Director of Public Prosecutions v Fowkes

[2015] VCC 1931

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01137

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYSON FOWKES

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 December 2015
CASE MAY BE CITED AS:	DPP v Fowkes
MEDIUM NEUTRAL CITATION:	[2015] VCC 1931

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C Sedgwick
For the Offender	Mr S Tovey

HER HONOUR:

1Tyson Fowkes, you have pleaded guilty before me of one charge of recklessly causing serious injury and one charge of affray.  The facts underlying your offending are as follows.

2On the evening of Sunday, 8 March 2015, the victim, Edward Scanlon, was out with a group of friends in the St Kilda area celebrating a friend's birthday.  At about 10.55pm at the intersection of Fitzroy and Grey Streets, Mr Scanlon and his friend Trent Pistura, saw you and your friend - you Mr Fowkes - and your friend Jack Kennedy, yelling and getting out of your car to approach an unknown male waiting to cross the road at the pedestrian lights.  The two of them stepped in to assist this unknown male, at which point you and Mr Kennedy-Hunt turned your attention to them.  Eventually several of Mr Scanlon's friends approached to diffuse the situation.

3Kennedy-Hunt tried to punch Mr Pistura, but missed, with the punch connecting on the side of a female friend of yours face, but caused no visible injury.  There was a verbal exchange and then the two of you momentarily went back to your car and then returned to the group where a physical and verbal altercation ensued, which was ended when the women of the group stepped in to break it up.  The two of you then went back to your car, driving away and turning left onto Grey Street.

4Mr Scanlon and his friend continued crossing Grey Street, heading towards another venue known as Cushion, down Fitzroy Street.  As Mr Scanlon and his friends crossed the road, the two of you stopped the car a short distance from the intersection and walked back looking for that group.  All of this was captured on CCTV footage.

5An unknown person then indicated to you and Mr Kennedy-Hunt, where Mr Scanlon and his friends had gone.  You then approached Mr Scanlon from behind and punched him to the side of the head, causing him to immediately lose consciousness and fall face first into a metal fire hydrant in front of him before falling further down onto a concrete footpath.  You then went on to punch another friend of Mr Scanlon's, that is Benjamin Nichol, to the side of his face and then another friend of Mr Scanlon's, Joel McKee, who went to assist Mr Nichol, was struck by you on the right cheek.  Both Nichol and McKee received minor injuries that did not require hospitalisation.

6Kennedy-Hunt, at this stage, became involved in a heated exchange with bystanders, pushing, shoving and punching Mr Pistura to the head.  Mr Pistura did not suffer any visible injuries or require medical treatment.  The two of you then ran back off towards your car before driving into the basement carpark of the Adina Apartment Hotel on Little Grey Street in St Kilda, where you were staying. Mr Scanlon was helped by his friend, Mr Bannister, and treated at the scene by ambulance officers before being admitted to the Alfred Hospital.

7Mr Scanlon was admitted to the hospital in a serious but stable condition.  Ultimately he was found to have sustained fractures, that is, breaks to both sides of his jaw which required surgical treatment.  Ultimately plates were inserted on both sides of his face.  He had lacerations to the left eyebrow and bridge of his nose which required nine stitches. 

8Using CCTV footage and with the assistance of witnesses, police were able to track the two of you down.  You and Mr Kennedy-Hunt made no comment records of interview.  You entered a plea of guilty, however, to the offence at committal mention stage, which is accepted to be a very early plea.  I now turn to your personal circumstances.

9You are 25-years-old and were 24 at the time of this offending.  You have no prior or subsequent criminal history.  You are the elder of two boys born to your mother.  You have never known your biological father but were raised by the age of one by your stepfather, Mark Fowkes, whose name you now bear.  You had, it would seem, a normal happy upbringing.  You were not a great student or particularly academic, but you were a good athlete and you played football.  Your father and mother run a successful demolition business called Digger Constructions and Excavation, which is run from their property of about 120 hectares outside Geelong.  You always wanted to join the business, but your parents insisted that you first gain a qualification and you left school in Year 11, aged 16, and immediately began a plumbing apprenticeship, which you completed in early-October 2011. 

10In late-October your father fell from a tree on the property in a tragic accident and was rendered a quadriplegic.  You were then forced, to use the words from your father's written reference tendered on the plea, to become a man overnight, taking over his role in the business.  You have continued to work for the family business as an onsite manager working at least 12 hours a day, and at least six days a week.  Your father is confined to a wheelchair and requires 24-hour care.  The family has funding for respite care of two hours a day, five days a week, but apart from that he is totally reliant upon you, your mother and younger brother, to dress, feed and toilet him.  Your father wrote "I am proud and grateful for what he is doing and has done".  Your father who, due to his condition was not able to attend Court, wrote that any imprisonment of you would have a terrible impact on the family and business stating, "Tyson plays a key role in the business and in some ways adopted my physical input into the business where I no longer can". 

11Your mother's evidence on the plea in Court was that the business could manage without you as others would step up.  I assessed her as being an extremely stoic woman and I am satisfied that your loss to the business would not be fatal to its ongoing success, but life would be considerably more difficult for both your mother and your brother, both professionally and, particularly, personally, insofar as care of your father is concerned.

12I also received a number of references from family friends attesting to your hardworking nature and the extremely praiseworthy way in which you have assumed your role in the family business and for the care of your father.  They also wrote that your actions, in so seriously assaulting Mr Scanlon, were entirely out of character.  They also described you as expressing deep and heartfelt remorse for the wrong you have done to Mr Scanlon.

13That wrong is extremely serious.  In stark terms, his jaw was broken on both sides, titanium plates have been surgically inserted into the left and right side of his jaw and they must remain there for the rest of his life.  Mr Scanlon has a scar over his left eye due to the laceration which was stitched.  His nose is crooked.  In his Victim Impact Statement he made it clear that he has suffered a lengthy and traumatic aftermath to the attack, being unable to eat for some weeks causing significant weight loss, requiring daily pain medications for months, simply in order to cope, suffering dizzy spells, ongoing poor concentration and memory lapses, debilitating fatigue and sleep difficulties.  He is now more reserved, fearful of being attacked again, still has daily pain in his jaw, still has nightmares.  He concluded "The attack has changed my life dramatically in how I see the world and how I relate to people and I am still learning to live with it."

14Two other Victim Impact Statements from young women, friends of Mr Scanlon who witnessed the fight and the attack upon him, described their horror of seeing their friend so terribly injured, their terror during the affray and the ongoing disturbance and fear they have experienced since.

15Your actions in attacking Mr Scanlon as you did underlie the charge of recklessly causing serious injury.  Your actions with Mr Kennedy-Hunt in continuing to fight with other members of the group, underlie Charge 2, affray. 

16Unsurprisingly, the prosecution urge that I sentence you to a term of imprisonment to be immediately served, although it conceded that a combination of a sentence with a community corrections order would be appropriate in your case.  Your counsel urged that I simply place you on a community corrections order.  I have had a lot of difficulty with this proposition.  There are aggravating features to your offending.  The fight had been broken up, Mr Scanlon was walking away, you followed him, you hit him from behind.  It was a true coward's punch and it is surprising, because you don't impress or seem to be that sort of person.  You were not, it seems, particularly affected by alcohol.  You are extremely lucky not to be facing a manslaughter charge.  He could easily have died.

17The courts are almost awash with this appalling, stupid violence from young men like yourself.  There have been so many, many tragic cases of a big night out, a single punch to the head - the King Hit if you like - where the recipient loses consciousness, falls, hits his head and dies.  What on earth makes you think, or other men think - young men - think they can behave like this?  Judges are incredibly tired of dealing with the awful damage wreaked in stupid, testosterone, alcohol-fuelled incidents like this, involving shocking injury or death.  The behaviour is unbelievably dangerous.  All over a few stupid words which you probably, now, cannot even recall, from another young man you did not even know.  I do not know where people like you and so many other young men get off with this sort of behaviour.

18I do not mind telling you that my first response, on reading the material before I came into Court, was to think that a sentence of years imprisonment was appropriate in your case.  Somehow the message must go out that this stupid, unreasoning, terrible street violence must stop.  You heard me talk to your counsel about the general deterrence and that is was it is.  The Court is sending out a message that this madness and violence is not on and will not be tolerated.  And if we have to fill the gaols full with stupid young men to achieve this end, we will. 

19I entirely accept that you are remorseful for your actions.  You said so on oath, which takes some courage.  You sent an email some months ago to the informant asking him to pass on your apologies to Mr Scanlon.  You acknowledged the awful irony that, having seen terrible injury to your father through a freak accident, you almost went on to inflict that yourself.  Your father's quadriplegia happened because he fell on his neck on a sloping bank of a dam.  Had Mr Scanlon fallen at a different angle he could have equally injured his neck and been injured in the same way.  He could have been made a quadriplegic. 

20I have no doubt that you are, otherwise, an entirely admirable and law-abiding young man.  You have no priors, you have picked up the massive burden of your father's injury and you have carried it like a man, long before you actually were one.  No psychological material was tendered on the plea but it may be the stress and grief of the past few years has been pushed down by you in order to cope and on this fateful night it all came bursting out.  The problem is, why on earth should Mr Scanlon be the scapegoat for that.  Why should some internal simmering emotion of grief and anger have to come boiling out all over him; a man you did not even know.  I said, and I accept, that your plea was entered at a very early stage.  I accept that your prospects of rehabilitation are excellent.  I very much doubt that a court would ever see you again.  You come from a strong, supportive and utterly admirable family.  I accept your truly genuine remorse, as I have said, and I accept, as I have said, the important, responsible role that you have so admirably carried out for some years.

21But, in the end, the seriousness of your actions have lead me, after great anxiety and reflection to conclude that you must serve some time in gaol.  There is no need for me to have regard to specific deterrence or protection of the community in this case, but the courts must absolutely send out a message that this sort of unthinking violence by young men such as yourself will be met with a stern response.  In my view, some imprisonment in this case, is the only way the seriousness of your offending and the need to send out a stern message can be achieved.  However, because of the extremely strong mitigatory factors in this case, that I have outlined, the sentence will be very brief.  Can you stand up please.

22In relation to both charges I am going to sentence you to a term of imprisonment of three months.  You will then be released on a community corrections order for a period of three years.  Now, there are conditions attached to the community corrections order and I can only place you on a community corrections order with your permission.  I am going to outline those conditions now.

23There are core conditions.  While you are on that order you must not commit any other offending punishable by imprisonment.  Now, that does not mean you have to be imprisoned on another offence, it means you have to have committed an offence for which you could be sentenced, so something as small as knocking off a box of matches from Woolworths.  You, theoretically, could be imprisoned for that and that would be the sort of breach that that condition relates to.

24Secondly, once you are released from prison, you must report to the Community Corrections office within two days - two working days.

25Thirdly, whilst you are on the order you may not leave Victoria without the permission of the Community Corrections Order.

26Fourth, while you are on the order you must not attend on the community corrections order, affected, in any away, by drugs - I know it doesn't apply in your case - or alcohol-affected.  But drugs, I accept, does not apply in your case.

27Five, whilst you're on the order you must, if there is any change of address or employment, you must notify the Community Corrections office of that change of address or employment within 48 hours.

28Six, you must accept visits from, and attend upon the Community Corrections Office as directed; and

29Seven, you must obey all lawful directions of the Community Corrections Office.

30I am only going to make one special condition and that is that you must undertake 350 hours of unpaid community work.

31OFFENDER:  Yes Your Honour.

32HIS HONOUR:  Now, I know this is not going to help you to hear this Mr Fowkes.  It gives me no pleasure and, indeed, it causes me a great deal of distress to have to sentence someone like you to gaol.  And I'm looking at your mother as I say this.  Counsel will understand what I am saying, we want this matter to end here.  There is just too much and you heard - and I am going to repeat - what was read out by the Court of Appeal in a case that was more serious than yours and is different to yours but, nevertheless, has application.  "Random street violence is a scourge on our society.  Typically, the violence is brief and unpremeditated, but it has profound and enduring consequences.” (And you can see that has application to your case.  Mr Scanlon is going to carry these injuries to the end of his days). 

33“…Innocent people are killed or seriously injured, their families are devastated, their communities disrupted.  And the outburst of violence is ruinous for the offender too.  Imprisonment, with all its destructive consequences, is virtually inevitable, as is the shame and embarrassment felt by the offender's family.”

34I also note the evidence given by your mother that you have been extremely helpful to a number of friends, you have provided them with employment and opportunities.  As I said I think, ordinarily, you are a very good young man.  But you have done what so many other good young men do; you have engaged in violence which is, as I said, aggravated by the fact that at the time the victim was walking away and you hit him from behind and you hurt him so badly.  Can you have a seat please, Mr Fowkes, whilst the paperwork is prepared.

35Now, Mr Scanlon, you might not think that three months amounts to much in light of the injuries that you have received.  I need to say to you that no criminal disposition is designed to reflect, necessarily, what has happened.  If someone dies, the criminal disposition, is not going to measure what that person is worth.  And what I have imposed upon Mr Fowkes is not meant to be a measure of your injury.  Do you understand that?  I want you to understand I regard you as having been very gravely and seriously injured on that night.  I entirely accept that you are going to carry that injury with you for the rest of your days and that what Mr Fowkes did to you was extremely serious, and I regard it as that way.  Otherwise I would not have gaoled him.  You have to understand, gaoling someone like Mr Fowkes who has never been in any trouble, who is, as you have heard, undergoing an extremely difficult life himself, I do not know what was going on his head that night, but you are not dealing with someone - even though he behaved like a thug on that night – who ordinarily does that.  For me to send him to gaol at all, when the legislation says it must be the only disposition open, indicates just how seriously I regard what he did to you.  And you need not think that a community corrections order is going to be easy, or someone who is working at least 12 hours a day, six days a week and then going home to help feed, dress and toilet his father, is going to find it easy to do 350 hours of unpaid community work.  The maximum of unpaid community work hours that a court can impose is 600 hours.  So for me to impose that many hours, that gives you some indication of how seriously I regard his offending.  I do not want you leaving this Court thinking that the Court has not taken into account your situation.

36Finally, all I can say is I am really sorry to do this at this time of year.  It is going to be a very hard Christmas for your family.  It is three months, however I think you can undertake it.  I hope you understand why this has happened and I wish you all the best.  As I said, in many other ways you are an extremely strong and courageous young man and I am extremely sorry that it has come to this.  Thank you.  Do we have the ‑ ‑ ‑ 

37MS SEDGWICK:  Does Your Honour ‑ ‑ ‑

38HER HONOUR:  No.

39MS SEDGWICK:  Does Your Honour - were Your Honour to declare a 6AAA?

40HER HONOUR:  Do I have to?  I have imposed a ‑ ‑ ‑

41MS SEDGWICK:  Gaol term.

42HER HONOUR:  Yes.  Very well.  All right I will make ‑ ‑ ‑ 

43MS SEDGWICK:  It's a difficult exercise for Your Honour.

44HER HONOUR:  It is.

45MS SEDGWICK:  Yes.

46HER HONOUR:  Had Mr Fowkes not pleaded guilty I would have sentenced him to a term of imprisonment of four years and ordered that he serve a minimum terms of two years.

47MS SEDGWICK:  May it please Your Honour.

48MR TOVEY:  As Your Honour pleases.

49HER HONOUR:  I will get you to sign this thank you Mr Fowkes.

50MR TOVEY:  Will Your Honour allow me to approach while that's [indistinct].

51HER HONOUR:  Of course.

52(Community-based order signed and acknowledged.)

53HER HONOUR:  Yes, thank you.

54MS SEDGWICK:  May it please Your Honour.

55MR TOVEY:  As Your Honour pleases.

56HER HONOUR:  I thank counsel for their assistance in this matter.  Yes thank you.

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