Director of Public Prosecutions v Green

[2018] VCC 719

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 17-01632

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID GREEN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	22 May 2018
CASE MAY BE CITED AS:	DPP v Green
MEDIUM NEUTRAL CITATION:	[2018] VCC 719

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

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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr M Reardon	Victoria Legal Aid
For the Director of Public Prosecutions	Ms J McDonnell	Office of Public Prosecutions

HIS HONOUR:

1David John Green, you have pleaded guilty to one charge of intentionally causing serious injury.  That crime carries a maximum penalty of 20 years' imprisonment.  You are 55 years of age.

2You pleaded guilty at the earliest reasonable opportunity, and there was a significant delay between your offering to plead guilty and the acceptance of it.  I accept that that plea is accompanied by appropriate remorse, and you must, of course, get the utilitarian benefit of it.

3You do have prior findings of guilt, but they are of some antiquity and play no part in this sentencing process.

4Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes. That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you.

5A summary of the offending is that you had been working for over a decade with a Mr McGee in the amusement industry.  He had, in previous years, had a drinking problem and had assaulted you on more than one occasion.  You yourself had had a drinking problem some years earlier, and had self-healed yourself, but commenced to drink again when you were working with Mr McGee.  It is clear that there was an at times toxic relationship between the two of you.

6But in any event, on 23 February 2016, at approximately 5.30 in the afternoon, the two of you were working together at the Drouin Caravan Park.  You were packing up a truck in preparation for a carnival in Berwick.  There was an argument about why you were taking so long, and you held each other by the throat.

7Mr McGee then hit you with a thin gauge steel-handled mop to the face.  His partner came out of the truck after hearing her daughter screaming, and separated the two of you.  She told you to wash your face, and you left the area.  At that stage, you had blood all over your face and a broken nose, and I have seen the photographs of you taken at the hospital.

8In this particular situation, I have indicated my concern that Mr McGee has never been charged with striking you, and I accept that your mental state would not have been good. I accept you snapped.

9There had been bad blood between you, and for you to be staggering around with a broken nose having been significantly assaulted, I think there has to be a diminution of moral culpability in terms of what occurred next.

10I also would take into account that your plea of guilty is to be regarded as having added benefit, because it would have been an easy process to have fought this out on the basis of recklessness rather than intentional.  I also have concerns about the timeframes that have bene described here.

11But in any event, within a few minutes, Mr McGee was pulling down a portable clothes line.  He stood up from the clothes line and you walked up behind him with a steel truck wheel brace in your hand.  It weight approximately two kilograms.  You swung the wheel brace and struck him to the back of the head.  That hit to the rear of the head caused a deep laceration.

12If this had all stopped there, Mr Green, I suspect we would not be here.  However, McGee stumbled forward and fell to the ground.  Once he was on the ground, and this is where the real problem starts, you swung the wheel brace fully and struck him to the front of the head and the temple area, causing a severe laceration.  At that point, he was unable to protect himself.  Another person, Blundell, got between you, and you swung it one more time but did not connect.

13You were both taken to hospital by ambulance.  Mr McGee was airlifted to the Alfred Hospital in the early hours of the following morning.  You were taken from the hospital by police, and I have already outlined the injuries that you had suffered.

14Mr McGee was placed in an induced coma and was in that situation for some two weeks or so.  He was then transferred to the Caulfield Hospital acquired brain injury unit.  I am unaware, because he left that hospital and will not make contact with the OPP, as I understand it, as to his current condition.

15However, I do sentence on the basis that he has suffered the following injuries which do amount to serious, even under the new definition:  a lack of consciousness, traumatic left sub-arachnoid haemorrhage, open occipital skull fracture, complex facial bone fractures, right comminuted clavicle fracture - that is a collar bone fracture - and lacerations.

16It is pretty clear to me that the bulk of these injuries were caused by that second blow, and even though you were in a fairly dishevelled state, you must have realised the potential, at least, consequences of what you were about to do.  The offending has to be regarded as serious.  The consequences were on any basis serious for Mr McGee, albeit that he, to a certain extent, brought them on himself.

17This calls for the application of general and specific deterrence, though in your situation, I am satisfied that it is unlikely this would occur again.  Denunciation and appropriate punishment - it is my view that the nature of the assault is such that a period of imprisonment is inevitable, and your counsel did not demur from that position.

18In terms of determining the length of that sentence of imprisonment, the original submission was that a combination sentence was within range, but because you come from South Australia and all your family connections are in South Australia, I cannot see the point in that.

19I look to matters personal to you, including a report from Ms Carla Lechner, a report from ARBIAS, and two letters from each of your - sorry, two letters from your sisters.

20You are 55 years of age with virtually no relevant prior convictions.  You had a very itinerant childhood.  You were brought up in South Australia.  You describe your childhood as "hectic".  You went to something to the order of eight different primary schools, and you had to repeat grades five and Year 7.

21You had difficulty with forming friendships, as is often the case with children who have shifted from school to school, and you are also the target of bullying.  You were able to complete Year 10 in Wyalla and left halfway into Year 11.  After leaving school, you worked for BHP for 13 years, where you operated roller mills as part of manufacturing.

22You subsequently, as I understand it because of a drinking problem, went and worked as a farm hand at a cattle station in the Northern Territory with Aboriginal people.  That was for some five years.  You spent seven years on a banana plantation, and also worked at a crocodile farm.

23You were then able to attain employment with Mr McGee, with McGee's Amusements, and you toured Australia for 12 years prior to the incident in 2016.  You initially enjoyed that work.  However, you have reported that Mr McGee drank rum heavily and would "go psycho" at times on the job.  That is the scenario in which all this unfolded.

24You married at the age of 22 and have two children with your former wife, but you have little to do with them and you have never re-partnered.

25You have no acquired brain injury.  There is no Verdins applicable in your situation, I do not believe.  The report from Ms Lechner indicates how you were able to exercise sufficient self-control to stop drinking.   You informed her that you could lose the plot when the pressure got too much for you, but I notice that after this incident, you have done a four-week anger management program in South Australia.

26You have now been on bail for a significant period of time, and during that time, you have firstly looked after your stepfather, who unfortunately passed away in March last year.  You are also the primary carer, in one sense, almost the only carer, for your mother who is now 79 years of age.  She has dementia and indeed, because of the inevitable consequence of this offending and the inevitable sentence that has to be imposed, in the last couple of days she has been placed in an aged care facility.

27I accept that, in the sentencing process, your conduct since this incident occurred has been highly commendable, and I also accept that for you to go to prison now will be very, very difficult for you indeed, having had to abandon the caring role for your mother.  You are deeply concerned about her welfare and I take that very much into account.

28You have a very good work record over a long period of time, and your sisters describe in simple terms the value you have been to the family in terms of looking after firstly your stepfather and then your mother.

29I have ruled that the circumstances involving your mother do not amount to exceptional circumstances, but it is a situation where they very much affect you in terms of the sentence that you will have to undergo, and I have taken them very much into account in that scenario.

30I have been given comparable cases and I have looked at the statistics.  It is not inevitable that somebody has to go to gaol for potentially causing serious injury.  The difficulty, in your situation, is that the injuries are indeed serious and inevitably would have to be long-term.

31In this scenario, I have looked at the decision of the Court of Appeal of Toumnguen.  Toumnguen was an intentionally cause serious injury where the Court of Appeal upheld a wholly suspended sentence.  Justice Neave, in that situation, said that in the circumstances of that case, His Honour was entitled to show mercy to the respondent and to take account of the fact that he was a full-time carer of one of his daughters, and he shared the carer of his other daughter with her aunt.

32I have no doubt that I am entitled, in this situation, to show mercy to you, and I intend to do that particularly in regard to the minimum term that I set.  As the Court of Appeal said in DPP v Leach:

"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, and after all, may be a decision which rebounds very much to the benefit of the community."

33And in DPP v Tokava, President Maxwell said:

"A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in the case of a serious offence, if in the long term, the community's interests will be best served by that course.  This court should seek to promote public understanding of the fact that apart from the interest of the individual it is sought to rehabilitate, an important interest in itself is a vital community interest in maximising the prospect of rehabilitation of an individual who's been convicted of a serious crime."

34This is not a situation where I feel that a non-custodial sentence could be justified.  You have inflicted serious injuries indeed on a person from behind, albeit in acrimonious circumstances.  As I have indicated, and I am lecturing you, Mr Green, but the second blow was considered and that is what has caused, I think, all the problems.

35I think the prospects of your rehabilitation are very good indeed.  The risk of you re-offending, according to Ms Lechner, is low, and I accept that that is the case.

36Taking all those matters into account, and your age, and lack of prior history, I sentence you as follows.

37On the charge of intentionally causing injury, you are sentenced to be imprisoned for a period of 30 months.  I direct that you serve a minimum term of nine months before becoming eligible for parole, and I direct that one day be reckoned as having been served under this sentence.

38Pursuant to s.6AAA of the Sentencing Act, and to indicate how I have constructed this, I say that but for your plea of guilty you would have been sentenced to a period of imprisonment of 42 months with a minimum term of 21 months. So that has been the benefit of your having conducted yourself in the way that you have.

39As I indicated during the course of the plea, these circumstances where the ultimate victim is not charged with their own criminality concern me, but that has got nothing to do with me.

40All right.  No other orders I have to make?

41MS MCDONNELL:  Just the striking out of the two related summary offences.

42HIS HONOUR:  Yes, they are both regarded as struck out.  No other orders I have to make, Mr Reardon?

43MR REARDON:  No, Your Honour.

44HIS HONOUR:  You can take him out, thank you.  Sorry, Mr Reardon, you are excused.  One day, a prosecutor is going to try to tell me that a drug dealer is a soft target in one of these sort of things.  It better not be you.

45(At this stage the court proceeded with another matter.)

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