Director of Public Prosecutions v Doyle
[2023] VCC 596
•3 April 2023
| IN THE COUNTY COURT OF VICTORIA AT melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-21-00522
Indictment No. K12846525.2
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAYDEN THOMMAS DOYLE |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF PLEA: | 7 March 2023 | |
DATE OF SENTENCE: | 3 April 2023 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Doyle | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 596 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence
Catchwords: Jury verdict – guilty of one charge of recklessly causing serious injury – acquitted of one charge of intentionally cause serious injury and one charge of make threat to kill – no criminal history – forceful single punch to head – victim hit head on footpath – foreseeability of serious injury – random street violence – victim diagnosed with acquired brain injury and a mild neurocognitive disorder to due to traumatic injury
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:DPP v Russell [2014] VSCA 308; Al Wahame v The Queen [2018] VSCA 4; Betrayhani v The Queen [2019] VSCA 150
Sentence: 4 years and 9 months imprisonment with a minimum non-parole period of 2 years and 8 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Piggott | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr A. Malik | Adrian Joseph Dessi Legal |
HIS HONOUR:
1Hayden Doyle, following a trial which ran from 14 February to 3 March this year you were found guilty by jury verdict of one charge of recklessly causing serious injury, which has a maximum penalty of 15 years' imprisonment. You were found not guilty of intentionally causing serious injury relating to the same assault and not guilty of making a threat to kill, alleged to have occurred inside the Deck Bar in Frankston, before the assault which took place on the street, after you and the victim and others had left the Deck Bar.
2You were born in April 1994. At the time of the offending you were 25 years old and living in Frankston. The victim of your offence is Alex Van Staveren. He was born in June 1986 and was 33 years old when the offending occurred. He was married to Jessica Van Staveren, and they had a young child together. You did not know each other before the night of the offence.
Circumstances of offending
3On 26 October 2019, Alex Van Staveren went to the Deck Bar in Frankston, on the corner of the Nepean Highway and Davey Street. He was there with family and friends to celebrate his sister-in-law's 30th birthday. The celebrations were held downstairs in the function area and finished at about 8.00pm. After this, Mr Van Staveren, his wife, and others continued to socialise and drink upstairs.
4The Deck Bar is located at the corner of the Nepean Highway and Davey Street. It has two entrances/exits. The main entrance is on the corner and features a small foyer with steps out onto the footpath facing an intersection. The second entrance has a narrow staircase into the venue and is approximately 10 to 15 metres from the main entrance facing the Nepean Highway in the opposite direction of the intersection.
5Directly across Davey Street on the opposite corner is the Grand Hotel. There is a traffic island for pedestrians between The Deck Bar and the Grand Hotel. The footpath on the side of the Grand Hotel facing the Nepean Highway leads to a strip of fast-food outlets and restaurants. There is a pokies entrance at the Grand Hotel and a taxi rank 50 to 100 metres south along Davey Street. The offending occurred approximately near the pokies entrance.
6At one point in the evening Mr Van Staveren saw an old friend, Matteo Luisetto. Mr Luisetto told Mr Van Staveren that he had just come back from a boxing training camp called Almost Boxing Legends.
7Luisetto had arrived at the venue at about 8.30pm with friends he had met through boxing, including you. He had known you for about seven months. It seems that you and others who had participated in the boxing camp were all together at the Deck Bar on that night, marking the end of the camp.
8After going upstairs, Mr Van Staveren and his wife spent most of the night in the outside area of the Deck Bar. There is also an enclosed bar upstairs.
9At about 2.00am, Mr Van Staveren went to the upstairs bathroom. When he came out, he saw two males standing between two sets of tables and chairs just outside the entrance. A few metres away were his wife, Jessica, Luke Low, and other friends. Mr Van Staveren began talking to the two men, who were Brad Jenkins and Jarrod Maddaford, for a couple of minutes.
10One of these men, Brad Jenkins, had a significant scar on the right-hand side of his face. Mr Van Staveren asked him about the scar. I accept that Mr Jenkins became upset about this and the conversation, which lasted for a couple of minutes, became aggressive at certain points. This is clear from the CCTV.
11After the three men separated, Mr Van Staveren returned to his wife and friends who were seated at a nearby table. You can be seen on the CCTV speaking to Brad Jenkins. He told you about the incident with Mr Van Staveren. I accept he told you he was upset by it. You then walked over to Mr Van Staveren's table. You spoke to him prior to walking away back to your friends.
12You were acquitted of making a threat to kill in respect of this conversation. You gave evidence that your approach was conciliatory and that you suggested to Mr Van Staveren that he 'come by and have a beer'. Assessing the different accounts, I am unable to make a finding as to exactly what was said but it is clear from the CCTV that this interaction did become hostile with both you and Mr Van Staveren displaying aggressive body language. Soon after, Mr Van Staveren approached security at the venue.
13CCTV footage then shows you approached Jessica Van Staveren and another man in that group, Brendan Crocker, at around 2.33am prior to being asked to leave by security. When security asked you to leave, you were plainly resistant initially but in the end left, walking down the stairs with security staff close by and out the exit onto the Nepean Highway. You stayed there for a little while and then moved up to the main entrance/exit where you can be seen on the CCTV footage.
14At about 2.42am, Mr Van Staveren, his wife and friends left the venue via the second entrance. They walked north along the Nepean Highway towards the fast-food outlets. They walked past you, Mr Cox and Mr Maddaford at the front venue entrance. CCTV shows the victim and his group walking past you and then crossing the road towards the Grand Hotel.
15There is also CCTV which shows you, Mr Cox, and Mr Maddaford all together at the front entrance/exit near the corner before Mr Van Staveren's group walk past. There is a dispute in the evidence over what happened as Mr Van Staveren's group passed your group at the front entrance.
16Mr Van Staveren said in evidence that, as he was almost halfway across the street, he heard someone yelling out words to the effect of, 'There he fucking is. Let's get him.'[1] Jessica Van Staveren gave evidence of hearing similar words: 'That's him. Let's get him.'[2] The CCTV shows Mr Maddaford to be the person pointing, after which you, Mr Maddaford and Mr Cox swiftly left the front entrance and moved towards the other group, who were crossing the intersection.
[1] Transcript (“T”) 53, Line (“L”) 29-30.
[2] T132, L20.
17As to what happened as the victim's group passed your group at the entrance, I reject the evidence of Mr Cox, Mr Maddaford and you that there was any spitting towards you or overtly aggressive behaviour from their group towards your group. I found the evidence about this unconvincing and inconsistent. Mr Cox, for example, said he saw spit and he described where it landed only to later say he was not sure whether he saw spit at all or whether he had just assumed there had been spitting from what was said.
18Mr Maddaford said the victim's group came up to within a metre of where he was, but he had to resile from this when he was shown the CCTV footage during his evidence.
19In my opinion, based on the CCTV, Mr Van Staveren’s group seemed to ignore your group, if they were aware that you were there. What can be seen is Mr Maddaford pointing and your group setting off after them as they crossed the road. I accept beyond reasonable doubt that someone in your group said something like, 'There he is,' and then your group took after Mr Van Staveren's group.
20Regarding the initial confrontation at the intersection, you said Mr Crocker was ‘calling [you] a dick head’[3] and saying, ‘You got what you deserve.’[4] I accept that Mr Crocker was being aggressive. This is clear from the footage. Plainly, from a question the jury asked during the trial, they also viewed Mr Crocker as an instigator. I also accept that Mr Crocker may well have continued to be verbally aggressive during the incident out on the street.
[3] T516, L30.
[4] T516, L31.
21After the intersection, as the Mr Van Staveren's group walked along the road, you, Mr Maddaford and Mr Cox can be seen in the footage in their midst. It is, in my opinion, plain from the footage and the evidence that your conduct as the groups moved along the footpath was also aggressive.
22At one point Mr Maddaford grabbed you and pulled you onto the road. Matteo Luisetto gave evidence, which I also accept, that he saw you and Mr Van Staveren yelling at each other across the road. He told the jury that he crossed the road and thought he would grab hold of you to try and defuse the situation. He said you threw him off and that is when he diverted his attention to Alex.[5] In your evidence, you accepted that Mr Luisetto had grabbed hold of you telling you to leave and you shrugged him off.[6] You also had an opportunity to leave with Mr Maddaford when he got into an Uber that arrived to take him home.
[5] T191, L16-19; T201, L12.
[6] T520, L5.
23Mr Luisetto described you as aggressive but said that Mr Van Staveren was also aggressive. He described you as ‘two drunk idiots’ yelling at each other.[7] He said he was telling Mr Van Staveren to 'pull his head in'[8] but that neither of you were calming down.[9]
[7] T193, L24.
[8] T193, L1.
[9] T193, L19.
24I accept the evidence of Mr Luisetto that there was a level of mutual aggression at that time, but I also accept the evidence that Mr Van Staveren was focused on his conversation with Mr Luisetto about how he, Mr Luisetto, could be friends with your group.
25Mr Malik submitted I should accept the evidence that Mr Van Staveren was threatening you prior to the punch incident. The prosecution submitted that the only evidence of aggression from Mr Van Staveren was the evidence of Matteo Luisetto.
26I do not accept your evidence, and that of Mr Cox and Mr Maddaford, that Mr Van Staveren was threatening to kill you as the two groups moved down the street. This was put to him, and he rejected it, as did Jessica Van Staveren who I found to be a credible and reliable witness.
27In my view, the weight of the evidence from Alex Van Staveren, Jessica Van Staveren, Luke Low, the security guard Mr Nikolakopoulos and also the CCTV, is that you were the person who was the most aggressive on the street in front of the Grand Hotel. Although, as I said, I do not discount some contribution at some stages from Mr Van Staveren and also from Mr Crocker.
28I am satisfied, though, that Mr Nikolakopoulos was talking about you when he gave the evidence of the following, that:
· The ginger guy was extremely aggressive and wanted to fight one of the other gentlemen;[10]
· The ginger guy's mates were trying to cool him down, but he was pretty psyched up;[11]
· One of the ginger guy's mates was behind him trying to calm him down, grabbing him like a bear hug, but he ducked down and his friend went flying[12] (It seems to me that is a description as to what happened between you and Mr Luisetto);
· The ginger guy's mates wanted to take him home, but he was still angry, arguing with his friend;[13]
· His friend was trying to calm him down but he was trying to come back to where the situation was between the Grand Hotel and the middle of the road.[14]
[10]T467, L31; T468, L2-3.
[11] T468, L8-10.
[12] T688, L11-21.
[13] T470, L3-19.
[14] T471, L14, 21-29.
29So, I am satisfied beyond reasonable doubt that you were aggressive and intent on confrontation of some sort on the street in front of the Grand Hotel as the groups moved towards the taxi rank. This is also the way the prosecution put the case to the jury, as an important factor negating self-defence.
30Mr Van Staveren described the circumstances of the punch. He said in the lead‑up you were very aggressive. He said he felt scared.[15] He said that as he continued walking, Matteo Luisetto stopped him on the Grand Hotel side of the street, just past the pokies entrance.[16] He was upset with Mr Luisetto, and he was questioning him about the people that he was hanging out with, and he was disappointed in him.[17] He said that is when he got punched in the face.[18]
[15] T124, L15.
[16] T52, L12.
[17] T98, L24.
[18] T49, L19.
31He said, 'All I can remember is talking to Matt, then waking up on the ground.'[19] He recalls his wife crying and his friends around him, telling him not to move, that he ‘had just smashed [his] head open on the pavement' and that the ambulance was on its way.[20]
[19] T99, L12.
[20] T62, L13.
32Jessica Van Staveren gave evidence that her husband and Mr Luisetto were in conversation, and you walked toward them. She said that her husband was very upset when he was talking to Matteo Luisetto.[21] She said Matteo Luisetto was not trying to hold Mr Van Staveren back.[22] She said as you got closer you just ran and hit Mr Van Staveren on the side of the head.[23] She said the punch landed on the right side of the face between his temple and his jaw.[24]
[21] P144, L25.
[22] T171, L5.
[23] T142, L6.
[24] T144, L30.
33Mr Low said that he saw the punch and that Mr Van Staveren was talking to a person on the road, and another person came over and punched him the face. Low could not recall if Mr Van Staveren made any movement immediately before he was punched.[25]
[25] T235, L30.
34Mr Luisetto said he had one hand out towards or on Mr Van Staveren's chest, with an open palm, keeping an arm's distance to keep eye contact and to try and calm him down.[26] He said Mr Van Staveren could have got past if he wanted to.[27] He said, in evidence-in-chief, that Mr Van Staveren did not get past him although in cross-examination he accepted this was possible. He said you then hit him with a closed fist punch and he 'hit the deck'.[28]
[26] T197, L6.
[27] T203, L5.
[28] T195, L2-4.
35Mr Malik submitted that it was open to me to accept that the punch occurred in circumstances of excessive self-defence based on your evidence and that of Mr Cox. The prosecution submitted, essentially, there was no lunge by Mr Van Staveren towards you and I should reject the claim of excessive self-defence.
36Mr Cox's evidence was that Mr Van Staveren was trying to push through and Mr Luisetto was holding him back or grabbing him.[29] Cox said Luisetto dropped his arms, and Van Staveren jumped around him and lunged towards you. He said you stepped forward one step and hit Mr Van Staveren with your left hand.[30] He said the punch landed on the bottom half of his face, and later in evidence he said, 'on the chin'.[31] He said Van Staveren was out and landed on the pavement or on the bitumen.[32] After that, you looked at him and said, 'I fucked up,' and he said, 'We've got to go.'
[29] T274, L18.
[30] T276, L7; T275, L17.
[31] T276, L17; T280, L24.
[32] T280, L24.
37You said in your evidence that Mr Van Staveren was screaming over Luisetto's shoulder saying, 'You're fucking dead'.[33] You said you were worried for Mr Luisetto's safety but he was telling you to leave. You said you took three steps towards them and stood for a moment just to spectate.[34] You said you stood right behind Luisetto and Mr Van Staveren spat, spit landed on you on the front of your neck, and then Lusietto either dropped his hands or diverted his attention, and Mr Van Staveren took a step around him, and you reacted by throwing a left jab towards his mouth and the bottom of his chin.[35] You said you reacted by instinct, and you had no particular intent.[36] You said you knew if you did not throw that jab at his mouth, then you would have been in big trouble and it could have been you that fell and hit your head on the ground.[37]
[33] T522, L1.
[34] T522, L10.
[35] T522, L13 -19.
[36] T570, L24.
[37] T570, L31; T571, L1-3.
38I am satisfied the jury rejected your version of events and that of Mr Cox. In my view, had the jury not rejected this version as a reasonable possibility, it is unlikely they would have been satisfied the prosecution had negated self-defence beyond reasonable doubt. Although the prosecution did argue very briefly to the jury that even if Mr Van Staveren did lunge towards you, that your response was not reasonable. In my opinion, if the jury accepted that as a reasonable possibility, in circumstances where Mr Van Staveren had been, on your evidence, issuing threats to kill to you, and that he then broke away from physical restraint and lunged at you, the jury would not have delivered the verdict that they did.
39I have already indicated my opinion that Mr Cox was an unimpressive witness. Furthermore, the evidence that Mr Van Staveren was being held by Matteo Luisetto is not supported by the weight of the evidence. Matteo Luisetto himself said that he simply had a hand to your chest. He did not say in evidence that Mr Van Staveren got around him and lunged at you.
40I accept beyond reasonable doubt that Mr Van Staveren was engaged in a conversation with Matteo Luisetto in the terms that he described. I am satisfied that you engaged in verbally aggressive behaviour towards him, and that there was some level of verbal aggression back towards you as described by Mr Luisetto. However, I am satisfied when the punch was delivered that it was not delivered in circumstances of excessive self-defence. I accept that Mr Van Staveren did not lunge at you or get around Mr Luisetto and that he was not looking at you when you struck him with a closed fist to the face.
41The final argument about the facts concerns the issue of where the punch connected with Mr Van Staveren. In the end, I am not of the view that much turns on this, having found that he was not looking at you when you struck him, and he did not lunge at you. But, in my view, the weight of the evidence suggests he was struck somewhere to the side of his face. The precise location is difficult to determine in such a dynamic event.
42After the assault, Jessica Van Staveren rang Triple 0. On the call, she said Mr Van Staveren was going in and out of consciousness and that he was bleeding from the mouth. You quickly left the scene.
43Ambulance and police arrived at approximately 2.58am. The victim was observed to be conscious. He was able to answer questions but did not know exactly what had happened.
44He was taken to the Frankston Hospital Emergency Department. X‑rays revealed a fractured skull and bleeding on the brain. He had an undisplaced skull fracture underlying a large blood collection on the scalp on the right back side of the head. There was blood collection on the right side of the scalp. He had a swollen upper lip and tenderness to the right cheek.
45He was later taken to the Alfred Hospital Trauma Ward where he received specialist care for his head injuries. He was referred to neurosurgery for follow‑up. He was commenced on anti-seizure medication. A further CT scan was performed, revealing a skull fracture but showing no ongoing acute bleeding on the brain. He was discharged from the Alfred Hospital on 30 October and referred to occupational therapy, neurological rehabilitation, and prescribed fatigue medication.
46He attended the Frankston Hospital on 4 November 2019 suffering from ongoing headaches, dizziness, nausea, left-sided hearing issues and left-sided facial numbness and tingling.
47On 4 June 2020, he underwent a neuropsychological assessment and was diagnosed with an acquired brain injury and a mild neurocognitive disorder due to traumatic injury. He was assessed as having an injury to his frontal lobes and was likely to experience some degree of ongoing emotional and cognitive impairment.
48Dr Jason Schreiber, a forensic physician at the Victorian Institute of Forensic Medicine, provided a report in relation to the injuries. He had access to the records of Peninsula Health, the Alfred Hospital, and other relevant documents. He indicated his view that it was not possible to state whether the punch or the head strike on the concrete caused the loss of consciousness. He believed it was not possible to quantify the force required to produce the injuries, however, he said in a healthy person of the Mr Van Staveren's age, significant force would be necessary to produce such injuries. There was a future risk of seizures and ongoing cognitive and psychological problems.
49You were identified from Facebook by Ms Van Staveren. You attended at the Frankston police station on 1 November 2019 where you gave a no-comment interview.
Victim impact
50The victim impact statements from Jessica Van Staveren, Alex Van Staveren, and other members of Mr Van Staveren's family were read out and tendered. They confirm that the victim has experienced the ongoing emotional and cognitive impairment foreshadowed in the neuropsychological assessment.
51Mr Van Staveren described waking up on the ground thinking he was going to die. He said the time in hospital was a frightening experience where he was unable to use the toilet unassisted or write his own name. He said that after discharge from hospital the 'real trauma' began. He described experiencing nausea, fatigue and constant headaches that prevented him from playing with his two‑year old son. He described becoming abusive and being unable to control his emotions. He separated from his wife and was unable to spend time with his son alone. He said he felt like a burden and just wanted to commit suicide.
52Returning to the workforce, he said he would make costly mistakes due to his weakened motor skills and this impacted his self-worth. He said that he now has little to do with anyone. He has lost connections with his friends and his extended family. The impact of your offending is ongoing for him every day.
53Jessica Van Staveren said, in her statement, that the man she met, married, and started a family with was gone and to this day has not returned. She described the impact on her son and his changed behaviour at childcare being noticed by his teachers. She described the difficulties in having to learn to become a single parent, working full time, not knowing when things might return to normal, and experiencing recurring nightmares from the night. She described Mr Van Staveren as often waking up crying. She stated her family will never be the same, but she is thankful her husband is alive.
54The victim's father, Mark, described the impact of your offending as an ongoing nightmare. He described himself as now avoiding any confrontations and even normal interactions with others. He said he grieves for the person his son was before the incident. Mr Van Staveren's mother, Carolyn, said this injury was the beginning of the worst time of her life and she would not wish this on any family. His brother and sister described witnessing his mental health deteriorate and fearing their brother would harm himself. They said their brother constantly battles with the trauma from that night.
55In addition to the medical evidence in this case, the victim impact statements clearly provide evidence of the ongoing emotional and cognitive impairment that Mr Van Staveren has suffered since the night of this offence. This is a significant matter in sentencing in this case.
Gravity
56The gravity of recklessly causing serious injury is reflected in the maximum penalty of 15 years. In the case of DPP v Russell,[38] the Court of Appeal described random street violence as a scourge on our society.[39] The devastating impact of alcohol‑fuelled violence and in particular 'one punch' violence is well known. The fact that this type of violence is often committed by young men is also well known.
[38] [2014] VCSA 308
[39] Ibid, at [1].
57The degree of probability that a serious injury will result and the degree of the seriousness of the injury foreseen are important considerations in the assessment of the gravity of a recklessly causing serious injury offence. I accept that your involvement in recreational boxing has some relevance to the assessment of this latter consideration. From your training you had boxing skills and you had an awareness of the dangers of head strikes. So much emerged from your cross-examination.
58I accept the prosecution argument that Dr Schreiber's assessment of significant force was not necessarily dependent on the extent of the injury or that it disregarded the impact of your head hitting the bitumen. Moreover, the witnesses described the immediate effect of the punch on Mr Van Staveren as substantial. In such a situation, a head strike on the ground was a foreseeable outcome. Additionally, I am satisfied that you delivered the punch with significant force.
59That said, I am of the view that although you were persistently aggressive and intent on some sort of confrontation, I do not think you intended to deliver a 'king hit' from the outset, although that is what you did in the end. In my opinion, there was a degree of impulsivity to the actual blow in circumstances where, based on Mr Luisetto's evidence, Mr Van Staveren was directing some verbal aggression your way not long before the punch.
60But the fact remains that you kept the aggression alive throughout the circumstances: firstly, in the Deck Bar, when you approached Jessica Van Staveren and Mr Crocker; and then by following the victim and his group, directing aggression towards them and in particular Mr Van Staveren. You did have opportunities to leave, but you did not. It was hardly surprising that some verbal aggression was directed towards you.
61In accordance with the jury verdict, I sentence you on the basis that you foresaw a protracted and substantial injury, but I do not believe that you foresaw the probability of a fractured skull and bleeding on the brain. But such consequences are not unusual from a punch involving the significant force you used.
62Whilst ordinarily fleeing the scene and failing to render assistance to a victim of a violent attack would be an aggravating feature, in the circumstances of this case where you immediately said to Mr Cox, 'I've fucked up' and he told you to leave, as had Mr Maddaford earlier, I do not find this to be aggravating in any meaningful way. Obviously, though, had you remained and assisted and expressed remorse, such conduct would have supported your claims of remorse and insight.
63Taking all matters into account, this was serious offending that has had significant ongoing consequences for Mr Van Staveren.
Personal Circumstances
64Your personal circumstances were outlined in Mr Malik's written defence plea submissions and reiterated on the plea hearing. You were born in April 1994. You are now 28 years old. You were 25 years old at the time of the offending.
65You were born and raised in and around Chelsea and Frankston. You are an only child. Your biological father has not been a part of your life, and I am told you have only met him once. You were raised by your mother, Melanie, until you were four‑years old, at which time you mother commenced a relationship with Mr Dane Emblin.
66You see Mr Emblin as a father figure. He works as a manager of a road construction company. Your mother works as a social worker. They both attended the proceedings at various times in this matter and both attended the plea to support you. You regard your parents as having been positive role models and you describe your home environment as loving, stable and supportive. You say you were never exposed to any form of neglect, abuse, or any other problematic behaviours in the family. You have two half-siblings named Christopher and Annabelle who are six and seven years younger than you.
67You completed Year 10. You then commenced a pre-apprenticeship course through Chisholm TAFE and you attained a Certificate in building and construction. You were then employed as an apprentice carpenter for two years before you commenced working in landscaping which you pursued for another two to three years building retaining walls. You then returned to a carpentry apprenticeship. You have worked as a sole trader carpenter since, subcontracting to various construction companies including a lengthy period with Bayside Building and Extension. I am told you have been employed as a concrete pump operator for Premier Concrete Group, who are based in Narre Warren, in recent times.
68I am told, and accept, you have been gainfully employed working 6 days a week for approximately 8 to 10 hours a day since the age of 15.
69You are single. You have no children. You had one previous significant relationship which lasted two years and ended in June 2021. You had lived with your partner for 12 months, but otherwise you have always lived with your parents at the family home.
70You were alcohol-affected on the night of the offending. You gave evidence about that. You, however, denied being a regular alcohol drinker. You say that, usually, you consume one to two drinks on the weekends, but you binge drink from time to time when you go out. You do not use drugs. I accept you do not generally engage in excessive drinking and that alcohol is not an underlying problem for you affecting your prospects of rehabilitation.
References
71I have read and had regard to the references tendered on your behalf including from your grandmother, Ms Deborah Doyle, dated 5 March 2023; Mr Nathan Tolhurst, dated 6 March 2023; Chloe Barry, your aunt, dated 5 March 2023; and your employer, Mr Jake Mullen, also dated 5 March 2023.
72Mr Mullen is an operator at Premier Concrete and describes you as an integral part of the company. He says you are hardworking, reliable, trustworthy, and a respected member of staff. Mr Tolhurst says you have been his best friend since Grade 5. He attests to your hardworking and loyal nature. You have worked for him, as well.
73Your aunt, Ms Barry, describes you as a gentle and loving person, willing to help anyone. She details the effect that these proceedings have had on you. Your grandmother speaks of your empathy and kindness and describes the work you do around her house.
74Mr Malik submitted that the ongoing support that you have from your family will continue and is a protective factor, and is relevant to your prospects of rehabilitation.
Prospects of rehabilitation
75You are a person of prior good character with no criminal history. A letter from a psychologist, Tony Vickers-Willis and dated 22 November 2021, was tendered which confirms that between November 2019 and November 2021 you engaged in counselling and participated openly in sessions to learn about emotional triggers and techniques to control your reactions.
76Your counsel, Mr Malik, submitted that you have expressed remorse in these sessions, and there have been other expressions of remorse in the text messages and what you said to Mr Cox at the scene. I take this into account. I accept that you are sorry for the consequences of your assault, but I cannot credit you as having full remorse or insight given you have not accepted the unlawfulness of the punch itself, maintaining a claim of self-defence in the trial, which was rejected by the jury.
77You are not to be punished for that, but the weight to be given to remorse and insight in mitigation of your offending is limited by the fact that you ran a trial and the dispute over the circumstances of the incident. You cannot be afforded the mitigation that a plea of guilty would have provided in this case, including the utilitarian benefit of a plea of guilty, in sparing the victim and the other witnesses of giving evidence about the case.
78I am satisfied, though, that you have a strong work ethic and you have been a contributing member of the community for all of your adult life. I am also satisfied you have strong family support. You have not reoffended since the time of the offending, which is considerable, and you have taken steps to further your own rehabilitation during this period. I have had regard to all of those matters in assessing your prosects of rehabilitation.
79It was submitted by your counsel, Mr Malik, that your prospects of rehabilitation are excellent. In circumstances where you have not displayed full remorse and insight, I would assess your prospects of rehabilitation as very good, rather than excellent.
Delay
80It is now three and a half years since this offending occurred. The delay in the commencement of the trial is related in part to the disruption caused by the pandemic on this trial's listings. I have taken into account the impact of having these proceedings hanging over your head for that extended period. I accept the delay is not attributable to you, nor is it attributable to the prosecution.
81I would also take into account the impact of the delay in providing evidence that you have been able to demonstrate rehabilitation in that period. It is submitted on your behalf that the impact of these proceedings and your very brief period of three days in custody has had a deleterious impact on your mental health.
82In the end, what I accept is that the process of the court case, the trial and the prospect of a term of imprisonment have weighed heavily on you over the three and a half years that it took to resolve this matter. However, those three and a half years have also been significant on the victim and the other witnesses in the case, which is a consequence of the fact this matter was a trial.
Current sentencing practices
83I have had regard to the comparative cases referred to on the plea, and the parties' written submissions in relation to those cases. Those matters are indicative of current sentencing practices, which are a guide but not a controlling factor in deciding the sentence.
84The Court of Appeal cases of Al Wahame[40] and Betrayhani[41] are examples of substantial sentences for one punch instances of recklessly causing serious injury. The offenders in those two cases did have, though, relevant prior convictions. Betrayhani had received a suspended sentence of imprisonment which the Court of Appeal found elevated the need for specific deterrence. Al Wahame had several prior convictions for assault offences.
[40] [2018] VSCA 4.
[41] [2019] VSCA 150.
85In Betrayhani the injuries were described as 'catastrophic' with the victim requiring assistance with basic daily activities. There was also less contextual material surrounding the assault. Nonetheless, there are clear parallels between the offences in those cases and your offending.
Sentencing principles
86The appellate authorities for offending such as this make it very clear that general deterrence and denunciation must be given substantial weight in deciding the sentence, particularly having regard to the prevalence of this type of offending and the very serious harm that results. A proper application of sentencing principles dictates a significant prison sentence with a non-parole period.
87Given you prior good character and my assessment that you have very good prospects of rehabilitation, in my view, the weight to be given to specific deterrence and community protection is limited. Just punishment, of course, is also a factor to be considered in deciding the appropriate sentence.
88The non-parole period mitigates punishment in favour of rehabilitation, and I will allow for a relatively significant period of supervision in the event that you are granted parole at the expiration of the minimum term.
Sentence
89Could you please stand, Mr Doyle. On the charge of recklessly causing serious injury, you are convicted and sentenced to a period of imprisonment of four years and nine months. I declare the minimum non-parole period to be served as two years and eight months in this matter. Mr Doyle can now go into custody.
90MR MALIK: If Your Honour would not mind declaring the three days ‑ ‑ ‑
91HIS HONOUR: Sorry; I beg your pardon. Pursuant to s 18 of the Sentencing Act 1991, I declare three days of pre-sentence detention to be administratively deducted from the sentence that I have imposed. Thanks, Mr Malik.
92MR MALIK: As Your Honour pleases.
93HIS HONOUR: Mr Doyle can go into custody.
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