Director of Public Prosecutions v Impey

[2014] VCC 643

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-02439

DIRECTOR OF PUBLIC PROSECUTIONS

v

JEFFREY KEITH IMPEY

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2014
DATE OF SENTENCE:	8 May 2014
CASE MAY BE CITED AS:	DPP v Impey
MEDIUM NEUTRAL CITATION:	[2014] VCC 643

REASONS FOR SENTENCE
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Subject: Criminal Law - sentence              

Catchwords: Recklessly cause serious injury-  plea guilty - accused    spontaneously punched father causing fall –moderately forceful punch - father died later - close & loving relationship between father & son – accused devastated  -punishment enough - very little role for specific deterrence – tragic and exceptional case.                  

Sentence: 2 year CCO        

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. J. Lewis	OPP
For the Accused	Mr. G.  Boas	Marich  Legal Pty Ltd

HER HONOUR: 

1Jeffrey Keith Impey, you have pleaded guilty to one charge of recklessly causing serious injury.  This occurred on 7 May last year, when you punched your father, not intending the harm which it caused.  You visited your parents that day, and an argument took place about the means to be used to locate your two young sons. 

2Briefly, the background is that you and your wife separated in 2011, following which your former wife sold the former matrimonial home, which you had transferred to her, and moved away.  You have had no contact with her or the two children since then, or around that time.  Your parents, who formerly had enjoyed a great deal of contact with the children, missed them very much, as you did, and all efforts to trace them had failed.  Your mother proposed the use of a private investigator, but you opposed that idea.  This was the subject of the argument between you and your mother, but not your father, on the day of your visit. 

3During the argument, your mother became upset and left the room, so she did not see what took place shortly afterwards.  When she returned, she saw your father on the floor, having hit his head.  You had hit him in the face causing a cut lip and he had fallen backwards, whether having lost his balance or tripped, it is not known, but it seems the force of the blow alone was not sufficient to have caused the fall.  He was taken to hospital and placed in an induced coma.  His condition deteriorated over the next two weeks and he died on 23 May, without having regained consciousness and after doctors decided to turn off the life-support system.

4An autopsy was performed and the cause of death was found to be traumatic head injury in a man with multiple health conditions, most of which, I understand, to be of a serious nature.  It is accepted that the blow upon your father was a single blow delivered by your fist with no weapon and did not cause any facial fracture, indeed as I said, no injury but a cut lip.  I accept that you had no intention to cause such injury to your father and that the blow that you delivered was spontaneous, administered as a reflex action, although the reason is not clear.  In doing so, for whatever reason, you were reckless as to what the consequence might be. 

5You pleaded guilty to the charge at the earliest possible time, at the committal mention, when the charge was changed from manslaughter to recklessly causing serious injury.  That plea deserves a substantial discount on your sentence, for its value to the criminal justice system in facilitating the progress of the case, and in avoiding a trial in which witnesses, your mother in particular, would have had to have given evidence.  It is accepted as an indication of remorse, which is also demonstrated by the way you have responded to your father's death, attested to in clear and most empathetic terms by your mother, when she gave evidence at the plea hearing.  She related that you were so ashamed at what had happened, that when she visited you in prison and told you that your father had died, you begged her to go away and forget you. 

6Mr Joblin, the psychologist, who assessed you recently, also said you are extremely remorseful.  In his report he set out the stressors which have had an impact on you over the past few years, including serious financial problems incurred in the running of your fruit and vegetable business.  It seems that the long hours of work required in that business contributed substantially to the breakdown of your marriage, causing you to be away from home much of the time, and ultimately, you lost your home and business as well.  Mr Joblin noted that you are not an anti-social personality, but quite the opposite.  You are very sensitive to correct standards of behaviour.  While Mr Joblin did not diagnose any specific condition, he considered that at the time of the offence, you were, as he put it, and I quote:  "In some serious difficulty psychologically" and that you were highly stressed, irritable and depressed.

7A further mitigating factor that I take into account is that you spent 24 days on remand before being released on bail and that being your first experience of prison, it was very difficult for you.  You have a very limited criminal history with no relevant offending: that is, nothing involving violence or physical aggression.  It is not necessary that the sentence I impose take account of specific deterrence as your father's death, and the fact that you must live with that, has been more than sufficient punishment.

8General deterrence is always of great importance, that people be deterred from acts of violence, even those which are not pre-meditated, and the maximum penalty which can be imposed is 15 years imprisonment.  However, this case is exceptional and tragic and it is not necessary that I give full weight to that principle. 

9You are a well-educated, mature man, aged 39, a TAFE-qualified Engineer, with considerable experience of life's difficulties in your adult years, and you are motivated to launch back into the fruit and vegetable business, armed with your experience of its challenges.  You have the unqualified support of your family and your girlfriend, and the support of people in your community as well.  For those reasons, combined with the great burden of remorse you must shoulder, there is every reason to conclude that your prospects for rehabilitation are very good.  It is very unlikely that you will ever offend again, in this way or anything like it.  Accordingly, although imprisonment would generally be warranted in a case like this, the circumstances of this case justify a much more lenient sentence, and I intend to impose a Community Corrections Order.

10Would you stand now, please Mr Impey, and I will explain those details to you.  You have been assessed as suitable, as you know, and I make that order.  It carries a conviction and it will begin today and will last for two years.  You will be under supervision and must undertake any necessary psychological treatment. 

11I have given careful consideration to the need for you to perform unpaid community work.  Given your intention to take up work again, in the demanding area of the fruit and vegetable business, and given the need for you to attend psychological treatment as directed, I will not impose the additional burden of community work.  You must attend the Ringwood Corrections Office, which is at 1/2 Bond Street, Ringwood, by 4 p.m. tomorrow. 

12The prosecution has applied for an order to be made under s.464ZB(1) of the Crimes Act for the retention of a forensic sample that was obtained previously.  Now, Mr Boas, I didn't hear from you what your instructions were as to whether that was opposed or not or consented to.

13MR BOAS:  Consented to, thank Your Honour.

14HER HONOUR:   With your consent, I make that order, Mr Impey. 

15Finally, if you had pleaded not guilty to this offence, I would have sentenced you to a Community Corrections Order of four years with more onerous conditions.   I do not  think there are any other matters.  Mr Lewis, anything I have  neglected?

16MR LEWIS:  No, Your Honour. 

17HER HONOUR:  Thank you.  Mr Boas.

18MR BOAS:  No, Your Honour, thank you. 

19HER HONOUR:  All right.  Now, the form is ready for your client to sign.  Would you like to have a look at that beforehand, Mr Boas. 

20MR BOAS:  Just briefly, thanks Your Honour.  Thank you very much. 

21HER HONOUR:  Thank you.

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