Director of Public Prosecutions v Danilov

[2019] VCC 811

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00347

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL DANILOV

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2019
DATE OF SENTENCE:	31 May 2019
CASE MAY BE CITED AS:	DPP v Danilov
MEDIUM NEUTRAL CITATION:	[2019] VCC 811

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Cause injury recklessly – Incident occurred during indoor soccer match – Mutual antagonism between both teams - Previous physical and verbal altercations between accused and victim – Awareness of accused that action probably would cause injury but reckless as to whether injury would occur or not – Action of accused both reckless and foolish – Serious impact on victim

Sentence:Pursuant to s.75 Sentencing Act 1991, without conviction, matter adjourned for period of 2 years – Special condition to pay sum of $1,500 to Médicins Sans Frontières within the next 6 months and provide receipt to the County Court Registry in Melbourne by 4.00pm on 6 December 2019

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Julian Siggins (Plea) Mr H. Boyd-Wilson (Sentence)	Solicitor for Public Prosecutions
For the Accused	Mr M. Dempsey (Plea) Mr V. Wang (Sentence)	Dribbin and Brown

HER HONOUR:

1Mr Danilov, please remain seated until I ask you to stand up towards the end of my sentencing remarks.  Michael Danilov, you have pleaded guilty to one charge of recklessly causing injury, which has a maximum penalty of five years' imprisonment or 600 penalty units.  The maximum penalty is one of the matters which I must take into account in sentencing you, as it reflects the seriousness with which Parliament regards the offence.

2On 16 March 2016, you were playing a game of indoor soccer against a team for which the complainant, Michael Hall, played.  During the match Mr Hall had been aggressive towards you when going after the ball, and clashed with you on several occasions.  The Crown allege that on the second last of these clashes you said that you would break the complainant's legs if he did this again, or words similar to this.

3Late in the game, the complainant and you both went for the ball.  You kicked out at the complainant's leg, with the complainant sustaining a broken leg as a result.  The Crown allege that you said to the complainant that you told him that this would happen if he went for the ball.  In all of the circumstances, I sentence you on the basis that your reference to this was a reference to being hurt if he went for the ball, in the way that you had previously.

4The referee gave you a red card as, in his view, your kick was too high to be a genuine attempt to kick the ball.  However, a team mate of the complainant's, a Mr Coffey, said that he saw you and Mr Hall running for a loose ball, which you wound up to kick, but the complainant got to the ball first, and the follow through of your kick connected with the complainant's leg.  According to Mr Coffey, you said shortly after this, 'I told him this would happen', and, 'He should know his limitations.  If he can't take a hit, he shouldn't be going into the challenges'.  You were also heard to say, 'If Michael was going to play rough, he should expect rough back'.

5Another team mate of the complainant's said that he saw you swing your leg out at the complainant and kick his leg while you were both running at the ball.

6On 2 August 2016 you were interviewed by police and confirmed that you were involved in the incident.  You told police that you and the complainant had clashed physically on occasions, and that you told the complainant, 'You’re going into me, it's not going to work out good, and I'm gonna do it'.  There is no expansion of what you were going to do.

7At the plea hearing there was some discussion as to the evidence in respect of what you said about harming the complainant earlier in the game and near the time that the injury was inflicted.  At the contested committal hearing of this matter there was a conflict in the evidence about this aspect.  Mr Dempsey, who appeared on your behalf, took me to various parts of the committal evidence and conceded that you said, 'Keep it up and he'll be hurt', or similar, but in effect that I could not find that you had said that you would break the complainant's leg or legs.

8It is evident from the Crown opening and matters raised by Mr Dempsey that this soccer match was a rather willing one, and that the complainant was playing in a most vigorous manner.  This is not to blame the complainant for what befell him in any respect, but it is important to put your offending in its proper context.  There was a good deal of sledging between both teams and mutual antagonism.  I understand that the umpire was losing control of the game and that tempers were running high insofar as the complainant and you were concerned, at least.

9As to whether you spoke of breaking the complainant's legs earlier in the match, I am unable to say, but in circumstances where you have pleaded guilty to recklessly causing injury, even if you did utter these words, I do not and cannot find that this was your state of mind at the time that you kicked the complainant's leg.  To find otherwise would mean that you had committed a more serious offence, such as intentionally causing injury, or perhaps intentionally causing serious injury.  But the prosecution have accepted a plea of guilty to recklessly causing injury, which means that at the time that you kicked the complainant, you were aware that this action would probably cause injury.  It means that you did not directly intend to cause injury, but were reckless as to whether this would occur or not.

10Therefore, I sentence you on the basis that an earlier stage of the game, you said words to the effect that if the complainant kept behaving as he was, he would get hurt.  However, your kicking of his leg with enough force to break it was no accident, as you have admitted.  Nor was it intentional.  It was foolish and it was reckless.

11Mr Danilov, your offending is serious and calls for a punishment which is just in all of the circumstances.  Your conduct must be appropriately denounced.  As the learned prosecutor said at the plea hearing, as a mature player who is of significant stature, you ought to have been more restrained in your behaviour, especially in circumstances where the complainant was being aggressive.  Also, as I have said, you are a man of substantial stature, and from what I could see, you are significantly bigger than the victim, who was at the plea hearing.  You admitted as much in your record of interview, as I understand it.

12I accept that you would not usually behave in the way that you did, but on this particular day your conduct was dreadful and, as you admit, went beyond the scope of the consent to physicality that a soccer match involves.

13Having said all of this, I accept that although the injury actually caused was a severe one, the objective seriousness of the offending is toward the lower end of the range of offending of this kind, in all of the relevant circumstances.

14The impact on the victim has been terrible.  In sentencing you I take this into account.  Mr Hall did not want his victim impact statement read aloud at the plea hearing, but I was told that you have read it.  He spoke of how the crime that you committed has changed his life, and that he had to take four months off work, without pay, for all but one week because of his broken leg.  His girlfriend, her family, and his own family had to pay his bills.  He said that he still gets shooting pain up his right leg, and has had to give up playing sport because of this.

15He said he had suffered a stroke two years before the offending, which had affected his left leg, and that he was just starting to feel all right when you injured him.  While you were not to know this, the law says that you take your victim as you find them.

16He said that it is only now, three years later, that he is starting to feel like he can walk as well as he was before the offence was committed.  He has also suffered stress and anxiety in his day to day activities, as he has feared running into you.

17Mr Dempsey, who gave an excellent plea on your behalf, as is his custom, assured the victim that you were not a threat of any kind to him, and that you were sorry that you had caused him the injury, albeit in a reckless fashion, and you were sorry that he had been impacted so badly by it.

18In the circumstances, especially having read the letter from your stepfather, I accept that you have heartfelt remorse for what you did, how it impacted on the victim, and insight in respect of the seriousness of your offending.  You have no prior or subsequent court appearances, and having viewed the character material, I accept that you are of otherwise good character.  I understand that you have barely played a game of soccer since the offending, as the incident had taken a good deal of fun out of the game for you.

19According to your partner, Ms Vitor, you have had to put your lives on hold pending the outcome of these proceedings.

20I take into account your background, which was set out in your counsel's submissions.  In essence, you come from a loving and stable family, members of whom were in court to support you at the plea hearing.  You are described as a 'gentle giant' by your stepfather, who has always been a father figure in your life.  Your parents divorced when you were a young child, but you grew up in a happy and hardworking family environment.  You grew up loving soccer and cars. 

21You have been a talented soccer player, having played for the Victoria state team on three occasions.  You have captained every team that you played in, due to your skill, leadership, and mentoring qualities.

22You completed your education to VCE level, then embarked on a motor mechanic apprenticeship.  You have worked consistently since leaving school, including working whilst you were still completing your apprenticeship.  You have worked your way up the ranks at Pirtek, a hydraulic maintenance and earth-moving company.  You then worked with your stepfather for two years in a construction company, and subsequently you began a solo venture, importing flooring materials from overseas.

23After separating from your former partner you took time off and sold the house that you had jointly owned with her.  You have come and gone from Pirtek on a few occasions, but you are currently working with them again, now as operations manager, which is a most responsible role.  The owner of Pirtek spoke very highly of you, both as an employee and as a person.  You might well continue on with your importation business down the track.

24I take into account your plea of guilty, and in circumstances where the contested committal hearing resulted in the resolution of the matter to a far less serious charge, I allow for a significant discount in the sentence that you would otherwise receive.  In taking the course you have saved the witnesses, especially the victim, the time and trouble of giving evidence at trial, and you have saved the community the time and expense of running a trial.

25Further, I accept that your preparedness to plead guilty in circumstances where you might well have had a viable defence is another matter that counts in your favour.

26I also allow for the fact that there has been a substantial delay in this matter coming to finalisation, which has meant that you have had the anxiety of the matter hanging over your head for a significant period.  Also, you have resumed to live a law-abiding life, which is relevant to my assessment of your prospects of rehabilitation.

27In all the circumstances, I find that your prospects of rehabilitation are excellent, and I need only place minimal weight on specific deterrence.

28While general deterrence has a role to play in offending of this kind, in all the circumstances I find that you are not a suitable vehicle for strong weight to attach to this, as would ordinarily be the case, although I do give general deterrence some weight.

29The prosecution submitted that a conviction was warranted in your case, but that a fine was within range.  The learned prosecutor submitted that the role of general deterrence was a primary one, and that this meant that a conviction was warranted.  He did not seem to demur in respect of a discussion in relation to an adjourned undertaking.

30Mr Dempsey submitted that a fine without conviction or adjourned undertaking was appropriate in all of the circumstances, and indicated that your possible need to travel in the future in respect of your importation business, and also to obtain work, might well be hampered by a conviction against your name.

31As I said at the plea hearing in your case, it is appropriate to impose a non-conviction adjourned undertaking so that there is a period hanging over your head to be of good behaviour, but also such a disposition gives recognition to the aberrational nature of what you did on the day of the offending, and your otherwise good character.  I see no utility in convicting you in all the circumstances of this case, and in view of my finding in respect of general deterrence.

32In requiring you to make a donation to the charity that I have selected as a condition of the adjourned undertaking, I have taken into account your financial circumstances.  The charity that I have selected helps many people who are living in dire circumstances, often in warzones, to receive medical help and the support that they need.  The situations that they deal with highlights the futility and devastation caused by wanton violence.  I take the view that a donation to this charity will help to remind you, if you need reminding, of the suffering caused by acts of aggression, whether reckless or otherwise.

33Would you please stand up?

34In relation to the charge on the indictment, pursuant to s.75 of the Sentencing Act 1991, without conviction I adjourn the matter for a period of two years, upon you giving an undertaking to be of good behaviour for two years, and I impose a special condition that you pay the sum of $1500 to the charity Médicins Sans Frontières, that is Doctors Without Borders within the next six months, and a receipt in relation to the donation must be provided to registry at the County Court, Melbourne by 6 December 2019 at 4 pm.

35Please understand that if you breach the undertaking to be of good behaviour for two years in any way, or by committing criminal offences, you will be brought back to court, and you may be fined in relation to the breach.  Also I have the power to cancel the undertaking that I imposed and resentence you.  So in those circumstances you may well be at risk of a more severe penalty, including a term of imprisonment.  Do you understand that?

36ACCUSED:  Yes.

37HER HONOUR:  Very well.  Thank you, I am now going to have you sign the adjourned undertaking, so take a seat and I will have Mr Wang assist you with that.

38MR WANG:  As Your Honour pleases.

39HER HONOUR:  Is there anything arising from those remarks?

40COUNSEL:  No, Your Honour.

41HER HONOUR:  Very well, then we will just sign the order, and we will adjourn.  Thank you.

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