Director of Public Prosecutions v Jolley

[2016] VCC 1685

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00889

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRUCE ANTONY JOLLEY

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2016
DATE OF SENTENCE:	25 October 2016
CASE MAY BE CITED AS:	DPP v Jolley
MEDIUM NEUTRAL CITATION:	[2016] VCC 1685

REASONS FOR SENTENCE
---

Subject: Criminal law - sentence            

Catchwords: plea of guilty to one charge of causing injury intentionally – relatively serious injuries – assault in home of victim with innocent witnesses -  45 year old offender with background of drug and alcohol abuse – likely PTSD – largely untreated – good employment history - time served 463 days -         

Sentence: 463 days imprisonment and 2 year CCO        

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Hannan.	OPP
For the Accused	Mr S. Norton	Stary Norton Halphen

Pages 1 - 6

 

 

HER HONOUR:

1Bruce Antony Jolley, you have pleaded guilty to one charge of intentionally causing injury.  Following a trial, a jury acquitted you of two other charges, aggravated burglary and theft.  The maximum penalty for the charge to which you have pleaded guilty is ten years' imprisonment.

2On 19 December 2013 in the evening, you went to the address of an acquaintance, Angelico Pogorelic.  He lived there with a housemate,
Caitlyn O’Day, who was present that night.  Also present was a visitor,
Miriam Molchales.  The evidence given by Ms Molchales was that, when seated in the lounge room, she heard banging on the front door, but she did not go to the door, as Mr Pogorelic was asleep and it was not her house.  She said the banging then continued on the window of the lounge room, where
Mr Pogorelic was asleep on the couch.  She was frightened and tried to wake him, and his evidence was that he awoke to the sound of banging on the window.

3It was put during the trial that you went to the house to buy cannabis from
Mr Pogorelic, and went inside the house for that purpose.  You then engaged in an altercation with him over a conversation you had had with him two weeks previously over the company he was keeping. 

4Mr Pogorelic's evidence was that on hearing the banging, he went to the front door and opened it.  He said you accused him of calling you a derogatory name, which he denied, and you then punched him before entering the house.  The jury rejected either that you entered the house uninvited, or that you did so intending to assault Mr Pogorelic, or both.  But their rejection of the evidence related to those versions does not preclude their possible acceptance of the evidence that you banged on the door and the window, and that the witnesses were telling the truth about that.

5It also seems possible that the jury rejected Mr Pogorelic's denial that you were wanting to buy cannabis, as his evidence at the committal was that you had asked for “smoke” as well as “a cigarette”, suggesting that these were two different things, the inference being that “smoke” was “cannabis”.

6Accordingly, I accept that you did go there to buy cannabis, and that your banging on the door and window was equally consistent with merely the door not having been answered, or with an aggressive intention on your part.  It is possible that you were invited in and the altercation then occurred, but if you were not invited in, the jury may have found that the element of intention, for proof of aggravated burglary, was not met.

7In any event, you assaulted Mr Pogorelic and caused bruising and swelling to his face, multiple lacerations to several parts of his face, multiple completely avulsed upper and lower teeth, an abrasion to his arm, and a fractured nasal bone.

8He was taken to hospital and continued to suffer pain for at least a week, but likely longer than that as he later had more teeth removed and dentures fitted.

9By any estimation, those injuries are consistent with multiple punches and possible other forms of forcible contact, and I accept the evidence as to the way in which the fight proceeded along the hallway of the house, with the visible blood on the carpet and walls being part of that evidence.

10The gravity of the offending is seen not only in the injuries inflicted, but also in the fact that it occurred in the victim's home, that he was an innocent victim, and it was in the presence of the other two occupants of the house, who were frightened by it.  The younger woman, Ms Molchales, was particularly affected by it, as she described in her evidence, and as could be inferred by her demeanour in court.

11From your criminal history, it is clear that you are no stranger to violence inflicted on people.  You have two prior convictions for assault, although not since 2002.  Your other court appearances have been for a variety of offending, including criminal damage several times, and multiple driving and dishonesty offences.

12After your arrest for this matter on 25 January 2014, you were remanded in custody until released on bail following the committal hearing on
22 April 2014.  The trial was listed for 10 August 2014, but you failed to appear and a warrant was issued.  You were arrested again on 16 October 2015 and remanded in custody, where you have remained.  You have spent 463 days in presentence detention.

13You are aged 45, a single man who is the father of three adult children, separated from their mother, with whom you had a long relationship.  For some years, you brought up the two boys, and your daughter remained living with her mother.

14You grew up as one of six children and your father left the family when you were very young.  He died when you were ten.  Your mother struggled to provide for and care for the children, and it was a difficult upbringing.  You left school after Year 10, and in the following years attempted a pre-apprenticeship in upholstery, which led to you working for many years in several jobs as a cabinet maker and in manufacturing.  In 2009 and 2011, in separate incidents, you were stabbed, and this has led to the onset of what is likely to be post-traumatic stress disorder. 

15You were referred for psychological treatment, but did not start this because of the arrest in January 2014.  Once you were bailed, you had the benefit of some counselling sessions before being arrested again.

16You had been prescribed antidepressant medication before the offence, but you had ceased taking it, owing to the side effects.  So in effect, you were then not being treated for your psychological condition.

17Over the years, you abused alcohol, and your drug use, which had begun in your early teenage years, escalated from cannabis to amphetamines, and later to a heroin addiction.  You were prescribed medication for this and overcame it, but alcohol continued to be a problem.  Indeed, you were affected by alcohol at the time of the offending.  This was in addition to your psychological state at the time.

18In custody, you have been prescribed a mood-stabilising medication, and it seems you have put your time to good use by working in the prison kitchen at Marngoneet, and have been given some extra responsibility in that role.

19In your early adult years, you demonstrated your abilities as a regular member of the workforce, but drug and alcohol abuse seem to have contributed to your criminal behaviour of various kinds.  Any prospects for rehabilitation can be founded on that capacity for stable employment, as well as your successful cessation of heroin use.

20The supervised structure and monitoring offered by a Correction Order may enhance your prospects.  You have been assessed by a Corrections officer as being at high risk of reoffending, hence the need for this.

21In sentencing you, I must take account of your plea of guilty, which, even in the context of a trial in relation to the related offences resulting in acquittal, must be given due recognition.  It amounts to a minor discount on your sentence, mainly in recognition of your having taken responsibility for the offence, even in the context of the strength of the evidence against you.

22General deterrence is regarded as of great importance in cases of violence such as this, and it is the more important for the crime having been committed in the victim's home and in the presence of others.  That also increases its seriousness, as do the measure of the injuries inflicted.  At the time, it would have likely come within the ambit of a serious injury according to the legal definition.  That definition has now been tightened, with the range of sentences available being broader.  I have been conscious of that when considering the appropriate sentence.

23You have been assessed as being suitable for a Community Correction Order and I shall sentence you to a term of imprisonment which you have already served to be followed immediately by the Correction Order.  Would you stand now please, Mr Jolley?

24The sentence of imprisonment will be for 463 days, which is approximately the 14 and a half months you have served.  that time shall be reckoned as already served, and I shall cause that to be noted on the court record.  The Community Correction Order will begin today and will last for two years.  You will be under supervision, and you will have to perform 200 hours of unpaid community work over nine months.  You must have assessment and treatment for drug and alcohol abuse, and for mental health issues.  You must take part in programs related to offending behaviour as directed. 

25You must not have contact with the three witnesses, Angelico Pogorelic, Caitlyn O’Day and Miriam Molchales, for those two years. 

26You must attend the Corrections office at 909 High Street Reservoir by 4 pm on Thursday - this Thursday, 27 October.

27I understand you agree to be bound by the conditions of the order, and that will be ready for you to sign shortly.

28If you had pleaded not guilty to this charge, I would have sentenced you to 18 months imprisonment with a CCO of the same duration.

29The prosecution seeks an order for a forensic sample of saliva to be obtained, and that is not opposed.  I make that order, and I must advise you that the police have the power to use reasonable force to obtain that sample, but I trust that will not be necessary.

30Are there any other matters, first of all, Mr Norton?  Mr Hannan?

31MR HANNAN:  No, Your Honour.

32HER HONOUR:  Thank you.  I think that completes everything, is that right?

33MR HANNAN:  That completes everything, yes it does, Your Honour.

34HER HONOUR:  Thank you.

‑ ‑ ‑