Director of Public Prosecutions v Ewington
[2022] VCC 574
•2 May 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-02212
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JONATHAN EWINGTON |
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JUDGE: | HIS HONOUR JUDGE MOGLIA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 March 2022 |
DATE OF SENTENCE: | 2 May 2022 |
CASE MAY BE CITED AS: | DPP v EWINGTON |
MEDIUM NEUTRAL CITATION: | [2022] VCC 574 |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence upon plea of guilty
Catchwords: Recklessly cause serious injury – Admissions at police interview – No relevant criminal history – Good prospects of rehabilitation – Severe acquired brain injury – Remorse – Verdins – Boulton – Midrange severity for injuries caused – Dislocation upon sentence – Section 85 compensation order – Community correction order
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Victims of Crime Assistance Act 1996 (Vic)
Cases Cited:R v Verdins (2007) 16 VR 269; R v Boulton (2014) 46 VR 308
Sentence: Community correction order with conviction for two years and six months, commencing on date of sentence
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Gray | Office of Public Prosecutions |
For the Accused | Ms A. Hancock | Pica Criminal Lawyers |
HIS HONOUR:
1Jonathan Ewington, you have pleaded guilty to one charge of causing serious injury recklessly. The maximum penalty for causing serious injury recklessly is 15 years. The agreed basis for your guilty plea is set out in the summary of prosecution opening dated 28 March 2022. You are to be sentenced based on those facts which I summarise and make findings about as follows.
2You were, at the time and currently are, a resident of New Zealand. You returned to Melbourne on 4 April 2019 to attend a private event organised by friends of yours. The event was held at a private property at 1940 Frankston Flinders Road, Hastings, on 7 April 2019. You were one of about two hundred guests, all of whom were issued wristbands to gain entry. Sometime after
11 pm, the victim, Tyson St Jacques, arrived at the event with four other friends, including Dylan Holmes and Kane Rickson. They scaled a neighbouring fence to enter the property, near tents, where attendees were staying. Mr St Jacques and Mr Holmes had bags containing stubbies of beer with them.3Once inside, a security guard asked Mr St Jacques and his friends to leave because they did not have wristbands. Soon after, you approached the group and spoke to them about their lack of wristbands. They said they were leaving, and you walked away without there being any acrimony. Event organisers had previously told you that there might be problems with gate crashers. Later again, as Mr St Jacques and Mr Holmes were waiting just outside the fence for their friends, you saw them there, this time noticing they were carrying bags. You yelled aggressively at Mr St Jacques ‘What's in the fucken bag?’, as you climbed the fence and ran towards them.
4Mr Holmes dropped his bag and ran towards the road. As you approached
Mr St Jacques, he stopped, turned to face you, and held out his bag. You grabbed it and kept moving past him towards Mr Holmes. Mr St Jacques turned and tried to grab the bag back from you. As you were moving away from him, heading towards Mr Holmes, you swung the bag back towards Mr St Jacques who was still within arms-length or so. It hit him in the face, and he dropped to the ground holding his face in pain. This act forms the basis of the charge of causing serious injury recklessly.5By your plea, you admit that when you swung the bag at Mr St Jacques, you foresaw the probability that a serious injury would ensue. Whilst it is agreed that you did not know what was in the bag, you were aware of its weight and how hard you swung it. Mr Rickson heard the crash of the bag hitting
Mr St Jacques' face and ran to help him. He said: ‘Those are our drinks, we brought them.’ You handed the bag to him and said: ‘Have your fucken drinks back, you're trespassing. Get the fuck out of here, you're on private property’, before heading back to the event, where you told one of the organisers of the incident.6Mr Holmes and Mr Rickson called an ambulance which took Mr St Jacques to Frankston Hospital. He was later transferred to Monash Medical Centre. He was treated in hospital over three days for a fractured jaw, the loss of one tooth, the dislocation and damage to seven other teeth and related lacerations. Dr Raoul Harrison confirmed that Mr St Jacques would likely require years of ongoing treatment, with three teeth potentially at short to medium term risk. He may require root canal treatment and/or crowns to be applied. Such treatment, if required, was estimated to be costly.
7The next day, 8 April 2019, one of the event organisers told you that police were involved and gave you a card for one of the investigators. You contacted them and attended the Somerville police station that day, where you were arrested and interviewed about the incident. You answered questions and confirmed the details just described. You said you thought they had stolen property from the tents in the bags they were carrying. You chased them, concerned about valuable items, such as wallets, mobile phones, even your own passport that you had left in your tent. Immediately before swinging the bag at Mr St Jacques, you thought he was trying to grab you. You said you acted in self-defence and were not aware of the injuries you had caused. You pleaded guilty just prior to the commencement of your trial. Your counsel, Ms Hancock, accepted that your plea was late in the proceeding, but submitted that the conduct of a contested committal was warranted as demonstrated by the significant amendments to the prosecution case that flowed from it.
8The prosecutor did not demur and conceded that your plea had utilitarian value which I accept. That value has added significance both due to the Covid pandemic, during which delays and pressures on the court have been heightened and for avoiding the need for the victim to give evidence about this traumatic event. During your police interview and since, you have expressed genuine remorse and insight into the difficulties you caused Mr St Jacques. You described the impact of these events as horrible and made comparisons to your own experience of sustaining serious injuries at a similar age. You have agreed to pay compensation as sought for dental treatment. This empathy bodes very well for the next stage of your rehabilitation, as you undergo your sentence.
9You were born in Melbourne in March 1983, you have just turned 39. Your parents separated when you were two and you moved to New Zealand with your mother and four-year-old sister. You lived there, but for a year in Sydney with your father when you were about 13, until you completed Year 11. You relocated to Melbourne at about 16 years of age, aiming to pursue a career in skate and snowboarding. You also worked in gardening, hospitality, and retail. Tragically, on 30 March 2003, you were very seriously injured in a motor vehicle accident. You were a passenger in your friend's car and were thrown through the windscreen. On your arrival at hospital, your Glasgow Coma Scale score was deteriorating to six out of fifteen which is very serious indeed. You were diagnosed with a severe traumatic brain injury.
10Over the following years, your neuropsychological assessments found that you had suffered from impaired concentration, impulsivity in your approach to tasks, reduced information processing speed, mild difficulties of working memory and difficulty with planning and self-monitoring on more complex tasks. In spite of those setbacks, you nevertheless applied yourself admirably. You pursued labouring and hospitality work, although multiple employment roles were difficult to sustain, due to poor attention, difficulty with balance and shaking of the left side of your body.
11For at least the last seven to eight years, you have lived in Wanaka, New Zealand, where you have worked as a fulltime concreter and provided daily care to your mother who suffers from osteoarthritis and other significant medical conditions. I received as Exhibit 4, details about those conditions. You have a relationship of some years standing with your partner in New Zealand. You maintain a home there and two dogs. Your referees show that you are held in high regard by those who know you. Those references have been tendered and are Exhibit 1. Your historical neuropsychological assessments were tendered and are Exhibit 2 and in 2021, neuropsychologist Dr Leanne Matthews provided an updated assessment report which is Exhibit 3.
12You were cooperative with all aspects of the assessment. Dr Matthews revealed that most of your cognitive abilities were now consistent with your average pre-injury capacity. You told Dr Matthews that during recent years, you have not noticed any significant cognitive difficulties impacting on your day to day living and that you have been able to sustain your employment in concreting. Dr Matthews revealed, however, that despite the vast improvements, you still struggle with high attention inefficiencies, moderate difficulty in complex new learning and mild difficulty in visuospatial reasoning and recall of complex information, consistent with the severity of your traumatic brain injury.
13You will likely continue to have difficulty with attentional skills, particularly in relation to managing competing demands, although your cognitive difficulties do not impair your ability to make calm and rational choices or to think clearly. She said, however, if you were to be imprisoned, it would likely lead to deterioration in your mental health and further exacerbate your cognitive issues, particularly attentional skills, and potentially more subtle issues, with impulse control not evident on current assessment. Furthermore, time within prison will likely lead to a significant deterioration in your mental health. Accordingly,
Ms Hancock conceded that your condition does not attract the operation of the principles in Verdins,[1] save for those relating to the likely detrimental effect of imprisonment which I accept.[1]R v Verdins (2007) 16 VR 269
14Ms Hancock relied on your progress since 2003, to demonstrate your otherwise prosocial standing in the community and strong prospects for rehabilitation. Since that time, you have also had to overcome the further tragic and untimely passing of your sister in 2004 and your father's death due to cancer in 2017. To your credit, you have nonetheless maintained your own recovery. Numerous character references attest to your significant efforts over the last nearly twenty years and I take those into account.
15The prosecutor very fairly conceded that due to your lack of relevant criminal history and your good prospects of rehabilitation, the need for specific deterrence is reduced in your case. However, given the serious injury caused to Mr St Jacques, which the prosecutor submitted falls towards the mid-range, with which assessment I agree, there remains a need for general deterrence. For this reason, and the need for just punishment and denunciation, the prosecutor submitted that at least a combination sentence should be imposed. That is, an immediate term of imprisonment followed by a community corrections order.
16Your counsel submitted that in all the circumstances, a community correction order alone would satisfy the requisite sentencing purposes. It would require you to relocate to Victoria, which would be a very significant disruption to your established life in New Zealand. I agree that this disruption would be very significant indeed.
17I find the following factors to be important sentencing considerations:
a) You did not run towards Mr St Jacques on that night with the aim of assaulting him, and after swinging the bag and causing him serious injury, you did not engage in any other violence towards him.
b) You caused his injuries as you were passing him when you swung the bag backwards at him, knowing he was still very close as you continued to pursue Mr Holmes.
c) Your conduct, whilst certainly reckless, was momentary and impulsive.
d) You did not know what was in the bag, although you knew its weight and how hard you swung it.
e) The seriousness of the injuries you caused were not low level, rather, towards the mid-range.
f) As the prosecutor conceded, these were unique circumstances when compared to other examples of causing serious injury recklessly.
g) You immediately disclosed the incident to the event organisers and then when you became aware of police involvement, you immediately attended the relevant station and answered questions fully during the interview, making significant admissions.
h) You did not blame the victim for instigating or causing the assault, rather, when confronted with the actuality of what occurred, you expressed due empathy during the police interview and since.
i) Your guilty plea, whilst not early is significant and has utilitarian value, as well as representing your remorse and willingness to facilitate justice.
j) You have no relevant criminal history, and you have excellent prospects of rehabilitation in my view. But for this offence, you have led and continue to lead a prosocial life. Your risk of further offending is consequently likely to be low.
k) It is now three years since the offence, and you have lived with the prospect of punishment hanging over your head for that extended period. During that time, you have demonstrated your rehabilitation.
l) As a direct consequence of your sentence, you will be dislocated from your life in New Zealand for an extended period, which will burden you with the knowledge that due to your actions, you will be prevented from caring for your mother, being with your partner and continuing the lifestyle you have worked hard to establish.
m) Consistent also with your acceptance of responsibility and empathy for
Mr St Jacques, you have agreed, without dispute, to pay for medical expenses that he will reasonably be likely to incur, namely the cost of orthodontic treatment estimated to last for twelve months. This acceptance of that compensation is relevant to assessing your remorse, your prospects of rehabilitation and it also has some punitive effect on you.18In the case of Boulton,[2] the Court of Appeal established that in the right circumstances, a community correction order can provide just punishment, even for serious offending. For some, such an order has the added benefit of ensuring more effective rehabilitation occurs than would be achieved in prison. I also find that a substantial community correction order will provide appropriate denunciation for your offending, punish you adequately and provide for your ongoing rehabilitation as required by section 5 of the Sentencing Act1991.
[2]R v Boulton (2014) 46 VR 308
19For this combination of reasons, I will convict you and if you agree, impose on you, a community correction order with special conditions. Importantly, if the conditions imposed on you become unfair or unworkable, you can return to this court and seek a variation of them. The flipside is, if you fail to comply with the order, you may be brought back to court and face further punishment, including imprisonment. Please stand.
20I sentence you as follows:
a) On Charge 1, causing serious injury recklessly, a community correction order with conviction for two years and six months.
b) You must complete 350 hours of community service.
c) You must be assessed for and if required, engage in treatment for problematic alcohol and/or drug use and mental health needs.
d) You must return to court and engage in judicial monitoring.
21In accordance with section 6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty, I would have imposed eight months imprisonment, combined with a community correction order. If you need to ask any questions of Ms Hancock, I will give you a chance to do that. If you want to do that, please say so, otherwise do you consent to engaging in the community correction order as I have described?
22OFFENDER: Yes, I do, Your Honour.
23HIS HONOUR: Thank you. Further, I am satisfied that the available documents in this case provide a sufficient basis upon which to determine the application for a compensation order under section 85B of the Sentencing Act. The prosecution has applied for such an order and Mr St Jacques has provided an addendum to his victim impact statement, consisting of a report from Dr Albert Wong dated 19 April 2022, setting out the treatment that is reasonably likely to be required in the near future.
24Dr Wong provided a specific estimate of costs for that treatment, $7,410, that you do not dispute and which I accept. The prosecutor has made enquiries and has confirmed that there is no award of money under the Victims of Crime Assistance Act 1996 covering the treatment described and you,
Mr Ewington, have indicated that you are able to make payment of that amount within nine months and I have taken that into account. I find that the treatment described by Dr Wong is a direct consequence of the harm caused to
Mr St Jacques' teeth during the offence in this case and for these reasons, I will make that order as sought. Mr Ewington, you can take a seat thank you. My staff will bring you a copy of the community correction order and if your counsel wishes to assist you, you have leave to approach the dock. Check that, sign it if you will and then I will sign it.25MR GRAY: If the court pleases.
26MS HANCOCK: Thank you, Your Honour.
27HIS HONOUR: Thank you, Ms Hancock. All right, Mr Ewington you have signed that order, I have warned you about non-compliance and I have now signed it. That order applies as of today. I will order that the first return for judicial monitoring be at 9.30 am on Monday 30th May. Counsel are excused from attending on that date. Mr Ewington, if you need legal assistance on that date, of course talk to your lawyers.
28MR GRAY: As the court pleases.
29HIS HONOUR: I will sign the compensation order in chambers. If there is anything else?
30MS HANCOCK: No, Your Honour.
31MR GRAY: No, Your Honour.
32HIS HONOUR: Thank you. All right, 9.30 tomorrow morning. Thank you.
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