Director of Public Prosecutions v Mair
[2013] VCC 902
•13 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00257
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| DARREN NEVILLE MAIR |
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JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 June 2013 | |
DATE OF SENTENCE: | 13 June 2013 | |
CASE MAY BE CITED AS: | DPP v Mair | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 902 | |
REASONS FOR SENTENCE
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Subject: Criminal Law, Sentencing
Catchwords: Recklessly Causing Serious Injury - With Weapon - Damage Property
Legislation Cited:
Cases Cited: Ashdown v R [2011] VSCA 408
Sentence: 49 months TGF, NPP 33 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr G. Hevey | OPP |
| For the Accused | Mr F. Cameron | James Dowsley & Assoc. |
HIS HONOUR:
1 Darren Neville Mair, you have pleaded guilty to one count of criminal damage ‑ maximum penalty, 10 years' imprisonment ‑ and one count of causing serious injury recklessly ‑ maximum penalty, 15 years' imprisonment.
2 The complainant in the matter was Stephen McDonald and the offences occurred respectively on 25 and 26 July last year.
3 The circumstances of the offending were set out in the Crown opening, which was read in open Court earlier this morning and I will not repeat it in any detail and incorporate it by reference.
4 Essentially, you were acquainted with Mr McDonald and, on 25 July, attended at his property late in the evening, yelled at him and asked him to come outside or let you into the house. He refused to do so and you then proceeded to smash three or four windows in his house. That event constitutes the count of criminal damage and the Crown seeks a compensation order against you for the amount of an invoice to seal the property in the sum of $418 and I will make that order. The full cost of the repairs is not clear.
5 The following evening, you entered the complainant's house and engaged in a discussion with him. It appears, on the complainant's account, that he had been drinking a bottle of whiskey that night and was probably under the influence of alcohol. There was some discussion and then you began striking him with an object. You struck him several times to the head and he began bleeding from the lacerations, before yelling out for you to stop. You eventually stopped and then proceeded to give him a towel to wrap around his head and took him to the Monash Medical Centre. The police spoke to him at the centre, you were identified and subsequently arrested at your home address, hiding in the backyard, and you have been in custody since that time.
6 As a result of the assault, the complainant in the matter sustained four significant lacerations to his skull. The relevant medical report of the examiner was tendered, indicating those lacerations were eight centimetres, needing 11 staples, four centimetres, needing five staples, one to the back of the head, to the crown, another to the right back of the head, four centimetres, five staples, back of the right ear, six centimetres, eight staples, back of the left ear, one centimetre, two staples, and there was also some swelling on the left part of his head, consistent with some bruising. There was also a couple of scratches or a scratch on his chest. He remained in hospital overnight and was discharged the next day.
Seriousness of the offences
7 Your counsel did not dispute the Crown summary. He referred the Court to a statement by the complainant, his second statement to the police, wherein he indicated that there was some pushing and shoving and he attempted to throw a punch, which did not really hit you, and it was then at that stage that you then proceeded to say, "So you want to fight back, do you? Good" and you then proceeded to the assault.
8 On the basis of the extract from the statement, your counsel submitted that this was to lessen the seriousness of the offence in that it was a spontaneous offence, rather than something that you had planned when you first arrived at the premises. I accept that characterisation. However, you were the one who had attended the premises the night before and smashed the windows after the complainant had refused to let you in. You therefore must be taken to have had some prior animosity against the complainant. I accept the submission of your counsel that the weapon used, whatever it was, was a weapon of opportunity, but the mere fact that a weapon was used does go to the seriousness of the offending.
9 The use of a weapon, particularly to the head, increases the seriousness of the offending and your moral culpability. You delivered a number of blows with some sort of implement, described as possibly a blunt object by the medical report, causing lacerations serious enough to total about 19 centimetres in length and a total of 26 staples to be used. Whatever weapon it was, it was wielded with enough force to inflict four different lacerations into the skin, requiring suturing by staples.
10 In Ashdown v R [2011] VSCA 408, Maxwell P, discussing the offence of recklessly causing serious injury, said at [19], referring to an earlier case,
"As this Court pointed out in Ashe, the assessment of the seriousness of a particular instance of [recklessly causing serious injury] will involve considering both the degree of probability that serious injury will result and the degree of seriousness of the probable injury. Ordinarily, therefore, the use of a weapon will mean that the offence is more serious since it heightens both the probability of serious injury and the degree of seriousness of the probable injury."
11 Here, you used a blunt instrument of some sort to the head on at least four occasions, so I overall put your moral culpability for this offence at well above the mid‑range, due to the use of a weapon and the fact that it was directed to the head and the fact that it involved multiple blows and the actual injuries sustained, which were significant lacerations to the skull.
12 Your counsel put that there was no evidence of permanent injury to the complainant, Mr McDonald. I accept there is no evidence of such, but having regard to the photos, there must be at least scars, given the length of each of the lacerations.
13 In assessing the overall seriousness of the offence, the impact on the complainant must also be taken into account. He filed a victim impact statement, wherein he indicated that subsequent to the offending, he worries that someone will attack him when he walks down the street. He says he lacks energy and ambition and feels finished emotionally. He says, "I am depressed constantly." He said his medication has gone up, he has not been able to get his house back in a liveable state and his medication, methadone, has gone up to keep him calm, and uses Valium to help him sleep. His drinking has increased and he said, "Psychologically, I don't know if I'll ever be good, the same." He goes on to say that he is seeing a psychologist, he does not know how long it will take for him to recover and he is also on antidepressants, although they are not helping him much. He's still unsure of all the damage, as he's having ongoing treatment, and his memory has been prematurely damaged. He also indicates as a result of the offending, he now gets anxious and nervous when he uses tools, chisels and sharp implements, and also he had to change the locks on his house.
14 It is clear from the victim impact statement and from the overall circumstances that this offence has had both a physical and a psychological impact on the complainant, which must be taken into account in the sentencing of you.
Prior convictions.
15 You are aged 46. Your prior convictions commence at age 18. Your early convictions involve dishonesty and driving offences and your first sentence of imprisonment was at age 22. When you were 24, you were sentenced to a term of imprisonment for the crime of murder. Upon your release, you have accumulated a number of violence‑related convictions and have been sentenced to suspended sentences for unlawful assault and assault and resist police, which were breached, thus you have a conviction in the Melbourne Magistrates' Court on 4 July 2001, where you were placed on three‑month suspended sentence, suspended for 12 months, and at the Dandenong Magistrates' Court on 13 February 2003 on assault police and resist police, three months' imprisonment, again suspended, plus some driving offences. Those suspended sentences were restored on 14 July 2003 and on that date you were dealt with for recklessly causing injury and intentionally destroying property (three counts), a three‑month aggregate sentence for that offence, plus some driving offences and an offence of possessing a controlled weapon. You had an earlier prior for prohibited person possessing a firearm on 3 July 2000.
16 On 28 May 2004, on counts of unlawful assault, you were sentenced to two months' imprisonment, making a threat to kill, a 12‑month aggregate sentence, intentionally threatening serious injury, a 12‑month aggregate sentence, assaulting police, two counts, a one‑month aggregate sentence, with a total effective sentence of 12 months and a non‑parole period of six months fixed.
17 Your next appearance was on 31 August 2004 at Melbourne Magistrates' Court, another firearms offence, prohibited person possessing a firearm, a two‑year aggregate sentence, two counts of possessing cannabis, one count of carrying a loaded firearm in a populous place, a two‑year aggregate sentence, a further count of prohibited person possessing a firearm, a two‑year aggregate sentence.
18 Then, in addition, on 28 September 2010, you were on exceed PCA, unlicensed driving and driving a motor car without a licence. You were sentenced to a three‑month aggregate term of imprisonment, to be served by way of an ICO.
19 Your final appearance was on 30 September 2011, where, on a count of robbery, you were sentenced to 259 days' imprisonment, concurrent, and driving whilst disqualified, two months' imprisonment, concurrent.
20 As your counsel submitted, it appears that you have not had more than a couple of years free in the community out of prison since you have reached adulthood. Your prior record of violence is a matter that must be considered in sentencing you. It makes specific deterrence and protection of the community salient matters in the sentencing synthesis.
Matters in mitigation.
21 Your counsel referred to your plea of guilty. You pleaded guilty to the offence of wilful damage at the committal. That was the first opportunity and you receive full credit for that. There was a contested committal in relation to the other counts. The presentment originally included a count of aggravated burglary and intentionally causing serious injury. There had been discussions between the prosecution and your instructing solicitors but the sticking point, according to Mr Hevey, the Crown Prosecutor, was that you would not accept that you had used a weapon to inflict the injuries. That acceptance did not occur until the matter was listed for trial on Tuesday of this week and the matter was resolved to a plea to recklessly causing serious injury. The plea must be regarded as late. However, you are entitled to the utilitarian benefit of avoiding a trial and the consequent stress on the complainant. You are entitled to the benefit of accepting responsibility for your conduct and also I accept that to the extent that you have pleaded guilty, it is some evidence of your remorse.
Personal circumstances.
22 Your personal circumstances were not elaborated on in any detail in the plea. You are aged 46. You had three adult male friends of yours in Court to support you on the plea and they had supported you at the committal. Two of them, Mr Fotopoulos and Mr Georgakis, had been your employers in recent months after your release from prison. I accept that you had been working for the previous 11 months for Mr Georgakis and when you were working, you were a good worker and that there is a strong prospect of further employment upon your release upon parole with that gentleman and his company.
23 On the plea, a medical report from Arbias setting out your personal background was also tendered and I incorporate it by reference. It does refer to the fact that you had been diagnosed with bipolar disorder at one stage in 1997, but there is no elaboration of any link between that condition and this offending. Your counsel did not seek to have a reduction in your moral culpability on the basis of the report and it was tendered to exclude the possibility of an acquired brain injury. The report, however, sets out a difficult personal background, the fact that you, in your upbringing, had no father‑figure and that you now have nothing to do with your mother and sister. You have children, but your involvement with them was not elaborated on.
24 The thrust of your plea was that you are now aged 46 and upon completion of any sentence, you will be approaching 50 and realise that you have to cease the revolving door with the correctional system that has blighted your adult life. Only time will tell whether you have learnt by your past mistakes. Your prior record, however, means that, as I have indicated, specific deterrence and protection of the community are more important considerations in sentencing than generally.
Prospects of rehabilitation.
25 Given your prior criminal record and your late acceptance of the use of a weapon here, I must regard your prospects of rehabilitation with caution. You clearly require supervised reintegration into the community and have previously been on parole. Having considered the submissions put by your counsel, I do not regard it as appropriate to fix other than the usual parole eligibility period.
Sentencing range.
26 Your counsel submitted a range based on the Sentencing Advisory Council sentencing snapshots. The Crown submitted a range that was higher than that submitted by your counsel. I am not bound to accept either submission. Due to the use of a weapon, multiple blows to the head, the psychological sequelae and your prior history of violence, the sentence here must be significantly above the mid level of seriousness for other offences that provide the basis for the sentencing snapshot. This offence carries a maximum 15 years' imprisonment and I have already indicated that in your case there is a significant degree of culpability. The Court of Appeal, in cases such as Ashdown has referred to the seriousness of this offence, particularly where there is a weapon involved and there are multiple blows. That applies here.
Purposes of sentencing
27 The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors, such as the seriousness of the offences your culpability for them, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
28 I have taken into account all the matters put on your behalf. The Crown called for some cumulation in relation to the property damage count. This was an attack on a person's home and it was the night before. There was an element of hostility in it and it calls for a sentence of imprisonment to denounce your conduct. It was a separate incident and therefore some cumulation is called for.
29 As I have indicated, in sentencing you, general deterrence must play a part in the sentence here. Use of weapons against others must be deterred and utterly condemned. The sentence must also vindicate the rights of Mr McDonald, the complainant, to the preservation of his bodily integrity and be entitled to be left alone in his own home.
30 Denunciation is also a consideration and your conduct must be utterly condemned. As I have also indicated, your prior convictions indicate that specific deterrence is a factor that must have significant weight here, as must protection of the community.
Sentence
31 On Count 1, the count of criminal damage, you are sentenced to two months' imprisonment. On Count 2, the count of recklessly causing serious injury, you are sentenced to four years' imprisonment. I direct that one month of the sentence on count 1 be served cumulatively on the sentence on count 2, making a total effective sentence of four years and one month. I direct that you serve a minimum term of two years and nine months before being eligible for parole.
32 I declare 322 days pre‑sentence detention, excluding today. I also declare, pursuant to s.6AAA, that had you not pleaded guilty, I would have imposed a total effective sentence of six years, with a non‑parole period of four years. I make the disposal orders that have been sought by the Crown.
33 Mr Hevey, did you have a compensation order?
34 MR HEVEY: I don't at the moment. I will arrange for my instructing solicitor to do the one for $418 and I'll have that delivered to your associate tomorrow morning.
35 HIS HONOUR: All right. I will make that in chambers.
36 MR HEVEY: Thank you, Your Honour.
37 HIS HONOUR: Are there any matters, Mr Cameron?
38 MR CAMERON: No, nothing, Your Honour.
39 HIS HONOUR: Any other matters, Mr Hevey?
40 MR HEVEY: Nothing further, thank you, Your Honour.
41 HIS HONOUR: I thank counsel for their assistance on this plea, in particular the helpful sentencing submissions by Mr Cameron, and Mr Hevey's Crown opening.
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