Director of Public Prosecutions v Davies

[2014] VCC 1943

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

AT BALLARAT
CRIMINAL JURISDICTION

CR 14-01672
CR 14-01673

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES DAVIES
BRANDON TREWIN

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Ballarat
DATE OF HEARING:	17, 18 November 2014
DATE OF SENTENCE:	18 November 2014
CASE MAY BE CITED AS:	DPP v Davies
MEDIUM NEUTRAL CITATION:	[2014] VCC 1943

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For Accused Davies	Ms C. Lynch	HBM Law
Irwin & Irwin Lawyers
For Accused Trewin	Mr J. Irwin
For the Director of Public Prosecutions	Mr A. Moore	OPP

HIS HONOUR:

1James Anthony Davies and Brandon Jack Trewin, you have each pleaded guilty before me to one count of aggravated burglary, one count of causing injury intentionally and one count of affray.

2The circumstances of this matter arise in the following way, as they are described in some detail in Exhibit A, the opening, which Mr Moore read to the court.  In broad compass they concern events on the evening of Saturday 25 May 2014.

3You, James Anthony Davies, were born on 9 May 1993.  At the time of the offences you were aged 21.  You, Brandon Jack Trewin, were born on 23 February 1995, and at the time of the offences you were aged 19.

4The offences occurred at 5 Stockade Street, Ballarat, and those premises are occupied by a group of friends all in their early 20s who, on that evening, were at home having drinks with a few of their friends.  At approximately midnight Matthew and Andrew Doherty were walking around the area in Stockade Street, East Ballarat.

5They approached the people who were at 5 Stockade Street.  A discussion ensued and shortly thereafter Andrew and Matthew Doherty began shouting abuse at the partygoers and jumped the back fence.  A physical altercation broke out between the Doherty's and witnesses Liam Porter and Scott Pattinson.  Porter punched Andrew Doherty first because he feared he was about to be assaulted.  Andrew Doherty fell to the ground and began to wrestle with Porter.  Andrew Doherty then punched Porter several times, pulled his hair and grabbed his ear.  Porter sustained a black eye, swollen nose and scratches over his body.

6After that altercation the Doherty's returned to their address, situated around the corner, and according to the opening, which was read to the court, James Davies and Matthew and Andrew Doherty then made a phone call to Tyson Harris, who was with James Davies, Brandon Trewin and James Thatcher.  It was said that Thatcher drove the group to the Doherty house.  Harris, Trewin, Davies and Thatcher arrived at the house and found the Doherty brothers armed with pieces of wood.  That group of males, including yourselves obviously, being six in total, then walked to 5 Stockade Street armed with various bits of wood, rocks and an aluminium crutch.

7The occupants of that premises apparently witnessed six men running towards the house holding weapons.  The occupants then locked themselves inside the house.  Andrew Doherty smashed a window to the front door using a rock he had found at the house.  Matthew Doherty, Davies, Trewin and Thatcher jumped the back fence and went to the back of the house, gaining entry to the house after a glass sliding back door was smashed.

8Once inside Matthew Doherty and Thatcher assaulted Taylor Mitcham by kicking him, punching him and hitting him with bats and pieces of wood.  Davies states that Thatcher smashed several items in the house with his piece of wood.  You each were then inside the property but remained guarding the back door.  During the incident Sarah Van threw a bar stool at one of the males assaulting Mitcham, who was apparently James Thatcher, in an attempt to make them stop, and of the males, apparently Thatcher, threw the bar stool back at her, hitting her on the head and causing her to sustain a gash to the back of her head with bruising.

9Various items at the property inside the house were damaged, including furniture and a TV, and after a few minutes you all fled and police were called.  You each made no comment records of interview.  Andrew Doherty was interviewed and made a number of admissions, which are specified.

10In due course, as has been submitted on behalf of both of you, you, Mr Davies, much earlier in the piece, and then you, Mr Trewin, much more recently, have made statements to the police, and in the course of those statements you have each made full admissions as to your involvement and detailed the actions of the other males presence, and very importantly, in my view, have each volunteered to give evidence should you be called upon to do so in any hearing, trial or committal arising out of these matters.  And that matter, as I say, has in my view been a very significant matter to be taken into account with respect to your sentences.

11There are nine victim impact statements in this matter, six of which were read to the court.  I have read the other three and I take all of the contents of those victim impact statements into account in determining an appropriate disposition.  It is clear that each of those victims has suffered considerably as a result of your actions in the sense that you were a member of the group of six who assaulted them inside the premises on that evening, although it must be said that your physical responsibility, at least, is not as significant as others.

12Clearly those victims have suffered physically, emotionally and psychologically, and will continue to do so for some time.  You were inflamed by your friend's allegations that they had been ill-treated when of course that is far from the truth, as everybody now realises.

13Those persons had the right to feel free and safe and secure in their own home, and of course this was nothing other than an outrageous and violent attack in the name of some misguided, drunken loyalty for someone whom you imagine to have been wrongly assaulted.

14Of course as has been pointed out by each of your counsel there are a number of mitigating factors.  Firstly, you have each pleaded guilty.  You are each entitled to have that fact taken into account in your favour and I will do so.  The community has, by each of your pleas, been spared the time and cost of a trial - perhaps trials.  Witnesses, and numbers of them I presume, have been spared the ordeal of giving evidence upon your trial, and I can tell each of you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.

15Indeed, had you been found guilty after a trial you would have each been sentenced to gaol for a minimum of 12 months.  Further, I have taken into account in each of your favour that you intimated early your intention to plead guilty to these charges.  You were quickly apprehended and readily admitted your part in the crime, or at least you admitted in the circumstances as the chronology sets out in Exhibit A.  I have no doubt, and in the circumstance accept, that in each of your cases your pleas indicate true remorse for your actions.

16I have been told something of your personal history and your circumstances.  With respect to you, Mr Davies, a very comprehensive set of submissions was filed in Exhibit 1, and I will read from that background.

17You were born and raised in Ballarat in a stable and supportive family who were clearly very upset by your behaviour on this evening.  You are the middle of three children.  Your father is 61, working as a taxi driver, having worked in the public service for 32 years, and your mother is 52 and works at the Ballarat Base Hospital as a booking clerk.

18After completing primary school you attended St Patrick's College in Ballarat.  You completed Year 9 and left school the following year to pursue employment opportunities.  You began an apprenticeship in plastering.  You successfully completed that and achieved a number of high awards for your skill and commitment, which is reflected in the exhibits before me.  Following your apprenticeship you moved into excavation and earthmoving and your employers know of these charges and both speak highly of you.

19You were in a relationship of some years and you also play football with a local football club, and clearly these events seem to be significantly out of character given the fact you have no prior convictions, which is the third matter which weighs heavily in the sentencing matrix.

20With respect to you, Mr Trewin, I have less available by way of personal background, save in the sense that I have the various testimonials written on your behalf, each of which I have read and which I take into account.  It is clear that those who have known you well, and indeed your family, are surprised at your behaviour on this particular evening.

21It is clear that you are regarded as loyal, hard-working and trustworthy, although of course on this particular occasion it seems clear that everybody understands that you each acted out of a sense of misguided loyalty, fuelled, as it was, by a vastly excessive amount of alcohol that you had each taken, which of course would explain why it was that you misread the situation so badly and were inflamed so obviously by the false claims of your friends.

22You also have written a letter to the court, which as I say can be made available to the victims should the prosecution think that is appropriate to do so in the circumstances.

23You, Mr Trewin, have one unrelated prior conviction relating to driving, but nothing to indicate that you have any propensity to violence.

24You, Mr Davies, and you, Mr Trewin, of course have both given evidence on your behalves in the sense that you have each given sworn evidence to give evidence when, and if called upon to do so in the terms of the statements that you each read.  I have obviously taken into account the material which has been tendered in support of the submissions made on behalf of each of you and I have referred to those testimonials and those various letters of support from people who have known you and your families for some time.  Significantly, neither of you have been in any further trouble since this matter and I am, on balance, satisfied the chances of your rehabilitation are very strong.

25With respect to your respective roles I accept that these matters are dealt with in Exhibit 1 at paragraph 9, which are the submissions by Ms Lynch on your behalf, Mr Davies, where she makes submissions which I accept with respect to your own involvement.  I note in the prosecution summary, Exhibit A, with respect to you, Mr Trewin.  I accept that each of your roles was very much towards the lower end of involvement on this particular evening.

26Of course as well as those matters personal to you to which I have referred, including the question of rehabilitation, I must take into account such matters as deterrence, and especially general deterrence, which is of great relevance, involving, as it does, young groups of men attacking the premises of others late at night, when drunk, with weapons, and actually breaking in and injuring the persons present in that house, which clearly, of course, causes great concern for members of the community.

27I do not regard specific deterrence as being of significance in the matter given the lack of relevant prior convictions.  I must also consider the question of the protection of members of the community from you, and bear in mind the likelihood of your re-offending, which I find to be modest in view of the submissions made on your behalf.

28I particularly take into account in each of your favours that you have made statements about what happened on that evening.  You have each sworn to give evidence if and when called upon to do so.  That may mean one to three preliminary hearings and possible trial or trials, and I regard that, as I say, as a very significant matter in the circumstances, and clearly also the payment of compensation by each of you, and finally, the lack of your prior convictions, or relevant prior convictions.

29I regard all of these matters as strong indicators of remorse and provide a very solid basis on which the submissions were made that each of you should, in the circumstances, be made subject to a Community Corrections Order, and I accepted those submissions in light of the various reports that were made concerning each of you as to your suitably for such an order.

30In the circumstances you are each convicted and sentenced as follows.  You, Mr Davies, a Community Corrections Order in respect of the three matters in a term of 18 months with a condition of community work of 250 hours.  And I think they are the only recommendations made by the author of the report.  There were no particular conditions - and supervision, sorry.  There will also be a requirement that you be supervised in accordance with the recommendations of Ms Walton, who very helpfully drew up the report.  Do you understand that and do you agree to that order being made, Mr Davies?

31OFFENDER DAVIES:  Yes.

32HIS HONOUR:  Thank you.  Mr Trewin, you are convicted and in your case there will be a Community Corrections Order also of 18 months, but in your case there will be a requirement of 350 hours of community work that will reflect the fact of your one prior conviction, and also the fact that, as I say, the relevant difference in your prior conviction, whereas Mr Davies has none.

33I also, in the circumstances, adopt the recommendation of the author of the report, and again Ms Walton, who very helpfully provided that report, and I agree with her recommendations that there be community work, as I say, and 350 hours, that there be a condition for supervision, and also that there be treatment and rehabilitation with respect to alcohol.  I understand that you will be assessed by ACSO COATS to determine the appropriateness of future treatment given the role that alcohol played on that evening, and there will also be a supervision requirement.  Do you understand those various conditions and that order and do you consent to it being made, Mr Trewin?

34OFFENDER TREWIN:  Yes.

35HIS HONOUR:  All right.  Thank you gentlemen, if you could both be seated please and those orders will be drawn up.  Officer, it's all right if they step forward?  Thank you.  Yes, gentlemen you can step forward and sit with your respective family members.

36Excuse me, Your Honour?

37HIS HONOUR:  Yes?

38MR MADDEN:  I just have confirmation of the compensation payment which was mentioned yesterday?

39HIS HONOUR:  Yes.

40MR MADDEN:  If I can hand that up?

41HIS HONOUR:  Yes, thank you, that would be helpful.  I'll mark that as another exhibit.  That'll be Exhibit F.

42MR MADDEN:  Perhaps if I could retain a copy of the (indistinct).

43HIS HONOUR:  Yes, indeed.  Yes my associate will make one of those - a copy for you.  Yes thank you, that'll be Exhibit F.

44##E#EXHIBIT F -    Confirmation of compensation payment.

45And finally, for the purpose of s.6AAA, as I told each of you, and what you both need to understand, had you not pleaded guilty and had the submissions not been made on your behalf, as they have been, you, Mr Davies, would have been sent to gaol for a period of nine months, and you, Mr Trewin, for a period of 12 months.

46Now I hope you remember that and I hope you realise how serious the offending was, notwithstanding I suspect you still think that there is a vague element that you are not entirely to fault for it.  That seems to keep creeping through the assessment but each of you have got to understand the seriousness of the offending, and ultimately you are responsible for what you did on that night.  It was not their fault, you two and your other friends are the ones responsible, that is why you are here and they are not, and that is why you rendered yourselves liable to imprisonment, a fairly serious thing which I am sure that you now appreciate.

47You have got family around you, I suspect you listen to them a lot more closely.  They are talking a lot more sense than your friends are, so I am sure that there is not much I now need to say.  You have each got 18 months to think about the repercussions of all that and I am sure that each week you will be reminded that excessive consumption of alcohol and listening to drunken mates who say they have been injured is not a smart way to go, but in any event gentlemen I trust that you can put it behind you.  You have each got strong support and you each have good prospects of making sure that what you do from now on is much more merit worthy, and I am sure that will happen.  Yes, we will stand down and call the next matter.

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