Director of Public Prosecutions v Doherty
[2017] VCC 1706
•17 November 2017
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| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No CR-15-00476
Indictment No E13204462.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TREVOR DOHERTY |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 Nov 2017 | |
DATE OF SENTENCE: | 17 November 2017 | |
CASE MAY BE CITED AS: | DPP v Doherty | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1706 | |
REASONS FOR SENTENCE
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Catchwords: RCI.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Cecil | Office of Public Prosecutions |
| For the Accused | Mr R. Backwell | Greg Thomas |
HIS HONOUR:
Trevor Doherty, you have pleaded guilty to one charge of recklessly causing injury. You have admitted a lengthy and relevant criminal history. This matter resolved in July of this year and you were arraigned on the filed over plea indictment on 21 July. The arraignment was completed yesterday and then the plea in mitigation proceeded before me.
You were born on 28 November 1969. You turn 48 years of age in the next few weeks.
The maximum penalty is five years' imprisonment. You are serving a very lengthy prison term indeed, one imposed for the crime of murder, as well as for four false imprisonments and a charge of intentionally causing injury. Those crimes, as you know, occurred in December 2015 and you were only recently sentenced. That lengthy sentence obviously has a very significant impact upon my task.
Indeed, your counsel has placed before me the actual sentencing remarks. They are part of Exhibit 1. So too is a statement from your sister about your background.
Facts
The prosecutor, Mr Devlin, opened this matter to me yesterday, in accordance with an agreed written prosecution opening that was dated 31 October 2017. Mr Backwell, who appeared for you, told me that the facts in this case were agreed. As it was an agreed summary, I do not see the need to describe the full factual setting in my sentencing reasons. What I can say is this, I will not stray beyond those agreed facts. That is very important in this case, as I have to be astute not to sentence you for conduct other than the conduct that you have admitted by your plea.
I will still say something very briefly about this offence. This was a nasty physical attack launched by your then female partner, Ms Ryan, upon a female tenant of your unit, Ms Sartori. It was prolonged and arose as a result of the belief that the tenant had breached some of the house rules. It was being suggested, as I understand it, that she had permitted people to actually visit the unit and that that had been against the rules. Anyway, you had expressed some level of annoyance on the day about that event, but Ms Ryan, your partner and your female accomplice took very much the lead role in what then took place. She was expressing very strong views about the breach. It was she who went to your unit and frogmarched the victim from that unit to the one where you sat at the kitchen table with a woman named Mitchelson.
It was Ms Ryan who then launched the physical attack and it was she who was monstering and bullying the victim. It was though, a sustained attack, as the summary makes clear. It was taking place over hours, not minutes. You played no physical role at all, but encouraged the attack by your presence. That is what is alleged and agreed in paragraph 13 of the opening. You were interviewed by the police. You made some admissions about the events. You denied any physical acts and of course, that is accepted by the Crown, though they said yesterday that you have, to some extent, downplayed the duration of the event. Well, the summary, as I say, placed before me, is an agreed summary. It spells out the duration of the event.
There is a lengthy procedural history as to the way this matter came before the court and the events leading up to its resolution in July. They are set out in the summary.
I do not see the need to descend to the detail of them.
Impact
There is an impact statement in this case from your victim, Ms Sartori. That was read aloud yesterday by the prosecutor and marked as
Exhibit C on the plea.
Now Mr Devlin, quite appropriately, alerted me to references in that impact statement to fractures or breaks to the cheekbone and jaw and then took me to variances in the descriptions between the current impact statement and an earlier version, which was not actually before me. I do not want to get too caught up in all of this. On any view of it, this was a pretty dreadful attack upon this woman on the day in question. I have got to deal with you for your role, of course. I have the agreed summary speaking of how it commenced, of how long it lasted, of how she was treated by your offsider, Ms Ryan, and in fact even being required to mop up her own blood.
Now, I have the injuries described in the summary and I have the photographs. I have the impact statement that details the emotional and psychological impact and it has been very sizeable indeed and I am entitled to have regard to that. The prosecutor conceded, again appropriately I believe, that I could not and should not act on the basis of the existence of fractures or breaks to any bones. The allegation in this case was injury, not serious injury and more significantly, the medical material available on the depositions did not confirm the existence of fractures. It is, of course, impossible for me to divide out or apportion between you and your co-offender, the share of the impact that has been suffered by the victim. The fact is though, of course, you were not the physical actor and your offsider, Ms Ryan, was behaving very much like
a maniac. I take into account the impact of your crime and it has been far from minor.
Mitigation
Now, your counsel, Mr Backwell, raised a number of matters in mitigation on your behalf. He relied chiefly upon:
· Your guilty plea;
· The principle of totality and the existing supervening murder sentence which, of course, is a very large one;
· He spoke also of the increased custodial burden, owing to health issues that arise from your being shot a couple of time by police on the day of the siege and murder;
·
He alerted me to the disposition that had been imposed on the more seriously concerned offender, in this case, that is Ms Ryan, for more serious charges and whilst he conceded that your history was obviously far more significant, he was arguing for a sentence equivalent to the pre-sentence detention that you had served. That was 160 days or failing that, if a longer sentence was required,
a longer sentence which did not increase the actual time you had to serve in prison.
Prosecution
Mr Devlin, who appeared yesterday on behalf of the Director, did not accept that the pre-sentence detention was an adequate sentence and argued that a longer term was warranted. However the Director conceded that totality was very important here and that at worst for you, there would be substantial concurrency and that there may even be total concurrency. That was obviously though a matter ultimately for the court.
Background
I want to turn to your background. I believe I can do so quite briefly, because I have no reason not to accept the family background that has been placed before me in the plea conducted by your counsel. The plea was very much abbreviated and sensibly so, because I have the written outline that has been filed by Mr Backwell. You will not necessarily appreciate the amount of work that goes into those things, but I have that, but I also have the sentencing remarks of Forrest J and I also have the lengthy statement from your sister. So I have all of that material, touching upon your background, because, of course, Forrest J goes through it in detail as well.
You were born in 1969 and you are currently 47, almost 48. You were adopted and as I read the materials, it was a fairly cheerless upbringing by the looks of it and that is probably an understatement, with a most unsatisfactory relationship with your father who, it would seem belittled you. You had sexual abuse, you had expulsion from school, minimal literacy and placement in Baltara and then Turana Youth Training Centre, as it then was, then Pentridge and other prisons and for very sizeable periods.
I take into account your background, as far as I am able to. It was obviously far from ideal. You received a very lengthy sentence indeed in the early 90s from a judge of this court. You did some study in custody and then upon your release, you went on to Melbourne University, where you obtained a degree.
There were very sizeable periods in custody for serious crimes, including armed robbery and intentionally causing serious injury. There are many instances of your being dealt with for crimes of violence. So undoubtedly, your criminal record is highly relevant, having as it does, many appearances for crimes of violence. A jury convicted you of the murder that was committed in December 2015, so obviously a crime occurring after the offending for which I must pass sentence and, of course, you have been in custody since for that and the related crimes, including intentionally causing injury, arising from a very serious siege.
You were sentenced on 13 October of this year, so recently, by Forrest J and you received 25 and a half years, with a non-parole period of 21 years, with 668 days declared as having been served already. I note also that you have spent 160 days pre-sentence detention in relation to the matter for which I must pass sentence. That has not yet been declared and must be by me.
The other aspect of your background spelt out in the materials is the presence of and the problematic use of drugs. They have been a very sizeable problem for you over many years.
There have also, it would seem, been some mental health issues. Prison is clearly more burdensome for you, owing to the physical injuries sustained when you were shot by police on the day of the siege. Indeed today, as you know, I have departed from my usual rule requiring attendance in person, owing to your raft of physical issues.
Guilty plea
Turning then to consider some of the submissions made on your behalf.
I turn firstly to your guilty plea. You have pleaded guilty. That is a significant mitigatory matter. There is a lengthy chronology in the summary. I have already referred to that and I see no great need to repeat that material. It is not the earliest of pleas, your counsel is not suggesting it is, but I note that the trial indictment had more serious charges and they are charges that did not proceed. You also have had the pretty understandable need to focus on the murder trial and so the trial in this particular matter, our matter, went off on two occasions. So I am not just going to look at the chronology and then judge it to be a late plea. I do not think that is the right way of approaching my task. There is a utilitarian value in your plea and that must be recognised. On benefit, of course, is that witnesses have been spared the experience of giving evidence at this court. So too the community has been saved time, expense and effort associated with the conduct of a trial in this court. So in that way, by pleading guilty in the way that you have, you have facilitated the course of justice. The court must reward you for that stance. I must, as a matter of law, pass a lesser sentence upon you than would have been imposed, had you been found guilty by a jury.
Remorse
Your counsel did not raise the existence of remorse in this case and no doubt for good reason. There is really no evidence of it in this case. I have your guilty plea and
a guilty plea is often indicative of some remorse, but other than the very minimal remorse that might be implied in that guilty plea, which I do take into account, I can see no other evidence of any remorse at all.
Prospects
What are your prospects then of rehabilitation? Not that good, that is the truth, in my judgment. For many years you have been before the courts for an array of violence offences. I can only be very guarded at this stage, but I recognise that you are going nowhere and for a very, very long time. You will be in custody for at least the next
20 or so years and you will get out when you are much older and hopefully wiser.
You will be in your late 60’s when becoming eligible for parole in about 2036. I find there are at least some prospects of rehabilitation, though they are really not that strong.
Increased burden
I have already mentioned the issue with your injuries and Forrest J discusses them at some length in paragraph 19 of his sentencing remarks. I share his assessment.
I have no doubt that they significantly increase your burden in prison, in the past and in the future and I take that into account in mitigation.
The Offence
As to the offence, well the summary has been placed before me as an agreed summary. You were not the physical perpetrator in this event, but it was quite prolonged of nature. The injuries were not of the highest level for injury and intention for you, not for Ms Ryan, was the lesser state, being recklessness. The duration, the stop-start nature, well it makes it a relatively bad example of the offence, though again, you were not the actor, you were the person who had expressed annoyance at the breach of the rules and then sat observing the attack by Ms Ryan. By your presence, of course, you were encouraging Ms Ryan to commit that assault. That is what is agreed. You have a highly relevant criminal history.
Purposes
I have to consider a number of purposes of sentencing. I must consider your rehabilitation. I do. As I say, I regard your prospects as really being quite poor.
I am required to punish you, though to do so justly and proportionately. I must also denounce your conduct and I do. That is an important matter.
There are other purposes of sentencing. One of those is the need for this court to seek to deter you from offending in the future. I must try to deter you from future offending. I must give that principle some weight in my sentencing task. Yet again, you are before the courts for a crime of violence.
You must be deterred. Courts have tried to deter you with very little success. I will try again. The Community must also be protected from you, but in each case though,
I cannot just lose sight of the fact that you are already in custody for close to the next two decades. Community protection is already achieved and if 20 years in custody does not deter you, then I suppose nothing will.
General deterrence is also an important purpose of sentencing. The court must send a loud and clear message to other individuals in the community who might be minded to commit this sort of offending, that is, just mindless violence actually. That is so, even in a setting where you are not the actual physical actor, you were not, but you were there and you were engaged in the way as is agreed in the summary.
I must and I do pay regard to the current sentencing practices. But every case and every offender is very different.
Parity
There is a concept referred to by us lawyers as "parity of sentence". You have heard it discussed, I think, very briefly yesterday. In the very broadest sense and this is, I am sure, a gross simplification, this principle of parity speaks of the notion that like offenders will be dealt with in a like manner.
Ordinarily, if there are no points of distinction between actual offenders or their role or their background, then identical or, at least, very similar dispositions should be imposed. I repeat, that is a gross simplification of the principle, but it is a principle which makes perfectly good sense. It is hoped that by adhering to it, that any justifiable sense of grievances as between like offenders can be eliminated.
It is no part of my job though to try to prevent a person holding any unjustified grievance. I cannot stop someone from having an unjustified feeling. All I can try and do is explain disparities of sentence.
I have said more than once in the past that this principle is easy to state in the hypothetical, but it is much more difficult to grapple with as a principle in the real world. That is because, of course, there is almost never such a thing as a like offender or like backgrounds. There are far more commonly differences in the individual features of offenders, or in their role, or as often, in both. That, of course, is the position here, there are disparities in every direction.
There are the differences in the role here, major differences and they are in your favour, in that you were not the physical actor. But it is accepted that you were, by your presence, encouraging Ms Ryan to act and it related to the breach of the house rules you had laid down, a breach where you had, that night, expressed annoyance. So there are the clear differences in physical activity. Your partner, Ms Ryan, the physical actor, has pleaded guilty to more serious charges. However she has a vastly less serious criminal record. She has pleaded guilty and at an earlier stage. So we have differences in role and acts and very many differences in matters in mitigation, no doubt, which are relied upon. She had never been to prison and had only one very minor assault in a very short criminal record. She received 54 days, but not just 54 days of imprisonment, 54 days and an 18 month community corrections order, having been dealt with in the Magistrates' Court. In any event, I pay regard to the principle of parity.
I have taken into account all of the materials placed before me and the submissions made by your counsel. He conceded the inevitability of a prison term. Well he had to make that concession. Nothing else could possibly suffice, but he argued that it would be open to sentence you to the time you have served, or if not, if a longer sentence was required, he argued in favour of full concurrency between that sentence and your existing sentence.
Totality
I have taken into account the principle of totality. It is very important in a case such as this. At the earliest, you would be eligible for release sometime in about 2036. As serious as the offence is, that is, the offence committed by you upon Ms Sartori, it is back in 2014 and it has, to an extent at least, been overtaken by the far more serious crimes committed by you in December 2015, for which you are to be held for at least the next 20 or so years.
I must consider whether the effect of the sentences I will soon pronounce is just and appropriate and is commensurate with your overall criminality. I have engaged in
a last look at the sentence imposed to guard against the imposition of a crushing term upon you.
I believe that ultimately in this case, it is open to me to order total concurrency of sentence and that is what I am going to do. It is not a statement to the effect that the crime committed upon Ms Sartori was not serious, it was a most unfortunate event and an event with a serious impact upon her. Rather, it is a recognition of the impact upon you of the very large sentence that has been subsequently imposed for subsequent offending. I cannot just ignore that. That is the reality of your position.
Sentence
On the charge of recklessly causing injury, I convict and sentence you to eight months' imprisonment.
Section 18
You have spent a period of 160 days by way of pre-sentence detention on that matter and that period is declared as having already been served, pursuant to this sentence.
Existing sentence
As I have said, this sentence will be served wholly concurrently with your existing sentence.
6AAA
Had you been found guilty of this matter following a not guilty plea and a jury trial,
there is something of a fiction though in that, because there was a trial indictment with different charges, but had you been found guilty of this charge, following a jury trial,
I would have imposed a longer sentence. In fact in that setting, I would have sent you to prison for 23 months. More significantly, I would have cumulated and I would have cumulated 15 months of that sentence upon your existing sentence. That is to be noted in the records of the court.
I have declined to make the s.464ZF order. I believe one has previously been made.
I have declined to make the disposal order that has been sought, as there is really no connection that I can see or that I have been alerted to between the crime committed by you and the property listed on the schedule, being a couple of pairs of shoes or boots.
All right, let me just see if there are any other matters that I need to deal with. Have I dealt with everything that needs to be dealt with?
MR BACKWELL: Yes, sir.
HIS HONOUR: Yes, all right. All right, well that completes the matter then, Mr Doherty, so I have passed a concurrent sentence. I will disconnect the link, thank you.
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