Director of Public Prosecutions v Gordon

[2014] VCC 2031

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

AT BAIRNSDALE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER GORDON

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Bairnsdale
DATE OF HEARING:	15 October 2014
DATE OF SENTENCE:	15 October 2014
CASE MAY BE CITED AS:	DPP v Gordon
MEDIUM NEUTRAL CITATION:	[2014] VCC 2031

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Slim	Office of Public Prosecutions
For the Offender	Mr J. Sullivan	Sullivan Braham

1Christopher Gordon, you have pleaded guilty before me to two charges.  The first is a charge of intentionally causing injury which has a maximum penalty of 10 years' imprisonment.  The second charge is a charge of affray which has a maximum penalty of five years' imprisonment.  These crimes arise out of an altercation which took place in the streets of Lake Entrance on 7 February 2014.

2The prosecutor read out a summary of your offending and that is Exhibit A and I proceed to sentence you on the basis of that summary. 

3

Briefly, that involved you and a group of friends leaving the Lakes Entrance Bowls Club and it seems that you had with you a pot of beer which you were probably still finishing off.  One of your friends also had a pot with him.  There was a disagreement between your group and another group of people with whom you had not been associating before then and as a result your group began chasing them down the street.  One of your friends, a Mr Porter, began tackling the victim, so far as you were concerned, a Mr Kennedy.  Whilst

Mr Porter and Mr Kennedy were wrestling, you hit Mr Kennedy with the pot glass which, it seems, broke on his forehead causing him deep lacerations.  You and Mr Porter then took Mr Kennedy to the ground and you then, after

Mr Kennedy managed to get to his feet, assaulted him from behind as he was attempting to leave.

4This is very serious offending as you no doubt now realise in the cold light of day.  Your offences are made more serious by the fact that you had the glass which you then used as a weapon.  I do not find that you took it from the premises to use that way but once you got to that situation you did use it as a weapon.  Secondly, you hit the victim with the glass whilst he was dealing with Mr Porter, that is to say whilst he was wrestling with him.  Next, you and Mr Porter together took Mr Kennedy to the ground after you had hit him and then there was the further assault on him. 

5Both of the charges involved this particular set of circumstances, the injury of course being the injury to Mr Kennedy and the affray being all of those circumstances and the fighting that took place, but not what then took place with your group at the Central Hotel as you had left at that point.

6Mr Kennedy provided a victim impact statement which is Exhibit D.  He has taken a very forgiving view of what you did to him in one sense because he said that his life continued as normal which was an impressive thing for him to say.  But it has left him with scars, constant questions and people talking about the incident.  He was angry and frustrated at the unprovoked attack that you and your friends put on him, wondering how and why it happened and he indicates that he had 52 stitches to his forehead which, as at August of this year, left him with scars.  But, Mr Gordon, being the father of a boy yourself you will understand this most particularly: Mr Kennedy said the hardest part has been talking to his kids about what happened.  So you would particularly understand that. 

7Mr Kennedy was taken to hospital shortly after these events occurred and the injuries were described as multiple deep lacerations, alternatively of a significant soft tissue laceration and the photographs that appear in the materials show that it was indeed a number of deep lacerations and a significant injury.  It is to be hoped that Mr Kennedy does continue to recover, but of course he may well carry those scars for the rest of his life. 

8As has been pointed out by your counsel there are, however, some matters that I have to take into account in your favour and I do.  The first is the fact that you have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do.  Because of your plea, the community has been spared the time and cost of a trial and importantly that means that the witnesses, including your victim, Mr Kennedy, have been spared the ordeal of giving evidence.  As a result I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.

9

I also take into account that you indicated your intention to plead guilty at an earlier stage when the more serious charges were withdrawn at the committal.  Initially you were not prepared to admit your part in the crime.  That may have been because you were still affected by alcohol as you were at the time of the events.  But after a visit to hospital for you, it was pointed out to you that the injury to your finger was more likely to have been caused when you hit

Mr Kennedy with the glass.  You then spoke more fully about your involvement.  Certainly your plea of guilty indicates that you fully accept the circumstances that have been put forward on behalf of the prosecution.  I therefore accept that your plea of guilty indicates that you are truly sorry for what you did to Mr  Kennedy. 

10I have been told something of your personal history and your circumstances.  These also appear from the psychological report of Mr Jeremy Parker which he completed on 6 October 2014 after he saw you at the Metropolitan Remand Centre.  That is Exhibit 2.  You are now aged 27 and you were aged 26 at the time of the offences.  You have lived, it seems, all of your life in Lakes Entrance other than travelling for work and you have many family and friends there.  You are supported in court by a number of those family and friends, including your partner, Ms King, and your son, who is six. 

11Your relationship with Ms King has been a difficult one perhaps, with both of you drinking alcohol more than you should.  Despite the on and off nature of your relationship I am told that, as of today, when you are released from custody it is proposed that you will resume living together and with your son.  I will not go into the further details of your background and your circumstances but I do note that you have had some difficult times and that I completely understand how they would have had an effect on you as you were growing up. 

12No doubt they led you to have turned to alcohol, also in the background of a community that consumes more alcohol perhaps than it should and you have been a heavy consumer of alcohol since the age of 19.  This has done you not much good, of course.  You have been in trouble before and your criminal record shows that and that includes for assault-type offences which are relevant to my sentence today.  I do note that in one sense they are less relevant because they do not involve street offences the way this did and a victim not known to you but they are still serious because of course they involve your partner, the person with whom you should be having a loving relationship.  But there is no doubt in my mind that alcohol consumption has contributed to those convictions. 

13It has also probably contributed to both your physical and mental ill health.  You have a condition of pancreatitis which is almost always involved if the person consumes alcohol to excess.  I would hope that that has cleared up to a certain extent while you have been in custody and not consuming alcohol because that is the best way to stop the effects of pancreatitis.  Consuming alcohol would also have contributed to your other aspects of mental ill health, that is, depression and anxiety.  You may have consumed alcohol to try and forget about your problems but as you well know it just makes them worse. 

14I take into account what Mr Parker has said in his report and in particular the most promising thing is that he says that you are the sort of person who is likely to be assisted by treatment and that he would expect that there would be a reduction in your depression with appropriate psychological and psychiatric treatment.  So you are to be encouraged in accepting any treatment that is made available to you.  That can only make your life and the life of your immediate family a better one. 

15I also received references from three members of the Lakes Entrance Aboriginal Health Association: from the manager, from the health team coordinator and from the local justice worker who all speak of the help that you give to the Koori community and that you are to be regarded as a person who has prospects of continuing to be supportive in the community.  This is something that you should work on rather than getting into trouble and not setting a good example, not just for other members of the community but also for your son.

16During the course of discussions with your counsel I said that I had been impressed by your work history, and I am.  You have undertaken working on fishing boats which takes you away from home and can be dangerous work.  You have also undertaken other work, line markings and markings of numbers on roads, and you have also worked in an abattoir.  All of those are jobs that other people might think were too hard to do but you have clearly shown that you are prepared to do hard work in order to support your family.  I recognise that that sort of work often takes you away from home and as a result in deciding to spend more time at home you have been unable to find work in the community and this led to you having more time on your hands with the results that we can see.

17However, I am satisfied that your chances of rehabilitation are reasonable.  You have had a good start with not drinking alcohol for the last eight months or so that you have been in custody and that should put you on a good track for staying off the alcohol and hopefully obtaining some work.  At the age of 27 you are not what we call a young offender but you are still young enough to change your ways and make your life better.  So I will be attempting to give you the best opportunity to rehabilitate yourself with my sentence.

18There were two other offenders that were principally involved in the offences that you were involved in; Mr Porter who I have previously referred to and a Mr Harrison but he has not been found and has not been dealt with by a court.  Mr Porter was dealt with in the Koori Court at the Broadmeadows Magistrates’ Court on 6 August this year for two charges of recklessly causing injury, one for the same victim, Mr Kennedy, and one for another victim, and an unlawful assault on a third victim, as well as the charge of affray which included not just the events that you were involved in but the further events at the Central Hotel.  For these offences he received a sentence of six months’ imprisonment all up wholly suspended for two years.  I received a copy of his criminal record and it is apparent from that that he has also got prior convictions for assault-related offences but most importantly he has a prior conviction for causing serious injury as well as intentionally causing injury and you do not have a prior record for serious injury offences. 

19On your behalf it was put that I should be taking Mr Porter's sentence very much into account because he was the person who started the offending, that you came in later, that he has that more serious criminal record because of the serious injury and that he was dealt with for three victims whereas you were only dealt with for one.  The prosecutor said about this that whilst that was all true, the real problem for you is that your offending involved the use of a weapon and that whilst it was not a serious injury as it is now defined by the law it was nevertheless a significant injury. 

20So I need to take those competing arguments into account in deciding how to reflect the sentence of your co-offender in your sentence.  I have decided that there should be some reduction in the sentence that I would otherwise have imposed because of the sentence Mr Porter got, being six months wholly suspended, but I cannot get away from the fact that your sentence involves a glassing of someone, using a glass to injure someone, and that is a serious offence. 

21As well as the matters that I have referred to taking into account, I also need to take into account what is called general deterrence, which is that by my sentence of you I must try to deter other men from using glasses to injure people and getting involved in fighting in the street for no apparent reason other than being full of alcohol, and that principle of law is a very important principle in this sort of case.  I also have to take into account the need to deter you from offending in future.  Mr Sullivan on your behalf submitted that the fact that you have spent about 8 months in custody should be a deterrent for you doing anything like this again because otherwise you know that that is exactly where you will end up.  So I have taken that into account in deciding the final sentence although I have ultimately formed the view that there is still a need to deter you by my sentence.

22I have also considered the question of the protection of members of the community from you, people like Mr Kennedy who, whilst he might have done something to offend you or people with you, certainly was not deserving of anything like the treatment he got.  I have to bear also in mind the likelihood of your re-offending and if you get back to drinking alcohol the way you were then unfortunately your re-offending risk is high.  If you stay away from the alcohol then it will be low, so it is up to you. 

23The offences occurred on 7 February as I have said and you were arrested on 19 February and you have been in custody ever since that date.  It was submitted on your behalf that I should consider that to have been sufficient time served and that I could then release you on a Community Correction Order, taking that into account and all the other matters in your favour.  The prosecutor submitted that that was not sufficient time and that there should be a further term of imprisonment imposed. 

24Taking all of those matters into account, I have decided that there should be some more time served but it will be a few more months before you will be released on a Community Correction Order. I have decided that eight months is simply not enough given the seriousness of the injury to
Mr Kennedy.  So I will announce the formal orders in a moment but I just need to explain to you, Mr Gordon, what is going to take place. 

25I am going to order that the total effective sentence on both charges will be 9 months' imprisonment and then you will be released on a Community Correction Order for 18 months if you agree to this.  That has the normal conditions attached to every order which I think you have had explained to you but I need to go through those again in a moment.  I am also going to attach to that some specific conditions. 

26First of all, you will need to be supervised by the Community Corrections people.  That means you need to go and meet with them so that they can supervise how you are getting on with staying out of trouble.  I considered what they call an Alcohol Exclusion Condition but I decided that that would take you away from mixing with your community.  An alcohol exclusion would mean that you could not go to any licensed premises.  So what I have decided instead to do, although I thought that that might be one way to keep you from getting into trouble, is to order that during the course of the 18 months of the order you are not to drink alcohol.  So that means that you can still go to the bowls club with your family and friends but you will not be drinking alcohol with them and if you do, that will be a breach of this order.  So that might be a tough ask but I think that that will be the best way to keep you out of trouble but also to help you to repair your health, mentally and physically.

27I also propose to make an order that you undertake programs designed to reduce the risk of your re-offending, so whether it be anger management or learning how to deal with alcohol, then those programs will be arranged by the Community Corrections people.  I also propose to put on a condition that you be assessed and receive any treatment that is considered necessary for your mental and physical health problems.  It may be that on assessment everything is going well or it may be that they suggest that you do see a psychologist to give you the further treatment that Mr Parker referred to.  They may also assess you for the alcohol consumption and that will depend on whether you are able to stay with the condition not to drink alcohol.

28The final condition I propose to put on is what is called judicial monitoring, that is to say I would like to see you on the video-link to see how you are getting on and to discuss things with you if there are any problems.  I propose to start off seeing you every two months and that will begin on or about 10 February next year.  So you will have had a few months on the Community Correction Order and then I will see you and see how you are going next February.  How often I see you after that will depend on how you are getting on. 

29So those are the conditions that I propose to put on the order, Mr Gordon.  I also need to tell you that if you do not comply with these conditions or if you commit another offence then you will be in breach of the order, you will be brought back to court to be punished for that breach and also re-sentenced potentially for these offences.  Of course, the possibility is that that would involve more time in jail if I decided that that was appropriate.  You can vary the conditions of the order by applying to the court.  So if your circumstances change then you can be in contact with Mr Sullivan just to find out how to go about that. 

30So do you understand what all of those conditions involve?

31OFFENDER:  Yes, Your Honour.

32HER HONOUR:  Do you agree to being put onto a Community Correction Order with those conditions?

33OFFENDER:  Yes, Your Honour.

34HER HONOUR:  Very well.  I should also say that I thought about the unpaid community work condition as further penalty but I decided that it was in your interests to be free to obtain paid work so I have not put that condition on for that reason.  So you should make the attempts to do what you can about getting that job. 

35So the formal order of the court is as follows: on Charge 1 of intentionally causing injury you are convicted and sentenced to 9 months' imprisonment.

36On Charge 2 of affray, you are convicted and sentenced to 2 months' imprisonment.  Charge 1 is the base sentence and I direct that the sentence imposed on Charge 2 be served concurrently with the sentence imposed on Charge 1.  That makes a total effective sentence of 9 months' imprisonment. 

37I declare that you have served 239 days in pre-sentence detention and they are to be administratively deducted from that sentence and that includes today. 

38I order that on both charges you are convicted and on release from imprisonment you commence serving a Community Correction Order for
18 months with the core conditions or the standard conditions that you must not commit an offence in or out of Victoria during that 18 months, an offence punishable by imprisonment.  You must comply with any requests or any obligations that are asked of you and you must report to and receive visits from the Community Correction Officer or report to the Community Correction Centre within two days of the order coming into force which will be, as I said, after your release.  You must not leave Victoria without getting their permission.  So if you were looking for work interstate you would need to get permission in order to do that.  If you change your address then you must notify them within two working days of that change. 

39The other conditions are, as I have said, that you be under supervision, that you not drink alcohol during the course of the order, the 18 months, you undertake any programs designed to reduce your re-offending and you receive assessment and treatment for alcoholism, mental health and medical health problems and that you appear via video-link from this court at 9 am on 10 February to be monitored by me as to how you are getting on with your order.

40If you had not pleaded guilty but you had been found guilty after a trial, the sentence I would have imposed for these offences would have been a total effective sentence of two years, six months' imprisonment with a minimum term of 18 months' imprisonment. 

41So there is another period of time for you to serve, Mr Gordon, and then on your release you will be subject to the Community Correction Order.  Do you understand that?

42OFFENDER:  Yes I do, Your Honour, thank you.

43HER HONOUR:  Yes, very well, take a seat, Mr Gordon.  Are there any further orders required?  The conditions are understood?

44COUNSEL:  Yes, Your Honour.

45HER HONOUR:  Very well, we will just need to get that printed out,
Mr Gordon, and you will need to sign that Community Correction Order that you agree to undertake. 

46Very well, so the order has got the conditions on it, Mr Gordon, and when I have said about you attending for judicial monitoring with review next February it says 9 o'clock here but I will be appearing on the video-link, I will not be here but you need to be here and we will organise the video-link. 

47Mr Sullivan, I am happy for you to approach Mr Gordon if you want to discuss anything further with him about that as he signs it.

48All right, so I have signed that order as well, Mr Gordon, so that will be in force when you are released.  Mr Sullivan, do you want a copy to be given to you as well as Mr Gordon because of course ‑ ‑ ‑ ?

49MR SULLIVAN:  Yes, Your Honour, I will be indebted for that.

50HER HONOUR:  Yes, very well, we will make copies for Mr Gordon and for
Mr Sullivan.

51MR SULLIVAN:  Thank you very much. 

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