Director of Public Prosecutions v Cole

[2023] VCC 200

IN THE COUNTY COURT OF VICTORIA

AT Geelong

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01750

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEON COLE

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Geelong
DATE OF HEARING:	10 February 2023 (Geelong)
DATE OF SENTENCE:	21 February 2023 (Melbourne)
CASE MAY BE CITED AS:	DPP v Cole
MEDIUM NEUTRAL CITATION:	[2023] VCC 200

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence

Catchwords:              Plea of guilty – Recklessly causing serious injury – Relatively youthful offender – Serious example of the offence – Limited criminal history – COVID-19 pandemic – Good prospects of rehabilitation – Drug and alcohol use linked to offending – Expressions or remorse.

Legislation Cited:      Crimes Act 1958 (Vic), s 17; Sentencing Act 1991 (Vic), ss 18, 6AAA.

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Azzopardi v The Queen (2011) 35 VR 43

Sentence:                  Imprisonment for a period of 3 years and with a non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S Devlin	The Office of Public Prosecutions
For the Accused	Mr A Paull	Adrian Paull Lawyers

HIS HONOUR:

Introduction

1Deon Cole, you have pleaded guilty to one charge of recklessly causing serious injury, contrary to s 17 of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 15 years imprisonment (Charge 1).

2You have also admitted your criminal record.

Circumstances of the offending

3A prosecution opening was tendered on the plea and may be summarised as follows:

4On 22 February 2022, you made contact with the victim, Mark Cooper, on a free classifieds application called ‘Locanto’ in response to an advertisement seeking a sexual encounter.

5The two of you, via messages on the Locanto app, discussed personal details, exchanged photos and details of what you each wanted from the encounter. The victim provided you with his mobile number.

6The two of you had further discussions via text message, and made arrangements to meet that night. The victim booked an Uber for you to attend his house.

7The Uber picked you up from an address in Newcomb at 6:15pm and dropped you off at the victim’s address in Grovedale at 6:30pm.

8The two of you remained at the address together, with the victim showing you his pets, including a two meter long python snake. The victim took photographs of you holding the python at the time.

9The victim remembers sitting at the dinner table and then does not recall anything until being with hospital staff and police the next day.

10At 11:55pm, you attended the Geelong Police Station and spoke to First Constable Luke Searle (‘Searle’). You disclosed that:

(a)   you had badly hurt somebody at an address in Grovedale;

(b)   you had been sent there by a friend of a friend called Ryan to acquire methamphetamine;

(c)   when you arrived at the address, you stayed for a short period and chatted with the male occupant. You asked the male to book you an Uber to go home;

(d)   the male did not book an Uber and said, ‘I didn’t order you an Uber home as I was hoping something would happen between us,’ and then grabbed your penis on the outside of your pants; and

(e)   you asked the male to show you proof of the Uber being ordered, and when the male was distracted, you picked up an unknown object and hit him in the face. The male stood there and looked confused, so you struck him again, causing him to fall to the floor.

11Searle asked you for further details in relation to the location of the incident but you did not disclose any further details before leaving the police station.

12About 10 minutes after you left, Searle received a call to the police station watch house from your sister, who indicated that you had hurt someone at an address in Grovedale.

13Constable Ryan Jones (‘Jones’) and Constable Reece Illig (‘Illig’) were requested to attend the Grovedale address. They arrived there at 1:10am, locating the victim covered in blood, with a wound to his scalp and swelling to his face.

14Jones and Illig searched the victim’s premises, locating a broken glass with blood on it on a bench in the lounge room and a white piece of coral on a mat in the middle of the lounge room, surrounded by blood.

15During their investigations, Jones and Illig took photos of the property, the victim’s injuries, the broken glass and the white piece of coral. The victim was later transported to the hospital.

16The victim sustained the following injuries:

(a)   multiple facial fractures:

(i)complex multi-fragmented fractures of the nasal bones;

(ii)complicated multi-fragmented fractures of the eye socket;

(iii)fractures in the upper jawbone;

(iv)fracture through the right zygomaticospenoid suture;

(v)fractures on both sides of the cheekbone;

(b)   bleeding on the brain; and

(c)   three haematomas on the scalp.

17Dr Jason Schreiber, Forensic Physician with the Victorian Institute of Forensic Medicine, commented on the victim’s injuries as follows:

(a)   there were complex facial bone fractures that required surgical treatment with insertion of stabilising metal foreign bodies to both sides of the face for the fractures to have a chance to heal;

(b)   it requires significant force to cause complex facial bone fractures;

(c)   without surgical intervention, problems to essential activities such as eating, drinking and speaking, as well a cosmetic facial disfiguration were likely to remain for the rest of his life, impacting on the victim’s work and social life;

(d)   the metal foreign body inserted in the face increases risks of infection; and

(e)   the victim is at risk of developing psychological sequelae as a result of the injuries.

18You attended at Geelong Police Station on 8 March 2022, where you were arrested and interviewed.

19During interview you stated the following:

(a)   you met up with a bloke and hung out. You ‘asked about an Uber to leave’ after about 15 minutes he said that ‘the Uber wasn’t coming’ and that he ‘wanted something to happen’ between the two of you. You said he ‘took a couple of steps forward and he touched me’. You told him you didn’t want anything to happen and ‘told him no’ and pushed him off you. You asked him what time it was and then ‘freaked out’ and ‘didn’t know what to do’. You said you remembered hitting him with the glass you had in your hand. Afterwards, he said something to you and you ‘freaked out more’ because you were scared. You said you ‘[didn’t] know what to do’ and that you thought ‘something was gunna (sic) happen’ to you, so you reached behind you to ‘find whatever [you] could hit him with again and [you] found a rock’ and hit him with that as well;

(b)   the male touched you on your penis over the pants;

(c)   you denied being in contact with the victim via the Locanto app;

(d)   you said you didn’t remember texting the victim but agreed the messages were from you; and

(e)   you denied that the messages with the victim were of a sexual nature.

Nature and gravity of the offending

20The gravity of the offence of recklessly causing serious injury is reflected in its maximum penalty of 15 years imprisonment. While the offence is a broad one that can be committed in a wide variety of circumstances in my view, in this instance, your conduct represents a relatively serious example.

21Consistent with the explicit text message exchange between you and the victim, you had attended at the victims home for some kind of sexual encounter. The evidence reveals that you were there for some five hours. The evidence does not disclose a great deal about what occurred in the preceding hours before the assault. On your version of events, it was as you were planning to leave that you say the victim touched you and you violently responded.

22On your own admission, you first struck the victim with the glass you were holding and then with another object you referred to as a ‘rock’, which was some form of decorative coral. The strikes with the two objects were the cause of the serious injury as described.

23In assessing the gravity of the offending, I take into account the nature of the injuries sustained by the victim. While it appears that the injuries were not immediately life threatening, it is clear from the evidence and the victim impact statement, that the injuries are very serious, the effects of which the victim continues to suffer from, both physically and psychologically. I also take into account the fact that you used two weapons of the nature you described, and that in the circumstances you would have been well aware that serious injury would result. As noted, in all the circumstances, your assault on the victim in his own home represents a relatively serious example of the offence of recklessly causing serious injury.

Victim Impact Statement

24A victim impact statement was prepared by Mr Cooper and tendered on the plea. Mr Cooper describes how prior to this incident, he was a ‘confident and very community minded person’ who enjoyed his life ‘without reservation’. Because of your assault against him, he was compelled to take three and a half months of sick leave to recover and has now been left with significant physical disabilities which impede his daily living – basic acts like chewing food and showering are now a struggle. He regards himself as ‘lucky to be alive’ but continues to ‘relive the assault every moment of the day’.

25Mr Cooper also describes the psychological toll the assault has taken on him. The victim has since returned to work, but this in itself has been a retraumatising process. He had to request a desk in the corner so that no one would approach him from behind. He fears walking from his car to the office where he works and now feels compelled to ‘turn around and check what is behind [him]’. The victim describes how he has to spend a lot of time in ‘self-talk’ just to get through the day.

26Financially, Mr Cooper notes that he has had to pay out of his own pocket for medical intervention and other costs, including having his carpet replaced.

27I take the victim impact statement into account.

Personal Circumstances

28You are now 23 years of age. You were born in Werribee and currently reside in Colac with your parents. You have two brothers and a sister. Although you felt somewhat distant from your siblings growing up, you now enjoy their support, as well as that of your parents, who were present in court during the plea hearing. Your family struggled financially when you were younger, however you always had what you needed. No one in your family has ever had interactions with the criminal justice system.

29You attended four or five primary schools as a result of your parents moving. You were bullied at school due to being obese, and this led to isolation from your peers. This sense of isolation and a lack of support from your teachers continued into your secondary schooling. You left home at the age of 15 and experienced homelessness for the next two or three years, sleeping in parks or couch surfing.

30You have a five year old son from your first serious relationship, which commenced when you were 17 years old. Your son is now in the care of your sister. You have a second son from a subsequent relationship, with whom you have no contact.

31You have a consistent employment history, including in retail, roof tiling and carpentry. For the past four months, you have been a supervisor at a local cinema complex. Although you have never been dismissed from a job, you have had difficulties in the past keeping jobs because you lacked a fixed address.

32You report that your grandfather assaulted you between the ages of seven and nine. You disclosed this to your grandmother, who did not believe you. You had limited contact with your grandparents after this time and would resist attending their home. In his psychological report dated 24 November 2022, consultant psychologist Warren Simmons opines that this history of sexual abuse may have contributed to your offending in this case, in the context of you experiencing Post-Traumatic Stress Disorder. He further notes that you are aware that what you did was wrong, as evidenced by the fact that you attended the police station immediately, and that you appeared remorseful during your assessment. However, you were unable to provide any significant insight into why you reacted the way you did.

33You have a history of substance use, starting at the age of 12, when you were introduced to cannabis by your peers. You currently smoke cannabis every two to three days and report that it assists you with sleep and stimulates your appetite.

34You started using methamphetamine when you were 14 years old. This continued for three years. You also took ecstasy, MDMA, ketamine and GHB, as well as cocaine for a period. You recommenced using methamphetamine at the start of 2022, as a way to enhance your mood after experiencing some personal setbacks, including a loss of employment and a separation from your partner. You were also consuming up to a slab of beer on a daily basis. Following this offending, you have ceased drinking alcohol.

35I note that you were sentenced to a nine month Community Correction Order (‘CCO’) in November 2020 in relation to prior offending. The offending included breaches of intervention orders, unlawful assault and criminal damage. Following a contravention hearing in October 2022, the CCO was varied and extended for a further fifteen months. A condition of this CCO is that you undertake treatment and rehabilitation for your drug addiction. In satisfying this condition, you have completed a course of Alcohol and Drug Treatment and provided urine drug screens. Your two most recent urine drug screens have detected cannabis.

36A number of character references from family members and friends were tendered on the plea. The references all refer to the difficulties you have experienced in your life and reflect a shared belief that your behaviour in this instance was out of character, and that you are remorseful.

Sentencing Considerations

37I first take into account your plea of guilty. The matter proceeded to this court by way of straight hand-up brief and no witnesses have been cross-examined. As such your plea has saved significant court time and expense and therefore has facilitated the course of justice. The plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea was entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[1]

[1] Worboyes v The Queen [2021] VSCA 169, [39].

38Over and above your plea of guilty, I accept that there is evidence of remorse which is expressed in the report of Mr Simmons and in the references tendered. I also acknowledge that shortly after the assault, you attended the police station and alerted the police to the fact that you had seriously injured the victim.

39Your youth is a relevant consideration. You are 23 years of age and were 22 at the time of the offending. As such, it was submitted that rehabilitation should, despite the seriousness of the offending, take a primary role in the sentencing discretion.  While I accept the well settled principles in relation to young offenders, and that they do have application in your case, I must also weigh those considerations with the seriousness of the offending in this instance.

40In Azzopardi v The Queen[2], having reviewed the established authorities in relation to young offenders, Redlich JA said:

The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment, and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced.  As the level of seriousness of the criminality increases, there will be a corresponding reduction in the mitigating effects of the offender's youth.  But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.

[2] (2011) 35 VR 43, [44].

41In my view, the other relevant sentencing considerations such as general and specific deterrence, and denunciation of your conduct, must carry weight in the sentencing discretion in this instance and therefore the mitigating effect of your youth is necessarily reduced. However, as you are still a relatively young offender with a limited criminal history, despite the seriousness of the offending, in my view your rehabilitation remains prominent in the sentencing discretion.

42Turning more specifically to your prospects of rehabilitation, I accept that you are taking positive steps to remain drug free, receiving some assistance through the CCO you are currently completing. Further, since the offending you have obtained employment and are settled, living with your parents in Colac. You have a relevant, although limited prior criminal history and, as noted by Mr Simmons, you have an appreciation of the link between your drug and alcohol use and the offending on this occasion. In my view in all the circumstances, your prospects can be assessed as very good.

43Mr Paull, who appeared on your behalf, submitted that a CCO alone would be able to meet the relevant sentencing considerations in this instance. In the alternative it was submitted that a combination sentence would be in range. Mr Devlin, who appeared on behalf of the Director of Public Prosecutions, submitted that because of the seriousness of the offence and the need for general deterrence, the only appropriate sentence is one of imprisonment in the form of a head sentence and a non-parole period.

44In my view, a term of imprisonment is required in order to meet the relevant sentencing considerations. I am also of the view that the seriousness of the offending is such that a combination sentence is unable to address the relevant applicable sentencing principles in this instance. However given your youth, and good prospects of rehabilitation, in my view a longer than usual parole period would be appropriate.

45As you will be required to serve a term of imprisonment, I take into account, and accept, the opinion of Mr Simmons that as a result of your personality difficulties you may find prison more onerous.

46Finally, I take into account that prisoners are still labouring under restrictions as a result of the ongoing pandemic resulting in extended periods of isolation and restrictions on services offered.

Sentence

47Mr Cole, would you please stand.

48Deon Cole, on Charge 1, causing serious injury recklessly, you are convicted and sentenced to 3 years imprisonment. I direct that you serve 18 months imprisonment before becoming eligible for parole.

49Pursuant to s 18 of the Sentencing Act 1991 (‘Sentencing Act’), I declare that 11 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

50Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty, I would have sentenced you to a period of 4 years and 6 months imprisonment with a non-parole period of 3 years.