Director of Public Prosecutions v Hadow

[2022] VCC 2128

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

AT Melbourne

CRIMINAL DIVISION

CR-21-00755

DIRECTOR OF PUBLIC PROSECUTIONS

v

COREY HADOW

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	4 & 9 November 2022
DATE OF SENTENCE:	29 November 2022
CASE MAY BE CITED AS:	DPP v Hadow
MEDIUM NEUTRAL CITATION:	[2022] VCC 2128

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW

Catchwords:   Plea following jury trial – found guilty of intentionally causing injury (statutory alternative charge) – found not guilty of four other charges – related summary offences – all sentencing purposes engaged – high moral culpability – significant example of the offence – found unsuitable for CCO – had indicated willingness to plead to charge before the Trial – criminal history but no violent offences

Legislation Cited:                Criminal Procedure Act 2009; Sentencing Act 1991

Cases Cited:Worboyes v R [2021] VSCA 169

Sentence:Community Correction Order for 12 months 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R Barry	Office of Public Prosecutions
For the Accused	Mr L Howson	James Dowsley & Associates

HIS HONOUR:

1After a trial a jury found you, Corey Hadow, guilty of a single offence: intentionally causing injury. They found you not guilty of four other charges. There are related summary charges. Through your counsel you have pleaded guilty to Charge 7 (possessing a dangerous article), Charge 12 (unlicensed driving) and Charge 14 (using an unregistered motor vehicle). You have pleaded not guilty to Charge 11 (careless driving) and Charge 13 (failing to wear a helmet). Charges 5, 6, 10 and 16 were struck out. To determine Charges 11 and 13, the parties rely on s242(3) of the Criminal Procedure Act 2009. Neither party called any further oral evidence and relied on the evidence given in the trial.

2As to the offence of intentionally causing injury, your counsel submits a Community Correction Order is the appropriate sentence, while counsel for the Director submits combined imprisonment and a Community Correction Order is within the range.

Circumstances

3In determining the circumstances underlying this offence and being consistent with the jury's verdicts it is clear the jury rejected the evidence of Mr Kreun and his granddaughter, Jennifer Thompson, on the first charge.  For the remaining indictable offences, at the very least, the jury must have treated their evidence with caution.  Second, they accepted the evidence of the witness, Brett Eustace. 

4Mr Eustace had been working at the Cranbourne Community House when he heard the sound of a dirt bike.  It seemed nearby and was revving quite loudly.  He left the house to look.  He saw Mr Kreun lying on the ground and you,
Mr Hadow, walking towards him, yelling abuse at him.  You reached Mr Kreun, who was trying to stand up and was half up when you punched him three or
four times to the face.  This observation by Mr Eustace was made after you had come off your bike. 

5The jury must have rejected Ms Thompson's evidence of you kicking her grandfather while he lay on the ground.  The jury must also have rejected the defence of self-defence in relation to the charge of intentionally causing injury. 

6In finding you guilty of intentionally causing injury as opposed to intentionally causing serious injury, the jury must have found the injury suffered by Mr Kreun was not ‘serious’ in the sense required by the law.  They must have rejected the possible consequences outlined by the forensic physician, Jason Schreiber.  They must also have rejected Mr Kreun’s complaints of some loss of his sense of smell and taste as either existing or causally related to the offence.  As to the effect on his left eye, it is not clear what view they took of Mr Kreun’s evidence, whether they accepted there was an adverse effect or not. 

7Based on the hospital records Dr Schreiber found Mr Kreun suffered:

(a)   a complex comminuted fracture of the left eye socket.  This fracture itself included a fracture of the floor of the eye socket and a fracture to the inner wall of the eye socket.  Whether this constituted two fractures Dr Schreiber could not say. 

(b)   fractures of the nasal bone.

(c)   a fracture of the upper jaw on the left side of the face.  Specifically this was a fracture of the air filled cavity off the upper jaw bone, or maxilla.

(d)   there were associated soft tissue injuries.

8Dr Schreiber also gave evidence of the treatment that Mr Kreun received in hospital.

9In relation to the disputed summary charges, the evidence of Jamie Maxwell is significant.  He said he heard the noise of a motorbike coming from the street.  He turned and saw you pass the house with a four wheel drive directly behind you.  He said you gave way at the intersection of Jillian and Cochrane Streets but the four wheel drive went straight through the intersection, almost hitting you.  He continued to watch as you went further up Cranbourne Drive and made a left hand turn.  You gave way again and the four wheel drive almost clipped you again.  He then lost sight of you and the four wheel drive.

10Mr Kreun said that you were not wearing a helmet and that there were no registration plates on your motorcycle.  He was undoubtedly correct on the latter.  As you left the park with your bike and after punching Mr Kreun,
Mr Eustace did not see you wearing a helmet.  When you returned shortly afterwards, you were looking for your sunglasses and not your helmet.

11Mr Maxwell gave evidence of you being chased.  His evidence contrasts with that of Mr Kreun and his granddaughter.  Given the jury's verdict on the first charge on the indictment, the evidence of

[1][2021] VSCA 169

Mr Maxwell raises the reasonable possibility that your driving was not careless.  I find you not guilty of the charge of careless driving but guilty of the charge of failing to wear a helmet.  I find you guilty of the other offences based on the evidence at the trial and your pleas of guilty.  The pleas of guilty deserve the additional moderation of sentence are required by Worboyes v R[1]. 

Victim Impact Statements

12I have read the victim impact statement of Mr Kreun made on 5 December 2019, nearly 10 months after the incident. 

Criminal History

13Between 12 June 2015 and 8 June 2016, you have appeared in a criminal court on two occasions and have been found guilty of five charges.  None of those charges concerned offences of violence.  You have never been sentenced to imprisonment.  You have been placed on two Community Correction Orders.   Although one of the orders was the subject of a contravention proceeding, that resulted in the confirmation of the order with no other penalty.

Personal

14You are now 26.  You have an older sister, Amy, who wrote a letter in support of you.  Your parents separated when you were five.  When you were in Year 5, your mother injured her spine at work.  She has not worked since.  You live with, and care for, your mother.  You work full time as a concrete pump operator.  You are a hard worker, working six days a week.  After tax you earn $1500 per week, from which you pay board of $200 and pay bills for the household.

15You have been on bail since 7 February 2019.  There were no special conditions attached to the bail.  You obeyed the central requirement of bail: you have not re-offended while on bail.  To an extent your liberty has been restricted by the fact of bail. 

16A few days from the start of the trial you offered to plead guilty to the charge of which you were found guilty.  Although not a plea of guilty, it does show a willingness to admit your guilt at that late stage of the proceeding.  It deserves some mitigation of penalty. 

Community Correction Orders

17Twice, a Community Corrections Officer has assessed you as unsuitable for a Community Correction Order.  Although you did not consent to the making of such an order on the first occasion, you did on the second. 

Discussion

18I have had regard to the purposes of sentences and s5(1) of
Sentencing Act 1991 and the relevant matters of s5(2).

19In relation to the offence of causing injury intentionally, each of the purposes of sentencing is engaged in your case: just punishment; general deterrence; specific deterrence; denunciation; protection of the community from you; and rehabilitation. 

20In relation to s5(2), the maximum penalty for intentionally causing injury is
10 years’ imprisonment and I have had regard to the maximum penalties applicable to each of the summary charges of which you are guilty.

21Your behaviour gave rise to a significant example of the offence of causing injury intentionally.  Your moral culpability was reasonably high given the jury's stance on self-defence, the injuries received by Mr Kreun and the circumstances leading up to the offence itself. 

22I note your criminal history and your pleas of guilty to some of the summary offences and moderate the sentences in light of the additional consideration in Worboyes case.

Sentence

23Despite the assessment outcomes, after hearing from your counsel and counsel for the Director, I propose to make a Community Correction Order of 12 months duration with these conditions:

(a)   to perform 200 hours of unpaid community work over 12 months;

(b)   to undertake any programme that addresses factors related to your offending behaviour.

24I direct that all of the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

25On the summary charges:

(a)   on Summary Charge 7, a charge of possessing a dangerous article, you are convicted and fined $500.

(b)   on Summary Charge 11, a charge of careless driving, that is dismissed.

(c)   on Summary Charge 12, a charge of unlicensed driving, you are convicted and fined $300.

(d)   on Summary Charge 13, a charge of failing to wear a helmet, you are convicted and fined $200.

(e)   on Summary Charge 14, a charge of using an unregistered motor vehicle, you are convicted and fined $200.

26I will refer the fines to Fines Victoria for collection.

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