Director of Public Prosecutions v Moyle

[2020] VCC 1403

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00092

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARREN MOYLE

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	29 January 2020
DATE OF SENTENCE:	29 January 2020
CASE MAY BE CITED AS:	DPP v MOYLE
MEDIUM NEUTRAL CITATION:	[2020] VCC 1403

REASONS FOR SENTENCE
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Subject:  CRIMINAL – Sentence

Catchwords:  Causing injury intentionally – parity in sentence – delay in time

Legislation Cited:  Sentencing Act 1991; s 5(4C)
Cases Cited:  DPP v Zell [2014] VCC 1624
Sentence:  Total effective sentence of eight months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Livingstone-Clark	Director of Public Prosecutions
For the Accused	Ms J. Kennedy	Leanne Warren and Associates

HIS HONOUR:

1Darren Moyle, on 3 September 2019, at the County Court at Melbourne you pleaded guilty to a charge of intentionally cause injury on indictment No.H11444724A.2.  You confirmed that plea of guilty this morning. The charge of intentionally cause injury has a maximum sentence of 10 years' imprisonment. 

2You initially were charged with intentionally cause serious injury, and in the alternative, recklessly cause serious injury.  That indictment was listed for trial on 2 September 2019.  The trial was adjourned, and the matter was resolved to the current single charge before the court.  As I said, you pleaded guilty on 3 September 2019, to intentionally cause injury to Nathan Morgan. 

Criminal History

3You have admitted an extensive criminal history.  I note you were subject to a care and protection application in April 1998.  Your first adult criminal conviction was recorded on 29 June 1992, for a theft of motor vehicle and criminal damage in which you were sentenced to six months’ Youth Training Centre (“YTC”) order.  On appeal, your sentence was changed to a community-based order for a period of two years.  You then breached that community-based order and was sentenced to 12 months' YTC order.  This was a bad start in your contact with the criminal justice system.

4Since that time, you have had 20 subsequent court days.  Your offending includes offences of dishonesty, violence, and drugs.  Your longer sentence was a three and a half year sentence imposed in October 2005.  You have been convicted of offences for violence on one set of offending but on the occasions of 20 October 2010, 25 June 2010, 9 September 2008, and on a much earlier occasion on 2 May 1995; they are two separate criminal events now 10 and 25 years ago.

Circumstances of your offending

5After your trial was resolved to the charge presently before the court, the prosecution filed a summary of prosecution opening on the plea and agreed statement of facts dated 6 September 2019.  This document was Exhibit “A” on the plea. 

Background to the offending and surrounding circumstances

6You were 41 years old at the time of the offending.  Nathan Morgan, who is the victim, was 36 years of age at the time of the offending.  Brett Dunlop, your co-accused was aged 47 years old at the time of the offending.  Craig Pout, one of your other co-offenders was 39 years at the time of the offending.

7All of this occurred at Dion Beasley's premises in Bayswater North.  Mr Morgan, you and your co-offenders were known to Mr Beasley and frequented his premises at various times.  Mr Morgan met you in late March 2016 at the premises.  You met him there on a few occasions.  Mr Morgan also met the co-offenders at the premises and saw Mr Dunlop there a number of times together with Mr Pout on about three occasions.

8The actual circumstances of your offending were as follows; in the mid-afternoon of 28 April 2016, Mr Morgan went to the premises in Bayswater North.  He was driven to that place by Steven Cowling.  Mr Morgan walked to the front door of the premises.  He then said, 'Knock knock' and walked straight inside the house.  As he stepped inside, he saw Mr Dunlop standing to his left holding a screwdriver in one hand and a hammer in the other.

9You, Mr Moyle, were with Mr Pout and Mr Dunlop. Both you and Mr Pout had something in your hands. The three of you then confronted Mr Morgan. He was punched and fell to the ground outside the front door of the premises. You, Mr Dunlop, and Mr Pout then began hitting Mr Morgan. He covered up in an attempt to protect himself. Mr Dunlop hit Mr Morgan to the back area with a hammer. Mr Pout also hit him with something hard. You have then hit him with something like a golf club. Mr Morgan was also kicked and was told repeatedly, ‘Don’t come back here’.  Mr Morgan responded, ‘I’m done’, and held up his hands. Someone has then hit Mr Morgan to the left leg with what appeared to be a piece of steel or a shovel handle. All three of you continued your assaults on Mr Morgan and Mr Pout said to him, ‘If you come back here, you’re finished’.

10Mr Cowling, whilst this was going on was seated in the car and he saw
Mr Morgan fall to the ground outside the front of the house.  He could not see Mr Morgan after he had fell, but he could see the three of you who he knew as Craig, Brett, and Darren.  He described Mr Dunlop was holding the hammer, Mr Pout holding the baseball bat, and you holding an iron bar.  Mr Cowling saw the three of you swinging each of your weapons at Mr Morgan.  Mr Cowling heard Mr Pout say, 'Don't ever show your face here again'.

11Mr Morgan screamed out to all of you to stop.  You stopped, turned towards Mr Cowling and said, 'Get him the fuck out of here and take him home'.  Mr Morgan was then told to leave, but he had trouble moving because his leg was broken.  As he moved down the driveway, he was hit a few more times.

12A Mr Ritchie was also present at the premises that day.  He had arrived at the same time as yourself and your co-offenders.  He did not see or hear the attack, but he did see the immediate aftermath.

13Mr Cowling drove his car into the driveway of the premises towards Mr Morgan and Mr Morgan dragged himself to Mr Cowling's car.  Mr Cowling then drove him home.  Mr Morgan lost his phone and backpack during the course of the assault on him.  As Mr Cowling drove him home, he could see Mr Morgan's bone which was an open wound on his left leg.  When Mr Morgan arrived home, he initially told his mother that he had fell out of the car and injured his leg.  He then called an ambulance.  A short time later, he had said that he had been hit on the leg with a crowbar and hammer.

14Mr Morgan was taken to Maroondah Hospital emergency department.  He was examined by a doctor who noted the following injuries:  two linear red lines on the abdomen, numerous scratches and abrasions in the right hand side of his back, a circular mark about the size of a 50 cent coin with superficial breaks in the skin on his right shoulder blade, a swelling to the left forearm with dried blood and a 1 cm wound which was gaping open with about 2 mm on his mid forearm, and a 1x1 half centimetre wound which was actively easing blood on his left leg about two and a half centimetres below the knee.

15The wound to the left forearm was cleaned and dressed in Steri Strips. 
X-rays and the CT scan taken of the leg showed a comminuted, as in a shattered fracture through the tibia or the skin bone at the knee in his left side.  There was associated gas and fluid in the knee joint, with some pre-tibial soft tissue thickening.

16The open wound on Mr Morgan's leg was washed out with a litre of fluid, dressed in Betadine and a plastered cast which was applied to the rear of his leg and described as a back slab plaster cast, and bandage across the top of his leg.  He was given pain relief, intravenous antibiotics, and a tetanus vaccination. 

17He was admitted to hospital on the morning of 29 April 2016, and he spent three days in the orthopaedic ward before being discharged on 1 May 2016.

18The Crown say it cannot be proven who delivered the blow that caused the fracture to Mr Morgan's leg, but says it was not Mr Dunlop.  Each offender hit
Mr Morgan with a weapon, and each are liable for all of the injuries sustained by him.  It is not suggested that your role in the offending is greater than any of the other co-accused.

19On 18 November 2016, Mr Morgan selected you from a photo board as one of the men who had assaulted him.  On 23 November 2016, you were arrested and taken to the Ringwood police station.  You were interviewed by police.  During the course of the interview, you said you did not know how Mr Morgan's leg came to be injured on that day, but that you were aware that his leg was injured.  You had heard Mr Morgan talking to Dion at the premises in Bayswater North in the past.  You answered no comment to the questions specifically put to you about the offending; that of course is your right.

Victim Impact Statement

20A victim impact statement was filed by Mr Nathan Morgan dated 3 February 2019.  It was Exhibit “B” on the plea.  It was not read into the court record.  In a succinct description of the impact of your offending, Mr Morgan describes that his broken leg required two operations to correct the injury.  He cannot kneel on the injured left knee due to the pain in it.  He said he was unable to work for some 18 months due to that injury.  He was losing sleep during that time because of the stress of your attack upon him.

Personal circumstances

21At the time of the offending, you were 41 years old.  You are now 44.  Between the time of this offending here and the time of your plea hearing, you had served a total of 12 months as a sentenced period.  Your last sentence was finished on 15 October 2019, and you were released on 17 October 2019.  That is the two days of pre-sentence detention.

22On 24 October 2019, you were remanded in custody for other offences, which are due for committal mention in March of 2020.  At the commencement of the sentence, in this case, you have been in custody on remand for a total of three months.

23You have had a troubled start in life.  Your father was a violent man and left the family home when you were seven years old.  Your mother worked as a cleaner, but you described her as an alcoholic and resided with her until the age of 12, where you were then placed in Baltara.  You have an older brother and a younger sister.

24From two previous relationships, you have a 23 year old daughter and a 10 year old son.  You have lived a shambolic life of drug-use, homelessness, dishonest criminal offending for almost the entirety of your life.  The one period of stability was between 2010 and 2016 when you were in a stable relationship and housing situation.  Your son is from that relationship, but is now also, as I understand it, in the care of DHHS, as you were when you were a young boy.

25You were educated to Year 11.  You completed a diploma in IT I think it was at Chisholm.  You then worked as a glass cutter until 1998, when your back was seriously injured in a work accident.  From that time, you have been on Newstart or on a disability pension.

26In February 2013, you were a victim of a vicious assault.  You have been diagnosed as suffering from a traumatic brain injury as a result of that assault.  Your continuing drug use from the early years to now, have resulted in a diagnosis of an acquired brain injury.  You have been diagnosed with Hepatitis C.  You have been diagnosed with a major depressive disorder and prescribed Olanzapine.

27I noted the contents of the psychological reports by: Ms Laura Anderson, dated 16 July 2013, which was Exhibit 2, the report of Ms Leanne Kennedy, dated 10 December 2019, which was Exhibit 3, and Mr Aaron Cunningham dated 23 January 2020, which is Exhibit 4; each of these reports refers to the devastating effect that binge drinking, heroin use to the age of 30 years old, methylamphetamine use until the present time, have had upon your wellbeing.  You are currently prescribed methadone whilst you are in custody.

28You have had many setbacks in life, some of your own making, most as a result of your start in life, and the injuries that were caused by others, and your homelessness and drug addiction.  This sentence is another one of those setbacks, moderated by the parity with your co-accused and the prosecution's acceptance that your role in this offending is no greater than either of your
co-accused.

Sentencing considerations

29The basic purpose for which a court may impose a sentence of just punishment, deterrence both specific and general, rehabilitation, and denunciation of your actions and the protection of the community. 

30In sentencing you, I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it, and your personal circumstances. I am also required to balance the interests of the community in denouncing your criminal conduct with the interest of the community in seeking to ensure as far as possible, that you as an offender are rehabilitated and reintegrated into society. 

31I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases, and the statistics for those sentences at the time.

32I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another. I might add, current sentencing practices is but one of the considerations I must take into account. 

33I am also mindful of the provisions of the Sentencing Act and in particular, in relation to s.5(4C) which directs a sentencing court to consider whether a community corrections order can achieve the purpose for which a sentence is imposed.  In your case, a community corrections order was not sought by your counsel, and you are in custody on remand for other matters.  In effect, a community corrections order would not be a viable sentence in your case.

34You have pleaded guilty to this charge.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certain outcome and the resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of the court and police resources to deal with other matters, and your plea vindicates the public confidence in the legal process, set up to protect the community.

35Your plea also is a clear acknowledgment by you, that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community, and I accept that your plea of guilty to this charge indicates and demonstrates some remorse on your part.  Your plea also means your victim, Mr Morgan did not have to give evidence in a trial and necessarily visit these traumatic events in his life.  I note also that your plea of guilty whilst made at the time when a trial was imminent, is made to the same charge each of your co-accused pleaded guilty to in the past.

36The sentencing principle of parity has application to your case to satisfy the notion of equal justice and the need for consistency of sentencing.  Both your co-accused, Mr Dunlop and Mr Pout, have been sentenced to the same charge as yourself, arising from the assault on Mr Morgan.  The prosecution does not submit your role in this offending is any greater than either of your co-accused. 

37In Mr Dunlop's case, the charge was resolved prior to a committal hearing on 15 January 2018. He pleaded guilty to one charge of intentionally cause injury. An unopposed application for summary hearing was granted. In the Magistrates' Court on 1 March 2018, Mr Dunlop was sentenced to four months' imprisonment and a 12 month community corrections order, with conditions as to treatment and rehabilitation including anger management. He had served 45 days of pre-sentence detention at that time, and s.6AAA statement was made of six months' imprisonment.

38In Mr Pout's case, it was resolved whilst in the trial reserve list at this court on 2 October 2018. He successfully applied for the matter to be remitted to the Magistrates' Court for a plea hearing in the Magistrates' Court on 25 October 2018. Mr Pout was sentenced to five months' imprisonment and 12 months community correction order with conditions as to unpaid community work, supervision, and treatment and rehabilitation. 25 hours of his treatment and rehabilitation to be counted towards his unpaid community work. The sentence took into account an additional charge of possession of a drug of dependence which was cannabis. The s.6AAA statement in respect of Mr Pout was
12 months' imprisonment.

39The parity principle applies only to true co-offenders; Mr Dunlop and Mr Pout are true co-offenders to you in this case.  Neither of them, however, had the prior convictions for violent offending prior to this offence.  You did have prior convictions for violent offending and had been imprisoned for that offending on two separate occasions in the past.  The prior violent offending was now a long time ago, but it does form a part of your criminal history; that is a factor of difference from the criminal histories of your co-accused.

40There has been a considerable delay between the offending on 28 April 2016 and the finalisation of this prosecution in September to October 2019.  It is a period of some three and a half years; in that time, you have spent 10 months in custody for unrelated offending which occurred since this offending.  It has been submitted that the court should have regard to the period of incarceration when considering the principle of totality.  I note also that you had served
60 days in respect of another matter before that matter was finalised at the Magistrates' Court.  That offending was also after this offending.

41Ms Kennedy, counsel on your behalf, submitted that I must have regard to the principles announced in the case of Zell on this matter.  I have taken these factors into account in finalising your sentence. 

42Further, the delay between your plea on 3 September 2019, and now has meant you have endured the anxiety of the final outcome of this hearing which is a factor to take into account.

43The seriousness of your offending is indicated by the following factors: 

1. Your victim was alone;

2. The assault was unprovoked and planned, as in you were waiting for him;

3. The offending was done in company with other offenders;

4. The offending was undertaken with weapons for the assault; 

5. The assault continued even after your victim was incapacitated and was offering no resistance to you or your co-offenders.

44I assess this offending as the mid-range of the charge of intentionally cause injury.  I had previously outlined your serious criminal history.  You are no stranger to violent offending, although it is a long time back.  Your criminal history and this offending at your age of 41 years leads to the conclusion that your prospects of rehabilitation are guarded.

45As on your instructions to Ms Kennedy, the reason for why the offending took place was that you and your co-offenders were protecting Mr Beasley from the standover behaviour of Mr Morgan.  If correct, that mode for offending does not mitigate the serious factors of the offending to which I have referred previously in these reasons.

46I do take into account that you have had an unfortunate upbringing and suffered an acquired brain injury and a traumatic brain injury as a result of first, your drug-taking, but secondly the assault which occurred to you in February 2013.

47You have also been diagnosed by Mr Cunningham as suffering from the diagnosed condition of a major depressive disorder.  Your life has been a cycle of homelessness, drug-addiction, and mixing in company with like-minded or experienced persons that has resulted in your life being ravaged by drug abuse.  You are becoming a risk of being institutionalised to prison life.

48I take into account the time you have spent in custody on other matters between your offending in this matter and your sentence for it.  I take into account your criminal history and the long term drug addiction which has affected your mental health and your physical wellbeing.

49I also take into account the sentences imposed on your co-accused for this same offence.  The sentencing principles of totality, parity of sentence, delay in time, specific and general deterrence, just punishment, and protection of the community, denunciation of your offending, and your rehabilitation dictate that the only appropriate sentence is a term of imprisonment. 

50Would you stand please.

51On Charge 1, you are convicted and sentenced to a term of eight months' imprisonment.  The total effective sentence is eight months. I declare that you have served two days in pre-sentence detention.

52Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to 12 months' imprisonment.  I have signed the disposal order in this matter.

53MS KENNEDY:  As the court pleases.

54MS LIVINGSTONE-CLARK:  As Your Honour pleases.

55HIS HONOUR:  Thank you.  If you remove the prisoner, please.  Thank you.  I want to thank counsel for their assistance in this matter.  Just another sad case.

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