Director of Public Prosecutions v Hays
[2014] VCC 892
•12 June 2014 at Morwell
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-00216
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KEVIN PETER HAYS |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Latrobe Valley | |
DATE OF PLEA: | 28 May 2014 | |
DATE OF SENTENCE: | 12 June 2014 at Morwell | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Hays | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 892 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – recklessly causing serious injury
Legislation Cited: Crimes Act 1958, s17; Sentencing Act 1991
Sentence: Convicted and sentenced to 18 months’ imprisonment with a non-parole period of 8 months.
S6AAA declaration: 30 month’s imprisonment with a non-parole period of 15 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R Hammill | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr R Davis (a solicitor) | Robert Davis |
HIS HONOUR:
1 Kevin Peter Hays, you have pleaded guilty to the charge that at Moe in Victoria on 20 October 2013, without lawful excuse, you recklessly caused serious injury to Neil Fraser.
2 Such offence is contrary to s17 of the Crimes Act 1958 and carries a maximum penalty of 15 years’ imprisonment.
3 The Prosecution has prepared a written summary of the circumstances surrounding the offending. Such summary has been marked as an exhibit (Exhibit “1”) and has been accepted by you and your counsel as an appropriate representation of the offending. In particular it is agreed:
(a) You are presently 26 years old and, at the time of the offending, you were 25 years old. Neil Fraser, the complainant, was 25 years old at the time of offending;
(b) You met the complainant approximately two weeks prior to the offending when he attended your home to assist a mutual friend find her wallet. Apparently, the friend made allegations that you had stolen her wallet and this caused animosity between you and the complainant;
(c)On Sunday, 20 October 2013, at approximately 2.00pm, you were driving your car along Elizabeth Street, Moe, with your brother a passenger in the vehicle. You saw the complainant walking along Elizabeth Street, causing you to perform a U-turn and park your vehicle;
(d)You exited the vehicle, approached the complainant and a fight ensued between you and the complainant. You punched the complainant twice in the face, making contact with his nose and cheekbone, causing the complainant to suffer a blood nose, swelling to the right cheekbone and minor abrasions to his back. You then returned to the vehicle;
(e)The complainant ultimately attended police and made a complaint against you. The police attended your home to make further enquiries, but there was no one at home;
(f)Later that day (20 October 2013), you spotted the complainant in the front garden of a mutual friend’s house in Elizabeth Street, Moe. In particular, it is agreed:
“[You] ran across Elizabeth Street and jumped over the front gate to the premises. The victim put both arms up to defend his face and leant over to protect his body. Without any discussion between the parties [you] began to punch the victim repeatedly to the head area stating, ‘you called the cops on me you dog! They came to my house and my son was home.”
[You] continued to punch and knee the victim to the face and body, during which time the victim pleaded with [you], stating, ‘I didn’t call the cops’.
During the incident, the victim’s friend witnessed the assault and ran to assist him. Upon doing so, he was warned by other bystanders not to get involved.
[You] dragged the victim out of the front garden and onto the footpath and continued to punch and knee him to the face.”
(g)The complainant was taken to the Latrobe Regional Hospital, where he was diagnosed to have three fractures to his right cheekbone and was subsequently referred to the Moorabbin Monash Hospital, where he underwent surgery on 29 October 2013, resulting in a permanent metal plate being inserted into his cheekbone;
(h)You were arrested on 25 October 2013 and, during a recorded record of interview conducted on that day, you made full and detailed admissions to the offending but showed little or no remorse for your actions;
(i)In particular, you informed the police that the first assault occurred as a result of a previous altercation a couple of weeks earlier, at which time the complainant made threats to you. You accepted that the first assault included three punches to the face and you told the police that you wanted to give the complainant a “touch-up” for making the alleged threat;
(j)You also told the police you assaulted the complainant on the second occasion, because he had reported the first assault to police. You stated to the police that such assault then included punching, kneeing and also smashing the victim’s head into a fence. You acknowledged that, on this occasion, the complainant was in fear of you and was not fighting back through the assault. Furthermore, the complainant had been pleading with you to stop. You stated you wanted to make the victim “bleed”, and agreed at the time that your actions could have caused serious injury.
4 Counsel for the Prosecution tendered a Victim Impact Statement prepared by the mother of the complainant, wherein she describes the following:
(a)how your offending has affected her son in a very bad way and he has fears of red cars and fears walking around the streets; and
(b)how the complainant now gets very stressed and that, as a result of his injuries, he gets frustrated and has trouble sleeping.
5 I was also referred to a criminal history report, wherein it is recorded that:
(a) On 2 October 2012 at Latrobe Valley Magistrates’ Court, you were found guilty of recklessly causing serious injury, recklessly causing injury and common-law affray. You were sentenced to an aggregate four months’ imprisonment, which was wholly suspended pursuant to s27 of the Sentencing Act 1991;
(b) At that time, you were also found guilty of various driving offences and were convicted and fined the sum of $1,200;
(c) On 29 March 2007 at Latrobe Valley Magistrates’ Court, you were found guilty of recklessly causing injury and you were fined $250 without a conviction being entered.
6 You have been in custody since being arrested on 6 March 2014 in relation to a variety of offences involving breaches of intervention orders, assaults and perjury. I was advised by your counsel that these alleged incidents occurred both prior to and after the subject offending. Apparently you will have a committal mention in relation to these matters today, 12 June 2014.
7 Your present period of incarceration is the first time that you have been in prison and apparently you have undertaken courses in food handling and occupational health and safety. Furthermore, you have been working in the timber industry section of the prison.
8 Your counsel tendered two reports from the psychologist, Dr A. Cunningham, who initially saw you on 19 September 2012 (in relation to offences for which you were convicted on 2 October 2012) and, more recently, on 5 March 2014.
9 On the basis of such material being tendered and the submissions made by your counsel, I set out the following details in relation to your personal circumstances.
10 You were raised in Morwell with two older brothers, one younger brother and one younger sister. Your father operated a scrapyard and your mother stayed at home managing the house. You describe a good relationship with both parents.
11 You concluded Year 11 at the Kurnai College and Traralgon Secondary College, after which you left home at the age of 17 to gain your “independence”. You returned to your parents' home about a year later, and during your period away from home, you say you associated with the wrong group of friends and was getting into trouble.
12 On leaving school, you worked as a brick labourer and factory hand, and your longest period of employment has been as a plasterer for two years. You intend to find casual employment as brick labourer.
13 You commenced a serious relationship with Leanna in or about 2011, from which there is a child, Logan, who is approximately five years old.
14
Your relationship with Leanna ceased earlier this year, and you were subsequently beaten by one of Leanna’s friends, causing bleeding in both ears and deafness in one ear. In particular, you advised Dr Cunningham that you had become “paranoid” and “restless” after being beaten. Furthermore, you had trouble sleeping, you relied on the support of friends until your mood gradually improved. At the time of the consultation with Dr Cunningham on
5 March 2014, you were living with your brother and had not worked for about a month.
15 When initially seen by Dr Cunningham on 19 September 2012, he noted that you showed no indication of intellectual impairment and did not meet any criteria for mental illness. At the time of that examination, which preceded your conviction of offences on 2 October 2012, Dr Cunningham was of the opinion that you presented with insight into the wrongfulness of your behaviour, and that your then relationship with Leanna and family supports would hopefully reduce your risk factors of re-offending.
16
When seen on 5 March 2014, Dr Cunningham performed a variety of psychological tests and came to the view that psychometric testing indicated overall cognitive function in the borderline range. In particular,
Dr Cunningham states:
“In my opinion, Mr Hays presents with symptoms of adjustment anxiety with regard to the assault he suffered in December 2013. It appears that these symptoms were resolving through the support of his friends and family. He stated that his romantic relationship has ended and he was living with his brother. He stated that he has further reduced his use of alcohol. He stated that his offence occurred due to confronting an individual from whom he had received threats. On the basis of psychiatric assessment, Mr Hays’ overall thinking and reasoning abilities were assessed in the borderline range, better than three per cent of his age peers. His verbal reasoning was assessed as better than one per cent of his age peers where 99 per cent of his age peers would do better. In the context of these IQ scores, Mr Hays would present with an impaired ability to reason information verbally and think through the consequences of his actions. In my opinion this would contribute to Mr Hays’ use of physical confrontation rather than conversation as a reform of resolving conflict. He would benefit from psychological intervention to improve his ability to resolve conflict, think consequentially and manage his anger.”
17 Dr Cunningham considered that it would be appropriate for you to be assessed by the Disability Services to determine whether you met eligibility requirements. Furthermore, Dr Cunningham considered that you would benefit from psychological intervention to improve your ability to resolve conflict, think consequentially and manage your anger.
18 Your counsel submits that the following matters should be taken into account by way of mitigation in consideration of your sentence:
(a) Your plea of guilty was early and you made full and frank admissions to the police when interviewed by them;
(b) That you are only 26 years old and that rehabilitation must be a primary concern;
(c) You have family support, demonstrated by members of your family travelling from Morwell to Melbourne to support you in Court today, that being the time of the plea;
(d) The subject offending was prompted by some degree of threats made by the complainant against you, in that the complainant asserted that “he would torch my car” and perform “a run through” of your house. You were apparently concerned about these threats, more so when there was a potential chance that your young son could well be in the car.
19 Your counsel, although not having specific instructions, submitted that the offending in 2007 for which you were found guilty of recklessly causing injury, most probably was a low level assault, given that no conviction was entered and the amount of penalty being a fine of $250. Furthermore, the offending for which you were convicted on 2 October 2012 involving recklessly causing injury, serious injury and affray, involved offences following drinking alcohol at a hotel on a birthday. A fight ensued at McDonalds and initially you assisted an acquaintance who became involved in an altercation with another group of men. At that time it was conceded at the plea that no physical contact occurred between you and the victim. Later, there was a secondary altercation where you did throw a fist to the face of another man and that formed the basis of recklessly causing injury.
20 Your counsel also referred to the assault which you suffered on 12 December 2013, at which time a 46 year-old man, together with Leanna, attended your premises. Your former partner kicked a screen door and caused a hole in the mesh, unlocked the door, allowing the 46 year old man to enter. At that time you armed yourself with a pipe, which was taken by the 46 year-old man, and you were punched several times to the head.
21 Your counsel submitted that following such an assault, you would now have greater insight into the effect of violent assaults and one would “hope” that there may be some motivation for you in the future to avoid those situations.
22 Your counsel submitted that an appropriate sentencing disposition would be for you to be supervised over a period of time or, alternatively, a very short period of imprisonment, followed by a community-corrections order. In the event there was to be an immediate term of imprisonment, there would be a non-parole period in order that you could be supervised by the Parole Board. To that end, it was submitted that there should be perhaps a greater gap than normal between the head sentence and the non-parole period to allow you back into the community but appropriately supervised by the Parole Board.
Conclusion
23 I consider the subject offending a particularly nasty example of the offence of recklessly causing injury. The victim, Neil Fraser, suffered three factures to his right cheekbone, and it has been necessary to place a permanent metal plate into the cheekbone, which he will have for the rest of his life. Your reasoning for such an assault was that the complainant some time earlier had threatened you. There are no reports of any such threats to the authorities.
24
Furthermore, I consider there are some aggravating aspects of the assault. In particular, when you again assaulted the complainant later in the day on
20 October 2013, you freely concede that you continued to punch and knee the victim to the face and body, notwithstanding that he was pleading with you that he did not call the police. Furthermore, during that period of time, he put both his arms up to defend his face and leant over to protect his body. When assaulting him, you dragged him out of the front garden and onto the footpath and continued to punch him and knee him to the face.
25 One can only imagine how frightening and distressing this would have been to the complainant. Of course, this aspect of the assault followed on from the earlier assault on the complainant which involved punching him twice to the face.
26 Seemingly, you have shown little, if any, remorse in relation to the offending. Your reason for the offending, so it was asserted through your counsel, was that threats were made by the complainant to you. However, seemingly, the more immediate cause of the afternoon assault was that you believed that the complainant had contacted the police about the assault in the morning.
27 In determining an appropriate sentence, I believe the following matters are relevant: Denunciation of the particular type of offending. The community will not tolerate such random violence. Furthermore, I consider specific and general deterrence are relevant. That is, it is important that you are deterred from performing such violent acts and, indeed, members of the public are deterred from such violent activities. I also take account of your record, which does involve similar offending in 2007 and 2012, although I accept that it is probable that the earlier offending did not have the same degree of culpability on your part.
28 I also consider that it is appropriate to take the following matters into account in mitigation of sentence:
(a) Your early plea of guilty which clearly has social utility, saving the cost of a trial;
(b) Your youth and the potential for rehabilitation. Indeed, you appear to have a strong family base surrounding you, with the prospect of obtaining future employment given your work history.
29 Taking all of these matters into account, I consider that the only appropriate sentence is one of immediate imprisonment. I have decided that a lengthier than normal parole period would be appropriate in order that you could be supervised after being released from prison to assist, hopefully, in your rehabilitation.
30 Accordingly, I order as follows:
(a) In relation to the offence of recklessly causing serious injury to Neil Fraser on 20 October 2013, you are convicted and sentenced to a period of eighteen (18) months’ imprisonment with a non-parole period of eight (8) months;
(b) I order, pursuant to s464ZF of the Crimes Act 1958, that a sample be obtained for forensic purposes;
31
I declare that pursuant to s6AAA of the Sentencing Act 1991, that save for your plea of guilty, I would have ordered that you be sentenced to
30 months’ imprisonment with a non-parole period of 15 months.
32 (Section 464ZF order signed and acknowledged.)
33 COUNSEL: If Your Honour pleases.
34 HIS HONOUR: Yes, take the prisoner, thank you.
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