Director of Public Prosecutions v Greaves
[2018] VCC 654
•27 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01602
Indictment No. G1062511
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN WILLIAM GREAVES |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 April 2018 | |
DATE OF SENTENCE: | 27 April 2018 | |
CASE MAY BE CITED AS: | DPP v Greaves | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 654 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Criminal law – Reckless conduct endangering person – Victim impact statement – Moderately serious offence – Relevant prior convictions – 33 year old offender
Legislation Cited: s 23 Crimes Act 1958; s 28(1)(b) Road Safety Act 1986
Cases Cited: DPP v Dalgliesh(a pseudonym) [2017] HCA 41
Sentence: 12 months’ imprisonment and 12 month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms D Hogan | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr S Howe | Hughes Watson Marks Kennedy |
1 John William Greaves, you have pleaded guilty to an indictment containing one charge of reckless conduct endangering person.[1] The maximum penalty for this offence is 5 years’ imprisonment.[2]
[1]Contrary to s 23 Crimes Act 1958 (Vic).
[2]Pursuant to s 23 Crimes Act 1958 (Vic).
The facts
2 The prosecution has filed a prosecution opening dated 14 November 2017,[3] which I have been told by your counsel I can treat as a statement of agreed facts.
[3]Exhibit P1.
3 You were previously in a relationship with Casey Duggan, and lived together for a period of time prior to this offending. However, at the time of committing the offence you were no longer living together and were no longer in a relationship, although you did continue to have contact with each other.
4 At the time of this incident, Ms Duggan had a new partner, Damien Wilson. He is the victim of your offending. Mr Wilson and Ms Duggan lived together in Delahey with six young children. On Sunday, 4 January 2015, Ms Duggan and Mr Wilson were at home with the children. Over the previous day or so, you and Mr Wilson had been texting each other. This texting was of a heated nature.
5 At about 6:00 pm, your uncle, Colin Ridding, arrived with Taya Kelly to collect items for you from the rear shed of the Delahey property. As your belongings were being sorted on the nature strip, Mr Wilson and your uncle became involved in a verbal exchange. Your uncle was on his mobile phone and you arrived a short time later in a blue Toyota Hilux. You were in the passenger seat whilst your cousin, Corey Ridding, was driving. The car was parked on the street in front of the house.
6 You got out of the car and then you and Mr Wilson ran towards each other. A physical altercation occurred between you, whereby punches were thrown. Ms Duggan attempted to separate the two of you. You moved away for a short period before returning for a further fight between you and Mr Wilson. Mr Wilson had you in a headlock, before he pushed you and pinned you to the ground. He then let you go.
7 You walked away and punched Mr Wilson’s car, without causing damage. Mr Wilson then armed himself with a hammer, and said words to the effect of, ‘If you want to wreck my car, I will wreck yours.’
8 You then got the keys to the Toyota Hilux and got into the driver’s seat. You reversed a short distance and then accelerated directly at Mr Wilson who was on the footpath. You mounted the curb and hit Mr Wilson. He became caught in the bull-bar and you continued to accelerate. The car travelled over the grass in front of the house with Mr Wilson hanging onto the bull-bar with his legs dangling under the car. You turned the wheel slightly and Mr Wilson’s legs scraped against the wheel of the Toyota Hilux. At some point, Mr Wilson’s leg was run over by the left wheel. In these circumstances you committed the offence charged in charge 1.
9 Mr Wilson came off the car and he hit his back on the edge of the concrete driveway. The front left wheel of the Toyota Hilux pinned him to the concrete edge, placing pressure on him. Mr Wilson screamed in pain. You reversed and drove off.
10 Mr Wilson was taken to hospital where he was found to have multiple lumbar transverse process fractures from L1 to L5.
11 You were arrested by police and interviewed on 13 January 2015. You made admissions as follows:
· You had gone to the address to collect personal items.
· You had been the passenger in the Toyota Hilux which had parked in the street.
· Mr Wilson had verbally abused you.
· You ‘lost’ it’.
· You aggressively walked up to Mr Wilson, but it was he who threw the first punch.
· When you returned to your car, Mr Wilson approached you with a hammer, swung it and struck you with it. You later said that you were not sure if it connected.
· You drove onto the footpath but were having an anxiety attack.
· You thought about running Mr Wilson over but did not do so.
Victim impact
12 Although Mr Wilson did not prepare a victim impact statement, his statement to police made on the day of the offence was tendered at the plea hearing by the Crown.[4] In that statement he indicated that he was suffering from a large amount of pain in his back, shoulders and pelvis and he was taking painkillers to relieve the pain.
[4]Exhibit P4.
13 According to a medical report prepared by Dr Jason Schreiber at the informant’s request dated 5 March 2015,[5] Mr Wilson spent 3–4 days in hospital. In hospital the following injuries were noted:
[5]Exhibit P3.
Multiple fractures to multiple lumbar spinal bones at the transverse process areas (L1-L4 transverse process fractures): displaced at each bone that is complex fractures ranging from mild to significant bone fragment displacements including fracture in which a muscle or ligament pulls a bone fragment away from the bone stem (avulsion fracture) – fracture-associated intra-abdominal bleeding and more than one blood collections at the inner hip muscle connecting the lower spine to the thigh (iliopsoas compartment and right psoas). Also noted were scratch injuries on the back, both legs and buttock.
Treatment in hospital included emergency spinal immobilisation, multiple different pain killers and other medication and a number of diagnostic tests.
Dr Schreiber opined that Mr Wilson suffered a serious injury the effects of which are likely to be long-lasting and his future quality of life will be poor.
14 I must be careful not to punish you for an offence for which you have not been convicted. You have not pleaded guilty to an offence relating to causing serious injury or reckless conduct endangering life.
15 Reckless conduct endangering person is a risk-based offence not an outcome-based offence.[6] Proof of the offence is not dependent on proof of harm.[7] Nonetheless, while the fact Mr Wilson was injured as a direct result of your conduct is not relevant to my assessment of the objective gravity of the offending conduct,[8] it does have evidentiary significance.[9] Moreover, it also is relevant in my assessment of the harm actually caused to the victim, Mr Wilson, as a direct result of your offending conduct.[10]
[6]See DPP v Vibro-pile (Aust) Pty Ltd (2016) 49 VR 676, 681 [3], 693 [83]–[84], 699-700 [90] (Maxwell P, Redlich and Whelan JJA) (‘Vibro-pile’).
[7]Vibro-pile 720 [190].
[8]Vibro-pile 720 [190], 722 [200].
[9]Vibro-pile 681 [3].
[10]Vibro-pile 722 [195] & [200].
Offence seriousness
16 This is a moderately serious offence carrying a maximum penalty of 5 years’ imprisonment.
17 An assessment of the relative seriousness of the instant offence depends upon the likelihood of the risk of endangerment to a person eventuating and the gravity of the consequences should the risk eventuate. The fact Mr Wilson was struck by the vehicle you were driving and the injuries actually suffered by him are of evidential significance in assessing these matters.[11] Clearly, the risk was great that you would strike Mr Wilson by driving at him in the manner you did and the consequences could have been catastrophic for Mr Wilson. On this basis this is a serious example of this offence.
[11]Vibro-pile 700 [91].
Prior criminal convictions
18 You have serious and relevant prior convictions. You appeared before the Melbourne County Court on 10 October 2008 and were convicted of one charge of recklessly cause serious injury; one charge of recklessly cause injury; failing to stop a vehicle after an accident; and failing to render assistance after an accident. You were sentenced on charge 1, causing injury recklessly, to a term of 6 months’ imprisonment; on charge 2, causing serious injury recklessly, you were sentenced to a term of 14 months’ imprisonment; in relation to charge 3, failing to stop, you were sentenced to a term of 3 months’ imprisonment, in addition your driver licence was cancelled and you were disqualified from driving in the State of Victoria for a period of 4 years. In relation to charge 4, failing to render assistance, you were sentenced to a term of 3 months’ imprisonment and your licence was cancelled for a period of 4 years. After orders for cumulation, the total effective sentence imposed was 18 months’ imprisonment and a non-parole period of 6 months’ imprisonment was fixed.
19 I was provided with a copy of the reasons for sentence of her Honour Judge Patrick, as she then was, dated 10 October 2008.[12] There are chilling similarities between the facts arising out of the case before Judge Patrick and the present case. At approximately 5.30pm on 6 November 2005, you were driving your Toyota Hilux four wheel drive utility when you drove on the nature strip outside premises in Werribee. You performed a U-turn and drove back down the street at a fast rate of speed. As your vehicle was approaching premises at 19 Harriet Street, Werribee, a family group was socialising on the front lawn, which included 11 children who were eating ice cream and playing amongst themselves. One of the parents put his hand up and yelled out “Slow down, there are kids here.”
[12][2008] VCC 1705.
20 You then stopped your vehicle and the parent began to approach your vehicle to confront you about your driving. You then put the utility in and out of reverse about four or five times with the reverse lights illuminating each time. You then accelerated and turned the utility around so that it was diagonally across the road at 45 degrees facing towards the premises. You revved the motor vehicle and the parent stepped from the nature strip to the road in an attempt to approach you.
21 At this point, you accelerated in the direction of the parent, striking him with the front bull bar. The impact caused the parent to become airborne and he landed on the windscreen, then the bonnet and eventually landed on his side on the ground. You then continued to drive in a direct line, after striking the parent, and then struck one of the children, who was now standing at the gutter of the road. The child was forced into the air and onto the bonnet before sliding off and into the gutter.
22 Your vehicle mounted the kerb briefly and then turned away from the premises and drove along back down the street, leaving the child motionless in the gutter. You did not stop to render assistance. The more seriously injured person, being the child, was transported to the Alfred Hospital and suffered significant injuries.
23 Here you are, once again, before this Court charged with offences arising out of a very similar incident where you used your motor vehicle as a weapon. It is clear that despite the sentence imposed by Judge Patrick, you still have a dangerous propensity to use your motor vehicle to injure others. Having said that, I accept that the charge here is one of reckless conduct endangering person and, as I observed earlier, you are not to be sentenced for a different offence.
Personal circumstances
24 You are currently thirty-three years of age.[13] Your father died in November 2013 at the age of 56 from cardiac problems. It seems that you were the family member who found your father dead at home and summoned assistance. You still have vivid recollections of this incident, which apparently has attracted psychiatric attention.
[13]Date of birth is 4 May 1984.
25 Your mother is aged 54 and has re-partnered since your father’s death. When you were interviewed by Mr Joblin, a forensic psychologist, in November 2017,[14] you were residing with your mother in St Albans. You have a brother aged 31 who lives with you and your mother. Your mother was in court supporting you during the plea.
[14]Ian A Joblin, Psychological Assessment, dated 6 November 2017 (Exhibit D2).
26 You were raised in Keilor and Werribee and attended primary school in Ascot Vale and then Footscray City Secondary College, leaving in Year 10. You left school to begin an apprenticeship. You reported that you had learning difficulties at school which attracted specialist assistance including that of a speech therapist. Whilst at school you apparently became isolated and withdrawn and had few friends.
27 After leaving school, you secured a butcher’s apprenticeship and attended the William Angliss Trade School. You completed your apprenticeship and worked in wholesale businesses and shops until early 2017, when apparently you lost motivation and interest in work and took a break. In May 2017, you returned to work, this time steam cleaning trucks for a business in Laverton.
28 I accept that you have an appropriate attitude to employment. Upon your release from prison you intend to continue in your current job, although you may eventually return to your trade as a butcher.
29 You have had one significant romantic relationship in your life, in your early twenties, which continued for five years. A daughter was born of this relationship who is now aged nine. You see your daughter every weekend. You still have a good relationship with your former girlfriend, the mother of your child. Following that relationship, you formed another relationship which lasted approximately four years. You then eventually formed a relationship with Casey Duggan, who was involved in the facts of this case.
30 The offence for which you are before me occurred after the initial breakdown in this relationship. You told Mr Joblin that you have now resumed the relationship with Ms Duggan, although you do not live with her. You reported that you meet at her home, but she rarely attends yours. You have no children by Ms Duggan.
31 You reported to Mr Joblin that neither alcohol nor drugs played any role in the offence for which you are before the Court. You acknowledged having had some problems with alcohol in the past, but you have never been involved in the use of illicit drugs.
32 So far as recreational pursuits are concerned, you are interested in collecting model cars. You also have a motor vehicle. You have very few friends and you are isolated and rarely go out.
33 You reported to Mr Joblin that in the aftermath of your father’s death, you began attending a local doctor for psychiatric treatment. You were diagnosed with depression and you began a mental health care plan. You are presently prescribed antidepressant medication. You reported that you experience high levels of anxiety and episodes of depression. You are claustrophobic. I note Mr Joblin’s concerns regarding the possibility of your having an organic brain disorder.
34 With regards to the present offence, Mr Joblin noted that you could not recall the exact details of the incident or what you were experiencing psychologically at the time. Mr Joblin opined that there is no doubt that you had difficulties with your temper and that this contributed to your offending conduct. Accordingly I will require you to undergo an anger management course as part of the Community Correction Order I will be imposing in this case as part of a combination sentence.
35 In Mr Joblin’s assessment you fall within the low or borderline category of intelligence. Your literacy skills are not good and you acknowledged you have problems with literacy skills. You acknowledged that you have a low threshold of tolerance and that at the time of these offences that threshold was crossed. Mr Joblin opined that you were at the time suffering from claustrophobia, social anxiety and depression and that these factors are:
relevant to his overall psychological health and can present as being the basis of a low threshold of tolerance which, therefore, becomes relevant to the offending.
36 I did not understand your counsel to rely on this material as being sufficient to engage Verdins’ principles one to four in your case.[15] However, Verdins’ principle six appears to be engaged as Mr Joblin opined that:
I would have some concern that the symptoms observed in this case would be exacerbated by further incarceration.
[15]See Defence Outline of Submissions on Plea dated 10 April 2018 (Exhibit D1).
37 I accept that this is relevant to the sentence I will impose in this case. I also accept that there will be a degree of custodial hardship engaging Verdins’ principle five.[16]
[16]Ibid.
38 Mr Joblin concluded that you need to continue on a mental health care plan to address these issues, in particular depression, social anxiety and claustrophobia. Clearly, supervision upon your release from gaol will be a significant factor in preventing your relapsing into further criminal behaviour.
39 Your counsel also relied on a report from Dr Damien Greene dated 8 February 2018.[17] Three days after the incident giving rise to these proceedings you attended Dr Greene and you were sent to a psychologist for therapy regarding the managing of ‘bouts of anger’ that you were suffering at that time. You were also at that time on medication for depression, which had apparently worsened in the second half of 2014. Dr Greene reported that your mix of anxiety and depression was causing you to have increased memory loss, poor concentration, poor sleep, poor appetite, low mood and physical signs of anxiety. Dr Greene opined that your
depression was of such severity that it would have contributed to him acting impulsively, being overly aggressive and being easily influenced at the time of the incident. It also would have caused him to have poor short term memory and poor concentration at the time of and subsequent to the incident.
[17]Exhibit D3.
40 Dr Greene commented that he has continued to treat you since the incident and that your condition has ‘gradually improved’. I take these matters into account in your favour.
Mitigating circumstances
41 In his written submissions, your counsel relied on your plea of guilty at an early stage, the fact that you showed genuine contrition and remorse, and your psychological conditions.[18] He submitted that a combination sentence of a term of imprisonment together with a Community Correction Order was within the range. The prosecutor agreed that that order was open to me in the circumstances of this case and I propose to adopt that course of action.
[18]Exhibit D1.
42 I have also had regard to two character references; one provided by Simone Leagh Strahan, your former partner with whom you have a child, Hannah Marie Greaves, dated 3 November 2017.[19] She comments upon your being a good father and that you were a hard worker and good provider for Simone and Hannah during the period you were together as a family. Simone comments that in relation to the charges you are ‘remorseful and extremely sorry for what [you] have done’.
[19]Exhibit D4.
43 I also received a reference from your mother, Lorraine May Greaves, dated 16 October 2017.[20] She says that you have always been a very loving and supportive son and a hard worker. You currently reside with her and have a very close relationship. She also comments on your degree of remorse and sorrow for what you have done.
[20]Exhibit D5.
44 I will discount the sentence I would otherwise have imposed on you on account of your early plea of guilty, which as well as its utilitarian benefit, demonstrates an acceptance of responsibility on your part and a willingness to facilitate the course of justice. I also accept that you are truly remorseful for your offending conduct.
Application of Sentencing Principles
45 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them and your personal circumstances.
46 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, you are rehabilitated and reintegrated into society.
47 General deterrence is an important sentencing consideration for this offence. The use of a motor vehicle as a weapon, potential or otherwise, must be discouraged and decried in the strongest terms. Denunciation is therefore also an important sentencing consideration.
48 Whilst just punishment, general deterrence and denunciation must be given primary consideration in the instinctive synthesis, I am of the view that, in your case, specific deterrence and protection of the community are also required to be given significant weight in light of the previous incident for which you were sentenced by Judge Patrick in 2008.
49 It is difficult to make any accurate assessment of your prospects of rehabilitation, but if you comply with the conditions of the CCO I intend to impose in combination with a sentence of imprisonment, I am of the view they are reasonably good. There has also been significant delay in this case, which I also take into account in your favour. You have had this matter hanging over you for over three years.
50 I have considered current sentencing practice in relation to this offence in light of the recent decision of the High Court of Australia in DPP v Dalgliesh(a pseudonym).[21] It is difficult to gauge more than a very general yardstick from so-called ‘comparable’ cases, given the wide range of offending conduct which can constitute this offence and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in this case.
[21][2017] HCA 41
51 Ultimately, I am of the opinion that the only appropriate sentence necessary to achieve the purposes for which this sentence is imposed is a sentence of imprisonment combined with a community correction order. Your counsel accepted this was so, and the prosecutor submitted that a sentence of this type was open to me in all the circumstances of this case.
Stand up Mr Greaves
On the charge of reckless conduct endangering person you are convicted and sentenced to 12 months’ imprisonment with a community correction order of two years’ duration with the following conditions:
As well as the mandatory conditions, this will be for two years and commences on the day that you are released from imprisonment. You must attend at the Sunshine Community Correctional Services at 10 Foundry Road, Sunshine, Victoria within two clear working days after the commencement of this order. In other words, after you are released from gaol.
The mandatory terms that apply to all community corrections orders are:
You must not commit another offence for which you could be imprisoned during the time that the order is in force.
You must comply with any obligation or requirement prescribed by
Regulation 17 of the Sentencing Regulations 2011.
You must report to and receive visits from the Secretary or his delegate.
You must report to the Community Corrections Centre within two clear working days of the order starting.
You must let a Community Corrections officer know within two clear working days of you changing your address or job.
You must not leave Victoria without first getting permission to do so from the Secretary or his delegate.
You must obey all lawful instructions from and directions of the Secretary or his delegate.
The conditions that apply in addition to the mandatory terms listed are:
Unpaid community work. You must perform 250 hours of unpaid community work over a period of two years, as directed by the Regional Manager. If you fail to comply with this order, the Secretary to the Department of Justice or his delegate may give you a direction to perform additional hours of unpaid community work, in accordance with s.83AU of the Sentencing Act 1991.
Supervision. You must be under the supervision of a Community Corrections officer for a period of two years.
Treatment and rehabilitation. You must undergo any mental health assessment and treatment, that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed by the Regional Manager.
You must participate in programs and/or courses that address factors relating to the offending, as directed by the Regional Manager.
Residual conditions. You are to participate in an anger management program and a road trauma awareness program.
Now, do you understand the effect of the conditions as I have described them to you?
OFFENDER: Yes, your Honour.
HIS HONOUR: Do you consent to entering into that community corrections order?
OFFENDER: Yes, your Honour.
HIS HONOUR: Yes, all right. Well I will have that signed by you. All right, I have signed that order.
Pursuant to s 28(1)(b) of the Road Safety Act 1986 all licences held by you are cancelled and you are disqualified from obtaining any licence for a period of 15 months from today.
I declare the period of 14 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct that the fact that declaration was made and its details be noted in the records of the Court.
Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your plea of guilty would have been a sentence of 3 years’ imprisonment with a non-parole period of 2 years’ imprisonment.
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