Director of Public Prosecutions v Harrington
[2017] VCC 288
•21 March 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-16-00790
Ind F12951813.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| Bryce Desmond HARRINGTON |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 28 Feb-8 March 2017 Plea in Mitigation: 13 March 2017 | |
DATE OF SENTENCE: | 21 March 2017 | |
CASE MAY BE CITED AS: | DPP v Harrington | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 288 | |
REASONS FOR SENTENCE
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Catchwords: RCI, Glassing, Acquitted of more serious offences
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A. Ellis | Office of Public Prosecutions |
| For the Accused | Ms C. Randazzo, SC and Mr T. Fitzpatrick | Armour Lawyers |
HIS HONOUR:
1 Bryce Desmond Harrington, following a relatively short trial, on 8 March this year, you were found guilty by a jury of one charge of recklessly causing injury. The jury acquitted you of the two charges on the indictment, being intentionally cause serious injury and recklessly cause serious injury. They acquitted you of the lesser alternative to Charge 1, being intentionally cause injury. The charge they found you guilty of was the lesser alternative to Charge 2 on the indictment. It carries a five year maximum term of imprisonment.
2 Though I was told broadly by your counsel of the existence of some very old non relevant Children's Court matters, they are in no way allegeable against you. You therefore have no criminal history at all.
Facts
3 Your victim in this matter was a man by the name of Patrick Ryan. He had been at the 40th birthday party of his friend, a man named Mark Riley at Riley’s house out in Upper Beaconsfield on the night of 23 May 2015. You were invited to the party by Riley’s brother. About 40 or so people attended. Prior to the night you and Ryan had never met. You met at the party. At one point not too far removed from the events the subject of the assault, the two of you had in some way been talking. You told Ryan not to talk to you. He has no memory of the words he had uttered to provoke your response. In any event he turned away from you and had nothing further to do with you. You suggested in your interview that he was being a bit of a loudmouth and had alleged that you were racist. Maybe he did.
4 In any event, what is plain is that there was no open hostility or anything even suggesting that it would erupt into violence much less the nature of your violent attack upon Ryan. He had consumed a fair amount of alcohol, that much is plain. You had consumed about ten cans of mixed drink. The party had well and truly run its course and there were only a handful of guests sitting around the fire. You were seated next to Ryan. Without warning, you leapt or jumped up from your seated position and without in any way announcing or even flagging your intentions, you smashed the glass you were holding in your left hand into the right side of this man’s face in a round armed blow. He did not see the blow coming. He had no awareness at all of any impending attack. It was quite startling conduct and your attack was observed by three of those seated around the fire. Mr Ryan fell to the ground and you then got on top of him and wrestled with him until you were pulled off by others.
5 Serious injury was conceded in this case though not the mechanism. Mr Ryan sustained undoubtedly serious injuries in this attack. They were not injuries caused in going to ground. The jury were satisfied beyond reasonable doubt that you struck him to the head with your glass and that the blow caused the serious injuries detailed in the medical report and photographs. Your counsel has spent a good deal of time, far too much in my view, endeavouring to rationalise the jury verdict. There is a six page document dealing with this "issue". It is a complete non-issue, given the way the case proceeded and the actual verdict delivered by the jury.
6 Almost immediately after verdict I raised my provisional view that the jury verdict signified a finding by the jury as to the mechanism of glassing and that mechanism causing the man’s injuries. Your counsel initially rejected the suggestion that the jury finding indicated they had even accepted the mechanism of the glass being employed, much less breaking. Ultimately in her six page written submissions dealing with the verdict she accepted that the jury verdict reflected the jury’s acceptance of the mechanism alleged, that is the blow to the right side of the face with the glass. Virtually every other submission made in the document runs counter to the manner in which the Crown put its case and as importantly the manner in which your own counsel went to the jury.
7 The case was always about the mechanism. Could the Crown establish it beyond reasonable doubt and if they could, what if anything could the jury infer as to your intent? The jury were told explicitly by your own counsel in her final address to them, that if they were not satisfied that the glass hitting the side of the head caused the injuries they must acquit. I told the jury the same thing both in dealing with the drawing of inferences and in my final instructions to them. When dealing with inferences, I told them that they would need to be satisfied beyond reasonable doubt that the blow with the glass caused the injuries, and exclude beyond reasonable doubt the reasonable possibility of them being caused by rolling around on or falling upon glass on the ground.
8 If they could not exclude that as a reasonable possibility, that is exclude that beyond reasonable doubt, they would be required to acquit on all the charges. That is what they were told. I returned to that in my final instructions and concluded those directions by telling them that if they were not satisfied beyond reasonable doubt that you, the accused, struck Ryan to the head with a glass causing the injuries, then they must acquit on all charges.
9 When confronted by Ms Randazzo’s six page written submissions as to the interpretation of the verdict, I was sorely tempted to play back to Ms Randazzo her own closing address delivered at 11.33 on Monday 6 February where she made very plain the very matters I have referred to. Instead, I directed her attention to her own words to the jury and to my legal directions echoing her words to the jury.
10
Nonetheless, she suggests that the verdict stands for all manner of things including a finding by the jury of an ‘injury’ not even ever in any way raised on the evidence by any witness or in any submissions by either counsel or directions by me. That is, a phantom injury in a phantom case entertained by
a rogue jury not following any legal direction given to them. She cites my giving legal direction about the differences between injury and serious injury as providing that avenue to verdict but overlooks the fact that they were told by me that I was only going in to those matters as it may be relevant for their consideration of the state of mind required as to the third element of the various charges before them.
11 There can be absolutely no doubt that the guilty verdict flows from an acceptance by the jury of the mechanism being the glass to the head and that mechanism causing the injuries suffered by Ryan.
12 The case could not have been clearer. I have now said more than I intended to as to your counsel’s six page document and the oral submissions made in support of it. I reject those submissions as indeed did the jury. The verdict is very easy to follow. It has nothing to do with causation and everything to do with intent. Serious injury was never in dispute. The mechanism was. It has been established. The state of mind was also in dispute as Ms Randazzo made clear enough in her addresses and here the jury returned what might be viewed as a merciful verdict. What is critical is that I sentence consistent with that verdict. That is that you struck this man to the face in this attack and foresaw that he would probably be injured. You did not intend serious injury or even injury. You did not foresee serious injury. Rather you were aware that he was likely to suffer injury. In fact as we know, he sustained serious injury.
13 The submissions made by Ms Randazzo as to the verdict were of no assistance to the Court and reinvented virtually every aspect of the Prosecution and Defence case. I reject them.
14 However I do not let them distract me from the very many favourable things that were raised on the plea on your behalf. Before turning to those matters though, I will say something about the impact of your crime.
Victim Impact
15 Your victim has made two victim impact statements which were marked as Exhibit A on the plea. No issue was taken by your counsel as to those impact statements and I do take them into account. I see no need to set out the full text of the impact statements. Your crime has obviously had a very sizeable impact upon Mr Ryan. At the time his partner was eight months pregnant. There was evidence before the jury of the rough and ready way he was prepared to forgive this assault until he actually learnt how serious it was. The police were waved away at the scene when they attended. His eight month pregnant partner saw the wounds at the hospital. He learnt at the hospital that it was not a matter of a few butterfly clips here and there and then an uneventful discharge home as he hoped to be the case.
16 Your acts caused him injuries to the face. He had deep lacerations, the frontal branch of the facial nerve was completely severed and there was complete laceration of the artery and vein around the right ear. He required plastic surgery under general anaesthetic. He was a plumber. He was initially off work for nine days. He missed other days owing to Court commitments. He was left with residual scaring and some loss of sensation. Also a heightened sense of pain at the site. His original impact statement speaks of the reduction in his confidence in some social settings and the trouble he had sleeping with nightmares. Your act has dented his feeling of safety in some social settings. He described having a worrying scar that provoked much comment as well as the loss of sensation and movement.
17
The latest impact statement speaks of his frustration at the whole system and desire to put the matter behind him. The whole episode has been the worst experience of his life. It was an event on the night that he chose not to report and having travelled this distance through the criminal justice system he doubts that he would ever report an incident to the police again. This was
a serious assault. He will never forget the night he met up with you. I never lose sight of the fact that you fall to be sentenced for the crime of recklessly causing injury. He has clearly been deeply affected by your criminal act.
18 I take into account the impact of your crime as I am obliged to.
Submissions In mitigation
19 Mr Randazzo raised a number of matters in mitigation. Primarily they were:
· Your excellent work and family history and the complete absence of any past offending;
· The delay and what has occurred in the course of the delay;
· The presence of some remorse or at least some victim empathy
· Exceptional third party hardship upon your two girls should you be imprisoned and/or if not satisfied to that degree, an increased custodial burden upon you owing to your knowledge of their exposure to change flowing from imprisonment;
· She relied upon a host of excellent references from your family members, family friends and work colleagues as making plain that your conduct was deeply out of character;
· She argued that you had a low risk of reoffending and very good prospects of rehabilitation.
20
Ms Randazzo conceded the seriousness of the offending. She said it was
a most serious example of the crime of recklessly causing injury. She argued however that it would be open to impose a community corrections order on its own and that the ‘last resort’ of prison was not reached in this case given the various matters in mitigation. As is customary these days the Court was taken on a journey through a variety of so called comparable cases. I will turn to them in due course but remark now as I did at the time of the plea, that they were not sentencing authorities. They generally did not contain statements of principle and there was nothing in those cases requiring some mathematical equivalence. Plainly many were not even comparable.
Crown Submissions
21
Ms Ellis took me to a handful of cases containing matters of principles including the case of Winch. Now of course she conceded that the cases had to be read carefully given the more serious charges dealt with in Winch, Dix, Sianas and Kumar. Still the principles underpinning the seriousness of glassing as
a mechanism still were relevant, just not the penalties levied in those other cases given the higher maximums and the far greater culpability owing to the higher seriousness of state of mind proven or admitted in those case and not in yours. The Crown disputed that it would be open to impose a community corrections order on its own, arguing that a term of imprisonment was warranted but that subsequent release on to a community corrections order would be an available option to the court.
Background
22 I turn now briefly to your personal background. I see no need to go through your personal background in great detail, you know what it is and it is not seriously in dispute. It is set out in detail in Ms Randazzo’s written submissions. Not the six page document I have been so critical of, but the far larger and more complete document raising the various matters in mitigation. That was a far more impressive and comprehensive document. It was actually helpful. I have no reason not to accept the personal family background that has been placed before me by your counsel. You are now 35 years of age. You have a good relationship with your mother and father. They separated before your birth but you have maintained close bonds.
23 You had a disrupted schooling and left school at a very young age. You were not literate and that worked against you in a pre-apprenticeship as a plumber. However you taught yourself to read, obtained work in concreting, and really have not looked back. You have remained in that trade ever since. You have had an excellent employment and work history and in the last few years you have set up your own business which employs a number of people. You have on any view of it done very well in your life. You still evidently have support from a large circle of friends and relatives. On the day when the plea was originally listed, I had a court full of those who wanted to show support for you.
24
Your father was called to give character evidence on the trial and has been
a constant figure in this court. Again, today, there are clearly a number of people present in support of you. I have no doubt that the whole entourage of those who support you are deeply worried by your predicament and are battling to come to grips with the reality of your criminal act. It stands as starkly out of character. That is the clear tenor of the character material placed before me.
25 You met your wife to be when you were 20 and on holidays in the States. She was American and she came out to Australia in 2004, you moved in together, married and have two children of the marriage. Hayley who is almost ten and Kayla who is five. Both are at school. Kayla has only started a short time ago in prep. Kayla has some health issues with steroid cream required for serious eczema but it is not a massive health condition. Your marriage broke down in 2014. I note that you had earlier had a serious car accident in 2009, and there had been a large financial loss in America where you had moved as a family unit at one point. It would seem that the global financial crisis wreaked havoc upon you as upon so many others.
26 Upon separation from your wife in mid-2014, you left the home you were buying as a couple but returned to live there in September 2014. You lived separate lives under the same roof until your wife left in 2015. Your wife has had some mental health issues including admission to a mental health facility. The children have been in your care since March 2015, with the approval of the Department of Health and Human Services and with Family Court orders to that effect as well. Initially supervised access was granted to your wife, that is now unsupervised, with your wife having the children for two days per fortnight with one overnight stay. Though she has that unsupervised access I am told that she cannot at this stage have the children full time. You both live in Pakenham, you in the former matrimonial home which is heavily mortgaged, she I believe in a rental and though she is in receipt of Centrelink benefits, you continue to support her.
27 The spectre of prison throws up all sorts of complications and uncertainties into the lives of the children, your father and into your own life. There is just no doubt about that. The custodial care giver would be removed from the family. The sole breadwinner would be removed. The employer would be removed. Your business would be plunged into uncertainty, so too other companies you have entered into contracts with. Your home is heavily mortgaged. I am told that the children's mother is not in a position to provide full time care. The paternal grandfather, your father, can but is located far away from Pakenham in Mount Martha.
28 Your father would step into the breach but it would involve the children moving suburbs and schools and losing the support of their father and possibly even contact with the mother. I must say on that last point I would be very disappointed and surprised if that was allowed to happen. There would still surely be an obligation morally if not legally to have the children dropped off for access with their mother. Surely your father would take any steps open to him to maintain that contact. To leave one aspect of the children's lives undisturbed.
29 Anyway I have spent a great deal of time on your background and could spend a deal more if there was much point. There is no point because the material placed before me convinces me that you have excellent prospects of rehabilitation and a low risk of reoffending in this way in the future. That your conduct was deeply out of character. You are a decent hardworking man of good values who regrettably has committed a serious crime. You have been waiting for this matter to be brought to an end. Well it cannot have been easy waiting for the finalisation of the matter and to learn your fate.
Remorse
30
You counsel argued that I could find that you had some remorse. That your interview had expressions of empathy when you were shown the photographs of your victims injuries. Well I accept that you have some empathy but what real contrition or remorse do you have for your crime? You have conducted
a trial, which was your right. You have in the interview provided an account which describes your being attacked by Ryan and there being an unfortunate accident befalling your victim. That has been totally rejected by the jury. Your account is that you did not strike the victim. That he struck you. That was put positively to the victim and to the three other witnesses who observed your attack. The witnesses rejected the suggestion and so too did the jury.
31
I have in the past on occasion found the existence of some remorse even in cases where there has been a not guilty plea at a trial. A case of dangerous driving causing death springs to mind (Howton [2012] VSCA 281). So too
a case involving negligently causing serious injury with serious injury inflicted by a pen pistol discharging in an apartment and crippling a young man and confining him to a wheelchair for the rest of his life, (Rogers VCC 231 7 February 2012). In such cases the matter was submitted to the jury for judgments to be made by a jury as to the level of negligence or dangerousness and there was no major dispute in terms of the factual setting. This case is entirely different.
32 I am not satisfied on the balance of probabilities that you have remorse for the crime you have committed upon this man. You denied and continue to deny that you were in any way in the wrong. Those written references which comment upon remorse have to be read in light of the way this case has been conducted. It was conducted in the way it was owing to your instructions. I am not able to find any remorse here.
33 There were some submissions made as to the form of the indictment almost shutting you out from any guilty plea. It did nothing of the kind. Your counsel had no objection to the form of the filed over indictment. Had it been your desire to plead guilty to a lesser charge that could have been done by maintaining the earlier trial indictment or by your offering to plead to the lesser included charge in the presence of the jury. You chose not to approach the matter in that way which was your right. It is equally clear that the Crown would not have accepted a guilty plea to recklessly causing injury or even intentionally causing injury. However what does any of this say about the issue of remorse? Nothing. You persisted in a trial as was your right and maintained a version which has been totally rejected by a jury. I cannot find any remorse here. I am not satisfied of it on the balance of probabilities.
Family hardship and/or Increased burden
34 I turn to the issue of family hardship. Much was said on this score. What you need to understand is that it is only in exceptional circumstances that third party or family hardship can be taken into account. The circumstances must be such that they rise above the general and sometimes tragic hardship very commonly suffered by families upon the imprisonment of a family member. Even if established, the hardship does not necessarily require the avoidance of a prison term.
35 It is clear from the authorities that the cases where family hardship gives rise to exceptional circumstances will be rare indeed. Proof of actual hardship is not enough, and that is because there is almost always actual hardship, often very significant hardship encountered when a person with a dependent family is sent to prison. This high test has developed in response to a number of considerations. It is almost inevitable that imprisoning a person will have an adverse effect of others. When you think about it, it is sadder still when it does not.
36 The primary function of the court is to impose a sentence commensurate with the gravity of the crime, so to treat family hardship as the basis for the exercise of leniency produces the result that a guilty person benefits in order that innocents suffer less, and it also differentiates between offenders with needy dependents and those with none. It is always tough for children, especially young children to be separated from a parent. More so from a father who is the primary caregiver. Presumably very often there are very great adjustments that have to be made and serious impacts upon young children and the routines of life with loss of housing, loss of schooling and loss of emotional support.
37 There are many examples of what has in the past been treated as exceptional circumstances and what has not, though obviously the decision has to be made on a case-by-case basis.
38 I pay regard to those past instances as spelt out in the Judicial College of Victoria Sentencing Manual at chapter 11.7.10.8, as well as referred to in the leading case of Markovic [2010] VSCA 105. They give some guidance, but again one must come back to the case at hand, which I do now.
39
I have considered the issue of family hardship. As I have said, it is only in the most exceptional cases that third party hardship can be taken into account.
I am not unsympathetic to the plight of your two girls. I wish that you had not placed them in this position, but you have. Their lives would be significantly affected for at least the periods during which you would be imprisoned. However it is not that unusual for imprisonment of a father or mother to have
a very deep impact upon children financially and emotionally. It is not that unusual for the sole carer and breadwinner to be imprisoned. It is not that unusual for relatives to step into the breach. Sometimes there are none.
40 Sometimes all that can be contemplated is the Department of Health and Human Services stepping in and children going into care. Here undoubtedly, there would be significant and far from ideal alterations to your girls’ lives. The little one has just started at school. They would be with their grandfather who would love and support them but logistics would dictate that they be moved from their school and neighbourhood for a time. There would be potential financial difficulties as your business is left without you at the helm. Issues no doubt with the mortgage being maintained. None of these are small things but they cannot drive the outcome here. The children's lives would be for a time in some state of disarray. I do not ignore these matters. I just do not believe the circumstances are exceptional.
41 Having said that, I have no doubt at all that any prison term imposed upon you would be harder for you to serve knowing of the impacts upon your children. You would feel impotent to protect them and to provide for them. You would not be able to provide for them financially or emotionally and that would undoubtedly increase your burden. So too your concerns as to the business and your financial plight. I will take these matters into account as increasing your prison burden.
Delay
42 There has been a delay here. The chronology is set out in the submissions. The offending occurred in May 2015. You now fall to be sentenced in April 2017. Part of the delay is explained by the laying of matters in the summary stream. The Magistrate was not prepared to have the recklessly cause serious injury matter (as it then was) stay in the lower court, a stance I entirely agree with. Ultimately you have been found guilty of recklessly causing injury an offence that possibly, even probably would have been able to be dealt with in the lower Court. To that extent it has been nigh on impossible for you to settle this matter shy of pleading to the offence of recklessly cause serious injury, an offence that ultimately you were acquitted of.
43 I am not being critical of you or the prosecution. That is just the reality of this case given the nature of the injuries and the mechanism. Anyway the reasons for delay are not important. They have certainly not been caused by you other than in your exercising your rights to a committal and trial, neither of which is relevant to my consideration of the argument as to the mitigatory effect of delay. These were your rights. What is important is the impact of delay. Here, you have not committed any offences in the course of sizeable delay. Amongst other things, you have had the responsibility of your children, have attended Family Court hearings and conducted your business. So your rehabilitation has been advancing in the period of the delay. That is important.
44
Further it must have been tough indeed living with this matter hanging over your head with all of the real uncertainties as to your and your children’s futures.
I take into account the delay in this case. I don’t judge it to be as powerful as delay in some other cases I have seen. Sometimes there is inordinate and unexplained delay for many years with a ridiculously leisurely or sloppy approach to timely police investigation and/or prosecution or both. That is not the position here. Still the delay is undoubtedly a mitigatory matter which I do take into account.
Rehabilitation
45
I do not believe I need say much more about your prospects of rehabilitation than I have already said as I have already mentioned by favourable impression.
I see no need to descend to the detail of the written references that have been placed before me. I have read them again since the date of the plea. You have no past offending and a very decent level of family support. You are a very decent man in your dealing with others on the work and home front. You have contributed in life and will again in the future. The offending was clearly out of character. If only it was not so serious. I just don’t know what got into your head to do what you did. The material convinces me that you have excellent prospects and a low risk of re-offending in this way in the future.
Current sentencing practice
46 I take into account, as I must, current sentencing practices. The snapshot for the crime of recklessly causing injury (snapshot 190 of 2016) discloses that of those sent to prison for this offence, the median length of imprisonment was eight months, therefore half the sentences were longer, half shorter, with terms ranging from two months and 15 days to two years. It is a relatively rare case to be heard in this court. The figures for the Magistrates' Court disposition of recklessly causing injury show that in the period covered by the statistics that 15 per cent of offenders received immediate terms, and about 16 per cent received suspended sentences. I have been taken to a raft of cases by your counsel. I am not going to work my way through them in every detail. None of them are sentencing authorities. None of them are on all fours. There are key differences in a range of areas. Ms Randazzo took me to four County Court sentences. Two were from one Judge.
47 Saraceno
& Ors [2016] VCC 521 related to three accused who all pleaded guilty at an early stage to recklessly causing injury and trespass. It was not
a glassing but a physical assault including with a pool cue. It is described as
a fight within a house in the setting of a separation between one of the offenders and the victim. The Crown conceded the availability of a community corrections order. There were relevant prior matters. I regard the disposition as extremely merciful but it says nothing as to the disposition required here. Goldson 2014 VCC 606 involved the use of a samurai Sword by a husband upon his wife. An early guilty plea, remorse and the accused acting in an acute psychosis with no capacity to reason immediately sets the case apart.
48
The wife gave evidence on the plea telling the court that the person who assaulted her was not in truth her husband. That is to say he was acting strangely. Brooke Hughes 2016 VCC 433 involved a guilty plea relating to
a squabble occurring in a toxic relationship. The male victim produced the knife first, it was acquired by the female accused and she stabbed him in that setting. There was no victim impact statement. Finally Minahan, 2012 VCC 514. Well that involved a trial with acquittal on intentionally causing serious injury and recklessly cause serious injury and intentionally causing injury but conviction on recklessly causing injury. There had in that case been a scuffle inside a party.
49 The accused and a friend were physically pushed over by the ultimate victim. They were then ejected from the club. The victim was warned of their presence outside but chose to go out and having gone out then chose to physically approach the accused. It was then that the glassing occurred. The trial played out with self-defence being run with the accused saying in the interview there were other options open to him. The accused, though he had a lengthy history, was only 18 years old at the time of the crime. He had a very miserable family background and great weight was placed on his youth. In my view he was extremely fortunate to have been dealt with in the way that he was dealt with.
50
These cases did not involve any matters of principle. There were a host of differences. In common though was the absence of any immediate terms in those four outcomes. Well one could as easily go to the Sentencing manual overview of cases in the Court of Appeal dealing with the crime of recklessly causing injury and some of those cases involving immediate terms. See 29.9.4.1 or 29.9.4.2. See the case of Moody [2014] VSCA a 27 year old man with no prior convictions pleading guilty to recklessly causing injury involving
a single punch of a woman. He went to prison. See also the case of Kerapa [2017] VSCA 56 delivered yesterday with a survey of some cases involving recklessly causing injury.
51
There were submissions made by each counsel as to the application of the principles from the case of Winch. They undoubtedly apply with some modification give the less serious offence you have been convicted of.
A glassing does not become something other than a glassing owing purely to the lesser state of mind established. Your mechanism was extremely serious. It was a deliberate act and involved a strike of the glass to the face of another man. The President and JA Redlich in Winch commenced the judgment in this manner; “The present appeal concerns the ugly phenomenon known as glassing.”
52 One of the reasons that glassing is so serious is the nature of the mechanism and its high level of dangerousness. The level of foreseeability of injury is relevant to the consideration of the gravity of a crime. True it is you did not foresee serious injury. Serious injury is a very high bar since amendments were made a few years ago in the Crimes Act. A high bar in terms of it occurring and of proof of intent or foresight of that consequence. Injury is a far broader category than once was the position and incorporates things that previously would likely have been classed as serious injury including for instance disfigurement.
53
You foresaw injury but in circumstances where injury covers
a range of not insignificant consequences. You foresaw injury flowing from the mechanism you employed. A glass to the face of a man. You foresaw injury to the face of this man though not life threatening or substantial and protracted. Hence you did not foresee serious injury. Yours was however a very serious example of this offence in my view. It will be rare indeed for a glassing to be dealt with as a recklessly causing injury though I suppose there are some that will not reach that high level of seriousness of injury and others where there may be some doubt entertained as to the specified state of mind as in this case.
54 No amount of looking at statistics or other sentencing outcomes in other cases will provide the answer to the correct exercise of my sentencing discretion in your case. Each case is very different. So too every offender.
Offence gravity
55 I must pay regard to the gravity of the offence before the court. As I say, your counsel correctly concedes that it is a most serious example of the crime of recklessly causing injury. She is right. It is. A weapon was used. A glass. The strike of that weapon was totally uncalled for and totally unannounced. It was struck to the side of the face of the totally vulnerable and unprepared victim. It happened to cause serious injuries though you foresaw injury only but of a kind consistent with the mechanism. It is true that it was a spontaneous event but the same can be said of most acts of glassing. The Court of Appeal in Winch spoke of the recurring features of glassing cases. Usually being an act of alcohol fuelled aggression in disproportionate response to an actual or perceived slight with typically a young offender of good character and full or remorse.
56 The consequences of glassing are almost invariably serious. The Court in Winch spoke of the heightened need for general deterrence as a sentencing objective. Again I don’t lose sight of the differences in that case dealing as it did with recklessly cause serious injury. So the “obviousness” of serious injury being caused does not apply to your act. Of course, you did not foresee serious injury. Still these general principles are of some weight in this case. The mechanism, the area of the body struck, the face, the totally unannounced nature of the attack, the impact, all make this a serious example of the crime. You do not have available any of the sizeable utilitarian benefits of a guilty plea or the presence of remorse for the crime. They do not exist here.
Sentencing considerations
57 I have taken into account all of the submissions made and the exhibits that have been tendered before me.
58
Sentencing is never an easy task. Anyone says it is easy has never done it. There are many matters which must be taken into account. I have to take into account the maximum penalty. Here, it is five years' imprisonment.
I have to pay regard to current sentencing practices and to the impact of the crime. The impact has been significant. I must also consider your prospects of rehabilitation, they are excellent. You must be punished for your crimes, justly and proportionately, and this court must denounce your conduct. That is very important. You should be ashamed of yourself for engaging in this act. You are not.
59
I must consider the protection of the community. Well that is not a weighty consideration in this case as strange as that conclusion may sound to someone who stumbled into court and knew only the nature of your crime. The fact is
I think your prospects are excellent and your risk of re-offence every low. The community does not really need to be protected from you at all
60
You must be deterred. You must be dissuaded from ever committing such
a crime as this again. Your counsel argues that this purpose can be moderated. I agree. Whilst I cannot ignore this sentencing purpose, I am prepared to moderate the weight to be given to that purpose given my favourable conclusions as to your rehabilitation and my judgement as to there being a very low risk of your re-offending in the same way in the future. Even if I had doubts about your future prospects and I do not, surely the process of being charged, brought before the court and sentenced, would all go some distance to deterring you in the future. But I don’t harbour such doubts. Specific deterrence is of very little weight in this case.
61
General deterrence is a different proposition. This court must seek to deter or dissuade others who might be minded to commit this type of offending. That purpose, known as general deterrence is a highly relevant purpose of sentencing for this sort of crime. The courts must make crystal clear to likeminded people that conduct such as yours will not be tolerated and will be punished sternly. The glassing of another human being to the face is an awful act. It is massively dangerous. It will simply not be tolerated by the community or by the courts. The courts must send a strong message to those in the community who may think it open to commit such an act. People engaging in such conduct must have a strong expectation of being sent to prison and for
a sizeable period.
Boulton
62
Your counsel, argued in favour of a straight community corrections order. That is that you need not serve any time in custody at all. Her secondary position was that if prison was required which she strongly argued against, that
a combination-type disposition would be open to the court. The Director of Public Prosecutions did not accept that it was open to release you on a straight community corrections order but argued that it would be open to combine
a prison term with release upon a community corrections order.
63 They are the arguments of the parties as to the breadth of my discretion. I do not ignore them but I have to exercise my own sentencing discretion.
64 Sending any person to prison is always a matter of last resort for any court. It always has been and presumably always will be.
65 It is clear that a Court must not confine any person unless the purposes for which sentence is imposed cannot be achieved by a lesser disposition, in this case a community corrections order. Prison is a disposition of last resort with few advantages and many disadvantages.
66 I was taken by counsel to the case of Boulton. Since that decision was published in December 2014, I have uttered those words in most of my sentencing remarks. It is only in the rarest of cases that I have not been taken to that case.
67 Defence counsel have fallen into the habit of assuming that a community corrections order is always available for every offender and every offence. It is not. I have said not infrequently that the guideline judgment seems to have been greatly misunderstood and misapplied by very many in the legal profession. The Court of Appeal by the way have said that Judges of this Court have misapplied the decision and the community corrections order disposition and have engaged in artificial compressing of sentences to render available the disposition in combination with a term of imprisonment. They said that plainly the community corrections order provisions are not working as intended, that the provisions were distorting the sentencing process and producing artificial results.
68
The Court of Appeal called for legislative change in the case of Basic and the Parliament has spoken, passing legislation which took effect yesterday,
21 March and which limits the making of an order in combination with a sentence of 12 months or more. That amendment does in fact apply to my task. The legislation also restricts the making of an order for some offences but that amendment does not apply to my task given the offence date. Nor would it even apply to this particular offence in any event. See The Sentencing (Community Correction Order) and Other Acts Amendment Act 2016. So, it is clear enough that much has changed since Boulton.
69 One thing that has not changed is that the disposition is not always available. It is obvious and always has been that not every offender for every crime can or should be admitted to such an order. That is because, of course, there are some crimes where the purposes of sentencing cannot be given adequate weight by use of such an order. I have had you assessed for your suitability for a community corrections order. I told you that you should not take any comfort from my calling for that report or from the extension of bail following verdict and then the plea. I meant what I said. I told you that I was considering my position as to whether prison was called for here and if so the dimensions of any such term and whether they would even permit consideration of a community corrections order. You are judged to be suitable for a community corrections order and you are assessed as having a low risk of re-offending. I am not surprised by your suitability or your low risk.
70
I accept that a community corrections order can provide substantial, general and specific deterrent effect and that such an order can be very punitive as
a disposition.
71 Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement unless the court concludes that the purposes of sentence cannot be achieved by a community corrections order to which specified conditions are attached. Accordingly a court needs to pay careful attention to the purposes for which sentence is to be imposed and whether they can actually be achieved by a stand-alone community corrections order. There are some crimes that are just too serious.
72 The Court of Appeal suggested in Boulton that judges ask the following question:
"Given that a community corrections order could be imposed for a period of years with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence or the offender which requires the conclusion that imprisonment with all its disadvantages is the only option?"
73 I have no doubt that I must answer that question in the positive. Your crime is such that I do not believe it is open to release you on a stand-alone community corrections order. Your offending demands that you serve a sizeable term of imprisonment. I do not believe that a community corrections order on its own can adequately reflect all the relevant sentencing purposes. General deterrence, denunciation and punishment are significant purposes here given the nature of your crime.
74 It is my view that there is no alternative other than to impose a term of imprisonment upon you. The issue then for me is whether I pass the appropriate individual sentence and then fix a non-parole period or impose a term of imprisonment in conjunction with a community corrections order and provide for your certain release by admitting you to a suitably conditioned community corrections order to take effect upon your release. That later method provides a guaranteed release mechanism for you. My concern has been whether it is open to me to use such a combined order given the need to have you serve a sizeable period in custody. I only have at my disposal an upper ceiling of 364 days. Ultimately I believe it is open to impose a combined sentence in this case.
75 You and those around you can work with confidence as to your release date. That certainty will be very important for you and your family. For your father. For your girls. A non-parole period provides no guarantee at all and I would need to act on the basis that you would serve every day of the sentences pronounced. I believe that it is open to admit you to a suitably community corrections order to take effect upon your release from prison and in this way to provide for your continued punishment and rehabilitation upon your release in a less punitive and damaging setting. In an environment where you can attend to your many obligations, family and work commitments.
76 Sending a person to prison is always a matter of last resort. Your counsel suggests there is an alternative here. I simply don’t agree. Your crime is just too serious.
Forensic sample
77
Application is made for a forensic sample order. It is not opposed. I have signed that order and pronounce it now. Pursuant to the provisions of s.464ZF of the Crimes Act, I order that you go undergo forensic procedure for the taking of
a scraping from your mouth, in accordance with Subdivision 30A of Part 3 of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database. I am satisfied that the making of the order is justified owing to the seriousness of the offending, the fact that the order was not opposed and that I judge it to be in the public interest. What that deals with, Mr Harrington, is the obligation for you to provide a forensic sample to the authorities. It is not a particularly invasive procedure.
78
You will be approached in custody. I have not authorised a blood sample. I am authorising a less invasive scraping from your mouth and it is not a difficult process. The authorities are entitled to use reasonable force to enable that procedure to be conducted. Of course, if they entertain any difficulties, no doubt they will be back before me applying for a blood sample which to this point,
I have not authorised, but that is what that is all about. I have signed and pronounced that order.
Sentence
79 On the charge of recklessly causing injury, I convict and sentence you to nine months' imprisonment. In addition I admit you to a 15 month community corrections order to take effect upon your release from custody. I am going to explain that order to you. It will take a bit of time, I do not want you to stand up for all that. Take a seat again and just listen carefully. I can only place you on one of these orders if you consent to it and that is why I have to explain the terms and the various conditions and you have had no experience of these orders in the past.
80 At the end of this explanation, I will have your counsel come down and speak to you and learn from you whether you are consenting or not. Now, as I have said, the order will run for a period of 15 months upon your release. So I have not fixed a particular date. The particular date will be derived from the date of your release from custody.
81 You must attend within two clear working days after the commencement of this order. So it commences immediately upon your release. So when you are released from custody, you have got two days to get down to the Pakenham Community Corrections Services at 825 Princes Highway, Pakenham. I will give you a copy of this order too, by the way.
82
As I say, it will last for 15 months upon your release. Now, these orders have
a variety of mandatory terms that apply to every person who gets one. You are getting one so they apply to you. You must not commit another offence for which you could be imprisoned during the time the order is in force. That is
a problem for lots of people. It should not be a problem for you at all. But just so there is no mistake about it, if you happen to commit any offence for which you could, in theory, be imprisoned in the 15 month period of the order, you breach this order.
83 There is a condition I hate on this document, it says you must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations. What does all that mean? Well you have got to turn up on time and in a fit state to do any unpaid work or to engage in any sort of attendance under this order, totally unaffected by alcohol, totally unaffected by drugs. Well again, that should not be an issue for you. It is a big issue for a lot of people, but it will not be for you. You have to make yourself available for a photograph to be taken for their record keeping purposes.
84 You must report to and receive visits from your Community Corrections officer. So they tell you to report, you report. They say they are coming to visit you, you are there to receive the visit. As I have told you, you must report to the Community Corrections Centre within two clear working days of this order starting. That is a mandatory term as well.
85 You have got to let them know within two clear working days of any change of address or change of job. Well again, I am sure that is not going to be an issue for you.
86 You must not leave Victoria without first getting permission to do so from your Community Corrections Officer, and you must obey all the lawful instructions. So they are the mandatory terms that apply to you as to every person who gets one of these orders. They should not present an issue for you at all.
87 Then there are tailored conditions that a judge imposes in relation to these orders to reflect the notions of rehabilitation but also concepts of further punishment on such an order because they have a punitive aspect.
88 Now there is obviously a highly punitive aspect in terms of your being sent to prison for the time that I have sent you there and I acknowledge that, so I am very much limiting the number of unpaid hours that you will do by way of unpaid community work upon your release. I am directing that you must perform 100 hours of unpaid community work over the 15 month period of this order.
89 Now, again there is a condition I do not like on this document. I have no say in it, it is just spat out by the computer. I do not want it causing you to think that if you happen to decide not to do the unpaid work, the worst that is going to happen is the Community Corrections crowd will give you a direction to do some extra hours. They have that discretion. Work on the theory that if you fail to comply with the unpaid community work, you will be breached on this order.
90 What are the other conditions? There is the unpaid community work, 100 hours. You are going to be under supervision of a Community Corrections Officer for the period of the order. You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the regional manager and you must participate in programs and or courses that address factors relating to the offending as directed by the regional manager. That would include anger management.
91 So they are the full suite of terms and the tailored conditions that apply to this order. So any breach of any of those terms or conditions, bring you back to court for breach of this order. Let me give you the benefit at least my experience in this area, both as a judge and as a practitioner down each end of the Bar table over very many years.
92 Presumably when I ask you in the not too distant future, you are going to consent to this order and you will then sign that order and signify by your signature your consent to this order. There are many people who consent to these orders who of course leave out the door to the right and re-join the community. You will not be one of those. I regard it as necessary for you to serve a significant term of imprisonment. So this order will not kick in until nine months or thereabouts from now when you are released.
93 So there is a bit of water under the bridge between now and when you come out of prison and I do not want you to think that you have come out of prison and you have served your sentence, you have not. The sentence is a continuing obligation under this order.
94 I have seen virtually every method under the sun of these orders being breached. I have seen people not even turn up at their first induction appointment. I have seen people leave work, leave their address, leave the state, leave the country, not turn up for unpaid work, not turn up for supervision or to report, not turn up for assessment or treatment or to participate in courses. Every person who places themselves in that position had the ability to avoid coming back to court, but chose for whatever reason to not comply and therefore guarantee their return to court.
95 Do not put yourself in that position. Your life has been interrupted here by a significant term of imprisonment. I acknowledge that. It will be difficult for you. I acknowledge that. It will be difficult for your family, that much is plain enough. But you will be released and you can work to a fixed release date. That will be at least something. If you comply with the conditions and the terms, then you will comply with this order and that will be the end of it. At the end of that period, you will have complied with it and the matter would never come back to court.
96 I do not know at this stage what directions they are going to give you, in terms of the work to do and where to do it, about the supervision requirement, about the need to have any sort of assessment and treatment or testing or the other programs that they might want you to attend. What I do know is, whatever they say goes. I have had people consent to these orders, lots of people who consent to them, who say, "Yes, I consent" and they are given directions to go and do unpaid work, well, it is not meant to be easy and it is inconvenient. I am sure it will not be convenient in your life. You are a hard-working man with family commitments. It will not be convenient. But if you do what so many others have done in the past, that is, simply not turn up for unpaid work, you will find yourself being breached.
97 If you have got some good reason for not being able to turn up at that unpaid work, let them know. That is pretty straightforward, you let them know. They are not going to be silly about it if there is a good reason and there is some sort of emergency cropping up or there is some other commitment that you have, give them notice and they will shift the commitment under the order. I have got no doubt about that at all. So get on the phone and let them know. A lot of people do not and then they turn up months down the track at court on breach and that often ends very unhappily.
98 So, comply with the order and that is the end of it. Upon your release, you are on it for 15 months and if you comply, then you do not come back to court. If you do not comply, well, you will come back to court. All right? You do not want to clap eyes on my face again and I can assure you, I do not want to see you again. I do not think I will. I do not think I will. But if I do, it will be because you have breached my order and I think you will be inferring that correctly, if you breach this order, you are brought back to the County Court. In the Magistrates' Court I think sometimes people are taken back in front of different magistrates. That is not the way it plays out in this court. You come back in front of the judge who imposed the order. That is me.
99 You do not want to see me again, but I really do not want to see you again and I do not believe I will. But, if I do, I do not want you then saying to me either yourself or through your counsel, "I didn't know what could happen." Well you will know, because I am telling you.
100 The most commonly exercised power by a judge for those who come back before a court in breach of one of these orders, is for the order to be cancelled and for then that person to be re-sentenced. All right? That is what you will be exposing yourself to, in the event that you breach this order. So, it is obvious, you do not want to do that. You would be exposing yourself to the same level of uncertainty that you have had leading into these proceedings over a lengthy period. You would be sitting down in the dock again, facing cancellation of the order and then a re-sentencing exercise for the crime of recklessly causing injury.
101
I have given you nine months today, but nine months, in combination with
a community corrections order. I cannot say what I would do to you upon your breaching this order. Of course I cannot, because I would need to listen to the submissions that were made on your behalf. I would need to make some assessments as to the nature of the breach and the nature of your compliance of the order. So it is impossible for me to give any sort of prediction. But, from your perspective, you work on this theory and it is probably the best one for you to work on. If you breach it, you expose yourself to the serious risk of cancellation of the order and then a re-sentencing in relation to the crime of recklessly causing injury, a re-sentencing that would likely lead to a head sentence and the fixing of a non-parole period. All right? So, that is what you really should work on occurring, in the event that you are silly enough to breach this order.
102 All right, now let me just see. Ms Randazzo, I am going to ask your client in a moment whether he consents to this order. Would you go down and speak to him please?
103 MS RANDAZZO: I will, Your Honour, certainly.
104 HIS HONOUR: Yes, go down and have a chat.
105 MS RANDAZZO: Your Honour, he has given me instructions that he consents to the making of the order.
106 HIS HONOUR: Yes, all right. Thank you. Well I will have the order come down. Perhaps come down to the Bar table first. Just make sure that - each of you, just have a look at it and make sure it fits my stated intention.
107 MS RANDAZZO: That seem appropriate to me, Your Honour.
108 HIS HONOUR: Yes. Ms Ellis?
109 MS ELLIS: Yes, Your Honour.
110 HIS HONOUR: Yes, but I will have that order signed by your client, thank you. Just remain seated, Mr Harrington. Do you confirm that you have signed this community corrections order?
111 OFFENDER: Yes, Your Honour.
112 HIS HONOUR: All right, and you have signed it under the words, "I understand the effect and the conditions of this order and consent to it being made", is that so?
113 OFFENDER: Yes, Your Honour.
114 HIS HONOUR: And you do consent to this order?
115 OFFENDER: Yes, Your Honour.
116 HIS HONOUR: Yes, all right. Well I have signed that order myself and that can be copied and a copy given to each of the parties and to Mr Harrington.
117 Ms Randazzo.
118 MS RANDAZZO: Yes, Your Honour.
119 HIS HONOUR: Your client is going into custody, obviously. He is going there for the first time. Are there any sort of custody management issues you want me to flag at all, or not?
120 MS RANDAZZO: No. No, Your Honour, there aren't any custody management issues and I would say that there shouldn't be anything flagged, Your Honour.
121 HIS HONOUR: All right.
122 MS RANDAZZO: Apart from the fact, which will be known to the authorities, of course, that it's the first time that he's been in custody.
123 HIS HONOUR: I might just put that on the order, I think.
124 MS RANDAZZO: Just to bring it to their attention immediately, rather than have them work it out.
125 HIS HONOUR: Yes. I will bring it to their attention that this is this man's first time in custody and that all care should be taken.
126 MS RANDAZZO: We just don't want to raise a situation where he gets put in a more sort of restrained setting, that's all.
127 HIS HONOUR: Well, I won't - or do you want me to - - -
128 MS RANDAZZO: No. No, no, I don't want that to occur, Your Honour, so that's fine.
129 HIS HONOUR: Do you want me to say anything at all, or not?
130 MS RANDAZZO: Only that it's his first time in custody, Your Honour.
131 HIS HONOUR: All right, "This is this man's first time in custody." I will put it just in those terms.
132 MS RANDAZZO: Yes, thank you, Your Honour.
133 HIS HONOUR: All right. I mean, leaving that aside, it is a foreign experience for him and his family.
134 MS RANDAZZO: Yes, it is.
135 HIS HONOUR: And they will be grappling with the fact of it and then the reality of it and how they access him and the ins and outs of visits and that sort of stuff. Will you or your instructor sort of walk them through that?
136 MS RANDAZZO: We will. I have noticed, Your Honour, there's no one here from the court network.
137 HIS HONOUR: Yes.
138 MS RANDAZZO: But we will direct them to the office and to a court network officer, who will also be able to give them some information as well and - - -
139 HIS HONOUR: Just about - I mean, it is pretty critical that he have, you know, visitors and that sort of thing.
140 MS RANDAZZO: Of course.
141 HIS HONOUR: And that be seamless and there can be hiccups along the way.
142 MS RANDAZZO: Of course, Your Honour.
143 HIS HONOUR: So they need to be sort of walked through the process. There are many families where it is second nature, but not for this family.
144 MS RANDAZZO: It will be explained to them by my instructor and I.
145 HIS HONOUR: Yes.
146 MS RANDAZZO: And we will, as I say, direct them to the office of the court networking service.
147 HIS HONOUR: All right. You will go down and see him downstairs?
148 MS RANDAZZO: Yes, I will, Your Honour.
149 HIS HONOUR: Yes, all right, thanks very much. All right, well that completes the matter then. Mr Harrington can be removed, thank you.
150 Yes, I have got another matter. I will come back onto the Bench in a couple of minutes.
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