Director of Public Prosecutions v Duggan
[2012] VCC 1140
•3 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT SHEPPARTON SITTING IN MELBOURNE
CRIMINAL DIVISION
CR-12-00671
CR-12-00570
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL DUGGAN SHAUN PARKINS |
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JUDGE: | HIS HONOUR JUDGE LECKIE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 August 2012 | |
DATE OF SENTENCE: | 3 August 2012 | |
CASE MAY BE CITED AS: | DPP v. Duggan & Anor. | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1140 | |
REASONS FOR SENTENCE
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Catchwords: Plea – intentionally cause serious injury
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms W. James | Office of Public Prosecutions |
| For the Accused | Mr Cameron Mr Al Halpen | Smith Legal Robert Stary Lawyers |
HIS HONOUR:
1 Shaun Parkins and Paul Duggan, you have both pleaded guilty to one charge of intentionally cause serious injury. The maximum penalty for this offence is 20 years' imprisonment.
2 The circumstances of your offending are set out in the Crown Summary (Exhibit A). I will therefore only give a short summary. On the afternoon of Wednesday, 1 February of this year, you both accompanied one Donna Romania to an address in Wallan. You, Mr Duggan, are the brother of Ms Romania, whilst you, Mr Parkins, had previously been in relationship with Ms Romania. After an argument, Ms Romania left you at the address where you were and went to 17 Sinclair Court, Wallan to see David Sweeney, the victim in this matter. Mr Sweeney had also previously been in a relationship with Ms Romania. There was ill-feeling between you, Mr Parkins, and the victim arising from the relationship that you had both had with Ms Romania.
3 Some time after Ms Romania had left you, you both walked around Wallan looking for her. At around 11.40 pm, you both attended 17 Sinclair Court. You confronted the owner of the house, demanding to know the whereabouts of Ms Romania in an abusive manner. The owner forced you out of her house and locked the door.
4 As you both commenced to leave the property, you noticed Ms Romania's car on the front lawn with the victim and Ms Romania hiding inside. You, Mr Duggan, opened the door of the car and removed Ms Romania. You then got into the car and began assaulting the victim by repeatedly punching him to the face. You, Mr Parkins, got into the rear of the car, pulled the victim down between the seats and commenced punching him to the head. You, Mr Duggan got out of the car but continued your assault by kicking and stomping the victim's head. You also hit the victim with a whiskey bottle.
5 Fortunately, on-lookers called the police who arrived and it was at that stage, as I follow it, that the assault stopped. You, Mr Duggan, ran off and hid whereas police arrested you, Mr Parkins, still seated in the rear of the car. Later on police located you, Mr Duggan, lying intoxicated under a hedge on the property where the assault occurred.
6 Mr Sweeney, the victim, was conveyed to the Royal Melbourne Hospital where he was observed to have pre-orbital swelling and bruising with difficulty opening both his eyes, two forehead lacerations, tenderness to the back of his neck and mild swelling over his right forearm. Much of this is graphically shown in the photographs which were tendered as Exhibit B. A CT scan of his brain, face and neck showed bilateral nasal bone fractures, a displaced fracture of the medial wall of the right orbit and a fracture of the transverse process of his seventh cervical spine. Mr Sweeney was released from hospital on 4 February but was readmitted on 9 February for repair to the fractured right orbital floor by a plastic surgeon.
7 When interviewed by police you, Mr Parkins, made admissions to assaulting the victim, whilst you, Mr Duggan, denied the allegations. Both of you made derogatory remarks about the victim and showed no remorse for your actions at that time. This is a serious offence, as is reflected by the maximum penalty. It involves an unprovoked and sustained attack by two men against one. The victim was rendered defenceless almost immediately and then trapped in the confined space of the motor vehicle. It included punching by the use of fists to the head of the victim, some kicking or stomping to the head, and the use of a bottle as a weapon.
8 I find that you were both acting in concert or you were aiding and abetting each other in this attack and bear equal responsibility for the damage caused by the various blows inflicted to the victim. Although I accept that the attack was opportunistic, I find that you, Mr Parkins, harboured ill feeling towards the victim and had threatened violence against him and when the opportunity arose, you gave in to your hatred and attacked Mr Sweeney. The reason why you, Mr Duggan, attacked the victim is less clear except that from the answers in your record of interview, you disliked him because of his involvement with your sister.
9 The trauma that you both inflicted on the victim was significant and is set out clearly in the record of interview which is Exhibit C. Not only has the victim suffered the physical and emotional trauma of that night which put him in hospital for some days, but he has had on-going physical, emotional and financial problems as a consequence of your conduct.
10 There are, however, some mitigating factors, as pointed out by your counsel. You have both pleaded guilty and I take that into account in your favour. You have saved the community the time and cost of a trial and also, importantly, you have saved witnesses the ordeal of having to give evidence before the court.
11 I also take into account that you both pleaded guilty at the earliest opportunity in proceedings. This, together with other materials presented to the court during your pleas, has persuaded me that you now both have some insight and remorse for your actions.
12 Your personal histories and circumstances are set out in the psychological reports that were tendered on behalf of each of you. I have taken them into account and I will not repeat all of those details in this judgement as they are exhibited on the pleas.
13 Mr Duggan, you are now 39 years of age. You were raised in Wallan with three sisters and one brother and you describe both your parents as having serious problems with alcohol. You had difficulties with schooling and left in Year 8 and then worked in various jobs. For the last eight years, you have worked as a labourer with Celeste Builders and your employer, Mr Pollitto, gave favourable evidence about you as a worker and provided a written reference. It was clear that he would happily provide employment for you in the future. You had a relationship for ten years and have two children aged 15 and 14 from that union. Your relationship terminated some five years ago due to your alcoholism.
14 Dr Cunningham, psychologist, in his report diagnosed you as having a substance use disorder, that is a psychological and physiological dependence to alcohol. The doctor also assessed you as a moderate risk of future violent offending. As a result of psychometric testing, Dr Cunningham said that your cognitive functioning was in the intellectually impaired range consequently you were further tested by Dr Linda Borg, a neuro-psychologist. After referring to the results of her testing, the doctor stated this at p.5 of her report:
"Upon considering these results considerable caution needs to be taken in interpreting the current assessment findings and consequently it is difficult to establish a clear diagnosis given the possibility that some of the results may not be accurate reflections of Mr Duggan's cognitive capabilities. Based on these performances, he would have difficulty in remembering day to day events and would be functioning at a level of someone with severe dementia syndrome. However, this is not panning out functionally and, in fact, Mr Duggan was able to give a clear and reliable history to the examiner, which is contrary to his test scores. Based purely on Mr Duggan's history, it is quite feasible that he would have some deficits secondary to prolonged alcohol abuse.:
Further on in the report, at p.6, the doctor stated, and I quote:
"In accordance with Dr Cunningham's psychological assessment report, Mr Duggan would meet criteria for a substance use disorder and he also appears to have some reactive anxiety and depression due to this current circumstances. He is already reporting sleep disturbance and expresses concern regarding his safety in the prison environment. Given previous reports of feeling suicidal as a result of this experience, it is feasible that he may be more at risk with on-going imprisonment. The biggest factor in Mr Duggan's criminal behaviour appears to be his substance use and therefore addressing this underlying addiction would appear to be the most effective way to assist rehabilitation. If he were to return to drinking, especially at the levels recorded, the likelihood of recidivism is quite high."
15 You have admitted before me to prior convictions. There are, on my counting (although it is difficult to follow these documents), 48 such convictions arising from 19 court appearances between 1991 and 2010. Many of these appearances appear to be linked to your alcohol abuse over the years. You have been sentenced to Community-based Orders, Intensive Corrections Orders, suspended sentences and imprisonment with limited success, it would appear. The most significant prior conviction is that of a threat to kill in 2006, to which you were sentenced, together with other matters, to 84 days' imprisonment wholly suspended for eight months. I note that you did not breach that suspended sentence. However, this conviction causes you to be categorised as a serious offender under the Sentencing Act and consequently I must regard the protection of the community as a principal purpose in sentencing you. The prosecution did not, as I understand it, urge that a disproportionate sentence was justified in this case and I agree with that view.
16 A number of references were tendered on your behalf from Mr Lingard, Ms Wright and Mr Pollitto which speak well of you. Your mother also gave evidence and I accept that some hardship will be experienced by your family as a result of your incarceration. However, your chances of rehabilitation are problematic. I accept the assessment of Dr Borg that the biggest factor in your criminal behaviour appears to be your substance use and if you return to heavy drinking, the likelihood of recidivism is quite high.
17 Mr Parkins, you are now 42 years of age. You were raised in the Broadmeadows area but reported that at home you were victim of chronic domestic violence. You achieved Year 10 at school but it was not a happy experience as you were the subject of bullying. Since leaving school, you have spent about half your working life unemployed and half employed. Your longest job appears to be as a car detailer in the transport industry, which did last ten years. You have had a number of relationships over the years and one 15 year old daughter as a consequence, although you have no contact with her. Over the years, you have abused drugs and alcohol and developed symptoms of depression.
18 The clinical and forensic psychologist, Carla Lechner, expressed the following opinions as a result of her testing. At p.6 she stated:
"Mr Parkins presents as a psychological fragile man whose social and emotional development has been severely compromised by his experiences of abuse in his formative years. He reports being a victim of and a witness to extreme domestic violence. As a result, his capacity to sustain employment and to maintain relationships has been compromised. He presents with symptoms of chronic depression and poly-substance abuse dependency. The above incident occurred in the context of a volatile relationship with his former partner and apparent allegations made by the victim. Mr Parkins was substance affected at the time of the assault. This was no doubt impairing his judgment and capacity for impulse inhibition. He would benefit from intensive and multi-disciplinary approach to treatment."
Later on in the report at p.7, the psychologist stated, and I quote:
"At interview, Mr Parkins impressed as cognitively and emotionally immature with limited ability to reflect on the impact that his behaviour on both himself and others. He is easily overwhelmed by social and emotional factors that cloud his decision-making. Mr Parkins is able to identify some triggers to his negative feelings (mostly related to his upbringing) but is less well able to express them, tending to abuse substances in order to block out his internal distress. Mr Parkins gives a history suggestive of long-term chronic depression, he is currently evidencing symptoms of depression at a clinical level, this being confirmed by the score in the extreme range on the Beck Depression Inventory. Further, psychometric testing indicates that his verbal intelligence is likely to be in the extremely low/mildly intellectually disabled range, his immature judgment would be further undermined by a high level of emotional distress and/or substance abuse. The simple cognitive behaviour approach to intervention is recommended."
19 You have admitted before me to prior court appearances. In 1994, you were convicted of cannabis and firearm offences and placed on a Community-based Order which you completed successfully. In 2010, you were charged with cannabis offences and the matter was adjourned for you to continue with treatment. It is noteworthy that you have no other convictions and it is particularly important that you have no convictions for violence.
20 Since your incarceration on these matters, you have completed a number of courses designed to assist in your rehabilitation and have been working as a billet within the prison system, which is a trusted position within the prison system. Also, you were tested for drugs on 11 March 2012 and found to be clear of any substance abuse. In all the circumstances, I am satisfied that you are well motivated in relation to your rehabilitation and consequently your chances of rehabilitation are very good.
21 However, as well as these matters person to each of you to which I have referred, I must also take into account deterrence. Especially general deterrence which is of considerable importance in cases such as this. Personal deterrence is also relevant and particularly in relation to you, Mr Duggan. I must also consider the question of protection of members of the community from you and bear in mind the likelihood or possibility of your re-offending. I am called upon the Sentencing Act to manifest the community's denunciation of this sort of conduct and generally impose a just punishment.
22 The seriousness of your offend, in my view, calls for an immediate period of imprisonment and neither of your counsel argued otherwise. The prosecution submitted that an appropriate range for this offence was a head sentence between five and six years, with a minimum term of three to four years' imprisonment.
23 Counsel for each of you submitted that this was too high. Mr Halpen referred the court to "Overview of Intentionally Cause Serious Injury" sentenced as the principal offence in the Court of Appeal, the reference is 29.9.1.1., which is a document that is downloaded from the Judicial College of Victoria website and was last updated on 27 July 2012.
24 He argued that this case had to be considered in light of the fact that although a bottle was used, there was no knife or like weapon used and also there was no permanent incapacity caused to the victim such as there are in some of the sad cases that come before the court which reveal brain damage or serious physical on-going injuries. That is not to say that the injuries suffered by the victim in this case were not serious and that he still has on-going psychological and some physical problems.
25 Having reviewed the material that has been provided and visiting some of the cases referred to and also considering the Sentencing Snapshots which are contained on the Judicial College website, I accept that there is merit in this submission. I have consequently decided that in light of what I regard as the current sentencing practices, the head should be slightly lower than that submitted in the range put forward by the prosecution.
26 I have also considered whether the head sentence for Mr Duggan should be higher than that which I determine is appropriate for Mr Parkins because of his criminal history and the fact that he is to be sentenced as a serious offender for a relevant offence. Although Mr Duggan's criminal history is poor, it mainly relates to his alcoholism and there is a limited history of violence towards other people in the community. It is clear that he does have an assault by kicking in 1991 but that is now 20 years ago.
27 He also has the conviction of threat to kill which was six years ago, however that involved other offences of assault police and behave in offensive manner and in my view, likely occurred whilst he was under the influence of alcohol. It is noteworthy that he received an 84 day period of imprisonment for those offences which was then wholly suspended and which he kept that suspended sentence. In my view, that does not reflect a charge of threat to kill in the higher range, but obviously in a lower range of seriousness of that type of offence.
28 After considering the psychological material placed before the court, I have determined that I should not increase that head sentence for Mr Duggan. Although not conclusive, some of the testing of Mr Duggan suggested cognitive functioning in the intellectually impaired range and I have taken that into account generally and ameliorated the sentence I would otherwise have decided appropriate in his case.
29 The sentence of the court is as follows: you are both convicted of the charge of intentionally causing serious injury.
30 Mr Duggan, you are sentenced to 54 months' imprisonment. I order that you serve a minimum term of 36 months before being eligible for parole. I declare that you have served 183 days presentence detention and I direct that this be entered in the records of the court. I direct that the fact that you are sentenced as a serious offender for a relevant offence be entered in the records of the court.
31 Pursuant to s.6AAA, I state that but for your plea of guilty, I would have sentenced you to five and a half years with a minimum of four years.
32 Mr Parkins, you are sentenced to 54 months' imprisonment. I order that you serve a minimum term of 27 months before being eligible for parole. I declare that you have served 183 days presentence detention and I direct that that be entered in the records of the court.
33 Pursuant to s.6AAA of the Sentence Act, I state that but for your plea of guilty, I would have sentenced you to five and a half years with a minimum of three years.
34 I have ordered a lower than normal minimum term before you are eligible for parole in your case, Mr Parkins, because I accept that you do have very good prospects of rehabilitation and you have very few prior convictions and none for violence. It is therefore, in my view, in the interests of the community to encourage your promising commencement to your rehabilitation and allow you to be placed, if the authorities feel it is appropriate, on a long period of parole.
35 The orders for retention of the forensic samples in both cases have been signed and also the disposal order.
36 Is there anything that counsel wish to raise?
37 MR HALPEN: I may have missed it, Your Honour, but pre-sentence detention.
38 HIS HONOUR: I thought I said it in both cases.
39 MR CAMERON: You did, sir.
40 HIS HONOUR: 183 days pre-sentence detention in relation to each of the sentences and I order that it be entered in the records of the court that I made such a declaration.
41 MR HALPEN: Your Honour pleases.
42 HIS HONOUR: I am sure I said it, Ms James is giving me the thumbs up. Any other matters?
43 MR HALPEN: No, Your Honour.
44 MR CAMERON: No, Your Honour.
45 HIS HONOUR: Remove the prisoners please.
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