Director of Public Prosecutions v Golding

[2022] VCC 849

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-20-00952

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER GOLDING

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 June 2022
CASE MAY BE CITED AS:	DPP v Golding
MEDIUM NEUTRAL CITATION:	[2022] VCC 849

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Grant	Office of Public Prosecutions
For the Accused	Mr P Kounnas	McFarlane Criminal Lawyers

HIS HONOUR:

1Christopher Golding, you have pleaded guilty to one charge of intentionally causing serious injury.  That crime carries a maximum penalty of 20 years' imprisonment.

2You are now 44 years of age.  You pleaded guilty in the ultimate and made admissions when speaking to police.  It is a situation where I accept that you were always going to plead guilty and it was more a question of resolving what the actual crime you would plead to.  Accordingly, you get the benefit of that plea of guilty.  Remorse is probably somewhat problematic in these situations but I certainly give you the benefit of the doubt and you clearly must get the utilitarian benefit of that plea of guilty. 

3This is a situation where the plea followed a sentencing indication, as discussed with the prosecutor the other day.  Matters in relation to sentencing indications I think need to be worked out.  Essentially, on a sentencing indication I gave a range which you then considered with legal advice and entered a plea of guilty.  I do not know what happens if, subsequently, material comes to light, for example, a prior conviction that no-one knew about or whatever.  I cannot go beyond the range that I indicated and it just seems to me that it is a situation where, I know it is very difficult to do on the spot, but it is circumstances where, when sentencing indications are given, if, for example, the Crown view it is an appealable error, I think that should be made clear prior to the plea of guilty being entered.  But they are just comments from me and I dare say time will sort these matters out.

4In so far as Worboyes is concerned, clearly you must get the benefit of that.  In this situation, a number of cases have been given to me which set out the principles and, in some sense, are comparative cases.  However, I note that the ones that are relied upon are all pre-COVID and all pre-Worboyes.  It seems to me that the decision of Worboyes is an important one and should be put into discernible effect, not just paid lip service and accordingly, whilst some may consider the sentence I intend to impose lenient, it is my view that when Worboyes is properly applied to this situation where you were always going to plead, this will be the appropriate sentence. 

5There has now been a delay of some three years due to COVID amongst other things.  You have begone your sentence in COVID conditions and will continue for a period of time to undergo in COVID conditions and I am aware of the difficulties of doing programs, for a long time the impossibility of personal visits and they make a gaol sentence now a far more enviable proposition than it was prior to the onset of COVID and that is another factor which I think has to be taken into account. 

6In your situation, at the age of 44 you do have significant prior convictions.  You have been jailed before and gaoled before and those convictions include violence, as well as drug related and driving matters.  They are of concern. 

7The Crown summary is that at the time of the offending, which you carried out with your 18-year-old son, you were aware of a man called Callaway who was a former family friend of you and your son.  There was a falling out with him over your daughter who, at that stage, was 15 years of age.  You and your son suspected that she was having a relationship with that man and he was giving her drugs and there was a belief that he had got her pregnant.  I do not know what the situation is with the pregnancy, but I can understand in your situation that if he was selling your 15-year-old daughter drugs, with your prior history, you had difficulty getting any assistance from the police, I would have thought, be that as it may.

8As a result of all that, you were contacted on the night of 24 July 2019 by a person who advised you that your 15-year-old daughter was in the company of Callaway in Traralgon and this was in the early hours of the morning.  You had, earlier on, sent her $20 and wanted to know her whereabouts as it was getting late and you were clearly worried about her.  She and Mr Callaway were walking to get money from the bank that you had forwarded to and it was then that the other man rang you and said that they were together at this early hour in the morning. 

9You rang your daughter and asked her where she was and who she was with and said, 'If you're with that Garath, tell him to fucken run 'cause I'm coming for him.'  She told Mr Callaway that you were coming to look for them and he then told her to hide, as opposed to himself.  He then continued to the bank, withdrew the money from the ATM and walking down Franklin Street in Traralgon.

10You and your son were looking for him, driving around, located him in Seymour Street and you were driving, your son was in the passenger seat.  You both got out of the ute you were in and rushed towards him and at that stage you yelled, 'What are you doing with my daughter?'  He was then assaulted obviously intentionally and serious injury was caused.  He was punched, he was kicked repeatedly.  There was opportunity to withdraw from that attack but you and your son persisted with it.  I have seen the video and it is a very intense and very violent action, albeit, in timeframes of relatively short duration. 

11After he had been seriously assaulted, the pair of you got in the car and drove away.  He had significant facial injuries and they were, as I understand it, facial fractures requiring surgery, metal plates et cetera, a complex blowout fracture to the right eye socket and depression to the cavity of the upper jawbone, large blood collections in the face, which I assume is bruising, and soft tissue injuries such as facial swelling.  There was a laceration and also pain.  They are the injuries that were sustained that we know about.  The history of the matter is, that there is no proper Victim Impact Statement before me to take into account and, therefore, I ignore it.  I also note that that Victim Impact Statement was to be challenged as to its content. 

12The history of the matter is it went through the process of case conferencing and the like.  Various reports were received on the complainant Mr Callaway and you had, certainly, a fair argument as to what the extent of his injuries really were.  His credibility, being aware of that background material and there is no point in going into it now, could have been seriously challenged.

13It is a situation where the Crown describe it as vigilante.  That is one word for it.  It seems to me that, in many respects, it was preventative rather than retributive.  I accept for these purposes, and as with your son, that the intention was to get your daughter away from him, not necessarily to assault, and therefore the premeditation was short indeed.  That view is confirmed, I think, by the fact that the two of you had no weapons whatsoever and, as I say, I am sentencing on the basis that it was a spur of the moment anger, seeing your 15-year-old daughter in the company affectively of a man who you believe was selling her amphetamines. 

14It is a serious crime.  It calls for, the application of general and specific deterrence, as well as denunciation and appropriate punishment.  A head sentence with a minimum term is the only alternative. 

15As I have already indicated, it is difficult in this situation to understand what current sentencing practice is because, first of all, the decisions we are given from the Court of Appeal in such matters are pre-COVID and I think that has changed the gameplan very significantly.  That may be a matter for others. 

16Tendered on your behalf was a report from Mr Cunningham and I have completely read that report and take it into account.  I think your background can be described in fairly succinct terms.  You are, as I have said, now 44.  You were raised in Traralgon.  Your parents separated when you were 13.  That had a significant impact on you and you lived with your brothers after their separation and at the age of 17 you were working and lived with your sister.  I understand you are still very close to her. 

17You formed a relationship with a lady known as Jennifer and you had three children together, the eldest child being Zachary who is your co-accused.  That relationship suffered from a number of stressors and you were told, after a severe motor vehicle accident, that you would never walk again and a child that was born to the pair of you passed away within an hour-and-a-half of being born.  You subsequently had a relationship with another lady called Roxy.  She passed away from pneumonia in 2015 and I accept, on the report of Dr Cunningham, that those matters have had a long-lasting effect on you. 

18You went to Traralgon Secondary College and were able to get to Year 11.  Apparently you have been diagnosed at that time with attention deficit disorder.  As is often the case, people with that disability use and continue to use amphetamine.  To your credit, you have completed an apprenticeship as spray painter.  You worked at the Maryvale Mill until the car accident I have referred to and you have been a concreter ever since and have a pretty good work record from what I can gather.  I have been given a letter which indicates that, upon your ultimate release - and that is a matter for the parole board, not me - you will have work available to you, as well as accommodation. 

19In gaol you have been able to keep yourself clean.  I accept that you have not been using.  It has given you a long period of time to get your head around what you need to do when you get out and it seems pretty clear that you understand that if you continue to use amphetamine over an extended period of time that your offending will continue.  It is in those circumstances that your prospects of rehabilitation are really up to you and hopefully with the assistance of the Parole Board the risk of you reoffending or the thought depends almost entirely on whether or not you use amphetamine.

20I am aware of the decision in Toumngeun

where it was indicated from the

DPP v Leech

, 'It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped.  That, after all, may be decision which rebounds very much to the benefit of the community.' 

21You are now 44, you have been clean for over two years.  People of your age are able to turn their lives around, although, getting pretty close, I would have thought, to the last chance for you. 

22Other matters have been put before me.  I do not think it falls into the normal vigilante scenario, as I indicated previously.  It  is a bit difficult to know what a father in that situation with a 15-year-old daughter, in his mind at least and perhaps truthfully, being fed amphetamines by a man, would do.  In those circumstances, I can understand how all this came about.  It is inexcusable obviously, it is a serious criminal offence.  I am well aware of the maximum penalty of 20 years. 

23However, in all of the circumstances, having given that sentencing indication at the start of your sentence on the basis of what occurred, on the charge of intentionally causing serious injury you are sentenced to be imprisoned for a period of three years and 10 months.  I direct that you serve the minimum term of two years and eight months.  I direct that 821 days be reckoned as having been served under that sentence. 

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Pursuant to s6AAA of the Sentencing Act, I say that, but for your plea of guilty, in these circumstances I would have sentenced you to be imprisoned for

six-and-a-half years with a minimum term of four-and-a-half. 

25Any other orders I need to make, gents?

26MR GRANT:  No, Your Honour.

27HIS HONOUR:  No.  That's all, Mr Grant, yes.  All right, thank you for that.  Thank you, Mr Kounnas. 

28MR KOUNNAS:  Thank you, Your Honour. 

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