Director of Public Prosecutions v McClintock

[2023] VCC 2227

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01326

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE McCLINTOCK

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JUDGE:

HER HONOUR JUDGE CHAMBERS

WHERE HELD:

Melbourne

DATES OF TRIAL:

23, 24, 28, 29 & 30 August, 2023

DATE OF PLEA:

DATE SENTENCE:

10 November 2023

30 November 2023

CASE MAY BE CITED AS:

DPP v McCLINTOCK

MEDIUM NEUTRAL CITATION:

[2023] VCC 2227

REASONS FOR SENTENCE
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Subject:Criminal law - sentence

Catchwords:              Jury verdict – guilty of one charge of recklessly causing injury – accused punched victim to jaw – victim sustained a fractured jaw requiring surgery – dated prior criminal history of limited relevance – strong work history and evidence of community contribution as an adult – general deterrence and denunciation prominent sentencing considerations.

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991

Cases Cited:Cheung v. The Queen (2001) 209 CLR 1; Boulton v. The Queen & Ors [2014] VSCA 342

Sentence:                  Two-year community correction order with conviction

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C. Paganis	Office of Public Prosecutions Victoria
For the Accused	Mr J. Miller	Stary Norton Halphen

HER HONOUR:

1Shane McClintock, you have been found guilty by a jury empanelled on your trial of the offence of recklessly causing injury contrary to s18 of the Crimes Act 1958, the maximum penalty for which is five years’ imprisonment.  The charge arises from an incident where you struck the victim, fracturing his jaw, on 19 June 2021.

2You were born in May 1958, and were 63 years of age at the time of this offending.

3It is now my role to sentence you for this offence.  You fall to be sentenced on a basis consistent with the jury verdict on your trial.[1]  In assessing your criminal culpability for this conduct, I must be satisfied of the facts relevant to these issues to the criminal standard. [2]

[1]Cheung v The Queen (2001) 209 CLR 1 ('Cheung')

[2]Cheung, at [7]

Circumstances of offending

4The victim in this matter, Scott Roberts, had known you for approximately five years, having first met you at the Plough Hotel in Mill Park, where you worked.  At the time of this incident, Mr Roberts was 46 years old.

5On 19 June 2021, Mr Roberts arrived at the Plough Hotel at around 1 pm.  His father, Alan Roberts joined him later.  Mr Roberts was seated at the bar area where he consumed approximately 12 pots of beer, over the course of five hours.[3]

[3]Trial transcript, pages 18 & 19

6You were already at the hotel when Mr Roberts arrived, although it is not known precisely how much alcohol you had consumed.  You later told police you had drunk a couple of beers that day.[4]

[4]Record of Interview dated 7 July 2021, Q/A 21

7You were standing at the far end of the bar, some distance from Mr Roberts.

8The incident giving rise to the offence was captured on the hotel’s CCTV footage. At approximately 6 pm, you are seen to walk towards the door of the hotel to leave, then pause, and step back to speak with Mr Roberts.  The two of you can be seen engaging in conversation facing each other for a brief period.

9In your subsequent record of interview with police, you explained that Mr Roberts was arguing about you 'picking on' his father, and that in the course of that discussion he was spitting on you and poking you.  Mr Roberts gave evidence that he has no memory of that discussion.

10In the CCTV footage, you can be seen standing close to Mr Roberts with both hands in your pockets, while Mr Roberts is seen gesticulating with both hands, touching your arm.  After this, you can been seen to bend forward and remove your hands from your pockets, at which point Mr Roberts is seen to poke you to the chest or arm area.  In response to this, you immediately swing your right arm and punch Mr Roberts to the side of his left jaw.

11The force of the punch knocked Mr Roberts to the tiled floor.  As he fell, his head hit the bar stool beside him.  The next thing Mr Roberts recalls is being assisted up off the floor.[5]  It is not clear that Mr Roberts lost consciousness as a result of the assault, and I cannot be satisfied he did so to the requisite standard.

[5]Trial transcript, page 20 lines 9-10

12Mr Roberts went to the Austin Hospital the next morning, where he was found to have a 'traumatic fracture of his left mandibula angle', namely his left jaw, requiring surgery under general anaesthetic on 21 June 2021.  He was also found to have paraesthesia affecting his left lip, disruption of his bite (malocclusion) and difficulty talking and swallowing.[6]

[6]Admission of Fact setting out evidence of Dr Aaron Thomas, Oral and Maxillofacial Consultant Surgeon, Austin Health dated 24 August 2023.

13Dr Lyndall Smythe, a specialist forensic odontologist with the Victorian Institute of Forensic Medicine, gave evidence at the trial.  Dr Smythe’s evidence is that the facture to the lower left part of the jaw 'is caused by significant blunt force trauma to the left side at that primary impact point'.[7]  Dr Smythe explained that the surgery to the jaw required the jaw to be bolted, with a plate and screws.[8]

[7]Trial transcript, page 70

[8]Trial transcript, page 68

14Dr Smythe concluded that the victim’s subsequent removal of his four teeth in the lower left area was most likely caused by pre-existing gum damage or gum disease, and was not referrable to the assault.[9]

[9]Trial transcript, page 72

Personal circumstances

15I turn now to your personal circumstances.

16You were born in Carlton in 1958 and grew up in the northern suburbs of Preston and Reservoir.  You were one of five siblings, with two brothers and two sisters. Your oldest sister passed away in the past five years and one of your brothers is now battling stage 4 bone marrow cancer.

17You completed Year 9 or 10 at Preston Technical School.  After finishing school, you worked in a variety of jobs, including upholstery and carpet laying.  Much of your working life has involved demolition work and site maintenance.  Prior to this incident, you had operated your own property maintenance business for ten years.

18At the time of this offending, your business held a contract with the Australian Leisure and Hospitality Group to perform venue maintenance, including at the Plough Hotel.  That contract was terminated as a result of this incident.  You were then unemployed for a period of 18 months, causing you significant financial difficulties.  This in itself is a form of extra-curial punishment.

19More recently, you have secured casual work on the docks, unloading containers. On average, you work three shifts a fortnight.  You continue to struggle financially with repayments on your mortgage, and other expenses.[10]

[10]Tendered on your plea was notice of default in respect of your rate payments dated 2 November 2023 (plea Exhibit 3)

20At the age of 18, you had your first child, although the mother’s family did not approve of you and that relationship did not last.

21Your most significant relationship, of 25 years, was with the mother of your three children, all of whom are now adults.  The relationship subsequently ended but you remain close to your children and your eight grandchildren.  More recently, you were in another relationship with a woman for seven years, but that too ended following this incident.  You report that you inherited significant credit card debts from that relationship.

22You have no medical or other mental health concerns beyond those anticipated for a person of your age, requiring medication for your blood pressure and other minor conditions.

23You have a prior criminal history, however it is now dated with your last court appearance being in 1986, close to 40 years ago.  In 1980 you were fined for assaulting and resisting police and in 1983 you were fined for an unlawful assault. Your other court appearances were for driving and minor dishonesty matters.  I give little, if any weight, to your prior criminal history given its age.  You have otherwise led a law-abiding life.  Your son, Billy McClintock, who provided a reference on your behalf, describes you as a kind and caring parent, who puts family first.

24A number of other references were tendered at your plea hearing by friends and business associates which attest to your work ethic and personal character.  I have had regard to each of those character references.[11]

[11]Plea Exhibit 1 – Bundle of References:  Billy McClintock 1/11/2023; Gary Jarvis 5/11/2023; Keith Gavin 2/11/2023; Darren A. Lapthorne 2/11/2023; Brendon John Gibson 6/11/2023; Graeme Lapthorne 2/11/2023; Maria Mak 9/11/2023; Michael John Ashton 7/11/2023; Antonino Furnari 6/11/2023; Colin and Susan Beavis 6/11/2023

25Graeme Lapthorne, for whom you worked in his asbestos removal business, describes you as a reliable, honest and professional person in your work.  A venue manager, Antonino Furnari, for whom you worked as a maintenance contractor says you are respectful and responsible in your work.  Others who have known you a long time, such as Colin and Susan Beavis, speak of your involvement in community and volunteer roles, a statement echoed by Michael Ashton and Brendan Gibson in their references, both of whom speak of your voluntary involvement in various sporting clubs and charitable events.  The majority of the references state you have spoken of your remorse for this offending.

Matters in mitigation

26On your behalf, Mr Miller raised a number of matters in mitigation of your sentence.

27Firstly, he emphasised that in the 37 years since you were last before the courts, you have otherwise lived a law abiding and pro-social life as reflected in the character references provided on your behalf.  I accept that you are entitled to the benefit of the many years as an adult where you have otherwise been of good character, with a strong history of work and community engagement and for this to be reflected in the sentence to be imposed.

28Secondly, while it is accepted that you do not receive the sentencing benefit given to an offender who pleads guilty to an offence, you are not to be punished for running a trial.  As Mr Miller highlighted in his submissions, following trial you were acquitted of the more serious charges of recklessly causing serious injury and intentionally causing injury.

29In finding you guilty of the offence of recklessly causing injury, the jury must have rejected the defence contention that you were acting in self-defence, although there is force in the defence submission that it is likely the jury found that the prosecution had disproved that your conduct was a reasonable or proportionate response to the circumstances as you perceived them.  Mr Miller submitted that the gravity of the offence was at the lower end, being an assault of extremely short duration and involving only a single blow, absent other aggravating features such as the use of a weapon.

30Mr Miller also referred to some delay, not attributable to you, associated with these proceedings.  The offence occurred in June 2021, but a committal did not proceed until a year later in July 2022.  A jury was empanelled in August 2023.  In those two years you had more serious offences hanging over your head, which I accept will have been a source of anxiety for you.  You have not offended in the two and a half years since this incident, and are entitled to have this delay taken into account in moderation of your sentence.

31Moreover, your offending conduct had some significant consequences for you, over and above these proceedings.  You lost your employment contract with the Australian Leisure and Hospitality Group as a result, causing financial strain.  Your relationship of seven years also ended as a result.  I have taken this extra-curial punishment into account in the sentence I impose.

Sentencing submissions

32On your behalf, it was submitted that this was an offence ordinarily dealt with in the Magistrates’ Court and that a fine would adequately reflect the need for the sentence to operate as a deterrent and to denounce your conduct.

33In contrast, the sentencing submissions of the prosecution highlighted the seriousness of the offence, as reflected in the maximum penalty of five years’ imprisonment.  Moreover, the prosecution argued this was a serious example of the offence of recklessly causing injury, noting that it involved a single punch to the jaw, of sufficient force to break the victim’s jaw.

34The prosecution submissions argue there is an obvious dangerousness in punching a person to the face with force, and that you should be taken to have foreseen a high probability of some form of injury from your conduct.  Ms Paganis, appearing for the prosecution, argues that for offences of this kind general deterrence is a significant sentencing consideration, and calls for a period of imprisonment.

Consideration

35In sentencing for this type of offending, general deterrence, denunciation and just punishment are sentencing considerations that warrant particular weight.  This was a forceful punch to the jaw that was not justified by anything the victim had said or done to you.  The injury sustained by the victim was at the upper end of the definition of an injury, being a fractured jaw requiring surgery.  I accept, however, that on Dr Symthe’s evidence, the jury could not have been satisfied to the requisite standard that the injury was protracted.

36Nor does the evidence establish that you approached the victim in order to assault him or to confront him violently.  Having viewed the CCTV footage closely, I am satisfied that you were moving to leave the pub when, following some interaction with the victim, you turned back to speak with him.  There is no basis for me to conclude that you did so intending to assault him at that time.  Rather, in the context of your brief interaction, in anger at being spat upon and in response to being poked, you spontaneously punched the victim to the head and did so with force.

37I do not characterise this as a low level assault.  It was a single punch thrown with force, absent any real justification.  Assaults involving punching attacks in or around pubs are all too prevalent in the community and must be denounced.  While I have no victim impact statement from the victim, there is no doubt this was a particularly nasty assault, causing the victim significant pain and necessitating surgery to his jaw, and discomfort in his recovery.

38Consistent with the jury’s verdict, you must have been aware that your act of punching the victim to the jaw would probably injure him, and that in doing so, you acted without any lawful justification or excuse.  You have no mental illness or other condition that operates to reduce your moral culpability for your conduct.

39As stated, a guilty plea attracts a sentencing discount for a number of reasons, including the utility of the plea in addition to signifying the fact an offender acknowledges responsibility for the offending conduct.  These considerations are absent in your case.  No such sentencing discount applies in your case.

40A guilty plea is also a tangible indication of remorse.  In your case, while this is not demonstrated through a plea, I accept there is some evidence of remorse, however it is mixed.  Following the incident, you sent a text message to the victim stating you were 'sorry' as you did not mean to hit him so hard.[12]  However, you continue in the text message by saying 'but u were spitting on me' and stating that the victim had been 'warned' by you on a previous occasion when this occurred.

[12]Trial Exhibit 1

41The reference material filed on your behalf speaks of your remorse, but when you were assessed by Corrections they concluded your responses lacked remorse and demonstrated attempts by you to minimise your offending, denying any anger issues.

42Consistent with your text message to the victim, and the responses you gave in your interview with police in which you asserted your right to act in self-defence, I assess you as remorseful for injuring the victim to the extent you did, but that you otherwise consider you were justified in your conduct by the actions of the victim. From the jury verdict it is clear that your offending conduct was not justified.  You bear considerable moral culpability for your conduct in responding violently in the way in which you did.

43However, given the significant gap in time since you last offended in any way, and taking into account the reference material provided on your behalf, it appears this violent response was out of character when compared to the way in which you have conducted yourself over much of your adult life.  I consider you have good prospects of rehabilitation, but would benefit from counselling in managing your anger.

44I consider the need to deter you specifically is not as significant a sentencing consideration as that of general deterrence.  In sentencing you, others must be deterred from offending in this manner, specifically from forcefully punching others to the head, where the consequences can be more significant and long-lasting than was fortunately the case here.

45In my assessment, a monetary penalty would not adequately meet the sentencing considerations to which I have referred. The question is whether a sentence of imprisonment, which is a sentence of last resort, is the only available sentence. Section 5(4C) of the Sentencing Act 1991 provides that the court must not impose a sentence of imprisonment unless it considers that the purpose or purposes for which the sentence is imposed cannot be met by a community correction order.

46In the guideline judgment of Boulton[13], the Court of Appeal explained that a community correction order is a punitive sentencing disposition that may be appropriate even for reasonably serious offending, stating:

“It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide).  The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.”

[13]Boulton v. The Queen & Ors [2014] VSCA 342 at [131]

47I consider that a lengthy community correction order, subject to appropriate conditions, is available to meet the relevant sentencing considerations for the offence of recklessly causing injury, including denunciation and the need to deter others from similar conduct.

48For this reason, I requested that you be assessed for such an order.  You have been found suitable, and have consented to the order being made.

49Mr McClintock, if you could please stand. Balancing the matters to which I have referred, while having regard to the maximum penalty, on Charge 3 – recklessly causing injury – you are convicted and sentenced to a two-year community correction order. You will be subject to supervision by Community Corrections for the duration of the order, and are directed to undergo assessment and treatment for alcohol abuse and other treatment and rehabilitation programs, such as any anger management programs. I further order that you complete 160 hours of unpaid community work. Pursuant to s48CA(2) of the Sentencing Act 1991, I direct that 60 hours of engagement in treatment and rehabilitation may be credited as hours of unpaid work for the purposes of that condition.

50In addition to the conditions I have imposed there are standard conditions of all community correction orders.  First and foremost of those is that you must not commit any other offences punishable by imprisonment during the two-year order.  You must report within two working days to the nearest community corrections office.  You are required to advise your supervising corrections officer of any change of your residential or work address and you must do so within two clear working days.  It is a term of all community correction orders that you must submit to visits as directed and you must obey all instructions and directions of your corrections officer.  You are not able to leave the State of Victoria without prior permission of your supervising corrections office.

51Mr McClintock, the order can be breached if you do not comply with the conditions of the order or if you offend while it is in place.  If you do, you can be charged with breaching the community correction order.  In such an event, I may have to resentence you on this charge and I may have to sentence you for breaching the order.

52Please have a seat, you will be required to sign the order.  Mr Miller, if you could accompany my associate.

53MR MILLER:  Thank you, Your Honour.

54HER HONOUR:  Thank you.  If there are no further matters we will adjourn the court.

55MS PAGANIS:  Nothing further, Your Honour, thank you.

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