Director of Public Prosecutions v Moresco
[2018] VCC 1527
•20 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02056
CR-17-02055
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRENT MARK MORESCO |
| AND |
| BRADLEY SCOTT ELMORE-JEFFRIES |
---
JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 March 2018; 18 May 2018 & 11 September 2018 | |
DATE OF SENTENCE: | 20 September 2018 | |
CASE MAY BE CITED AS: | DPP v Moresco & Anor | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1527 | |
REASONS FOR SENTENCE
Subject: CRIMINAL LAW
Catchwords: Sentence – Recklessly causing serious injury – Plea of guilty.
Legislation Cited: Sentencing Act 1991; Crimes Act 1958
Cases Cited: The Queen v Mills [1998] 4 VR 235; The Queen v Bell [1999] VSCA 223
Sentence: MORESCO: Youth Justice Centre order for a period of 3 years; 6AAA declaration: 5 years imprisonment with a non-parole period of 2 years and 6 months imprisonment; Forensic sample order.
ELMORE-JEFFRIES: 3 years’ imprisonment with a non-parole period of 21 months imprisonment; 9 days pre-sentence detention; 6AAA declaration: 5 years imprisonment with a non-parole period of 3 years’ imprisonment; Forensic sample order.
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pickering | Solicitor for the Director of Public Prosecutions |
| For the Accused Moresco | Mr A. Lewis (Plea) Mr W. Parker (Sentence) | Tony Hargreaves and Partners |
| For the Accused Elmore-Jeffries | Ms O. Trumble (Plea) Mr R. Backwell (Sentence) | Robert Davis Barrister and Solicitor |
HIS HONOUR:
1 On Friday, 2 March 2018, you, Mr Moresco, and you, Mr Elmore‑Jeffries, pleaded guilty to one charge that on 27 May 2017, you caused serious injury recklessly to Elliot Harvey.
2 The maximum penalty for causing serious injury recklessly is 15 years' imprisonment.
3 At the time of the offending, Mr Moresco, you were 19 years of age and you are now aged 20 years, while Mr Elmore-Jeffries you were four days short of your 21st birthday at the time of the offending and are now aged 22 years.
4 You, Mr Elmore‑Jeffries, admitted your criminal record being an appearance at the Korumburra Children's’ Court where you were placed on a 12 month good behaviour bond for one charge of causing injury recklessly. You complied with the bond.
5 Tendered as Exhibit A on the plea was a summary of prosecution opening that was read aloud in Court. During the course of the plea, there was some dispute as to the accuracy of that document. It was common ground, however, that there had been an exchange between your group, which included Joshua Stubbs and the victim of your assault outside a venue in Brunswick known as the “Rubix Warehouse” nightclub. It appears that one or more of your group complimented Mr Harvey on his motor vehicle, a 60 series Land Cruiser. Mr Harvey seems to have taken the compliment for criticism and there was an exchange of unpleasantries between you. Thereafter, your group entered the venue as did Mr Harvey and his girlfriend.
6 At about 11.00pm, Mr Harvey was taken outside by security staff because of an exchange, and in all likelihood a violent one, between him and some other patron or patrons of the venue. It is not suggested by the Crown that either of you had anything to do with this incident.
7 Sometime later, Mr Harvey was allowed back into the venue and at approximately 1.00am, each of you assaulted Mr Harvey, which assault was recorded on closed circuit television (CCTV).
8 Having viewed the CCTV on many occasions, I make the following findings of fact:
(1) That Mr Harvey walked past you, Mr Moresco, whilst you were squatting beside a couch upon which your co‑offender and Mr Stubbs were seated. The complainant nudged you with his foot. You reacted immediately and rose to your feet and spoke with the victim.
(2) Your reaction, Mr Moresco, was one that appears to be aggressive. You were joined by your two companions.
(3) Thereafter, the group moved a short distance away from the couch and you, Mr Moresco, placed your hands on the complainant and had a conversation with him. The contents of your record of interview demonstrates in respect of you that you and your companions adopted a threatening manner towards the victim.
(4) Your victim was faced with three males, and he attempted to move away from you and your friends, Mr Moresco, at a time when you were pointing your finger at his chest. The victim put his hands up in an open manner towards you and your friends. At this stage the victim was confronted with three men immediately to his front.
(5) The victim attempted to move away from your group. He was unsteady on his feet and appeared to be affected by alcohol or some other substance. By reference to the hospital records, the victim told hospital staff that he had consumed alcohol and MDMA that night. The victim was stopped from moving away from your group by Mr Stubbs, who laid hands on the victim and pushed/directed him back into the group.
You, Mr Elmore‑Jeffries, had moved behind the victim. You grabbed the victim from behind and scragged him so that he lost balance. In your record of interview you claimed that you did not remember the incident.
(6) As your victim lost his balance and fell, both you, Mr Moresco, and you, Mr Elmore‑Jeffries, grabbed hold of the victim and punched him. You, Mr Moresco, punched the victim three times before he went to the ground. You punched him with your left hand while you held him with your right. At least one of your punches struck the victim to his face. You, Mr Elmore-Jeffries, punched your victim as he fell to the ground.
(7) Once your victim had gone to the ground, you, Mr Elmore‑Jeffries, set upon him and punched at him repeatedly.
9 Prior to the assault on your victim, each of your group were addressing the victim. You, Mr Moresco, were pointing your finger at him as was Mr Stubbs. Whilst it may be open that at some stage during the course of the exchange between you and the victim there was a period of time where the exchange was not obviously threatening, on the whole it must be viewed as such.
10 In respect of you, Mr Moresco, prior to viewing the CCTV footage during the course of your interview under caution, at questions and answers 106 through to 109, you said:
“… so I think – I think he came up to us or something and then – what else happened?
Yeah, he – he came up to us and then, yeah, was just sorta just being a smart arse and shit coz he was bloody doing it from the start. … and then that’s when, like, yeah, we were just getting more angrier and angrier and – – – then when were just like, ‘Well fuck this bloke’, it’s like, ‘We’re gonna do something to him’ … and that’s when we just – yeah, he just pissed us off fully.”
11 Later in answer to Question 118, you said:
“Actually now I do remember. From the video, that’s when – coz he kept coming up to us going ‘Woah, why you gotta target me’ and shit, and then that’s when you see me in the video holding him going ‘Look man, like, just stop. Like, we’re, you’re pissing us off’, and stuff like that, like, like ‘Don’t – don’t do it any more" like, and shit like that, like, ‘It’s fuckin – we’re gunna hurt ya’.”
12 And later at answer to Question 118 - do you find something amusing about this Mr Moresco?
13 ACCUSED MORESCO: No. I do not, Your Honour.
14 HIS HONOUR: I sincerely hope not.
15 ACCUSED MORESCO: I promise.
16 HIS HONOUR: And later at question 181:
“And that’s when we just, yeah, arced up at him.”
17 By this stage, you had not been shown the CCTV footage of the incident by the police investigators. Your recollection was that you were at the venue because it was your friend, Brad’s, birthday and after the incident “We bailed” (See Q &A 151). Your general view was there were some pushes and that is when the victim must have tripped over (See Q & A 198).
18 Later at answers to Questions 306 through to 309, you said:
“Just we – we were probably gunna fight him but … you know it didn’t really end up happening … we were gunna fight him … but, like, it didn’t – like we didn’t throw – throw any punches or anything.”
19 Later, after being shown the CCTV footage, you told the investigating police that when you were speaking to the complainant, you were “trying to just speak to him civilly and say ‘Get out of here coz - - - it’s not going to be worth it’” (See Q’s & A’s 510 and 511).
20 Subsequently you admitted throwing punches, however you were of a view that as you did not have any “bloody knuckles or anything, that if you had actually hit him, you would have expected to have sore knuckles or something” and that you simply just could not remember the incident when pressed by investigating police (See Q’s &A’s 531 to 537).
21 Based on my observations of the CCTV footage, when combined with your answers to the police in your record of interview, I am satisfied that in the seconds immediately prior to your assault on the victim, your state of mind was that you expected that you and members of your group would assault the victim.
22 Tendered as Exhibit D was the victim impact statement. The victim is blind in his right eye as a consequence of your attack on him. He suffers from panic attacks. He has difficulty sleeping and experiences nightmares. He is unable or incapable of participating in sports that he once engaged in, like surfing, motorbike riding and playing billiards. The victim works in the bush environment and there are many tasks which are unsafe or very difficult for him to complete. He is unable to perform many of the duties that he could before he lost sight in his right eye. As part of his employment, he needs to navigate through constant trip hazards, be aware of protruding branches. He is unable to identify native as opposed to introduced weeds. He is now very conscious of the chemicals that are being used to ensure there can be no damage to his good eye. He is unable to use chainsaws and similar equipment, which he used to in the past. His balance has been affected and a direct consequence of the loss of vision in his right eye is that his peripheral vision has been adversely affected. At times, his anxiety and depression overcomes him. He wears sunglasses to protect his blind eye as bright light causes him pain in that eye.
23 As at the date of the victim impact statement, he was only able to work 16 hours per week and this has adversely affected his financial situation. He incurs expenses for treatment in respect to his eye.
24 The victim regards his working life as pathetic. He has become a slow worker and that bothers him immensely. He regards himself as a burden to his employer. Further, he never feels safe and deposes that most nights he drinks himself to sleep.
25 It is trite to say that, by your conduct, you have profoundly and permanently adversely affected the life of your victim.
26 Mr Moresco, your parents separated when you were about eight years of age. You and your brother, Aidan, two years your senior, remained in your father’s primary care, although you had regular access to your mother. You have an older half-brother, Callum, aged 26 years. You have always lived with your father, and do so still, in Wonthaggi.
27 You attended the Wonthaggi Primary School and later Wonthaggi Secondary College, completing Year 11 studying the VCAL syllabus. You played club football and cricket until a motocross accident in Year 7.
28 In respect to your VCAL studies in 2014, they were principally directed to plumbing. However, you were not interested in taking up a plumbing apprenticeship and after leaving school worked part-time at the local supermarket in the delicatessen. Off your own bat, you secured a job working for Mr Peter Bateman in his business, Arborzone. A reference from Mr Bateman is part of Exhibit 3.
29 You worked for some 18 months with Mr Bateman before he offered you an apprenticeship as an arborist. Mr Bateman has been an arborist for many years and you are only the second person who he has been prepared to take on as an apprentice. You were indentured in mid-2017 and your apprenticeship is of two years’ duration. You work four days a week from 7.30am until 5.00 pm and the fifth working day involves you attending TAFE studies. You earn $500 net per week.
30
Mr Bateman refers to you as a conscientious and diligent worker who not only meets but often exceeds his expectations. He describes you as a quiet person who is polite with clients, your co-workers and with Mr Bateman’s family.
Mr Bateman opines that the conduct that has brought you before this Court is inconsistent with the gentle and considered nature that he has come to expect from you. Further, he opines that you are embarrassed by your conduct and that you have expressed remorse to him.
31 It is plain that alcohol played some part in the commission of your offending, yet it does not appear that alcohol is a problem in your life.
32 Your father, Peter Moresco, provided a reference for you. He described you as a carefree child and that he had no problems raising you. He confirmed that you played local football and cricket but you decided to take up motocross and, at the age of eleven, joined the local motocross club, initially competing at the bottom age for boys but that you soon climbed up the ranks to be a serious rider at a higher level. He confirmed that you are a social drinker only. He also confirmed that you have expressed remorse for your actions towards the victim and his family and also for letting your family down.
33 Your aunt provided a reference to the Court. Your aunt was employed for a period of nine years by the Northern Territory Health Department as a drug and alcohol counsellor. In that capacity and in her capacity as your aunt, she has discussed with you the effects of alcohol and how that when you are intoxicated you are unable to make lucid judgments, sometimes leading to making wrong choices.
34 To state the obvious, that is exactly what you did on 27 May 2017 when you decided to assault in company Elliot Harvey.
35 Your aunt described you as a social drinker and that you have expressed remorse for your conduct to her in respect of the victim and his family for what they are enduring.
36 Mr and Mrs Kram described you as helpful and considerate and that you have always been welcome in their home. They expressed their shock at the offence that you have pleaded guilty to and opined that your actions are entirely out of character.
37 Ms Marni Redmond, a lifelong family friend, confirmed that you are extremely remorseful and very distressed at the situation in which you find yourself. She expressed the opinion that the circumstances which brought about your appearance in this Court will never occur again.
38 Mr Peter Hill of S.A.F.E Scaffolding Pty Ltd, who has known you for 18 years, regards you as honest and trustworthy and that the conduct that brings you to Court is completely out of character for you, as does Mr Graham Bird, whose reference is part of Exhibit 3.
39 During your consultation with Ms Lechner, you conceded that you threw the first punch and that you struck your victim three to four times. Thereafter your mate threw him down and jumped on top of him and threw lots of punches and that you stood back. You described your behaviour as “absolutely disgusting”. You told Ms Lechner that you felt sorry for the victim and that you wish you could tell him in person how sorry you were. However, your bail conditions prohibited such apology in person.
40 Mr Anthony Lewis of counsel, who appeared on your behalf, emphasised your youth as well as your early plea of guilty which he submitted was evidence of your remorse as well as your desire to facilitate the course of justice. Further, he emphasised that you have no prior convictions; that you come from a stable family who are supportive of you; that you have a commendable work history; and that you are presently completing an apprenticeship which arises out of you obtaining a job with Mr Bateman on your own initiative. Further, Mr Lewis relied on the fact that this was your first violent offence and that your youth combined with all of the other matters made you an excellent prospect for rehabilitation and that a lengthy Community Correction Order with strict conditions was the appropriate sentencing disposition in all the circumstances; or, in the alternative, that a Youth Justice Centre Order was appropriate because of your lack of criminal history, your youth and relative immaturity.
41 In respect to the kind of conditions that should attach to a Community Correction Order, Mr Lewis submitted that you should be subject to conditions like:
(1) anger management training;
(2) alcohol education;
(3) supervision;
(4) unpaid community work;
(5) a non-association condition in respect of your co‑offender and Mr Stubbs;
(6) a residential condition; and
(7) a curfew condition.
42 To my mind a Community Correction Order is a manifestly inadequate penalty for the crime that you committed.
43 Random violence committed by young men whilst they are affected by alcohol is commonplace in our community. Usually the violence is brief and unpremeditated but it has profound and enduring consequences on the victim. Innocent people are seriously injured, sometimes, as in this case, with profound and lifelong consequences.
44 Just punishment and general deterrence have a role to play in the exercise of my sentencing discretion in respect of each of you. However, you Mr Moresco are a young offender and other sentencing factors can come to the fore in the exercise of my sentencing discretion. Similar considerations apply to you Mr Elmore-Jeffries as you are a youthful offender.
45 Some 20 years ago, Batt JA in The Queen v Mills [1998] 4 VR 235 at [241] and [242], set out a number of general propositions concerning sentencing youthful offenders:
“i. Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
ii. In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focussing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
iii. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified.”
46 Later, in The Queen v Bell [1999] VSCA 223, Batt JA cautioned sentencing Judges that the propositions that he enunciated in The Queen v Mills, whilst applied frequently, were not universal or automatic and their application would depend upon the circumstances of the offence as well as the offender. His Honour further commented that where the offence for which the offender falls to be sentenced is prevalent amongst young men, then:
“… besides rehabilitation general deterrence and specific deterrence must bulk large in informing a sound discretionary determination.” (See para [14])
47 I had you assessed for suitability for a Youth Justice Centre Order. (See Exhibit 9) The author of the report, Ms Smit, assessed you as suitable for a Senior Youth Justice Centre Order. Ms Smit opined that you would be vulnerable in any custodial setting and, because of your lack of prior offending, you would be at risk of being subjected to undesirable influences in detention. Ultimately, Ms Smit recommended a community-based disposition in respect of you. In my view, this recommendation is unrealistic, bearing in mind the gravity of your offending however, I accept that you would be vulnerable in a prison setting and you should not be exposed to the undesirable influences that exist within a prison.
48 Mr Elmore‑Jeffries, you were nearly twenty-one years of age at the time of your offending, having been born on 30 May 1996. Ms Trumble of Counsel, who appeared on your behalf, informed me that you are an only child and that your parents separated when you were six months old. Initially your parents shared custody of you. However, later there was a protracted and bitter Family Law dispute in respect of your custody.
49 You have spent most of your life with your father, who re-partnered when you were six years of age. I was informed that your stepmother was unkind to you and intolerant of you and effectively rejected you. I was informed that this had a profound effect on you.
50 I was informed that when you returned from school as a child, you were confined to your bedroom until your father came home. Your stepmother was abusive towards you and regularly struck you.
51 When you were aged about ten years, your mother left the Wonthaggi area with her then partner. From the ages of ten to sixteen, you had no contact with your mother and naturally you felt rejected and abandoned by her.
52 When you were aged about fourteen years, your father’s second marriage broke down and he quickly re-partnered with a young woman with whom he had commenced a relationship when she was in Year 11 at the high school that you then attended. I was informed that you were mortified by this and were subject to bullying at school as a result of your father’s conduct and that this caused you to leave school and home at age sixteen and effectively couch surf for the next six months or so.
53 At about this time, but unknown to you, your mother returned to the Wonthaggi area. Sometime after your mother’s return you became aware that she was living in Wonthaggi and you tracked her down and walked into the mechanics business operated by her husband. Your mother presented you with two half-siblings aged ten and six who you had never met. You soon went to live with your mother and started to work with your stepfather. You commenced a motor mechanic’s apprenticeship with your stepfather and have completed the four years of practical training. However, you have only completed three years of theory training. I was informed that you struggle academically with the theory training. Further, I was informed that you need to complete your fourth year of theory before you will become a qualified motor mechanic.
54 In respect to your natural father, you have not seen him since you were sixteen years of age. You are aware that he has children arising out of the relationship that commenced with a student at your school when she was in Year 11.
55 I was informed that your relationship with your mother is strained. However, you have an excellent relationship with your stepfather and that he is a fine role model for you.
56 I was informed by Ms Trumble that as a result of your conduct becoming public in the Wonthaggi area, there was a substantial downturn in your stepfather’s business. You were instructed by him and your mother not to return to work after the Christmas break as they were proposing to sell the business, and that your attendance so far as they were concerned would reduce the sale price of the business. The business has been sold and was settled on the day of your plea hearing.
57 I was informed that on 27 December 2017, you attempted to take your life by an overdose of Nurofen. You went to bed anticipating not waking up. However, you did wake, in pain, and you were taken to hospital and subsequently admitted to the Flynn Psychiatric Ward at the Traralgon Hospital. You remained there for two to three days after which you were discharged, and consulted Mr Charles Huson, psychologist, whose report dated 26 February 2018 was Exhibit 5 on the plea.
58 Tendered as Exhibit 4 on the plea was a bundle of references from Robyn Scott, your aunt; Denise Jeffries, your paternal grandmother; Sam Liddle, the captain of the Wonthaggi Workmens Cricket Club; as well as various certificates in respect to your mechanic’s apprenticeship. Your aunt described you as respectful, well-spoken and well-mannered. She described your conduct as out of character, as you have always been friendly and kind to others. She described alcohol as a contributing factor to your conduct and believed that you need to remain alcohol free and continue to seek help and guidance in that respect. Your paternal grandmother wrote in similar terms.
59 Mr Liddle of the Wonthaggi Workmens Cricket Club wrote of you as being a good team man and being well respected around the cricket club. You have played for the cricket club for the past five years and Mr Liddle described you as the first to put up his hand to perform those small tasks that need to be done to maintain such an organisation, such as making fruit for lunches and giving younger players lifts to games, and that your dedication and skills warranted giving you the vice captaincy of your cricket eleven for the 2017/18 season. Mr Liddle described you as a young man with great leadership skills and that you are deserving of a chance to redeem yourself and continue to be a respected member of the cricket club.
60 Ms Trumble was of the view that the report of Mr Huson was inadequate, and the plea was adjourned so that a further report could be obtained. Tendered as Exhibit 7 was the report of Dr Simon Kennedy dated 1 May 2018 and, on the return date, once again Ms Trumble submitted that Exhibits 5 and 7 were unsatisfactory for the purposes of the plea and persuaded me to obtain a pre‑sentence report, which became Exhibit 12 on the plea.
61 In summary, Mr Huson opined that you have significantly impaired mental functioning when under anxious or fearful arousal and when consuming alcohol, and you then become disinhibited. He further opined that you presently suffer from attention deficit disorder and alcohol misuse disorder, and disinhibition in the context of anxious or fearful arousal. Further, he described that you had developed a “hair trigger” to anxiety-arousing circumstances while under the influence of alcohol and become disinhibited. In short, when affected by alcohol and placed in a position of anxious arousal, you become violent.
62 In contrast, Dr Kennedy opined that your primary issues relate to personality problems with depressive issues being relevant. However, he further opined that it is unlikely that you formally have a current depressive disorder, although you have had previous suicidality.
63 The author of Exhibit 12, Dr Glowinski, was instructed by you that you have from time to time had to take days off work because of depressive symptoms that you have experienced. Further, that you have tried to commit suicide on two occasions, the first being when you were living on the streets at age sixteen. Tendered as Exhibit 10 were hospital records that related to your admissions to hospital on 26 December 2017 and 9 January 2018. The first of these reports related to your attempted suicide by overdosing on Nurofen. The second related to an admission after your mother reported that you were experiencing suicidal ideas. By this stage, you were on two sets of bail resulting from two assaults, the first being the one the subject of these proceedings and the second being one that occurred on 22 December 2017 near the Caledonian Hotel in Wonthaggi which you intend to plead guilty to later this month at the Magistrates’ Court. (See Exhibit E)
64 Mr Backwell of counsel, who appeared on your behalf on the third return of the plea, submitted that the report of Dr Glowinski, and in particular that which appeared at paragraph 61, constituted a diagnosis of generalised anxiety disorder, social phobia and dysthymic disorder (now called persistent depressive disorder). A fair reading of paragraph 61 of Dr Glowinski’s report , in my opinion, would militate against the proposition that he has made a diagnosis in respect of you. Dr Glowinski expressed himself in the following terms: “Mr Elmore-Jeffries probably meets the criteria for several psychiatric disorders” including the ones that I have previously referred to.
65 However, it is plain that on two occasions you have attempted to take your life. You have experienced periods of depression in your life and anxiety appears to be a recurrent theme in your life as well.
66 Mr Backwell, on the basis of the contents of Dr Glowinski’s report, submitted that you would do your time in custody harder than a person who did not suffer from your psychological frailty.
67 On the material before me, I am unable to accept Mr Backwell’s submission.
68 Accordingly, based on your antecedent and subsequent violent behaviour, I regard you as an appropriate vehicle for the application of the principles of general and specific deterrence. Please be seated gentlemen. Please be seated.
69 Throughout the period of these proceedings, you have maintained employment, working as a renderer at Phillip Island Rendering. Your employer, Mr Matthew Poole, describes you in his reference (Exhibit 6) as a diligent and cooperative worker who undertakes his duties in an enthusiastic manner. In addition, you have undertaken a positive lifestyle program through the Salvation Army, as is evidenced by Exhibit 11 on the plea. I was informed by Mr Backwell that you are on a waiting list for a further program designed to specifically address anger management.
70 Further, tendered on your behalf was a reference from Jenelle Angarano from the Dalyston Football and Netball Club. (See Exhibit 14) Ms Angarano writes of your kindness as a person, that your conduct on the football field has been exemplary in that you have never involved yourself in any violence in what is an inherently contact sport. Further, she writes that when you have been faced with potentially violent situations on the field, you have simply walked away and not participated in them. She writes that you have spoken to her about your depression and anxiety and post-traumatic stress disorder resulting from your life experiences. Ms Angarano asserts that you have the respect of your team and that the entire community is behind you to support you in your life.
71 The acts which bring each of you before me arise initially out of a miscommunication between you and Mr Stubbs and your victim in respect to the victim’s motor car. The misunderstanding created mutual antipathy between your group and the victim. For reasons best known only to the victim, he thought it appropriate to nudge you, Mr Moresco, as he walked past you in the nightclub. Your reaction to that slight was one of immediate intimidation and violence. Intimidation and violence that occurred in company with your co-accused, Mr Elmore-Jeffries, and your associate, Mr Stubbs. When your victim raised his hands with his palms open and facing your group and attempted to walk away he was shepherded back into your group and set upon by you two. The consequences of your actions have been profound and will be lifelong for your victim. Your conduct is an example of senseless violence by drunken young men. Your actions are a serious example of the offence of recklessly causing serious injury. You are both appropriate vehicles for the application of general deterrence, and in respect of you, Mr Elmore-Jeffries, you are an appropriate vehicle for the application of specific deterrence.
72 However, Mr Moresco, you were a young offender at the time of the commission of the offence, and remain so. In my view, you would be vulnerable in a prison setting. You are suitable for a Youth Justice Centre Order.
73 You, Mr Elmore-Jeffries, have had a troubled upbringing. You lack the family support which Mr Moresco enjoys. Indeed, you will be abandoned by your mother and step-father at the end of these proceedings as they will move interstate.
74 I will not repeat the matters that were relied upon by your counsel, Mr Moresco, save that I find that you are a young offender without prior conviction and with good family support, a good job and good prospects for rehabilitation.
75 In respect of you, Mr Elmore-Jeffries, as I have said you lack all of the support that your co‑offender enjoys. In addition, the difficulties that you have experienced in your life have impacted adversely on you, resulting in such despair that you have attempted to take your own life. However, you do have “a hair trigger” when under the influence of alcohol and presented with anxiety-arousing circumstances and in my view this is likely to result in violence as it did on this occasion. Having said this I must look to your rehabilitation as you are a youthful offender and I regard your prospects in this respect as fair.
76 You have each pleaded guilty at an early stage and are entitled to the benefits that flow from such a plea being that it is evidence of your remorse and you have facilitated the course of justice.
77 Would you both please stand?
78 Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, and endeavouring to produce sentences which reflect and promote the aims of sentencing in a manner appropriate to each of you and your offending, Mr Moresco, I sentence you to be detained in a Youth Justice Centre for a period of three years. In respect of you, Mr Elmore-Jeffries, I sentence you to three years’ imprisonment and I fix a period of twenty-one months’ imprisonment which you must serve before you will become eligible for parole.
79 I declare that you Mr Elmore-Jeffries have spent nine days by way of pre-sentence detention.
80 Pursuant to s.6AAA of the Sentencing Act 1991, in respect of you, Mr Moresco, I declare that but for your plea of guilty, I would have sentenced you to five years’ imprisonment with a minimum term of two and a half years’ imprisonment. In respect of you, Mr Elmore-Jeffries, I would have sentenced you to five years’ imprisonment with a non-parole period of three years’ imprisonment. You may be seated.
81 Now the Crown have made application pursuant to s.464ZF of the Crimes Act 1958 for a forensic sample. Mr Backwell, do you have instructions in respect of that application?
82 MR BACKWELL: Actually, no, I do not, Your Honour. May I briefly approach the dock?
83 HIS HONOUR: Yes, by all means.
84 MR PARKER: Your Honour, would this be a safe time? May I do the same as well?
85 HIS HONOUR: Yes, by all means Yes, Mr Parker?
86 MR PARKER: It is not opposed, Your Honour?
87 MR BACKWELL: Same situation, not opposed.
88 HIS HONOUR: Thank you very much. Will each of you gentlemen please stand? The Crown have made application for a forensic sample. In this case it is a buccal swab, that is a scraping from the inside of your mouth. I have granted that application in respect of Mr Moresco, because of the seriousness of the circumstances of the offence warrant the making of the order, that the order is not opposed and the granting of the order is in the public interest.
89 In respect of you, Mr Elmore-Jeffries, I have granted the order because of the seriousness of the circumstances of the offence warrant the order, your prior convictions warrant the making of the order, the order is not opposed and the granting of the order is in the public interest.
90 Understand this, that if at the time of the request for the forensic sample you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.
91 Please be seated. I hand down three copies of that order. Are there any matters?
92 COUNSEL: No, Your Honour.
93 HIS HONOUR: I want to thank counsel for their assistance in this matter. Would you pass that on to Mr Lewis please?
94 MR PARKER: Certainly.
95 HIS HONOUR: Would you remove the prisoners please? I will stand down until the next matter is ready.
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