Director of Public Prosecutions v Fisher
[2014] VCC 873
•12 June 2014
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-01790
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CODY JAMES FISHER |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 12 June 2014 | |
DATE OF SENTENCE: | 12 June 2014 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Fisher | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 873 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – recklessly cause injury – resist arrest
Legislation Cited: Crimes Act 1958; Summary Offences Act 1966, s52; Sentencing Act 1991
Sentence: Convicted and sentenced to a Community-Corrections Order for a period of two years.
Section 6AAA declaration: Convicted and sentenced to a Community-Corrections Order for a period of two years, together with a term of imprisonment of two months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Moore | Craig Hyland Solicitor for Office of Public Prosecutions |
| For the Accused | Mr C Morgan | Kerry Clancy |
HIS HONOUR:
1 Cody James Fisher, you have pleaded guilty to one charge of recklessly cause injury, the maximum penalty for which is five years’ imprisonment, and one uplifted summary charge of resisting arrest, the maximum penalty for which is six months’ imprisonment.
Circumstances of offending
2 The facts were summarised by the Prosecutor in the course of the plea hearing and I adopt that summary.
3 Briefly, in the early hours of the morning of 23 February 2013, you were drinking at the Albion Hotel in Wangaratta with a group of friends. You had been drinking at this and earlier at another hotel. A confrontation occurred between yourself and Ms Ebony Peters and her friend, Ms Akayla Stone, both of whom you knew. As a result, each of them punched you. You retaliated by punching Ms Stone and pushing Ms Peters to the ground. You then threw a stubbie you were holding in the general direction of Ms Peters, hitting her on the forehead. This resulted in two lacerations and swelling, which required treatment at the Wodonga Hospital. I was told the scar was still visible today.
4 The matter was reported to the security staff and the police were called. When the they arrived, you became aggressive, thrashing about with your arms and capsicum spray was applied. You were taken to the police cells and spent the night in custody.
5 I read the Victim Impact Statement of Ms Peters. The first thing which should be said about it is that it reflects the impact upon her not only of the assault with the bottle, but also, the impact of serious sexual allegations she made, which resulted in charges of rape and attempted being laid. Those charges were withdrawn before the plea hearing. The impact upon her, including the effect upon her relationships with her family and boyfriend, attending an earlier committal hearing and depression and frustration must, in significant part, relate to those allegations.
6 Nonetheless, you have subjected Ms Peters to a very frightening experience, and left her with scarring to her forehead which is a very significant issue for a 20 year old woman. I accept her statement that she is conscious of the scarring, that it requires the application of makeup to cover it up and that it has affected her confidence and self-esteem. She says:
“Every time I looked in the mirror it would remind me of what happened so I avoid looking at myself at all costs.”
7 On any view, your actions have had a very significant impact upon her life and left her with a scar which reminds her each day of the trauma of what occurred in February 2013.
Factors personal to you
8 You were born in 1993 and were 19 years of age at the time of offending.
9 You were supported in Court by your parents and I was told, and accept, that you come from a close and supportive family, living in the Milawa district. You left school in Year 10 and in 2009 undertook a pre-plumbing apprenticeship course at a TAFE College. For a period you worked in the family bakery and over the last three years have had employment working for a local company delivering goods. You are currently undertaking a Certificate in Personal Training and hope to obtain employment in that field. Generally, you have a strong employment history.
Sentencing considerations
10 The purposes for which a court may impose a sentence are:
· Punishment – to an extent and in a manner which is just in all the circumstances;
· Deterrence – both specific and general;
· Rehabilitation;
· Denunciation and/or protection of the community.
11 In sentencing you, I must have regard to a range of matters, including the seriousness of the offending, the impact upon Ms Peters, your responsibility for the offending and your personal circumstances. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
12 You have pleaded guilty, albeit at a late time in the proceeding, and are entitled to have that fact taken into account in your favour. Although the plea was late, I accept it came about as a result of negotiation between your Counsel and the Prosecution, leading to a reduction in the charges which you had faced. Your plea of guilty has avoided the cost of a trial and spared the witnesses the ordeal of giving evidence.
13 I take into account that you have no prior convictions, and no matters pending.
14 It was put by your Counsel, and I accept, that you have suffered the stigma of allegations of rape and attempted rape since the offending. Had you been charged only with the offences which bring you before the Court this day, then it is likely the matter would have been disposed of in the Magistrates’ Court. I accept thus there has been some delay, and bear in mind the stigma these allegations bring in a community like Wangaratta.
15 You are a “young offender” as defined by the Sentencing Act 1991 and, as such, rehabilitation is a most significant sentencing consideration. Given your lack of prior convictions, supportive family and good employment record, I accept the plea of your Counsel that your prospects of rehabilitation are strong and the consequent risk of re-offending remote.
16 The offending was serious. The Prosecution submitted, and I accept, that the throwing of the bottle into a crowded dance floor was a highly dangerous act and likely to cause significant injury, given the number of people in the vicinity. It is indeed fortunate that there was not a more serious injury suffered. I accept that the incident could not be categorised as “glassing” as that term is defined by the various authorities, given in particular that I accept that while the act of throwing the glass was reckless and dangerous it was not specifically aimed at Ms Peters.
17 I viewed CCTV footage of the incident, although it is difficult to discern precisely what happened. I accept that Ms Peters and Ms Stone each approached you, to your mind without specific cause, and punched you to the head or upper body area. You responded by pushing one of them to the floor and punching the other. You are a tall, strong young man and it is difficult to see how, even accepting you were all affected by alcohol, that there was any justification for these actions. More importantly, on no common-sense view of what occurred could it be said there was any excuse nor justification for violently throwing a glass bottle in the general direction of where Ms Peters was standing. It could not be said that the action was some form of self defence to the confrontation which occurred.
18 Even notwithstanding the seriousness of the offending, for all of the reasons to which I have referred, it is my view it is appropriate to impose a Community-Corrections Order for a period of two (2) years. To that end, I have received a report from a Community Corrections Officer, David Byles who has deemed you suitable for the imposition of such an Order.
19 I have given consideration as to whether there should be a term of imprisonment imposed in addition to the Order. Given your youth, lack of prior convictions and prospects of rehabilitation, I have determined that all of the sentencing considerations may be achieved without the need for the imposition of such a term. The Prosecution did not seek any term of imprisonment.
Sentence to be imposed
20 Taking into account all of the matters to which I have referred, I impose the following sentence.
21 On the charges of recklessly cause injury and the summary charge of resist arrest, you are convicted on each charge. I order that you undertake a Community-Corrections Order for a period of two (2) years from this date.
22 The Order will be subject to the following standard conditions:
(i) That you must not commit, whether inside or outside Victoria, any offence punishable by imprisonment;
(ii) You must comply with any obligation or requirement as prescribed by the regulations;
(iii) You must report to and receive visits from the Secretary or his/her delegate during the course of the Order;
(iv) You must report to the Community Corrections Centre specified in the Order within two (2) clear working days;
(v) You must notify the Secretary of any change of address or employment within two (2) working days of that change;
(vi) You must not leave Victoria without the permission of the Secretary or his/her delegate;
(vii) You must comply with any written direction of the Secretary.
23 In addition, you will be required to undertake the following additional conditions:
(i) That you be supervised, monitored and managed as directed by the Secretary or his/her delegate;
(ii) That you do not contact nor associate with Ms Ebony Peters throughout the course of the Order;
(iii) That you undertake 200 hours of unpaid community work over the period of the Order as directed by the Secretary or his/her delegate;
(iv) That you undertake testing, assessment and treatment for alcohol abuse or dependency as may be directed.
24 Under s6AAA of the Sentencing Act 1991, I state that but for your plea of guilty, I would have imposed a Community-Corrections Order over a period of two years, together with a term of imprisonment of two months.
25 Yes, anything further.
26 MR MOORE: No, Your Honour.
27 MR MORGAN: Your Honour, I did not address you on conviction or no conviction, did I hear you address - - -
28 HIS HONOUR: You did not?
29 MR MORGAN: No. I understand if in your order you have said a conviction.
30 HIS HONOUR: I will give you the opportunity now if you can persuade me, Mr Morgan, I will retract what I have said, but it will take a lot of persuading.
31 MR MORGAN: It would only go to - under the Sentencing Act as I understand it with an offender of this age and with no prior convictions, they are the situations where it would be appropriate, or could be said to be appropriate, to record a non-conviction, given the effect of a conviction on prospects of future travel and employment and other like factors and given a lack of priors, it would not be unusual in those circumstances for a court to impose a without conviction disposition.
32 HIS HONOUR: Yes. Anything further?
33 MR MORGAN: No, Your Honour.
34 HIS HONOUR: Yes. Having heard what has been said on your behalf, Mr Fisher, in my view the seriousness of the offending is such that it does warrant the imposition of a conviction. Accordingly, you will be convicted and a Community Corrections Order imposed.
35 MR MOORE: If Your Honour pleases.
36 MR MORGAN: If Your Honour pleases.
37 HIS HONOUR: Yes, come forward into the body of the court, Mr Fisher, so that you can sign the appropriate orders. There is an amendment that needs to be made to the order, it is just being prepared, so Mr Walker will attend to that. Have your client sign it in a moment and I will sign the order thereafter.
38 MR MORGAN: Yes, Your Honour.
39 HIS HONOUR: We will do that.
40 (Community Corrections Order signed and acknowledged.)
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