Director of Public Prosecutions v Darragh

[2016] VCC 656

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00355

DIRECTOR OF PUBLIC PROSECUTIONS

v

GORDON DARRAGH

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 May 2016
CASE MAY BE CITED AS:	DPP v DARRAGH
MEDIUM NEUTRAL CITATION:	[2016] VCC 656

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms J Malobabic
For the Offender	Mr J Saunders

HIS HONOUR: 

1Gordon Darragh, you have pleaded guilty to an indictment charging you with causing serious injury recklessly on 3 November 2015. You have no prior convictions. 

2The offence to which you pleaded guilty carries a maximum term of imprisonment of 15 years.

3The prosecution has tendered and read to the court an agreed summary of prosecution opening, which is marked Exhibit A, and I incorporate that document in its entirety as these reasons for sentence.  It is, as the document is headed, agreed as a summary of the facts upon which I should pass sentence upon you. 

4It was read this morning and I am not going to read it again but it shows that after you had had a fair bit to drink on Cup Day of last year, you and your partner became argumentative.  The argument continued late into the evening.  You each were drinking substantial quantities of alcohol, particularly wine, and by 11.45, or thereabouts, the arguing had got to a point where you grabbed a kitchen knife and stabbed your partner in the neck.  You know you could have killed him, you thought you might have killed him.  You realised how serious an injury he received.  He was lucky not to be killed, you were lucky he didn't die.

5It is a very serious offence, it is a serious offence of its kind.  All offences of causing serious injury recklessly are serious but this is a serious example of that offence.

6Had it been the fact that you had prior convictions you certainly would have gone to prison for a long time.  You have, as it turned out, been in custody now for 197 days and that is a significant factor.  It is the first time you have been to prison and that would have been a huge shock to you.  I have no doubt that you have learnt a very considerable and stern lesson as a result of that experience.

7The prosecution also tendered a Victim Impact Statement, together with a letter from your victim who is in court this morning.  It was not read to the court but it reveals a very generous attitude on his part, borne, it seems, of continuing affection for you and a desire to continue in the relationship which you had prior to your incarceration.

8It seems that beyond his generous assessment of the situation, he accepts some responsibility for the context in which your offending conduct occurred.  I do not regard that as a particularly mitigating factor but it helps put the whole matter into perspective.

9I am bound, of course, to take into account the effect on your victim. He certainly did suffer some serious injuries and it is very fortunate for him and for you that he has recovered from those injuries physically. The extent to which he has recovered emotionally is something which perhaps time will only tell but it seems that he is receiving treatment and he is well on the road to recovery, psychologically as well as physically.

10Your counsel provided me with an outline of submissions on plea, which is Exhibit 1, along with a report from Dr Ng dated 9 February, but we I think agree that that probably is not the correct date, nevertheless it is a relatively recent report from Dr Ng upon you, which I will mark Exhibit 2.  There are also some references from Donna Cotton, Sonia Gowan, with whom you spent the early part of the evening of the day of your offending conduct, Dr Oliver Bernhardt, Ross Trevor Parker, your employer or previous employer, and Melody Briggs.

11They speak well of you and absent any prior convictions one has to say that at the age of 40 this is out of character.  It is very unfortunate that you should have found yourself in a situation where you have served 197 days' imprisonment for very serious criminal conduct at your stage of life.

12The report from Dr Ng, and indeed the outline of submissions and oral submissions by your counsel, have identified a difficult upbringing in New Zealand.  I am not going to go into detail but that, no doubt, has to some extent shaped your personality and may well have been a contributing factor to what Dr Ng described in his report as borderline personality traits.  He does not go so far as to diagnose you with having a borderline personality disorder but I think that there are sufficient issues to support the proposition that some psychological help would be not only helpful to you but would help to ensure that you do not engage in conduct of this kind again, whether alcohol-fuelled or not.  I think your counsel is right in that you, and indeed the community, will benefit from you being placed on a Community Correction Order with the condition that you receive psychological treatment, as directed.

13It is necessary for me to punish you, to denounce conduct of this kind, to impose a sentence that deters you from committing further offences of any kind, and particularly of this kind, and also has some measure of general deterrent effect upon the people who might otherwise be inclined to engage in this kind of conduct.  I am also required to take into account and to promote your rehabilitation as far as I reasonably can. 

14I see no reason to doubt that you have every prospect of putting this behind you and leading a decent and honest life.  You admitted your offending conduct, indeed you called an ambulance, you reported the matter to police, you admitted your offending conduct to the police, you have expressed remorse and I have no doubt that you are genuinely remorseful for your conduct. 

15All of that bodes well for the future and mitigates the sentence that I would otherwise have been inclined to pass.  You have also pleaded guilty and that has to be taken into account in your favour.  It does support the proposition you are remorseful but it also is very much in the community interests that people who are guilty of offences plead guilty and further the administration of justice and own up to their conduct, accepting their criminal responsibility.  All of that is in your favour.

16My attention was helpfully drawn to a number of cases that have come before the Court of Appeal in this State which point out various relevant aspects of the sentencing exercise, though some of those go to the proposition that even for offences as serious as this, a combination of a term of imprisonment plus a Community Correction Order is within the range of current sentencing practice and appropriate in the right sort of case. 

17I was invited to consider the effect of alcohol and the extent to which that might be a mitigating factor in this case.  With due respect to your counsel and the argument that he presented, I am not convinced that alcohol is truly a mitigating factor in this case.  If either of you were really drunk I think it was more likely to have been your victim than you, but even though you were probably seriously affected by alcohol, it seems to me that that is an explanation, perhaps, of why you should behave in the way you did but really does not provide you with any mitigation.  You must have realised that alcohol had the capacity to disinhibit you, to impair your judgment, and I have no doubt that that played an important role in what occurred.  Nevertheless, it seems to me that this is not one of those exceptional cases where alcohol could be regarded as a mitigating factor.

18It is not suggested that any of the principles that are commonly, referred to as the Verdins principles, relate to any mental impairment or have any part to play in this either, and your counsel readily conceded that.

19However, balancing all of the factors which have been argued before me and the sentencing principles that I must adhere to, I have, as I have already indicated, come to the conclusion that a combination of a term of imprisonment involving imprisonment for 197 days, plus a two year Community Correction Order with the conditions that I have outlined, is an appropriate way of dealing with your case.

20I am now ready to impose that sentence upon you.  If you would stand please.

21Gordon Darragh, on the charge of causing serious injury recklessly to which you have pleaded guilty, I convict you and sentence you to imprisonment for a period of 197 days.  I declare 197 days pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and that will be deducted administratively from the time you will actually have to serve which will enable you to be released immediately, subject to being processed.  I order that that fact be noted in the records of the court.  But for your plea of guilty, I would have sentenced you to 12 months' imprisonment with a Community Correction Order.

22I also order that you be the subject of a Community Correction Order for a period of two years, commencing today.  During that period you will have to complete 200 hours of unpaid community work.  You will be subject to the supervision of the Office of Corrections during that period and you must be assessed for, and participate in, rehabilitation programs designed to address alcohol abuse, mental health issues and factors that will reduce your risk of re-offending.

23Your counsel has indicated that you would be willing to be placed on that order.  Would you be willing to be placed on that order?

24OFFENDER:  Yes, Your Honour.

25HIS HONOUR:  Do you understand what you are letting yourself in for? 

26OFFENDER:  Yes, Your Honour.

27HIS HONOUR:  It will be a nuisance, it does have punitive elements attached to it, deliberately.  You will have to comply with lawful directions given to you during the course of the order and if you do not do that you will be in breach of the order.  You can breach the order also by committing an offence punishable by imprisonment during the period of the order.  If you breach on any basis then you may be subject to a charge of breaching the order which carries up to three months' imprisonment for that offence alone.  If it is breached by committing a further offence punishable by imprisonment, you could be brought back and re-sentenced for this matter which would leave the court no option other than to impose a more severe term of imprisonment.

28The order will be handed up to you in a moment, I will ask your counsel to go through it with you and make sure you understand exactly what you are being asked to sign.  Once that is done the sentencing exercise is complete, save that I need to make the order for forfeiture of the knife.  Do you have a draft Ms Malobabic?

29MS MALOBABIC:  A copy of the disposal order, Your Honour, and also the DNA order and the community ‑ ‑ ‑ 

30HIS HONOUR:  Is that opposed Mr Saunders, the DNA ‑ ‑ ‑ 

31MR SAUNDERS:  No, it's not, and I'll explain (indistinct).  I would assume this occurs after the time when the order is automatically made anyway.  It's not opposed.

32HIS HONOUR:  It's not opposed, all right.  Mr Saunders, which police station would be convenient for your client to report to for the purposes of providing a sample?

33MR SAUNDERS:  South Yarra, I suppose, Your Honour.

34HIS HONOUR:  Very well.

35MR SAUNDERS:  I assume there is a police station at South Yarra.

36HIS HONOUR:  We'll check on that.

37MR SAUNDERS:  I am told there is. 

38HIS HONOUR:  Perhaps I'll invite the Crown just to fill in the details there, would you please, thank you.

39MS MALOBABIC:  Thank you, sir.

40HIS HONOUR:  I have signed one order relating to that.  This is a disposal order as well, is it?

41MS MALOBABIC:  There should be, Your Honour, three copies of the disposal order.

42HIS HONOUR:  I've done three copies, I think.  No other orders?

43MR SAUNDERS:  No, Your Honour.

44HIS HONOUR:  Yes, thank you.

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