Director of Public Prosecutions v Meyer
[2021] VCC 617
•18 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.
CR-18-01820 /
CR-19-01228
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICKY MEYER |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 May 2021 | |
DATE OF SENTENCE: | 18 May 2021 | |
CASE MAY BE CITED AS: | DPP v MEYER | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 617 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL
Catchwords: Trial – sentence following trial - recklessly cause serious injury– plea of guilty to 3 charges of theft and 2 charges of obtaining property by deception
Legislation Cited: Crimes Act 1958 ; Sentencing Act 1991
Cases Cited:Mehmet v R 2019 VSCA 2011; DPP v Vao Fusi 2019 VCC 1031; Winch v R (2010) 27 VR 658.
Sentence: Total effective sentence of 4 years and 9 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Pirrie | Office of Public Prosecutions |
| For the Accused | Mr R. Thyssen | Dribbin and Brown Criminal Lawyers |
HER HONOUR:
Introduction
Finding of guilt and maximum penalty
1Ricky Meyer, on 24 March 2021 you were found guilty by a jury of one charge of recklessly causing serious injury to Michael Marangoudakis. On that day, a verdict of not guilty was returned on the alternate charge of causing serious injury intentionally. The offence of causing serious injury recklessly carries a maximum penalty of 15 years' imprisonment. I will refer to this as ‘the first indictment'.
2A plea was conducted on 3 May 2021. On that day, you were arraigned and pleaded guilty to charges on a second indictment ('the second indictment') on which there were three charges of theft and two charges of obtaining property by deception. Each charge on that indictment carries a maximum penalty of 10 years' imprisonment.
Circumstances of the offending - first indictment
3
The circumstances of your offending on the first indictment are as follows. In 2016 Mr Marangoudakis was working as a furniture removalist near Rye. On
15 August 2016, at around 6 pm, he was finishing work for the day outside his employer's house at 18 Alexandra Crescent; he was loading an old bicycle into his car to take home. A car pulled up. You and two other men got out of that car and approached him. There was a conversation about old bicycles. The conversation soured and Mr Marangoudakis was punched in the head. A baseball bat was produced from the car you arrived in; you then used it to strike Mr Marangoudakis to the left side of his head.
4Mr Marangoudakis was seriously injured; initially he was dazed, but managed to drive himself home. Later that day he went to Frankston Hospital, was transferred to the Alfred Hospital and there, had two operations. The first was to repair the left side of his skull, which was concaved as a result of the attack. The second operation was to repair his jaw which had been broken. I will refer later in these reasons to the ongoing sequelae of those injuries.
5
According to the verdict of the jury, you were aware that your act of striking
Mr Marangoudakis to the head with a baseball bat would probably cause him serious injury, and yet you went ahead anyway. At trial, the issue was whether you were present at the scene, and, if present, were the one who wielded the bat and caused the injuries; the jury, having found you were present and wielded the bat, then found your state of mind to be one of recklessness.
6I make it clear that the prosecution did not rely on the punches as going to the serious injury; I am treating the jury's verdict as relating to the hit with the baseball bat alone.
Circumstances of the offending – second indictment
7On 20 March 2017 you went into an antique shop in Sorrento; the owner had gone outside to water her plants. When she came back, she found you at the back of the shop near a display cabinet which contained silver bracelets. There was jewellery on the floor. You left. CCTV footage showed you open the display cabinet and remove a display case that contained 13 silver bracelets with a total value of $2500 (Theft).
8On 23 March 2017 you went to a Woolworths in Rye and chose six items:
· one six-pack of Kellogg’s LSM bars;
· one bucket;
· one single burner butane stove;
· four gas cylinders;
· one pair of socks; and
· one singlet.
9You presented a card for payment at the self-service checkout. When the card was declined you left the supermarket without making any further attempt to pay (Theft).
10On 24 March 2017 you spoke to a gardener doing some work at some camping grounds near Sorrento. You then opened his car and stole his wallet. The wallet contained, amongst other things, a bank debit card. You later used that card to purchase $133.90 worth of food, and later $154.00 worth of alcohol (Theft and 2 charges of obtaining property by deception).
Prior Criminal History
11You have an extensive criminal history in three states. I note, in particular, charges of common assault (2006 and 2008), recklessly causing serious injury (2003), assault with a weapon, intentionally causing injury (2004), reckless conduct endangering serious injury (2010), unlawful assault (2013 and 2016), assaulting an emergency worker on duty (2016), threat to inflict serious injury (2016). You also have a number of prior convictions for offences of dishonesty.
Procedural History
12You were interviewed in relation to both indictments on 7 April 2017. In that interview, you made admissions to each of the theft and obtaining property by deception charges. You have never denied that offending and I will sentence you on the basis that you accepted responsibility at the earliest opportunity.
13In relation to the attack on Mr Marangoudakis, you said to police in your interview that you were severely drug and alcohol affected over those days in August 2016, and could not remember what you were doing. You said you had no recollection of assaulting Mr Marangoudakis. You told police that you had previously collected used bicycles and that your partner, Ms Jessica Bunworth, had previously given you a mobile telephone to use (those facts being relevant to proof of your presence at the scene).
14A trial commenced before another judge of this court on 10 September 2019. That trial was not completed, as the complainant did not attend to give evidence; the evidence of other witnesses was pre-recorded.
15
Your next trial was delayed on account of the pandemic; it commenced on
5 February 2021. The complainant attended court and gave evidence; however, the jury had to be discharged after you failed to appear at court on
9 February 2021. On the first day of your absence, you provided a medical certificate, then the following day instructed that you had been involved in an unrelated car accident; however, your barrister then lost contact with you and on 10 February 2021, the jury was discharged and a warrant issued for your arrest. You were later arrested and Mr Marangoudakis' evidence was completed as pre-recorded evidence.
16Your third trial commenced on 11 March 2021, and the jury delivered its verdict on 24 March 2021. The hearing of your plea commenced on 3 May 2021.
17I have not taken any part of your failure to appear into account in the sentencing process; I simply note the lengthy delay that has been incurred in the finalisation of your case, most of which is not attributable to your acts, but to the failure of a witness to appear and to the pandemic.
Nature and gravity of the offending
18Your offending on the first indictment was unprovoked, against a person with whom you had no history and no animus. It was a random attack on a stranger who was going about his work. You were in company; he was unarmed. You used a baseball bat. You consciously disregarded the risk of seriously injuring him.[1]
[1]Winch v R (2010) 27 VR 658 at [34].
19Your use of the baseball bat with a hit to the head leads me to conclude that there was a high probability of serious injury that inhered in the act; the degree of seriousness of the injuries was thus foreseen by you.[2]
[2]Ibid at [36].
20Further, you were subject to a Community Corrections Order at the time of this event, this increases the need for specific deterrence, in my assessment.
21The injuries that did result were extensive. Initially, Mr Marangoudakis was dazed and was able to drive himself home. Later that evening his condition deteriorated, and he went to Frankston hospital; he was transferred to the Alfred hospital where he underwent two operations. He sustained a, 'Depressed skull fracture of the left parietal squamous temporal bone', and a, 'Nondisplaced fracture of the right body of the mandible'. In lay terms, a concaved skull and broken jaw.
22Since your attack on him, Mr Marangoudakis, has suffered speech and hearing loss. His decision-making skills and memory are impaired. He is easily confused and distressed. Ordinary jobs like cleaning and cooking are difficult for him now. He has not been able to return to work. I will return to some of the more personal impacts on him later in these reasons.
Personal circumstances
23You are now 39 years old. You were 34 at the time of the offending. You were born in Melbourne. Your mother worked as a cashier and is now a pensioner; your father drove a taxi. He passed away some five years ago. Your parents separated when you were two years old. You have 14 siblings; two of whom are biologically related to you: an elder sister and a younger sister.
24Your mother's new partner was violent and abusive in the home. Your mother abused alcohol and was also violent. There was police involvement with your family in your childhood.
25You were raised in Werribee, Tottenham and Albury amongst other places. You left school after completing Year 8 level. Since leaving school, you have had some casual labouring work, particularly intermittent carnival work.
26You left home at 13 years old to live with friends.
27
You are currently not in a relationship. Your longest adult relationship was with
Ms Bunworth, a witness in this trial. That relationship lasted approximately seven years with some breaks. You have two daughters to that relationship, although you have not seen them for some years. You have five other children to four different women. The children range in age from 21 to five years old.
28You had little stability in your childhood, and this has persisted into your adulthood.
29You commenced using cannabis from the age of eight and used that drug regularly from the age of 11. You used amphetamine and heroin from the age of 13. You have also abused methylamphetamine, morphine and alcohol. It seems you received some short period of drug and alcohol rehabilitation when you were 21, but not much else.
30By the time of this offending, your existence was particularly chaotic and unstable. Your relationship with Ms Bunworth had failed. You were abusing legal and illegal drugs. You were living in a tent in a caravan park, stealing from local shops, and separated from your latest family.
31A psychological report authored by Dr Aaron Cunningham was tendered on the plea. I have taken its contents into account in a general sense, but no particular legal submission was made on the basis of that material.
Impact on victims
32On the plea, Mr Marangoudakis read his victim impact statement. In it, he spoke about his personal circumstances and how he had unravelled as a result of his injuries. He talked about how the event changed him, and how he felt people around him did not understand. This left him isolated. He has found it hard to trust others. He only feels safe when he is alone. He now relies heavily on the affection of his pet cat. In short, your assault upon him has had a significant and lasting impact on Mr Marangoudakis' well-being.
Matters in mitigation
33I am prepared to accept that your response to learning about the injuries and to the photographs of them in your record of interview discloses that you do have some humanity, in that you appeared to appreciate some of the impact on your victim while being unable to accept responsibility for it. In that moment, you appeared to be not without empathy.
34You ran a trial, and you were entitled to do so. You always indicated your intention to plead guilty to the matters on the second indictment. I note that those charges are of a kind that are regularly dealt with in the Magistrates' Court.
COVID-19 circumstances
35You will be in custody in the second phase of the COVID-19 pandemic. It is difficult to predict how that will bear upon the circumstances of your custody. So far, prisoners have had less access to in-person visits and less access to programs in custody. I am sentencing you on the basis that there is uncertainty and probable deprivation on account of these circumstances and that as a result, your time in custody will be more difficult than at other times in history.
Delay
36There has been a significant delay in the resolution of your case. That chronology is set out earlier in these reasons. I regard this as a matter of some significance; this case has been hanging over you for some years now. Much of the delay had little or nothing to do with your acts, and I accept that to some degree this case has weighed on you in the intervening period, and I have sentenced you in that light.
37I accept that this offending arose at a time when you were facing a period of instability, exacerbated by your drug use, and that such instability was part of the fabric of your childhood and then adulthood. Your life, particularly your early life, has been characterised by your exposure to violence and alcohol misuse.
38I accept that there is some risk of your institutionalisation, that is, the risk that you feel more stable and settled while you are in custody than when you are in the community. And I am cognisant of that in sentencing you.
Relevant sentencing principles
39In the course of the plea I was referred to a small number of cases, none of them is quite like yours.[3] I have looked at cases in the general landscape for sentencing for recklessly causing serious injury. I have considered those cases that set out the principles such as Winch v R[4]; I am aware that that case was in the main directed at the specific issue of, 'Glassing'; however, it also contains some more general statements of principle.
[3]Mehmet v R 2019 VSCA 2011; DPP v Vao Fusi 2019 VCC 1031; Winch v R (2010) 27 VR 658.
[4](2010) 27 VR 658 at [34] and following.
40It was common ground between the parties at your plea that a sentence of imprisonment that involved a head sentence and a non-parole period was the only form of sentence that was warranted in your case.
41There is an important role for general deterrence in this sentence, that is, I have to sentence in a way that will stop other people from behaving in the way that you did. I have also taken into account your not insignificant criminal history and the fact you were on a CCO[5] at the time of the commission of the offence on the first indictment: I see a role for specific deterrence in this sentence. Through me and through this sentence, your conduct is denounced: it is completely unacceptable to impose the kind of suffering that you have imposed on Mr Marangoudakis. The consequences of what you did continue to ripple through his life. He deserved to safely finish work for the day without being attacked by you for no reason. You will be punished for what you did.
[5]Imposed at Dromana Magistrates’ Court on 28 January 2016.
42I have considered your rehabilitation in imposing this sentence; it is difficult to be optimistic about the prospects for rehabilitation, given your very long-standing difficulties with instability, substance use and the law. I am not prepared, however, to find that there is no hope for your rehabilitation.
43I have considered the offending on the second indictment; I regard it as low-level offending that was borne of your then homelessness and generally chaotic lifestyle. I have noted your pleas of guilty to those charges and your early intention to enter those pleas.
Pre-sentence Detention
44Pursuant to s18(4) of the Sentencing Act 1991, I declare that the period of 95 days is to be reckoned as a period of imprisonment already served under this sentence and I direct that the fact of this declaration and its details be noted in the record of the court.
45It was agreed at the hearing, and I also take into account, a number of days, 84 in all of 'Renzella time'[6] – and have reduced the base sentence, non-parole period and orders for cumulation accordingly.
[6]Related to remand for a charge of burglary, later withdrawn on appeal, confirmed by the prosecution in correspondence (18 January 2019 – 12 April 2019).
Disposition
46On the first indictment, H11034434.A, Charge 2: recklessly causing serious injury, you are convicted and sentenced to four years and nine months imprisonment.
47On the second indictment, H11034434.B, Charge 1: theft, you are convicted and sentenced to one month imprisonment.
48Charge 2: theft, you are convicted and sentenced to one month imprisonment.
49Charge 3: theft, you are convicted and sentenced to one month imprisonment.
50And on each of Charges 4 and 5: obtaining property by deception, you are convicted and sentenced to one month imprisonment on each charge.
51I direct that you are to serve a period of two years and ten months imprisonment before becoming eligible for parole.
52To be clear, I have not ordered cumulation between the offences on the second indictment to the first indictment.
53Further, I indicate that pursuant to s6AAA on the second indictment that, but for your pleas of guilty, I would have imposed a term of imprisonment of nine months.
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