Director of Public Prosecutions v Constable

[2023] VCC 1748

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT HORSHAM

CRIMINAL JURISDICTION

CR 23-00366

CR 23-00367

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM CONSTABLE

LUKE JONES

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Horsham
DATE OF HEARING:	21 September 2023
DATE OF SENTENCE:	26 September 2023
CASE MAY BE CITED AS:	DPP v Constable & Anor
MEDIUM NEUTRAL CITATION:	[2023] VCC 1748

REASONS FOR SENTENCE

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Subject:

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Legislation Cited:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Grant	Director of Public Prosecutions
For Accused Constable	Ms E. McKinnon	Furstenberg Law
For Accused Jones	Mr A. Cameron	Angus Cameron Lawyers

HIS HONOUR:

Introduction

1William Constable and Luke Jones, you have each pleaded guilty to one charge of common law assault against Ross McDermott, maximum penalty 5 years' imprisonment, and a charge of intentionally causing injury, maximum penalty 10 years' imprisonment. William Constable, you have also pleaded guilty to one charge of aggravated burglary, maximum penalty 25 years' imprisonment. You, Mr Constable, have also pleaded guilty to one charge of failing to comply with a direction to provide access to a storage device. Maximum penalty two years' imprisonment or 240 penalty units. Save for the uplifted summary charge, all the offences occurred on 13 December 2021 at the Royal Hotel in Firebrace Street, Horsham.

Details of the offending

2The details of the offending were set out in the prosecution opening which was read in open court on the plea and which I incorporate by reference. The following is a brief outline.

3The two of you and another man Mr Cieslik were working in the area for a drilling contractor. On the afternoon of 13 December 2021 after work the three of you were drinking at various hotels and ended up at the Royal Hotel. At 7.18 pm the three of you arrived at the Royal Hotel, purchased alcohol and repaired to the beer garden. The complainant was a resident at the hotel in an upstairs room. He and two other residents, Mr Coutsoulevis and Mr Reed were in the room relaxing. At around 8:40 pm the complainant observed the three of you carrying on in the beer garden and from an upstairs window yelled at your group to 'shut up'. Shortly after he stood at the top of the stairs where the three of you could observe him and you and the complainant, that is you Mr Constable, were taunting each other. You, Mr Constable, were gesturing to the complainant to come downstairs and at one stage you attempted to climb a staircase that would allow you to access the upper floor. The complainant returned to his room with his two fellow residents.

4A short time later you, Mr Constable, and Mr Cieslik, closely followed by you, Mr Jones, entered the foyer of the hotel and went up the stairs to the upper floor where the bedrooms were. You located Mr McDermott's room, knocked on the door and entered it. At that point the two of you, Mr Constable and Mr Jones, began arguing with the complainant and asking him to come out. The complainant was sitting on his bed rolling a cigarette. His fellow resident Mr Reed left the room and at that point you, Mr Constable, approached the complainant and struck him with a forceful openhanded slap to the left side of his face. The force of the blow caused him to fall back on the bed. You, Mr Jones, were capturing this event using your mobile phone. This constitutes Charge 1, common assault. The two of you left the room and you, Mr Constable, sought to re-enter the room but the complainant pushed against the door and the two of you left the area. Mr McDermott felt his face stinging and swollen.

5CCTV captures the two of you and Mr Reed back in the beer garden laughing and shadowboxing. You, Mr Jones, sent the video of the assault to an associate via Facebook messenger.

6Around 9 pm the three of you returned to the upstairs residential area of the hotel. You, Mr Constable, approached the complainant's door and knocked on it. The complainant told Mr Coutsoulevis not to answer. You then burst into the room damaging the door. You threw a glass directly at the complainant which missed and smashed against the wall behind him. You, Mr Constable, then punched the victim with a clenched fist to the face and upper body multiple times with the complainant's blood being cast across the walls and on the bed. He was cowering and attempting to shield himself and Mr Coutsoulevis was attempting to intervene and was kicked by you, Mr Constable, in the process. You, Mr Jones, were standing near the doorway watching and encouraging, by your presence, what was going on.

7These events constitute the charge of aggravated burglary against you, Mr Constable, and intentionally causing injury against the two of you, with your liability Mr Jones being complicit in the assault by Mr Constable.

8The two of you and your fellow worker left the hotel shortly thereafter. At 9.15 pm and 10.38 pm you, Mr Jones, sent messages to two associates bragging about what you had done including 'put him in hospital' and 'finished him'.

9Police and ambulance were called. Mr McDermott had blood pouring out of his nose and his face was beginning to swell.

Injuries

10Mr McDermott was conveyed to the Wimmera Base Hospital with facial bruising and superficial lacerations. He had sustained two black eyes and a non‑displaced orbital fracture as well as a left rib fracture and facial injuries. He was managed conservatively and discharged from the hospital on 15 December. A number of photos were tendered in the course of the plea indicating the injuries suffered by the complainant.

Subsequent events

11On 21 December police attended at the Horsham Holiday Park where the two of you and Mr Cieslik were staying. You were all arrested. You, Mr Constable, gave a no comment interview. In the course of that interview, you declined to provide the PIN for your phone which gives rise to the summary charge. You, Mr Jones, denied any involvement, as did Mr Cieslik. The latter was interviewed but not charged.

12The mobile phone owned by you, Mr Jones, was subsequently opened by the police and that is where a video of the first assault was found, as well as the messages.

Victim impact statement

13Mr McDermott wished to read to the court a victim impact statement dated 6 September 2023 but was unavailable. In his victim impact statement he says that the crime has had a 'large impact on my life', he lost his housing, he still has pain in his ribs and he could not work and thus lost his job. He became homeless for a period, and he still has pain that affects his sleep. Money has affected most of his life and he has medical bills. He ends by saying 'I feel like I'm stuck in a rut every day and my life has gone downhill'.

14It is clear from the VIS that your crimes have had a major and continuing impact on Mr McDermott which must be taken into account in assessing the seriousness of the offences and in sentencing.

Seriousness of the offences and moral culpability

15The offences of assault and intentionally causing injury can occur in a wide variety of circumstances and have a wide variety of consequences. Here the assault involved in Charge 1 was captured on a video by you, Mr Jones, and shows a heavy punch like slap delivered by you, Mr Constable, to Mr McDermott who was sitting on a bed minding his own business rolling a cigarette and had not provoked you. You, Mr Jones, were complicit in that you were filming the event, which on any view constitutes encouragement. It was a cowardly attack.

16The offence of aggravated burglary here was a serious example and the offence seriousness is marked by a maximum penalty of 25 years' imprisonment. You, Mr Constable, broke forcefully into Mr McDermott's room. He was a soft target and you had minutes earlier engaged in an unprovoked attack against him. When you entered the room you threw a glass in his direction, smashing it on the wall. You then proceeded to punch him a number of times resulting in an un-displaced orbital fracture.

17Your intention at the time you entered the room, which is when the crime is complete, can be seen by reasoning back by inference from your conduct thereafter, which was an aggressive assault on a soft target. Although technically you, Mr Constable, were not in the company of Mr Jones and Mr Cieslik when you committed this crime, they were lurking outside in the corridor. Although you did not use a weapon to attack Mr McDermott, you used your fists to do so and your ability to use them is obvious from the earlier video of the first assault.

18Your counsel, Mr Constable, accepted that this was a serious example of aggravated burglary, and while aggravating features often seen in these types of offences such as disguise, the offence occurring in the middle of the night, and the offence occurring against persons unknown to you, it was still a major invasion of Mr McDermott's room, which was his home, when he was merely minding his own business. As I have noted it had a significant impact on him which must be factored in.

19The final charge of intentionally causing injury involved you, Mr Constable, inflicting a significant assault on a soft target who had done nothing that could be claimed to be provocation, where shortly earlier you had also assaulted him.

20Overall, you each must each bear high moral responsibility for these offences particularly given that both of you had been drinking previously.

21In your favour, Mr Jones, there was little preplanning and effectively you followed along with your co-offender in alcohol fuelled group behaviour. You filmed the first assault, were ready to assist in the second more serious assault, and bragged about them subsequently.

Subjective matters.

Prior convictions

22No prior convictions are alleged against you Mr Jones.

23You, Mr Constable, are now aged 24 and were 23 at the time of the offending.  You have admitted three prior appearances in the Magistrates Court involving prohibited weapons, possession and trafficking of cannabis, dealing with property suspected of being proceeds of crime and failing to comply with a direction. Your last appearance was on 27 April 2021 when on charges of trafficking cannabis you were convicted and fined $1,500. On the charge of dealing property suspected of being proceeds of crime and failing to comply with a direction of an authorised officer, you were convicted and fined $500 in each of those charges. On the earlier appearances you were placed on non-conviction dispositions.

24I regard your prior appearances as having only limited weight in sentencing here, but you cannot say you are a first offender or of good character.

Personal circumstances – Mr Constable

25Your personal circumstances are set out in your plea submission and also in the report of Dr Barth, psychologist, which I incorporate by reference.

26You hail from the Bendigo region and are a resident of a suburb of Bendigo. Your parents separated when you were very young and when you were aged three your father took his own life. Your mother re-partnered and you had a volatile relationship with your stepfather and were the subject of physical abuse. You left home when you were 18 and remain in close contact with your mother and sisters. You have two older sisters. Your mother and stepfather were in court to support you.

27Notwithstanding a diagnosis of ADHD at one stage, you were able to complete Year 11 at Bendigo Secondary College. You then completed two and a half years of a panel beating apprenticeship, and then a plastering apprenticeship for two years. You worked for a local plastering company where you had been apprenticed for a total of four years until 2021. You then obtained employment as a drilling offsider on a fly in fly out basis and were engaged by that company at the time of this offending. You were ultimately dismissed by the company in March 2022 because of your drinking problems.

28After you lost that job you returned to the Bendigo area and established a business as a plasterer and currently employ three staff.

29You have not had any long-term relationships.

Report of Dr Barth

30Your Counsel relied heavily on a report from a well-known forensic psychologist Dr Barth to provide a background as to your functioning at the time of the offending and subsequent attempts to address underlying issues.

31From an analysis of your background and being exposed to your stepfather's violence “you were brought up with a set of dysfunctional social mores which encourage the use of violence as a means of dealing with personal problems.” Therefore, he notes:

'Mr Constable has shown a propensity to engage in aggressive behaviour. He can be easily provoked when incidents of conflict arise and experiences an intense escalation of feelings of hostility when he feels challenged. Mr Constable's ability to manage conflict effectively is limited and he has placed a premium on dealing with conflict by resorting to aggressive behaviour to enhance his sense of masculinity.'

32He notes that you were introduced to alcohol from age 16 and that your alcohol consumption escalated in your early 20s, particularly when you are working as a driller's assistant. You were drinking heavily at the time of the offending.

33He opines that you are an immature young man easily influenced by your peers and prone to making decisions based on the kudos of your friendship group. This led you to this offending following the original interchange between the complainant and your group.

34He found that you meet the criteria for alcohol abuse disorder. You have reduced your consumption since the offending and that this disorder is now in remission.

Report of Mr Hanley, psychologist

35Subsequent to this offending you engaged on 15 occasions with this treating psychologist from July 2022 to date. This report complements the analysis of Dr Barth. Mr Hanley notes that you presented:

'as an assertive man with prominent antisocial personality traits and difficulty forming trusting relationships.'

36He notes you have problems with anger and alcohol use which he attributes to:

'adverse childhood experiences, observations of violence and utilisation of intimidation and aggression and to compensate for feelings of powerlessness and humiliation.'

37Through therapy with Mr Hanley he notes that you have displayed a promising shift in your attitude, several behaviour changes in relation to your use of alcohol and realistic and well considered plans for minimising the risk of violence in the future.

38Also tendered on the plea was a report from an AOD counsellor indicating that over a two-month period from November 2022 to January 23 you undertook six standard counselling sessions during which you evidenced a deep desire for continued positive change in your life.

References

39Your Counsel, Ms McKinnon, relied on a number of glowing references testifying to your strong work ethic and community contribution including at the Bendigo Food Share. Also one of your employees, Mr Boserio, gave a reference, and indicates that you have strongly supported him and he is relying on you for a job. Another referee, Mr Currie, who formerly employed you, strongly supported your work ethic and opined that these offences were very much out of character. Mr McDonald, a senior employee at the drilling company that you were working for, has known you for seven years and regards you as a good employee. He further notes that you are very remorseful for your conduct and he believes that alcohol played a major part.

Other matters in mitigation

40A central thrust of the plea was that these were very much out of character actions, and that subsequent to these events you have taken stock, you have insight into the underlying cause of your offending and are taking actions to address this underlying cause.

41These comments are supported by the opinion of Dr Barth who notes that you are:

'in the process of addressing significant personal issues… He has come to accept responsibility for his conduct… He has begun the process of achieving his therapeutic goals…'

42Mr Hanley states that:

'he has impressed me as a young man who was eager to accept influence, encouragement and direction.'

Prospects of rehabilitation

43Your counsel submitted that you are on a journey of rehabilitation. She relies on the comments in the references. She also relied on your insight into your behaviour, your letter of apology to Mr McDermott and your expressions of remorse to Dr Barth and Mr Hanley and in the references.

44I regard all these matters as significant and I am satisfied that your prospects of rehabilitation are good provided that the actions that you have already taken continue. Thus Dr Barth recommends that you continue with anger management training, alcohol-related counselling and psychological treatment. Mr Hanley also recommends continued programs focusing on violence, self-regulation and behaviour change.

Further matters in mitigation

45Your counsel also relied on your early plea of guilty both for its utilitarian value and as evidence of remorse. After discussion during the plea hearing I am satisfied that it was an early plea, as you had offered before the committal to plead guilty to aggravated burglary and the assault charges. Questioning during the committal did resolve the issue as to whether or not you could be charged with home invasion. Thus, the ultimate resolution of the matter involved the withdrawal of that charge.

46It was thus an early plea of guilty, it did facilitate the course of justice and entitles you to a discount for facilitating the course of justice and under the authority of Worboyes[1] a perceptible amelioration of your sentence.

[1]Worboyes v The Queen [2021] VSCA 169

Purposes of sentencing

47The basic purposes for which a court may impose a sentence are punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

Sentencing submissions

48The central thrust of your Counsel's submission was that the court should be able to deal with this matter by way of a non-custodial disposition or a CCO. The learned prosecutor submitted that a combination sentence may be within range.

Current sentencing practices

49In sentencing, along with a number of other matters, I must have regard to current sentencing practices for the relevant offence, along with the maximum penalty and the other matters set out in s5 of the Sentencing Act 1991. The learned prosecutor referred the court to a number of authorities in the Court of Appeal, not as comparative cases, but as providing some guidance as to the sentencing considerations in dealing with what have been described as 'confrontational aggravated burglaries' where no weapons were involved.

50The present case here is clearly one of a confrontational aggravated burglary. In involves a trivial grievance against Mr McDermott and an invasion of his room in circumstances where you were under the influence of alcohol, and while you were not technically in company, you did have Mr Jones and Mr Cieslik outside in the corridor.

51The Court of Appeal has said on a number of occasions, including in cases such as Hogarth, Meyer and Bowden, that sentencing courts have failed to properly reflect the seriousness of the offence and to the need for general deterrence and denunciation. [2]

[2]Hogarth v R  [2012] VSCA 302, DPP v Meyers [2014] VSCA 314, DPP v Bowden [2016] VSCA 283

52Each of the cases referred to in the prosecution plea submissions have their own unique features including the age and antecedents of the accused and the nature of the aggravating features. There are some similarities in the cases of Longhurst, Dow and Hope.[3] In the last case culpability was reduced due to the intoxication of the offender. I do not regard your culpability as being reduced on the grounds that you were intoxicated at the time.

[3]Longhurst v R [2021] VSCA 179, Dow v R [2022] VSCA 135, Hope v R [2021] VCSA 177

53In considering the approach by the Court of Appeal in those cases, it is relevant that most of the Court of Appeal decisions that were referred to, were brought down before the pandemic and thus do not factor in the Worboyes discount.

54In sentencing you I have anxiously considered the impact of a sentence of imprisonment on your path to rehabilitation. It is even more significant given that you have established the business and have persons dependant on you. You have been described as an immature young man and at your age are entitled to be considered a relatively youthful offender.

55You are also entitled to have weight given to your early plea of guilty and the benefit to the criminal justice system of a plea during the pandemic backlog.

56Given your lack of significantly relevant priors and the actions you have taken since the offending, considerations of specific deterrence have less significance here. Further, you have family support.

57Weighing against those matters is the seriousness of the offences here including their impact on Mr McDermott. The Court of Appeal has repeatedly said that general deterrence and denunciation must play a prominent part in sentencing for the offence of aggravated burglary, particularly in circumstances where the maximum penalty is 25 years' imprisonment.

58I accept also however that it is significant to impose a sentence of imprisonment on a 24-year-old for the first time.

59Weighing all these incommensurables is difficult but I have taken into account all the matters put on your behalf. On the basis of all the matters put on your behalf in mitigation, and in particular the comprehensive actions you have taken to advance your rehabilitation, notwithstanding your difficult upbringing, and your insight into your offending, these are all matters that I regard it as appropriate to afford you a considerable measure of leniency.

60I have determined however that a sentence of imprisonment is the only sentencing option that meets all sentencing considerations. The actions that you have taken to advance your rehabilitation since the offences, including your contribution to the community and in always being employed and presently employing others, are such that I regarded as appropriate to provide for a longer than usual period during which you will be eligible for parole.

61The separate offending involving the two assaults on Mr McDermott constitutes a course of conduct close in time to each other and thus an aggregate sentence for these two offences is appropriate.

62In sentencing you considerations of totality and proportionality must be also considered and thus substantial concurrency is called for.

63Your conduct on that occasion, Mr Constable, must be utterly condemned. The law must uphold the rights of quiet enjoyment of people whether they are tenants in a hotel room or in their own homes. You are not entitled to burst into another person's room or home and assault them. Particularly when you are under the influence of alcohol and over some trivial grievance. The sentence of the court must send a signal to all individuals minded to take the law into their own hands and to invade other's homes to settle such grievances, that it is totally unacceptable. Your attack on Mr McDermott on that evening was cowardly and utterly to be condemned. The sentence of the court must send a signal to you and to all other potential offenders, but also recognise the insight and remedial action that you have sought to take since this unfortunate event. I will come back to the sentence in a moment.

Personal circumstances – Mr Jones

64Your personal circumstances are set out in your plea submission. You were aged 26 at the time of the offending and are now aged 27. You are an Aboriginal man from Broken Hill from an intact family and the second oldest of five children, including three sisters. You were in Horsham as a fly in fly out employee when this event occurred, when you were away from your family staying in a caravan park with your fellow employees. It is almost notorious that fly in fly out employees are often found to be overindulging in alcohol in their off duties hours when they do not have the support of families and sporting engagements that would be applicable in their hometown.

65You have been immersed into your cultural heritage and have been able to reach Year 10 at Broken Hill Youth College. Subsequently you have followed your father's footsteps to work in the mines and have obtained qualifications in that field at Robinson College. You have been in employment since 2012 as a handyman, a butcher and then a labourer commencing in 2016, and then transitioning to the mining industry in 2018 before commencing in 2021 with the employer that you were engaged with that brought you to Horsham.

66You remain working for another mining company and are working towards obtaining a certificate in drilling.

67On the plea your counsel, Mr Sturgis, tendered a reference from your current employer who indicates that you are a hard-working employee and well regarded. The offending seemed out of character.

68On the plea was a reference from your partner, Ms Philp who have been with for eight years and you have built a life together involving a six-year-old son and a newborn aged four months.

69Your partner notes significant changes in your demeanour since the offending including attendance at AA and reduction in frequenting of pubs and clubs. She notes that you are remorseful, and you have redoubled your dedication to your family and are also involved as a role model in the Aboriginal community.

70It is clear from the references that you have good family and community support.

71Your counsel submitted that you are entitled to the benefit of an early plea. Further you come before the court with no prior convictions as a relatively mature first offender. You have a demonstrated employment history and a capacity to be a contributing member of society, and you are a man of good character.

72On that basis he submitted, and I accept, that you are a very good prospect for rehabilitation.

Sentencing submissions

73Your counsel noted that in your employment you are making good money, $2,600 per week on a seven-day roster fly in fly out with your current employer.

74He submitted that you ought be dealt with by way of a substantial monetary penalty rather than a community corrections order, particularly where you are not a permanent resident of Victoria.

75Your counsel submitted that a community corrections order was an appropriate disposition.

76Given your location in Broken Hill, and your employment arrangements, and applying the principle of parsimony I have determined to impose a monetary penalty.

77I was referred to the case of DPP v Fucile and Tran[4] where the Court of Appeal substituted substantially higher monetary penalties on two security guards who had gone to trial on charges of intentionally causing injury and false imprisonment and noted the utility of a fine in certain circumstances.

[4]DPP v Fucile and Tran [2013] VSCA 312

78In that decision the Court of Appeal noted that under the Sentencing Act monetary penalties are available as an alternative to a sentence of imprisonment. In the case of common law assault the alternative is 600 penalty units which in your case is a maximum fine at the time of $109,044. In the case of causing injury intentionally it is 1,200 penalty units or $218,088.

79I have taken into account the relevant maximum penalty in assessing an appropriate fine, and also your ability to pay.

Sentencing submission

80Your counsel, Mr Jones, submitted that you had a lesser involvement in two assault offences. He put that the first incident was spontaneous and short in duration. He sought to minimise the injuries to Mr McDermott. He notes that you personally did not strike Mr McDermott.

81Your relative culpability is a matter to be considered.

82You were charged as being complicit in both offences. Your conduct in relation to both offences shows a level of immaturity and alcohol fuelled group behaviour. This is evidenced in the filming of the first assault and in the text messages you sent subsequently. You are also in the room able to assist when the second more serious assault occurred.

83Your conduct that night must be utterly condemned. It was immature group conduct fuelled by alcohol. You assisted your co-offender to commit these two assaults on Mr McDermott. I will now proceed to sentence.  Could you both stand.

Sentence

Mr Constable

84Charge 1: - common assault – and Charge 3 – intentionally causing injury you are sentenced to an 18 months aggregate sentence of 18 months' imprisonment

85Charge 2 – aggravated burglary you are sentenced to three years' imprisonment

86Summary charge – failing to comply with a direction you are convicted and fined $500

87I order that 4 months' of the aggregate sentence on Charges 1 and 3 be served cumulatively on the sentence on Charge 2, making a total effective sentence of three years and four months' imprisonment. I order that you serve 21 months' imprisonment before being eligible for parole.

88I declare that had you not pleaded guilty I would have imposed a total effective sentence of five years and six months with a non-parole period of three years and eight months.

Mr Jones

89Charges 1 and 3 – I impose as an aggregate sentence a fine of $18,000.

90Mr Grant, were there any other ancillary orders?

91MR GRANT:  Yes, there was an application to forfeit the mobile phones involved.

92HIS HONOUR:  Yes.

93MR GRANT:  Just to confirm there is no pre-sentence detention for either.

94HIS HONOUR:  No pre-sentence detention. 

95I must also declare in relation to Mr Jones, that had he not pleaded guilty I would have imposed a three year community corrections order on him.

96I will mark the indent for Mr Constable that it's his first time in custody and that he may need treatment for mental health and anxiety.  Are there any other matters from counsel's point of view?

97MR CAMERON:  No, Your Honour.

98HIS HONOUR:  Ms McKinnon?

99MS McKINNON:  No, Your Honour.

100HIS HONOUR:  I want to thank counsel for their assistance in this matter, on the plea and on the sentence, and Mr Grant. 

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