causing injury to the victim and taken full responsibility for your actions.[2] The Court was asked to note that you had used your time productively in custody by undertaking a number of courses including Coping in Custody, Managing Your Anger, an information course on cannabis and alcohol and another course on conducting a healthy lifestyle (Certificates for these course were tendered as Exhibit “3”). You apparently have the opportunity upon release from custody to work with your father and live with your family and, given the support that you have and the positive aspects of your character as trustworthy, reliable and hardworking person mentioned in the character references, Mr Lewin submitted that the Court should impose a combination sentence by way of a term of imprisonment and a Community Correction Order pursuant to s44 of the Sentencing Act. Mr Lewin noted that your previous Community Correction Order did not have any rehabilitative conditions and submitted that, attaching such conditions to a CCO now, would assist your rehabilitation.
[2]Reference of Stephanie Parente and Santina Parente and Natalie Parente, part of Exhibit “2”
19 The prosecution submitted that an immediate custodial sentence was required but a combination with a Community Correction Order was open.
20 Your offence was an unprovoked attack on an innocent stranger in a public area where others were enjoying themselves and in circumstances where your victim was walking away from you. Unhappily, this type of offence is all too prevalent and a matter of significant concern in our community. The Riverside Quay area is an attractive part of Melbourne which residents and tourists enjoy visiting. Melbourne is proud of its profile as a safe and attractive city, and for a number of years, received recognition as the world’s most liveable city. Violent, anti-social conduct like yours causes people to feel unsafe. It not only adversely affects your victim but the amenity of the area. It is plain from the CCTV footage that there were many other people in close proximity at bars and restaurants and strolling along the river area when your appalling conduct occurred. In my view, emphasis upon the principles of denunciation, general deterrence and just punishment must be predominant in sentencing. By your plea of guilty, you have acknowledged that your foresaw the probability that punching your victim would cause him serious injury but proceeded to punch him regardless of that probability.
21 An assessment of the seriousness of a particular case of recklessly causing serious injury involves considering both the degree of probability that serious injury will result and the degree of seriousness of the injury thus foreseen. You delivered a punch which was so forceful that it caused your victim to fall to the ground. It was delivered in a king hit style from his side where he had no way of anticipating that it was coming and, hence, no way to protect himself from the potential of cracking his head on the concrete pavement below. A forceful punch to a victim’s head is extremely dangerous particularly where, as in this case, there was a high probability that he could strike his head on the concrete, which in fact he did. It was a totally gratuitous, cowardly and unprovoked attack. The Court of Appeal has made it plain that violence of this type near places like hotels and bars, which seems to have become prevalent in recent times, must not be treated lightly and the enjoyment and relaxation of those attending such venues should not be marred by such incidents.[3]
[3]Director of Public Prosecutions v Cook (2004) 141 A Crim R 579, 585 paragraph [14] as approved in Winch v R (2010) 274 VR 658
22 The need for considerable weight to be given to general deterrence of such unexplained, unprovoked acts of violence in these areas towards an innocent and unsuspecting member of the public has been emphasised by the Court of Appeal.[4] In addition, the Court of Appeal has made the following statement:
“Random street violence is a scourge on our society. Typically the violence is brief and unpremeditated, but it has profound and enduring consequences. Innocent people are killed or seriously injured; their families are devastated; their communities disrupted. And the outburst of violence is ruinous for the offender too. Imprisonment with all its destructive consequences is virtually inevitable, as is the shame and embarrassment felt by the offender’s family.”[5]
[4](ibid) 588 paragraph [26]
[5]Director of Public Prosecutions v Russell (2014) 44 VR 471
23 Although the injuries sustained by your victim may not be as serious as some seen in offences of recklessly causing serious injury, one should never underestimate the consequences of a head injury which occasions loss of consciousness. It is clear from the Victim Impact Statement that your victim was still suffering dizziness and other symptoms of concussion for about 9 months after your attack. Dr Jason Schreiber of the Victorian Institute of Forensic Medicine stated that there appear to be longer term consequences of your victim’s closed head injury, that is, post-concussive syndrome impacting on his work and social life, that blunt force to the head carries risk to the essential organs such as the brain and the eyes and that there is a future risk of mental health and psychological problems due to the injuries.[6] Dr Schreiber also commented that the lip is a cosmetically important part of the body and that, without the surgical repair to it, your victim’s face would have had long term cosmetic disfigurement.
[6]Report dated 21 February 2009, page 213 of the Depositions
24 Although you are relatively young and your prospects of rehabilitation may be reasonable provided you remain abstinent from alcohol, I do not consider that your rehabilitative prospects should outweigh the emphasis to be placed on denunciation, general deterrence and just punishment. It is imperative that a strong message get to the community that this gratuitous, alcohol-fuelled violence will not be tolerated and will generally be met with an appropriate term of imprisonment. Your behaviour was that of a coward, not only in striking your victim in the way that you did but, also, in taking off after seeing him hit the ground, just as you had done on the previous occasion for which you were sentenced in 2015.
25 As I commented during the plea hearing, it was more good luck than good management that your victim’s injuries were not more serious than they were. It is fortunate that he was able to access emergency treatment by skilled surgeons promptly, otherwise he would have had a nasty disfiguring facial injury for life. I regard your culpability as high and I do not consider that a combination sentence pursuant to s44 of the Sentencing Act adequately reflects the gravity of your offending. I consider that the only appropriate sentence is a term of imprisonment with a head sentence and a non-parole period.
26 Having said that, you are to be given credit for your early pleas of guilty and I accept that there is some evidence that they are remorseful pleas. This entitles you to a significant discount upon your sentence. I acknowledge that the references (Exhibit 2) attest to the better side of your character and that you do have family support and the support of your girlfriend and her mother, as well as a good work history in your favour. I consider that recognition of your rehabilitative prospects is appropriately reflected in the non-parole period which I set.
27 I have already referred to the fact that it is an aggravating feature of your offending that you were on bail for other offences at the time. Section 16 of the Sentencing Act makes it plain that the presumption of concurrency does not apply in that situation. I consider that some cumulation of sentence should be given in relation to the summary offence. Unhappily, you have demonstrated yourself to be capable of antisocial behaviour on more than one occasion, particularly in the context of abusing alcohol. However, I do acknowledge that, at the age of 23 years, as you were when you committed this offence, you were probably immature and may well still be immature, albeit that Mr Watson-Munro has stated that you are developing insight. I accept that you have had time for reflection whilst on remand and that the emphasis upon specific deterrence now is reduced from what would have been required at the time you were remanded in custody. It is hoped that a sustained period of abstinence from alcohol and illicit drugs during your non-parole period will stand you in good stead to continue your rehabilitation if you are released on parole. If and when that occurs is not a matter for me but for the Adult Parole Board.
28 On Charge 1, recklessly causing serious injury, you are convicted and sentenced to be imprisoned for a period of 3 years.
29 On the summary charge of committing an indictable offence whilst on bail, you are convicted and sentenced to be imprisoned for a period of 1 month, which is to be served cumulatively upon the sentence imposed on Charge 1.
30 The total effective sentence is thus 3 years and 1 month’s imprisonment. I direct that you serve a period of 19 months before becoming eligible for parole.
31 I declare a period of pre‑sentence detention of 286 days to be time reckoned as already served under the sentence imposed this day.
32 Pursuant to s6AAA of the Sentencing Act, I stated that had it not been for your pleas of guilty, the total effective sentence imposed would have been 4 years and 3 months’ imprisonment with a non-parole period of 3 years.
33 Pursuant to s464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with Subdivision 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I consider that this order is warranted by reason of the seriousness of the circumstances of the offence.
34 You need to understand, Mr Chapman, that if you do not cooperate with the taking of a swab of saliva from inside your mouth, then police may use reasonable force to enable that forensic procedure to be conducted.
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