Director of Public Prosecutions v Kortholt
[2014] VCC 329
•21 March 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00617
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRAVIS JOHN KORTHOLT |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 March 2014 | |
DATE OF SENTENCE: | 21 March 2014 | |
CASE MAY BE CITED AS: | DPP v Kortholt | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 329 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – recklessly causing serious injury
Legislation Cited: Sentencing Act 1991 (Vic), Crimes Act 1958
Cases Cited:Cheung v R (2001) 209 CLR 1; R v Isaacs (1997) 41 NSWCLR 374; Trikilis v R [2010] VSCA 241;
Sentence: Convicted and sentenced to six months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Picone | Solicitor for Office Public Prosecutions |
| For the Accused | Ms E. Turnbull | Turnbull Lawyers |
HIS HONOUR:
1 Travis John Kortholt, you pleaded not guilty to the following offences:
2 Mr Kortholt, this is reasonably lengthy, you can sit at this stage. I will tell you when to stand.
(a) Charge 1 – that you, at Boronia in Victoria on 13 September 2012, entered as a trespasser, a building at 124 Kanooka Road with intent to commit an offence involving an assault to a person therein and at the time had with you an offensive weapon, namely a hammer, and/or at the time of entering, a person was then present in the building and you knew that a person was then so present or was reckless as to whether or not a person was then so present.
(b) Charge 2 – that you, at Boronia in Victoria on 13 September 2012, without lawful excuse, intentionally caused serious injury to Steven John Beveridge.
(c) Charge 3 – that you, at Boronia in Victoria on 13 September 2012, without lawful excuse, recklessly caused serious injury to Steven John Beveridge.
3 You stood your trial and on 25 February 2014, at the end of the third day of deliberations, a jury:
(a) was unable to reach an unanimous or majority verdict in relation to Charge 1; (at the plea hearing on 6 March 2014 the Prosecution filed a Notice of Discontinuance in relation to this charge)
(b) found you not guilty by way of majority verdict in relation to Charge 2; and
(c) found you guilty by way of unanimous verdict in relation to Charge 3.
4 On the date that the jury returned its verdicts, you were remanded in custody and the matter was adjourned for plea on 6 March 2014.
5 The offence of recklessly causing serious injury is contrary to s17 of the Crimes Act 1958 and carries a maximum penalty of 15 years’ imprisonment.
Circumstances of the offending
6 You are now 28 years of age and the subject offending occurred when you were 27 years of age. You, Steven John Beveridge (“Beveridge”), and the brother of Beveridge, Braydon Meyer, have known each other since you were small children and have grown up together as close family friends. Apparently on or about 2 September 2012, Meyer (the brother of Beveridge) became aware that you had formed a relationship with his ex de facto. This resulted in a falling out between you, and in particular, Beveridge, resulting in a series of heated phone calls and text messages which occurred over several days, ultimately leading to the offence on 13 September 2012.
7 On the night of Thursday 13 September 2012, you had been drinking at a hotel and left the hotel in the company of Kirsty Azzopardi, your current partner, and Jonathan Maxwell. You directed the driver of the car to attend the premises of Beveridge and his partner, Chloe Johnston, and their two young children. You went to the front door of the house, banging on the front door, calling Beveridge to come outside. The Prosecution alleged that you entered the premises carrying a yellow-handled hammer.
8 Beveridge gave evidence that when being confronted by you, he threw a red-handled hammer at you, which struck you in the forehead and then moved over your head to somewhere beyond the porch attached to the premises.
9 Thereafter, both you and Beveridge were fighting each other at and around the front of the premises with ultimately you being rendered unconscious. I accept that on the evidence, you were kicked by Beveridge a number of times after falling to the ground.
10 In relation to Charges 2 and 3, you relied on the defence of “self defence”.
The interpretation of the jury verdict
11 Bearing in mind that the critical issue in relation to Charge 1 was whether or not you entered the premises of Beveridge, I consider that the jury verdict in relation to Charge 1 is understood by the jury not being satisfied beyond reasonable doubt that you did so enter the premises. Furthermore, I consider that given the evidence, that the jury was satisfied beyond reasonable doubt that Beveridge suffered a “serious injury” as a result of a combination of injuries rather than any one particular injury.
12 In particular, the Prosecution urged me to sentence you on the basis that the jury verdict in relation to Charge 3 is consistent with you striking Beveridge to the face with a yellow-handled hammer. In particular, reference is made not only of course to the evidence of Beveridge and his partner, Chloe Thompson, but also the nature of some of the injuries suffered by Beveridge, which included a star-shaped fracture to his cheekbone and the orbit of his eye socket.
13 Of course, I must be satisfied beyond reasonable doubt that you did use a yellow-handled hammer to assault Beveridge.[1] In all the circumstances, bearing in mind issues of credibility and reliability in relation to the evidence of Beveridge and Thompson, I am not prepared to find beyond reasonable doubt that you used a yellow-handled hammer to attack Beveridge.
[1]See Cheung v R (2001) 209 CLR 1, followed in R v Isaacs (1997) 41 NSWCLR 374 at 377-78
14 Considering that the jury found you guilty in relation to Charge 3, it must follow that the jury did not accept that you were acting in self defence at the time you recklessly caused injury to Beveridge. In this respect, bearing in mind the evidence that Beveridge initially struck you in the forehead with a red-handled hammer, I consider that the appropriate interpretation of the verdict is that the jury accepted that you may have commenced to act in self defence but did so excessively.
Documents tendered by the Prosecution
15 The Prosecution tendered the following documents during the plea hearing:
(a) Victoria Police criminal history report,[2] the contents of which I was informed you have seen and accept as accurate; and
(b) a Victim Impact Statement completed by Beveridge, declared on 27 February 2014.[3]
[2]See exhibit 1
[3]See exhibit 2
16 Your criminal history records that you have a large number of driving offences commencing in November 2002 up until late 2009. On 26 June 2012, you were convicted in the Stawell Magistrates’ Court of offences, including recklessly causing injury, assault with a weapon and contravening family violence intervention orders. At that time, you were sentenced to three months of imprisonment, one month of which was partially suspended under s27 of the Sentencing Act 1991 with an operational period of twelve months.
17 Because of the number of days in detention prior to the Magistrates’ Court hearing, the actual period of two months’ imprisonment was effectively served by the date of conviction. The Magistrate also further ordered you be the subject of a community corrections order to extend for eight months.
18 In his Victim Impact Statement, Beveridge describes suffering a depressed fracture to his left eye and a deep laceration, a sore and numb upper lip and left cheek and scars to his left eye and blackness around the eye. He also describes having lost some days from work and, according to him, his employer did not want him to be at work alone in case “something happens to me”. In particular, Beveridge states:
“I have been very scared for me and my family. When we are all home I have trouble sleeping at night and scared walking out my front door early in the morning and at night. Me and Chloe are on constant edge knowing that this could happen again at any time. My kids are scared at night because of Travis’s coming to our house to attack me. Because of this we feel very worried for safety. We cannot sit in our own house any more for fear of … .”
19 Your counsel, in support of your plea in mitigation, tendered the following documents:
(a) An email dated 3 March 2014 from your mother, Ms Y Rennick;
(b) A character reference form your present partner, Ms Kirsty Azzopardi, dated 2 March 2014.
20 On the basis of such material, and the submissions made by your counsel, I set out the following details in relation to your personal circumstances, your education and vocational background and your medical and substance use history.
21 You were born in Boronia in 1986 and have a sister, who was born in 1991. Over the years, you have been subject to a variety of traumatic events including:
(a) In 1991, both you and your sister were involved in a bus accident on a school excursion, resulting in bumps and bruises to your upper and lower bodies;
(b) In 1992, you had a serious billycart accident, resulting in a broken nose and swelling to your face, cheek and eye and you were told by your doctor that it would “fix itself”, although your mother has sought to persuade you of recent years to have scans to your head;
(c) In 1993, you suffered severe lacerations to your leg;
(d) Also in 1993, you were diagnosed as suffering ADHD and Dyslexia. Apparently your mother was told by a paediatrician that you would “grow out of” the ADHD and no treatment was undertaken. In relation to the Dyslexia, your school adopted a different learning and teaching approach and over the ensuing years you have taught yourself to manage such condition.
(e) In 1994, your father was killed in a car accident and your mother describes that you took it upon yourself to be the “man of the house” at such young age and also had to cope with your own grief.
22 The family moved from Boronia to Ferntree Gully in 1995 and your mother recalls that in about 1998, you started to get into trouble with older boys who stole a car. At that time, you were sneaking out at night and refusing to go to school and ultimately you were expelled from Ferntree Gully High School and later enrolled in Croydon Community School, where you stayed until you were old enough to leave.
23 After leaving school, you commenced an apprenticeship as a panel beater in Bayswater. At around this time, your mother met a man and became pregnant with Brandon, your stepbrother, and ultimately your mother remarried in April 2000 but separated in early 2001. Your mother describes her husband at that time as extremely violent, “mentally, physically and emotionally and financially abusive”, not only to herself but also to her children, including you. During such time, you moved to Stawell to stay with friends to avoid this man’s behaviour. After the separation, you moved back home.
24 During your time in Stawell, you met a girl who already had one child and such relationship ultimately bore a child in 2009. That relationship broke down in or around 2011 and there were difficulties between you and the new male in the life of your ex-partner.
25 In mid 2012, you were in Stawell to attend your son’s birthday party and ultimately ended up in custody on the basis that you had breached an intervention order by staying at her home and assaulting her with a weapon, which, according to your mother, involved throwing a crutch at a television in the room you were in. These actions gave rise to the convictions at the Stawell Magistrates’ Court on 26 June 2012. When in custody, you found out that your previous partner had entered into a new relationship and was expecting another child which caused you, according to your mother, to become deeply depressed.
26 On being released from prison, you underwent an anger management course, drug and alcohol courses and counselling for depression, no doubt as a result of your Community Corrections Order made by the Stawell Magistrates’ Court on 26 June 2012.
27 According to your mother, there are ongoing difficulties with your former partner, who will not allow you to have access to the children. Your mother notes that you are now in a relationship with Kirsty Azzopardi and that you have a recently born son. Although your mother notes that you and Kirsty have had “problems in the past”, she considers that was due to your unstable mental health and depression and what was going wrong in your life.
28 Your mother notes finally that:
“I see that Travis is determined to make everything work in this relationship doing whatever it takes. He will continue with his medication and counselling and one day soon he can regain access to his other son. …”
29 I also refer to the reference from Kirsty Azzopardi who notes that she has known you for three years and has been in a relationship with you for about a year. As a result of that relationship, you have a new born son called Robert. Your partner ultimately describes you as “kind, loving person with a good heart and he’s trying to improve his ways with help from the caring love and support he has as family, friends and counsellors.”
30 Prior to the offending, you were in regular employment as a manager in a car repair business. I was informed by both parties that you have been in custody since 1 November 2013 in relation to alleged offences against your current partner yet to be heard before a Magistrates’ Court.
31 On the basis of all the material, your counsel submitted essentially the following matters:
(a) The offending was over a very short period of time in circumstances where tension between you and Beveridge had been growing over the last ten days or so in relation to what was perceived by Beveridge and his brother to be your involvement with the brother’s ex-de facto;
(b) There is a reduction in “moral culpability” when, as I have found, you were acting in excessive self defence;
(c) Account should be taken that prior to the trial, you were prepared to plead guilty to the offence of recklessly causing injury (rather than serious injury) and such plea was not accepted by the Prosecution, which required a plea of guilty to Charge 1 (the aggravated burglary);
(d) That you have suffered some degree of extra-curial punishment, having been assaulted by Beveridge in the altercation, causing you to become unconscious and later being kicked by Beveridge;
(e) Although you do have prior convictions for violence-related offences from June 2012, such offences are peculiar to the fraught situation pertaining to your earlier relationship, and difficulties obtaining access to your first child resulting from that relationship.
32 I essentially accept the thrust of submissions made by your counsel and have taken them into account when determining an appropriate sentence.
33 Your counsel initially submitted that an appropriate disposition would be a “substantial fine” or a community corrections order containing a work component. Later, he accepted that if there be a term of imprisonment, such term should be limited, particularly given the context in which the offence occurred.
The position of the Prosecution
34 Counsel for the Prosecution submitted that you are not entitled to any sentencing “discount” that is attracted by guilty plea. Furthermore, in the context in relation to the various allegations, there is no evidence of remorse. Counsel also noted that Beveridge was cross-examined at both the committal and at trial.
35 Counsel for the Prosecution also highlighted that the subject offence was committed less than three months after being released from prison in relation to those offences for which you were convicted on 26 June 2012 at the Stawell Magistrates’ Court. Furthermore, the offence was committed at a time when you were undergoing a Corrections Order as ordered by that Magistrate.
36 Counsel for the Prosecution accepted that it is relevant to take into account the “extra-curial punishment” to the extent that you suffered injuries as a result the altercation with Beveridge. Counsel for the Prosecution also submitted on the authority of Trikilis v R,[4] I could take into account that the prospects of your rehabilitation are not that good, bearing in mind that you are waiting for various offences to be determined involving your current partner. I put no weight on such submission as it is unclear the precise nature of any charges in relation to the subsequent events and indeed what are the “relevant live issues” (see Trikilis (ibid), in particular paragraph [8]).
[4][2010] VSCA 241
37 Counsel for the Prosecution submitted that an immediate custodial sentence was appropriate. In this respect, it was agreed that you have spent eleven days in custody by way of pre-sentence detention up to, but not including the hearing date of 6 March 2014.
38 Perhaps be upstanding now if you would.
Conclusion
39 After a consideration of all of the matters put to me, I consider that a custodial sentence is appropriate. It must be borne steadily in mind that when you went to the premises of Beveridge late in the evening on 13 September 2012, you were angry with him and acted in a way which must have been very upsetting and frightening to the occupants of the premises. The community will not tolerate the type of activity you engaged in on that particular night.
40 Furthermore, your actions were extreme, bearing in mind that the person you attacked had been a lifelong friend and that the issue which had aroused such emotions between the two of you had only been existing for the last ten or eleven days prior to this event. The community will not accept that such disputes be determined by violent acts.
41 You have heard the contents of Beveridge’s Victim Impact Statement and understandably, both he and his family live in some degree of fear as to whether or not there would ever be a repeat of this type of activity. Also, it is to be stressed that the event took place only a very short time after you were released from prison and undergoing a Community Corrections Order which in part seemingly related to anger management control (see statement of your mother).
42 Fortunately, you seem to have your mother and your present partner standing by you and indeed you have much to look forward to given the recent birth of your second son. I also take into account that you have had steady employment up to relatively recent times and seemingly, would have prospects of being employed after any period of imprisonment.
43 I do take into account, given my interpretation of the jury verdict, that the offence for which you were found guilty was in circumstances where the jury ultimately considered that although you may well have been acting in self defence, after the hammer was thrown by Beveridge, you ultimately used excessive self defence at the time of the offence. Furthermore, I accept the submission of your counsel that the finding by the jury that Beveridge suffered a “serious injury” reflects rather than one significant injury, but rather a combination of smaller injuries. However, I do note that Beveridge suffered symptoms for a number of months after the occurrence of the offence.
44 Accordingly, in relation to the offence of recklessly causing injury, you are convicted and sentenced to 10 months’ imprisonment with a non parole period of 6 months.
45 I declare that you have served pre-sentence detention in relation to this offence of 26 days up to but not including this date.
46 I further order, pursuant to s464ZFB(1) of the Crimes Act that the forensic sample and any related material information obtained pursuant to the informed consent given by you on 14 September 2012 be retained for placement on the database.
47 I also order that the disposal orders sought be made in relation to the items in the attached schedule.
48 MS PICONE: Your Honour, I just have a concern about the length of the head sentence and the setting of a non-parole period. I just ask permission to check.
49 HIS HONOUR: I think there's a three month gap, there has to be, doesn't there?
50 MS TURNBULL: Six.
51 HIS HONOUR: Six, does there? Just as I read that, I'll change it. Yes, in fact I've got this marked, I'll change that. Going back, I'll put this.
52 Accordingly, in relation to the offence of recklessly causing injury, you are convicted and sentenced to 12 (12) months’ imprisonment. I order that you serve six months imprisonment before becoming eligible for parole.
53 MS PICONE: Your Honour, s.11(2). "If the court sentences an offender to be imprisoned in respect to an offence for a term of less than two years but not less than one year, the court may as part of a sentence fix a period in which the offender is not eligible to be released on parole".
54 HIS HONOUR: Let me have a look at that. I thought this was all canvassed when I was here last time.
55 MS TURNBULL: Your Honour, my reading of s.11 is that unless Your Honour imposes a term of imprisonment of 12 months Your Honour cannot fix a parole period. And then under sub-s.(3), "A non-parole period fixed under sub-s.(1) or (2)" which is the relevant sections, "must be at least six months less than the term of the head sentence."
56 HIS HONOUR: Just let me read that. Be seated, Mr Kortholt. So you would interpret sub-s.(2) anything under one year is just a straight sentence, is it?
57 MS TURNBULL: Yes.
58 HIS HONOUR: Whereas a one year and more is a parole period can be fixed but it has to be fixed at six months.
59 MS TURNBULL: If it's two years or more. A minimum - to set a non-parole, sir, the minimum term that Your Honour must impose is 12 months. I note that Your Honour announced an intention to sentence him to ten months as the maximum, as the head.
60 HIS HONOUR: I just want to get this clear. What you're submitting to me is that if a head sentence of ten months at this point of time now that cannot attract, under the Sentencing Act, a non-parole period.
61 MS TURNBULL: Correct. That's my reading of the Act.
62 HIS HONOUR: A non-parole period only becomes relevant for 12 months or more?
63 MS TURNBULL: That's right, sir
64 HIS HONOUR: If I sentenced your client to 12 months and a non-parole period of six months, that would comply with the Act, would it not?
65 MS TURNBULL: It would comply with the Act, yes.
66 HIS HONOUR: But on the other hand if it stood at ten months my options are that it either had to be a sentence of 10 months because - - -
67 MS TURNBULL: You cannot fix a minimum term when you impose a sentence less than 12 months.
68 HIS HONOUR: Yes. Well if I imposed a sentence of 12 months with a non-parole period of six months though that would comply with the Act?
69 MS TURNBULL: That would comply with the Act.
70 HIS HONOUR: Whereas on the other hand if I could order just a straight sentence of six months, could I not?
71 MS TURNBULL: Yes, you could. And Your Honour just while I'm on my feet when Your Honour announced the sentence you indicated it was for the offence of reckless cause injury, I presume that was just a slip of tongue. You meant to say recklessly causing serious injury.
72 HIS HONOUR: Recklessly causing serious injury, I apologise, yes, I certainly meant that. Do the prosecution want to say anything about this?
73 MS PICONE: Nothing further than compliance with the Act, Your Honour. At this stage it may be problematic to increase the head sentence.
74 HIS HONOUR: Yes, I think it is. Yes, I'll just adjourn for a minute and just have a think about this, thank you.
(Short adjournment.)
75 HIS HONOUR: Yes, I'm going to read the last four paragraphs again. And the days you said to me were 20?
76 MS PICONE: 26, Your Honour.
77 HIS HONOUR: Yes.
78 Accordingly, in relation to the offence of recklessly serious causing injury, you are convicted and sentenced to six (6) months’ imprisonment.
79 I declare that you have served pre-sentence detention in relation to this offence of 26 days up to but not including this date.
80 I further order, pursuant to s464ZFB(1) of the Crimes Act that the forensic sample and any related material information obtained pursuant to the informed consent given by you on 14 September 2012 be retained for placement on the database.
81 I also order that the disposal orders sought be made in relation to the items in the attached schedule.
82 Now that I have complied appropriately, would that help?
83 COUNSEL: Yes, Your Honour.
84 HIS HONOUR: Yes. I apologise to both of you. It's something I should have been well aware of. I just slipped up when I was dictating it.
85 Mr Kortholt, if I may say so you're here through a series of silly decisions made on your part. It is mind boggling at one level that you could come to this with someone who you have been close friends with since you were babies. And something which built it only over a period of about nine or ten days leading up to this event. Be that as it may you've got a lot to look forward to. As I said in the sentencing remarks your mother has stood by you and Kirsty has stood by you.
86 You've got something very much to look forward to to go home to a new born son. But you're going have to learn to control that anger. It seems to me you've probably got a short wick and indeed it seems to me that's what happened back at Stawell and it's what's happened here now. Because if this sort of activity goes on the sentences will get greater and greater and that means you lose contact with your family and loved ones. So you really have to sit down and make a few decisions in your life about where you want to go. Six months I'm not suggesting that's necessarily a short time but it's not a long time either. It gives you some time for reflection and trying to get your mind in the right place. Because as I say this activity will not be tolerated by the community and you just have to bear that in mind. Do you understand?
87 OFFENDER: Yes, Your Honour.
88 HIS HONOUR: Yes, very well. Yes, anything to be raised?
89 MS PICONE: Nothing further, Your Honour.
90 MS TURNBULL: No, sir.
91 HIS HONOUR: Thank you for your assistance again.
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