Director of Public Prosecutions v Hatswell

[2012] VCC 483

IN THE COUNTY COURT OF VICTORIA Revised

AT MELBOURNE

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER HATSWELL

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JUDGE:	HIS HONOUR JUDGE ALLEN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 February 2012
CASE MAY BE CITED AS:	DPP v Hatswell
MEDIUM NEUTRAL CITATION:	[2012] VCC 483

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A. M. Sampson	Office of Public Prosecutions
For the Accused	Mr J. M. Toal

HIS HONOUR:

1       Mr Hatswell, you have pleaded guilty to one charge of assaulting Mark Dibsdale nearly four and a half years ago on 18 November 2007.

2       You come before the court with only one prior court appearance at the age of 53, which is very much to your credit.  That prior court appearance resulted in a non-conviction fine.  I regard that as being a clear sign that the sentencing judge regarded the case as being out of the ordinary and not consistent with your character.  I put that prior appearance to one side.

3       In the four and a half years since this offence, you have not come under the notice of the police again.  I accept that your conduct on the afternoon in question was out of character, given that you had no prior history of violence and given that you have not subsequently offended in any way.  I accept what I have been told that you have been attending that hotel for many years and never previously been in any trouble.  That is the first matter, this offence was totally out of character for you.

4       Secondly, I sentence you on the basis that you were seriously provoked.  You were seriously insulted.  You then attempted to diffuse the situation by putting up your hand and uttering words, saying "no trouble" or something to that effect.  Despite that, beer was thrown on you.  It was then that you lost your temper, under that provocation, and struck the victim Mr Dibsdale twice in the heat of the moment.

5       The third thing I take into account in relation to the circumstances is that this was that, an impulsive reaction to serious provocation.  It was not planned, it was not even thought out.  The incident itself was far from protracted.  It lasted a matter of seconds.

6       I take into account, in relation to your character and antecedents, that on the material before me you are a decent, hardworking man.  You have been married for many years.  You have been gainfully employed at all times since you have left school.  For the last 20 years, you have conducted a beef farm and together with that you have worked as a subcontractor, particularly in the hay and silage seasons.  You have raised three children appropriately.  Your eldest son has nearly finished his law degree in Queensland, your daughter works in hospitality in Queensland and the youngest son is a qualified tradesman, gainfully employed.

7       Apart from your employment history and family life, I also take into account that you have been involved in your local community for many years as a young man with the local football club as a talented Australian Rules player, potentially an AFL player.  You have been involved in charitable and community works with the local swimming pool committee, the local primary schools, Lions Club and other local voluntary organisations.

8       I take into account the delay.  I accept without any reservation that a delay of this kind would have caused a great deal of stress to you and your family, particularly your wife.  There have been the ongoing court appearances, there have been ongoing legal fees to pay.  Now the trial has come on at a time that is particularly difficult for you, in the carting season, adding to your stress.

9       I accept also that there was a level of remorse shown by you.  Only ten days after the incident, as a result of the discussion you had with Detective Prestige, you agreed, if the other party were agreeable, to shake hands and call it a day, to put bygones behind you.  Unfortunately, Mr Dibsdale, it would seem, was not amenable to that and the matters proceeded along in a very slow way through the legal system. 

10      Finally, I give significant weight, as I said I would yesterday, to the fact that you have pleaded guilty.  It is true your pleas come at a very late stage in the proceedings, but I think given the circumstances of the offending and the history of the matter, I can understand how that has happened.

11      But you indicated your intention to plead guilty yesterday which is effectively the first day of the trial but before a jury was empanelled, avoiding the need to empanel a jury, avoiding the need for a large number of witnesses to come forward and give their evidence to be cross-examined, avoiding the need for the complainant to come forward and to relive the incident.  So your plea has facilitated the course of justice and has indicated your preparedness to accept responsibility for your misconduct.  It has indicated a level of remorse, that is regret, for what happened.

12      I regard your plea as having additional weight by virtue of the fact that you have pleaded guilty in circumstances where, as you must have been advised over the years, you had a reasonable prospect of being acquitted.  A jury may well have accepted your version of the events and found you not guilty.  You gave that opportunity away in order to put an end to this matter and that is very much to your credit.

13      By reason of all those matters that I have just enumerated, accepting the seriousness of the offending, I have accepted your counsel's submission, particularly in light of the fact that it was not opposed by the Crown, that I should fine you without recording a conviction.  So I find the charge proven.  Without conviction, you are fined $1000.  Now, that is a significant fine and I will give you time to pay that.

14      MR TOAL:  Can I ask for a stay of at least three months, Your Honour?

15      HIS HONOUR:  Yes, I will give you a stay of three months to pay that fine.  The fine is significant because a man of your age ought to accept that no matter how much you are provoked, particularly when you were sober and arriving, it is inexcusable to engage yourself in this sort of public display of violence, striking another man twice to the face on a day such as this in those circumstances.  Accordingly, it is necessary to pass a significant fine in order to make the point in terms of general deterrence and specific deterrence and punishment.  But I will give you three months to pay the fine.

16      MR TOAL:  Your Honour pleases.

17      MS SAMPSON:  Your Honour pleases.

18      HIS HONOUR:  Is it necessary for me to do anything else?

19      MS SAMPSON:  No, Your Honour.

20      HIS HONOUR:  Would you discharge Mr Hatswell from the dock please.

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