Director of Public Prosecutions v Dowdle

[2012] VCC 845

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-11-01207

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE DOWDLE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 June 2012
CASE MAY BE CITED AS:	DPP v Dowdle
MEDIUM NEUTRAL CITATION:	[2019] VCC 845

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Gibson
For the Accused	Ms E. Jeans

HER HONOUR:

1       Luke Dowdle, you have been convicted by a jury of one count of intentionally causing serious injury and have pleaded guilty to one count of affray. Those crimes carry maximum penalties of 20 years and 10 years respectively.

2       You were 20 years of age at the time of the offending and are now still only 21. You are to be sentenced subsequent to a trial, though I take into account that it would appear that at all times you have been prepared to plead guilty to recklessly causing serious injury. You indeed pleaded guilty to intentionally causing serious injury at a committal mention but then determined to place yourself on trial.

3       I accept that that plea indicates a degree of acceptance of responsibility for the offending. Though I note that in your record of interview, and in your sworn evidence before the jury, you said you had no memory of the more serious of the two charges. By placing yourself upon trial, you of course lose the utilitarian benefit of that plea of guilty and people are forced to give evidence.

4 Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes. That order having been made, I must advise you that should you refuse to comply with a request for such a sample, police may use reasonable force to take it from you. That order is made and handed down.

5       You, as I indicated, are still a young offender and not far out of the jurisdiction of Youth Justice. Be that as it may, you have one prior finding of guilt which I will refer to shortly.

6       The circumstances surrounding the offending were that on 1 April 2011 at around about three o'clock in the morning, you and associate, Jessie Hayes, who has also been dealt with in respect of affray, and another man, Tom Tessic, arrived at the Thomastown McDonalds after an evening in the Q Bar night venue, which is also in Thomastown.

7       The situation was, in your record of interview, you said you had not been drinking but in your evidence before the jury you said that you had. The jury were given the traditional directions insofar as alcohol is concerned. I simply say, that having had the benefit of watching the CCTV of the incident, you did not appear to be affected in anyway which reduced your capacity. The punches that you threw were well aimed and you did not appear to have any difficulty moving around the room.

8       In any event, you drove your own vehicle to McDonalds, as I understand it, and the other two were in a blue BMW. The victim in this matter, Steven Clarke, and also some others who were the subject of assaults which are incorporated within the affray, had also been at the Q Bar on the night with other friends. They had all consumed alcohol it would appear. None of those people knew you or your group and there had been no interaction at the Q Bar.

9       What occurred after that, I have heard evidence of, and had the, as has been indicated, benefit of watching a CCTV coverage. The group of Paralin, Adriatico and Zaffa arrived. They observed Mr Clarke eating his meal and had a chat with him before they proceeded to order their meals at this McDonald's counter. I accept that it is fairly apparent that Paralin, in particular, was intoxicated and I also accept that, on the evidence before me, that Mr Clarke was intoxicated as well.

10      The situation was that your group, that is you, Mr Hayes, who is a large person of Islander descent, and Mr Tessic, were sitting at a booth close to the counter. Paralin, I have no doubt, got into a relatively significant verbal dispute with the McDonalds' staff. One sees him in the CCTV waving his arms around and I accept that he, and at least one other of his group, were abusing the staff. There was a security guard there. I have got great doubts about what action he might have taken over all this. He describes endeavouring to calm it down.

11      I do accept that ultimately it calmed down and Mr Hayes, your associate, yelled out to Mr Paralin words to the effect of, "Wait for your fucking food". In any event, he stood up from the booth and, as I have indicated and I will not do this again - this can be watched by anybody on the CCTV - Mr Paralin responded, "It's all good mate. I've had my food now". You also stood up. You were directly behind Mr Hayes.

12      There is then, and I am not going to go into great detail of it, a Mohammed Ali shuffle, if it can be described that way, from Mr Hayes who appeared to have been shadow boxing at the table. You hit Mr Paralin with a strong left-hand punch to the face. He did not see it coming. He went into defensive mode and there was some degree of wrestling.

13      There were punches thrown during the course of that scuffle and I do not need to go into it for these purposes. Mr Adriatico remembers Mr Hayes approaching Mr Paralin and he says, significantly, that he heard you say to Mr Hayes, "Have you got my back on this one?" He says it was at that point in time that you jumped from your seat and swung the punch to the back of Paralin's head.

14      What occurred, in simple terms, was that Mr Clarke went over to where the fight was taking place, if it can be called that, in an endeavour to settle it down. I have no hesitation in finding that his sole purpose was to stop the violence and stop the confrontation. It is hard to get these things in order, other than what one can visually see.

15      Mr Zaffa had a punch thrown at him and effectively what occurred was that you stood behind Mr Hayes for a significant period of time watching and then suddenly, and very effectively, came out and hit Mr Clarke with a very powerful left-hand punch to the face while he was trying to break up the fight. You hit him again and he fell to the floor. He was unconscious and eventually regained consciousness only to lose it again. He was in very straightened circumstances and was taken to hospital. I will refer to that shortly.

16      I accept that when he fell, he probably also hit his head to the ground. It was indicated to the jury, "Causation is not the point here." Even after all that had occurred, you returned and assaulted another man from behind, as the video clearly indicates.

17      You had been told by Mr Tessic, before this occurred, to calm down and it was not worth it as there were cameras around.

18      When interviewed by police, you said that you could not actually remember hitting Mr Clarke. There is clearly no doubt that you did and the severity of it is reflected in the consequences of it.

19      You claimed that you had been deeply insulted. That can only have been by Paralin and he had already been dealt with. In this situation, Mr Clarke can be described as a "totally innocent victim" and it is clear, in my view, that you took the opportunity of striking him as hard as you could and you did so to great effect.

20      The injuries suffered by Mr Clarke were severe indeed. He was taken to the Royal Melbourne Hospital where he regained consciousness briefly before deteriorating and falling into a coma. He was in a coma for days, as I understand it. He was diagnosed with an aneurysm and a subarachnoid haemorrhage from a right PICA aneurysm that ruptured in the setting of the head injury. His treatment involved the insertion of a right frontal EVD, a craniotomy and a clipping of the aneurysm. He developed pneumonia while he was in hospital. He received injuries to his bonal structure of his face.

21      On his ultimate discharge, in June of 2011, he was sent to the Royal Park Rehabilitation Centre. He continues to have significant physical and mental symptoms and has many rehabilitation specialists who are engaged at the Centre. As I have indicated, whatever might have been the cause of your anger at the outset, none of that can be attributed to Mr Clarke.

22      I have before me two victim impact statements. One from Mr Clarke and one from his mother. His mother's victim impact statement eloquently describes the fear and concern that any parent in such a situation experiences. She said, "The hardest part was waiting to see how my son would recover. It's a shocking thing, not knowing what the outcome will be." She now of course knows what the outcome has been and I will refer to that in a moment. She refers to the financial difficulties that the injury sustained by her son have caused and ongoing problems.

23      The victim impact statement of Mr Clarke, himself, was read out by the learned prosecutor. I think it is important that the consequences of your actions be brought home. Mr Clarke says, "I feel cheated. I can't enjoy the things a 21 year old could and should. I lost my way of life. I get frustrated. I feel trapped in my body, imprisoned. I feel depressed. At times I feel like I want to give up. At times I wish I hadn't woken up."

24      He described it has caused difficulties in the relationship with his partner because of his lack of control of emotions and doubt about himself. He cannot go shopping for a long period of time because the lights and the noise annoy him. He has a visual deficiency caused by this and cannot drive a motor vehicle. He has back pain and has scarring. He said, "I feel like I'm an 80 year old man in a 21 year old body." Insofar as the ongoing aspects are concerned, he says, "I attend rehabilitation at Royal Talbot Hospital a week. I see a physio, occupational therapist, speech therapist, psychologist, dietician, social worker and doctor." He describes he has a very bad short term memory.

25      I have no doubt that Mr Clarke does his best to get on with his life, but that is what he is confronted with, and whilst the specialist that gave evidence in the trial said there is hope for improvement over the next 6 to 12 months, I think there is clearly going to be very long term and very significant effects upon him.

26      The offending in itself is very serious. It is, on my view, clearly not spontaneous, unjustified and there was a period of time where you watched before attacking him. The offending in itself calls for the application of general and specific deterrence as well as denunciation and appropriate punishment.

27      Whilst this does not aggravate the offending and one does not up the ante because of it, it is important to understand that you do have, as I have indicated, one prior finding of guilt. That occurred on 21 October 2007. On that occasion you attended a McDonalds and got into a fight with a person called "Guille". The summary of charges that has been placed before me says, "Subsequently the defendant...", interpolate that is you, "...began fighting with Guille by punching him in the face several times to make the victim fall to the ground. The defendant then continued punching the victim whilst he was on the ground. The defendant then decamped the scene and ran off.

28      Mr Guille was transpired to the Austin Hospital where he was treated for a broken jaw and severe facial injuries. He spent three days in hospital. You were ultimately dealt with in the Children's Court for intentionally causing injury and a recklessly cause, as I understand it, serious injury was withdrawn. The fact remains though, Mr Dowdle, that you were well aware of what the consequences of an assault of this nature can cause and the jury have found that you intended to cause serious injury. In other words, you have done it before.

29      Despite your youth, which I am always very, very concerned about, a significant custodial sentence is inevitable. I then look at matters personal to you. Firstly, there is obviously your youth and the partial, if I can express it that way, plea of guilty and what that entails. Tendered on your behalf was a report from psychologist, Mr Laurence Harvey, and sworn evidence was given by two people from the North Heidelberg Football Club as well as your father.

30      The psychological report I do not know takes it a lot of further. Basically, he describes your background. You clearly were not, I do not think, an abused child in anyway. In your mid teens, you left home where you had been living with your mother, your parents having separated when you were young and began drinking alcohol and going to parties with friends. That caused conflict with your mother and you ultimately moved out to live with an auntie for a period of two years.

31      At the time of Mr Harvey's report, which is 11 November 2011, you were currently living with your father. That report says that you had been living there for approximately 12 months which, if it is right, would Incorporate the time of this offending.

32      You were able to complete Year 12 by doing VCAL and upon leaving school you worked as a forklift drive, if I have read this correctly, and were in the process of obtaining an apprenticeship at the time that the offending took place. I am told from that report that you went reasonably well at school, that you had never been suspended or expelled and that you engaged in football and long distance running. At the time the report was made you told Mr Harvey that you were attending gym on five days, or so, a week.

33      You described to Mr Harvey, and this is of real concern, a "Pattern of attempting to stick up for other people if he perceived that they were being victimised, which also led to frequent fighting. Mr Dowdle indicated that on some occasions he was unable to recall the details of a violent encounter." He went on to say, in his opinion, "With respect to the current offence, it appears at the situation at McDonalds triggered both of these defend and protect value systems...", which I interpolate he had referred to earlier, "...causing Mr Dowdle to react aggressively and violently. His ability to regulate his anger and behaviour was most probably further diminished, given his reported levels of alcohol consumption.

34      As I indicated yesterday, and I requested that the psychologist watch what actually happened, I do not myself see any protection or defence of other people taking place in all this. Mr Hayes was clearly able to defend himself and indeed has been sentenced for similar offending. Mr Tessic had enough brains not to become involved and tried to stop you.

35      The ultimate diagnosis is one of an intermittent explosive disorder which Mr Harvey says is provisional. I think in fairly brutal terms that can be described as when you are angry you are prepared to belt people. I have no doubt that you would benefit from an anger management course and I hope and trust that that will be achieved. I think you also have to come to terms with the potential consequences.  Clearly, in the circumstances of violence with your two court appearances, you must hit pretty hard, Mr Dowdle, that is all I can say.

36      The sworn evidence that was given on your behalf is from the Football Club. I always like to hear evidence from people associated with sport. I think sport is a very important thing for people such yourself. Mr Thornycroft, who is the President of the North Heidelberg Football Club, gave evidence and said that he regarded you as a responsible young person. He had known you for about five or six years. He said, "I have always known Mr Dowdle to be honest, reliable and extremely generous with his time assisting the Football Club in any way possible. As we are based in a low socioeconomic area, the children often lack guidance and Mr Dowdle has always been a great role model and someone that the kids look up to." He thought that you had great leadership qualities.

37      Mr Helms, who is your coach and who apparently had also known you for about five years, indicated that he had in fact made you captain. I questioned the circumstances of your drinking and what your conduct was like at the Football Club and I was told there was not a problem. I was told that you had not been reported and that there had been no sign of violence on the football field or within the confines of the Club. I can only take what I am told on face value and I note that Mr Thornycroft has come today to support you.

38      I take those matters into account and it is clear that when you are appropriately motivated and sober, that you can be a worthwhile member of the community. I have got grave doubts with you as to the combination of alcohol and violence and have indicated there is obviously some doubt as to the level of intoxication, if any, that you engaged in on the night.

39      Your father also gave evidence on your behalf and said that you had now been living with him for some time and that you were improving and he had had no trouble with you other than this, if that timeframe is right. He did not seem to see a drinking violence problem and I am really at a loss to know where all that takes us. There seems to be a contradiction between what you are like at the Football Club and at home and what you are like in a McDonalds.

40      Be all those matters as they may, I think the prospects of your rehabilitation, if you come to terms with what you have done, should be good. I have got some concern as to how much empathy you really do have about what had occurred and what the consequences were of it on that night but I trust that, having heard the victim impact statements read out in court, that you now have a far greater appreciation of what that sort of gratuitous violence can do to people. It can ruin lives, Mr Dowdle. I think that the risk of you re-offending is totally dependent upon you receiving appropriate treatment and assistance with anger management and general social conduct.

41      Insofar as parity is concerned, I am told that Mr Hayes pleaded guilty to a charge of affray in the Magistrates' Court, though the Crown opposed it being heard in that jurisdiction. He received a wholly suspended sentence of six months. I do not know his background. I do not know whether he had any prior convictions, but I take into account that that was the circumstance, albeit in a situation such as this, very different jurisdiction.

42      In the end, you are still a young person and I have to be careful in terms of totality and what can seem to be a crushing sentence. I was given a range from the Crown and having given the matter anxious consideration, I think that that range is appropriate. The simple fact of the matter is you cannot do this. Severe long term injury has been caused to another person.  He has to live with that.

43      Matters of general deterrence and community's denunciation are such, in assaults like this, that a significant sentence indeed has to be imposed. I have taken into account the matters of youth and the plea of guilty, as I have indicated, but in the end I must sentence, on my view, as follows:

(a)      On the charge of intentionally causing serious injury; you are sentenced to be imprisoned for a period of four years.

(b)      On the charge of affray; you are sentenced to be imprisoned for a period of 12 months.

(c)       I direct that three months of the sentence imposed on the charge of affray, be served cumulatively.

(d)      On the sentence imposed on the intentionally causing serious injury.

That gives a total effective sentence of four years and three months, principally, because of your youth, I intend to give you a greater opportunity for parole, than might otherwise be the case, and accordingly, I direct that you serve a period of two years and three months before becoming eligible for parole and I direct that one day be reckoned as having been served under this sentence.

44      Are there any other orders I have to make?

45      MR GIBSON:  No, Your Honour.  As Your Honour pleases.

46      HIS HONOUR:  Yes.  Just adjourn thanks, Mr Tipstaff.

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