Director of Public Prosecutions v Harkin
[2012] VCC 1136
•14 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00388
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEONARD HARKIN |
---
JUDGE: | HIS HONOUR JUDGE HOWARD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 August 2012 | |
DATE OF SENTENCE: | 14 August 2012 | |
CASE MAY BE CITED AS: | DPP v Harkin | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1136 | |
REASONS FOR SENTENCE
---
CRIMINAL LAW – Sentence – recklessly causing serious injury – intoxicated offender - “king hit” of patron at nightclub – enduring physical and psychological victim impact – offender with serious alcohol, drug and gambling addictions – importance of general and specific deterrence and protection of the public – TES 2½ years imprisonment with 18 months minimum.
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J A Ayres (plea) Ms S Naimo (sentence) | Office of Public Prosecutions |
| For the Offender | Ms T Hartnett (plea) Mr J Westmore (sentence) | Galbally & O’Brien |
HIS HONOUR:
1 Leonard Harkin, you have pleaded guilty to recklessly causing serious injury. The maximum penalty you face is fifteen years' imprisonment.
Circumstances of offending
2 The circumstances of your offending are agreed and can be shortly stated. In the early hours of 1 October 2011, you were at the Pure Nightclub in Melton. You assaulted a twenty-five year old footballer who had arrived earlier in the evening with a group of friends from his football club. You attempted to engage some women in the group and had been asked politely by the victim to leave them alone, which you did. However, 45 minutes later you approached the women again. You were intoxicated and, to his credit, the victim tried to assist you by offering to get you a taxi home. Apparently you agreed. While the two of you were calmly standing near the bar in a crowded dance area, without warning, you “king hit” the victim to his face with a clenched fist, knocking him backwards onto the ground. I watched CCTV footage of the attack. It was correctly described by your counsel as “chilling”. You delivered a sudden and vicious blow. The victim was knocked unconscious, either by the blow or the fall, or both. You were escorted outside and caught a taxi home.
3 You were arrested a few hours later at which time you were still intoxicated. You made a “no comment” interview with police, were charged and released on bail, which I revoked after the plea hearing last week.
Victim impact
4 The victim was taken to hospital where he remained for three days. He suffered a serious injury comprising - a closed wound at the back of the head, which overlaid an undisplaced fracture of the skull; bruising or swelling of the brain tissue at the frontal and right temporal lobes with significant vasogenic oedema, which is vascular damage with the spread of fluid through the brain tissue; swelling and tenderness under his left eye where he was hit; bruising and bleeding to the front and right side of his head; and general soreness to the head, face and jaw. The injuries were associated with severe pain, headaches, nausea and vomiting.
5 The victim’s impact statement, declared on 26 July 2012, sets out in evocative terms the terrible effect your criminality has had on him and others. Following his discharge from hospital, he suffered endless days and nights of acute pain when he would cry regularly, vomit and suffer from blurred vision. He felt alone, sad and depressed and “disconnected” from his young children and wife. For months he could not cope with the people around him and did not feel safe when he went to public places. He was unable to work a full day for two months and needed to use up his holiday pay and sick leave to deal with his injuries. He still worries about going out at night to the point that his heart races and he feels uncomfortable, and he continues to experience pain in his jaw and recurring headaches.
6 The victim was unable to engage in any physical exercise for four months after the incident. Because of the severity of his brain injury, he has been advised by his neurosurgeon, whose report was submitted, that he should avoid any contact sports for life, as a repeat concussion could lead to an early onset neurological disability which might become permanent. Hence, he has been forced to give up football. He must drink alcohol sparingly as he may suffer a seizure or degenerative changes in the brain if intoxicated. Otherwise, it is possible for him to return to a normal and active life, although he must be vigilant at all times to avoid any further head injury, such as might be caused by an assault or drunkenness.
7 The victim’s statement stands as a telling reminder of the terrible human impact of your crime. You should feel a great deal of shame and remorse for the trauma and enduring problems you have caused this young man.
Background and personal circumstances
8 I will turn to your background and personal circumstances. They are set out in a psychological report of Dr Simon Kennedy dated 26 July 2012 and in a report from your case worker at Windana dated 8 August 2012.
9 You are now thirty-four, the youngest of six children. You were supported in Court by your parents and one of your sisters and her husband. None of your family has been in trouble with the law. Your parents migrated from Ireland and raised a large family. Although you reported your early life as generally positive, unfortunately your father was an alcoholic and you experienced an environment of abuse and aggression. You had early school problems and your performance diminished as you became older, especially in Year 10 when you started binge drinking on weekends when you were aged fifteen.
10 You left school half way through Year 11. You were directionless and suffering a problematic relationship with your parents. For the next five years you worked various labouring jobs. In 1999, at twenty-two, you completed your first year as a plastering apprentice but that stopped when the company folded. Then followed five years as a labourer in your father’s road construction business after which you worked for two years as a plasterer. During all this time you continued to drink heavily.
11 You have had only one relationship in your early twenties but that failed after three years as you were both drinking heavily. Things became so difficult at home that ultimately you left for shared accommodation.
12 Regrettably, you have a criminal record of eight court appearances over sixteen years involving twenty convictions. Most were for alcohol and driving offences. You have not been convicted of an offence of actual violence, although you resisted police in 1999 and made a threat to kill a policeman in 2008 in a drunken telephone conversation. You have received four sentences of imprisonment, but each was wholly suspended.
13 Importantly, at the time of offending you were on a suspended sentence for driving whilst disqualified, and on a community-based order involving assessment and treatment for alcohol and drug addiction for exceeding .05, and on an adjourned bond for another motoring offence. These offences breached an earlier suspended sentence from September 2009. The three dispositions were ordered in February 2011 when the Court stated you were making progress as an outpatient at Odyssey House and that you were leading a stable life, in counselling and displaying the best prospects for some time. Regrettably, you proved all that wrong by this serious offending but seven months later.
14 In March this year you commenced at Windana, which provides a six month residential drug and alcohol rehabilitation program on a 40 acre farm in Maryknoll, Victoria. In her report and evidence, your case worker spoke favourably of the genuine efforts you have been making to address your problems, including gambling. She contrasted your earlier lack of commitment to unsuccessful programs at Odyssey House in 2009 and 2010. Your counsel frankly conceded that you undertook this work cynically just to look good for court.
15 Your case worker highlighted the fact that you have spoken honestly of your problems and entered into a “contract”, the breach of which would lead to your discharge from the program. You have successfully undertaken outside leaves, had twelve clean urine samples, developed a better relationship with your family and demonstrated remorse and regret for your offending. You are moving towards the end of the program after which there would be a four month reintegration program in supported accommodation. However, as conceded by your worker, you are very much at the early stages of recovery. She explained that if your program was interrupted by a gaol sentence, given your favourable progress to date, you would be in a good position to complete the program on your release.
16 The psychologist diagnosed you as suffering from a Personality Disorder with anti-social features and vulnerability to criminal offending, exacerbated by substance abuse and addictions to alcohol, cannabis and amphetamine. You were evaluated as having a moderate risk to acting violently in the future. He approved the Windana program and noted appropriate remorse and insight. Extensive counselling was recommended following the Windana program.
Mitigating circumstances
17 The mitigating circumstances are that you come from a somewhat dysfunctional family background. Your academic progress was stunted by your early abuse of alcohol and drugs. Since then you have been afflicted by significant long term addictions. In spite of these difficulties you have maintained a full and productive working life. In spite of your criminal record, you have no convictions for actual violence, nothing subsequent and are considered a moderate risk of violent reoffending. I accept that recently you have displayed significant rehabilitative tendencies, maturation and insight.
18 As to the offending, I take into account that you did not use a weapon, there was only one punch and you were not acting in company. You pleaded guilty at the earliest available time thus saving time, cost and inconvenience to the community. You have thereby served the interests of justice which warrants a significant discount on sentence. Additionally, I am satisfied your plea is associated with genuine remorse and regret for your offending.
19 I am guarded as to your prospects of rehabilitation; particularly because you had not taken advantage of the opportunities you were given before the offending to address your problems. I am sure you understand that you are dealing with seriously entrenched problems and much will depend on whether you avoid alcohol, drugs and gambling once you are back in the community. Luckily, you will have strong family support to assist you in that endeavour and you seem to be moving in the right direction for the first time in your life.
Other sentencing considerations
20 There are, of course, other important sentencing considerations. In a well prepared and presented plea, your counsel correctly conceded that you had committed a serious example of the offence which warranted a term of immediate imprisonment.
21 Yours was a gratuitous, unprovoked attack on an innocent man who was simply trying to help you in your intoxicated state. The assault occurred without any warning so the victim had no opportunity to take any action to protect himself. The punch was so forceful that he was knocked to the ground and rendered unconscious. By your plea, you acknowledge that despite your intoxication, you were aware that your conduct would probably cause serious injury to the victim. As I have explained, there has been shocking and enduring victim impact. You are fortunate that the injuries were not life threatening and that a very substantial recovery is to be hoped for the victim.
22 The fact that you offended while on a suspended sentence, a community-based order and a bond is an aggravating feature of the offending.
23 General deterrence and protection of the public are also important considerations. Gratuitous drunken violence of this kind occurring in licensed premises is a prevalent and disturbing feature of Australian life. Others who may consider acting as you did need to understand that such behaviour will not be tolerated by the courts and result in the imposition of serious penalties.
24 Whilst you do not have prior convictions for actual violence, you do have many which reflect your ongoing problems with alcohol. On this occasion, once again, you were intoxicated and committed an offence. I consider that there is also a need to specifically deter you from future offending.
25 The prosecution submitted the appropriate range was a head sentence of two and a half to four years' imprisonment with a minimum of eighteen months to two and a half years’ imprisonment. Given the combined effect of the mitigating circumstances, I consider the lower end of the prosecution range is appropriate, especially as you have never been to prison before. You will have a substantial parole period to maximise your prospects for rehabilitation, as argued for by your counsel, during which you will have the support of your family and hopefully be able to finish the Windana program.
26 On behalf of the community, I strongly denounce your offending.
Sentence
27 Mr Harkin, please stand up. On the charge of recklessly causing serious injury, you will be convicted and sentenced to two and a half years' imprisonment. I fix the period of eighteen months to be served before which you shall be eligible for parole.
28 I declare that the period of six days’ pre-sentence detention be treated as already served on that sentence and that this declaration be entered in the records of the Court.
29 But for your plea of guilty, I would have sentenced you to four years' imprisonment with a minimum of two and a half years' imprisonment.
30 I shall make the order sought by the prosecution that you undergo a forensic procedure for the taking of a scraping from your mouth and/or a blood sample. The order is justified because of the seriousness of the offending, your prior convictions, your consent and because the granting of the order is in the public interest. I should make clear that notwithstanding your present consent, the police may use reasonable force to enable that forensic procedure to be conducted. Please sit down for the moment. [Forensic sample order made]
31 Mr Harkin, you need to go now with the prison officers. Thank you. Please remove the offender. [Offender removed]
------------
0
0
0