Director of Public Prosecutions v Darlington

[2014] VCC 1647

IN THE COUNTY COURT OF VICTORIA Revised
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-01956

DIRECTOR OF PUBLIC PROSECUTIONS

v

MURRAY DARLINGTON

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	29 September 2014
DATE OF SENTENCE:	1 October 2014
CASE MAY BE CITED AS:	DPP v Darlington
MEDIUM NEUTRAL CITATION:	[2014] VCC 1647

REASONS FOR SENTENCE
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Subject:        Criminal law - sentencing
Catchwords: Causing injury intentionally - false imprisonment
Sentence:      Aggregate gaol sentence of 85 days, declared 85 days PSD

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Lee	OPP
For the Accused	Mr D. Hannan	Balot Reilly Solicitors

HIS HONOUR:

Introduction

1Murray Darlington you have pleaded guilty to one count of intentionally causing injury and one count of false imprisonment. The complainant is Christopher Getty.

2Each carries a maximum sentence of 10 years' imprisonment.

3The circumstances of the offending were set out in the Crown opening which was read in open court on Monday. I incorporate by reference the Crown  opening which was not the subject of any significant contest by your Counsel.

4The circumstances of the offences to which you have pleaded guilty arose in the context of an earlier altercation between you and the complainant in the matter, Mr Getty.

5The earlier altercation between you and the complainant led to you being charged with intentionally causing serious injury and attempted kidnapping as well as false imprisonment. Those charges were withdrawn when the matter resolved. You were subsequently charged on a plea indictment and with the two charges to which you have pleaded guilty.

6It is necessary to briefly outline the circumstances leading to the events which were not proceeded with before outlining the matters that give rise to the two charges the subject of the plea indictment.

7The background to the matter is that in May 2013 you had been in a relationship with Mr Getty’s daughter, Taryn, for about three years. You and her were also conducting a business of installing insulation. You were aged 40 at the time and Taryn was considerably younger than you being aged 24. Not unsurprisingly Mr Getty was interested to discuss the nature of the relationship between you and his daughter.

8You had met Mr Getty on about two previous occasions and he lived in New Zealand where both you and Taryn were born. Mr Getty was aged 50 at the time and was returning from a trip to Scotland where he had seen his own father. He was picked up at the airport by his daughter on the morning of 18 May last year. He came to the home that you were renting and sharing with Taryn, in Doncaster, and went to sleep. Around 9 PM that evening he got up and he joined you and his daughter in the lounge room and you and he spent a few hours chatting and watching TV while having some drinks. The conversation between the two of you was initially amicable, however in due course it turned to the nature of your relationship with his daughter. Mr Getty interrogated you and became concerned about his daughter being used by you, and also about attitudes that you expressed about Jewish people and admiration for Hitler and Stalin. In the course of the conversation you made a number of offensive comments about his mother and about him personally. He became increasingly upset and angry about what you were saying and the insults that you were directing at him for no apparent reason.

9A meal was being prepared and as you were sitting down to eat your own dinner Mr Getty who had become angry, confronted you and swung an empty Crown Lager stubby bottle at your head, and connected on two occasions. You then overpowered him and threw him into the ground. The bottle was dislodged from his hand and you then proceeded to punch him repeatedly in the face while he attempted to resist you. You sat on him and continued punching him in the face while holding him by the throat. Mr Getty began to bleed profusely and was obviously injured. He pretended to be unconscious to try and stop you from hitting him. It is clear from the photos that he lost a deal of blood in the lounge room. He also suffered a cheekbone fracture. At the commencement of the confrontation his daughter left the house and sought to call the police.

10The offending to which you have pleaded guilty occurred when you pulled Mr Getty’s T-shirt from his waist so that it was over his head. You then dragged him out of the house and to the bottom of the driveway. At that point he pretended to be unconscious. You then said to him “Don’t you know who you are fucking with” and punched him in the face again. You left him lying on the ground at the bottom of the driveway and then proceeded to the business vehicle which was a van. You returned on the roadway with the van and then bundled Mr Getty into the van and slammed the door. He began yelling and kicking at the side of the van and you went back to the van door, pulled him towards you and punched him in the head again. You shoved him back into the van and slammed the door. Shortly thereafter the police arrived at the premises and heard Mr Getty in the van and released him and arrested you.

11The offence of intentionally causing injury to Mr Getty is constituted by the punch directed by you at his head at the bottom of the driveway and then the second punch at the time that he was in the van. The false imprisonment is constituted by you placing and restraining him in the van against his will.

12The plea was conducted on the basis that the Crown was not in a position to identify any specific injury other than pain to Mr Getty as a result of the two punches that I’ve referred to.

Assessing the seriousness of the offences

13In sentencing you I must do so only on the basis of the offences that occurred outside the house and not seek to punish you for what happened earlier inside, where it must be accepted that you were defending yourself from the attack on you by Mr Getty wielding a stubby bottle. The Crown accepted that in relation to the count of intentionally causing injury, it proceeded on the basis that you had punched the complainant twice and that he had sustained pain as a result of those punches. I do not accept the submission that the offence is at the bottom of the range of this offending. While it does involve two punches and does involve infliction of pain, the circumstances in which the offence occurred, were that there had been the earlier altercation inside the house and the complainant had clearly come off second best in that altercation and you were aware of that, not least because of his bloodied face.

14It also emerged on the plea that you had at some stage learned to box. In the record of interview you also said that you had played rugby, a sport that is known for its physicality.

15As the Crown submitted Mr Getty was substantially and significantly injured when you dragged him down the driveway and thus he was in a vulnerable position when you on your own words in the record of interview sought to “want him out of my world”. There were two separate punches involved in count one, and you had the presence of mind to go and fetch the business van in order to imprison Mr Getty after the first punch. You then punched him again when he sought to be released from the van.   

16Thus while this was an assault that lacked any premeditation it was perpetrated on a vulnerable complainant who you had bested in the altercation in the house. You conceded in the record of interview that you had gone too far on that evening.

17Your Counsel sought to reduce your moral culpability on the basis that you had been provoked by the events inside the house. I accept that there was some provocation on behalf of the complainant in that as a result of discussions between the two of you he physically attacked you. I don’t accept that your moral culpability is significantly reduced however given your own admission that the comments that you made upset him and led the complainant to an angry attempt to attack you. Effectively after the events inside the house you took the law into your own hands by punching him twice and bundling him into the van. You were acting in a high-handed manner which is itself manifested by your statement that you intended to take him to the airport to go back to New Zealand.

18Considering the two offences overall I’m prepared to accept your Counsel’s submission that there was no premeditation and planning in either of the offences and they were in one sense a spontaneous reaction to the events following the  physical altercation in the house, which itself followed a verbal interchange between the two of you that led to Mr Getty becoming angry and attacking you.

Victim Impact Statement

19The learned Crown prosecutor sought to tender a victim impact statement on behalf of the complainant.  Defence Counsel objected to its admissibility on the basis that it did not particularise the impact of the particular offences to which you have pleaded guilty. The victim impact statement was dated 26 May 2013 and thus had been prepared shortly after the events and before the charges involving the events in the house had been withdrawn. I was referred to a recent decision of the Court of Appeal in York v  The Queen [2014] VSCA 224 where the court emphasised the need for the victim impact statement to contain only relevant matters. Having considered the matter and the submissions I have decided that as the victim impact statement does not seek to disaggregate the consequences of the two counts to which you have pleaded, from the events in the house, which clearly gave rise to a significant impact, including a fractured cheekbone, then I conclude that the VIS does not comply with s.8L of the Sentencing Act 1991 and I decline to admit it for consideration.

20Notwithstanding that I am proceeding without a victim impact statement, having regard to the photographs of the victim taken shortly after the events, both in the house and in the van, including a blood trail down the driveway from the house, and blood in the van,  I infer that the two punches that you inflicted on the complainant were in circumstances where he was in a vulnerable state having earlier suffered a fracture to his cheekbone in the altercation in the house. Further, being detained in the van, and punched a second time when he sought to be released would have been significantly traumatic for the complainant.

Matters in mitigation

21I turn now to further matters in mitigation. I have taken into account all the matters in the comprehensive submission by your Counsel. First you have no relevant prior convictions. You are aged 42 and the only prior, non-traffic conviction alleged against you was for a dishonesty offence that occurred 16 years ago and for which you are convicted and fined $100 with restitution.  In addition to the dishonesty offence the Crown submitted a number of traffic offences against you, the most recent being exceeding PCA, and driving while authorisation suspended on 2 December 2008, and five traffic offences between 1990 and 1993 in New Zealand.  I regard those offences as having minimal, if any, weight in my sentencing disposition you here.

22I sentence you as a person who has no relevant prior conviction for assault and effectively as you indicated in your evidence has not been involved in the criminal justice system.

23On the basis of the lack of relevant criminal assault type prior convictions I regard your conduct that morning as out of character.

24I have taken account your pleas of guilty. Your Counsel submitted that they are significant pleas as the prosecution may not have been able to obtain convictions against you in relation to these two offences due to the earlier events in the house.

25I accept there is significant utilitarian benefit to your plea. It obviates the need for the complainant and his daughter to possibly travel from New Zealand and to give evidence in the trial. I also accept that the plea was offered after the matters of the events in the house were resolved. Thus it is an early plea to the assault charge, however, as submitted by the prosecutor you could have pleaded to the false imprisonment charge earlier.

26The plea is also significant in that you accept responsibility for your conduct.  I also accept the submission that your pleas are evidence of remorse.

27It is appropriate to refer to the chronology in this matter. After your arrest on 19 May 2013 you were bailed and committed for trial on 10 October 2013 and the trial was then fixed for 29 September 2014. Your bail was revoked on 12 March 2014 for not reporting and a warrant was issued for your arrest. You were subsequently arrested on 8 July 2014 in Queensland and bail was refused and you have been in custody for 85 days to this date. The matter resolved on 8 September 2014 and on that date you entered pleas to the two charges on the plea indictment. It has been brought to my attention that you have outstanding matters but I have not taken them into account.

28Turning to your personal circumstances, you are aged 42 and were aged 40 when the offences occurred. Your Counsel emphasised that you have a good employment record. Your family history, is as set out in a report from a consultant clinical psychologist Dr Paul Grech, dated 21 August 2014, which was tendered in evidence and which I incorporate by reference. As I have indicated you were born in New Zealand and first arrived in Australia at age 13, but you subsequently returned there and then returned to this country. You have three children aged 7, 8 and 10 years who reside in New Zealand with their mother and you have a good relationship with your former partner and the children.

29You come from a farming background although you had not specifically worked in that field in recent times. On the plea your Counsel tendered two letters from the executor of your father’s estate. You are a  part owner of a small farming property in New Zealand and you have inherited that property from your father who passed away in May this year. According to the two letters the property is in urgent need of management input due to the spread of a disease which must be addressed or the whole orchard may be lost. Your Counsel did not put that the state of this inherited property is a matter of exceptional circumstances relating to hardship associated with a sentence of imprisonment, but rather as a matter of mercy, but I am prepared to take it into account as an important consideration in relation to your prospects of rehabilitation.  The learned Crown prosecutor submitted that, in fact, your connection with the property is somewhat limited given that you have obviously spent considerable time in Australia and have, according to the Dr Grech’s report, worked for the last eight years or so in a self-employed business installing insulation.  I do not accept the submissions of the learned Crown prosecutor on the point in relation to the property, given the change in circumstances in that, first of all, your father has now passed away, second you have now inherited the property, and third it is facing an existential crisis of a disease that is spreading to the relevant trees.

30Your Counsel submitted that you have excellent prospects of rehabilitation given your good lack of a prior criminal record and the assessment from Dr Grech. Importantly Dr Grech noted that you had sought psychological assistance earlier this year under a mental health care plan and you had approached it fairly constructively with that therapist. He considers your prospects for rehabilitation positive and states that you had not been involved in illegal drug use in the past. You have recently become involved in a new relationship and that also is a relevant factor to consider in your favour.

31Your Counsel tendered a letter from you apologising to the complainant and his daughter in this matter and expressing remorse for your conduct. The prosecution disputed your remorse and said that it was relatively recent. Against that you gave evidence indicating that the letter was the truth. You were the subject of some cross examination in relation to it. I have had regard to your evidence and your demeanour and accept that you are remorseful for your conduct. I accept that you felt that remorse after the Getty family returned to New Zealand a short time after the event. I also accept your evidence as to why you did not take action to communicate the remorse and apologise earlier and I note that you did express some remorse in the record of interview.

32It is clear that you have suffered significant personal losses as a result of the events that bring you before this court including the loss of the relationship as well as the loss of the business that you were undertaking with Ms Getty. Your Counsel indicated that in the event that you are not sentenced to a term of imprisonment then you intend to urgently return to New Zealand in order to seek to administer the property that you have inherited, subject to any family provision claims, from your late father.

Purposes of sentencing

33     The 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 matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, 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. 

34In sentencing submissions your Counsel submitted that on their own these two offences could have been dealt with summarily and that a suspended sentence was well within range. He submitted that the 85 days that you have been on remand is well above that appropriate sentence for your offending. He further submitted that the period that you have been on remand has allowed you to reflect on the events and in the light of your letter to the court indicates that you are well on the way to rehabilitation.  The Crown emphasised the vulnerability of the complainant and the high handed nature of your actions and submitted that this offending called for an         immediate custodial sentence.

35Here, I regard denunciation as an important sentencing consideration. The community cannot tolerate, in the context of family disputes or otherwise, people taking the law into their own hands. You were doing that when you assaulted Mr Getty and bundled him into the van, after the altercation in the house. He was in a vulnerable position and you must be taken to have known this due his obvious condition. This conduct calls for denunciation. I accept the submissions on the issue of rehabilitation and also that given your lack of relevant priors and the circumstances of the offences, that specific deterrence is not a salient sentencing consideration.

36Weighing all the considerations and  noting that these events involve a short course of conduct, I regard an aggregate sentence as appropriate.

Sentence

37On the two counts as an aggregate sentence, you are sentenced to 85 days imprisonment. I declare that you have served 85 days PSD. I declare that had you not pleaded guilty I would have sentenced you to four months imprisonment.

38I have made the disposal orders sought by the Crown.

39COUNSEL:  As Your Honour pleases.

40HIS HONOUR:  Yes, I thank counsel for their assistance in this matter and will stand down temporarily.

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