Director of Public Prosecutions v Muller

[2015] VCC 1479

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

AT BAIRNSDALE
CRIMINAL JURISDICTION

CR-15-00640

DIRECTOR OF PUBLIC PROSECUTIONS

v

JEREMY MULLER

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Bairnsdale
DATE OF HEARING:	12-16 October 2015
DATE OF SENTENCE:	16 October 2015
CASE MAY BE CITED AS:	DPP v Muller
MEDIUM NEUTRAL CITATION:	[2015] VCC 1479

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S Ginsbourg	Acting solicitor for Public Prosecutions
For the Accused	Self-represented

HIS HONOUR:

1Jeremy Muller; after a short trial you have been found guilty by a jury of one count of recklessly causing injury to Mr Pace.  You were acquitted of a count of aggravated burglary and the statutory alternative of burglary, and the count on the presentment of intentionally causing injury to Mr Pace.  The conviction followed a short trial, in which you represented yourself.

2The circumstances of the offence emerged in the course of the trial, and you are entitled to the benefit of your acquittal on the count of aggravated burglary.  In short compass the complainant, Mr Pace was a friend of yours, and you had quite a lot to do with him in the previous three or four years - and he worked at the local steel merchant.  You had made some arrangement, and you had done so in the past, to purchase some steel from him on the morning of 20 January 2015.  You attended at that premises and loaded up the steel and then went to the office and paid for the steel; $80 odd dollars.

3You also collected some - what is called offcuts -and there was a dispute in the evidence as to whether or not you were to pay for those offcuts, or whether you should have paid for them.  At all events, you left the scene and took the steel away, and later that morning Mr Pace rang you and remonstrated with you on the basis that you still owed some amount - $60 or $80 - for the steel offcuts.  That conversation ended very quickly and there followed between the two of you some 13 or so abusive text messages in relation to your conduct that morning, with each of you making abusive comments to each other.  Those text messages ended at about 2 o'clock, and they went into evidence.

4At 4 o'clock or 4.30 you had a conversation with the manager of the steel merchant, and he did not know, on your account, what the dispute was.  In any event, Mr Pace actually collected some bait from your fish shop later that afternoon, then went home.  At about 6.30 you went to his house in Traralgon.  The Crown case was that you had burst in breaking down the door lock, and proceeded to assault him.  The jury did not find against you on that beyond reasonable doubt, and you are entitled, as I said, the benefit of that acquittal on the count of aggravated burglary and the statutory alternative of burglary.

5The jury must be found to have found that once inside the house, Mr Pace, who said he was watching the tennis sitting on his couch, said that you came straight in and proceeded to assault him. He suffered a nasty cut to below his right eye, and then there was a wrestle between the two of you on the floor, and ended up in an alcove to the bedrooms, and Mr Pace's evidence was that you bashed his head against the architrave, causing a split to his left upper forehead.  There was quite a bit of blood around, and then at that point you left the premises.

6

The police were called and an ambulance was called, and subsequently

Mr Pace went to the Latrobe Hospital, where four or five stitches were placed in his forehead.  You were subsequently arrested by the police. No was evidence was led as to a record of interview, and you gave evidence in the trial.

7After your arrest you were remanded in custody, and it is common ground that you spent some ten days in custody before being granted bail, including eight days at the MRC.  You contested the committal in this matter and the matter was brought on for trial originally in Latrobe Valley.  There was an unsuccessful application to transfer the trial to Melbourne, and then subsequently the trial commenced this week in Bairnsdale.

Seriousness of the offence

8As I say, recklessly causing injury is the second lowest form of assault type offence that is dealt with in these courts.  The circumstances of this offence, as you submitted in your plea to me - it was of short duration of about a minute or so - and in self-defence, and in circumstances where there is a fight, it is very hard to calibrate whatever responses that are made.  The jury must be held to have rejected your proposition that there was self-defence, and they may have accepted that you had engaged in excessive self-defence, or you had no reasonable basis to defend yourself.

9In all events, as you submitted, it was not an offence that involved a weapon, and I am also prepared to find that there was not any pre-meditation, as you have given sworn evidence you did not intend to assault him when you arrived there.  The jury must be taken to have accepted that, because they acquitted you of the aggravated burglary, and as the learned prosecutor, Mr Ginsbourg, said, there must have been some incident that happened that caused you to start a fight with him in the house, and that is what you are being sentenced for.

10

This case is not at the bottom end of the scale of cases of recklessly causing injury, but it is not at the top end either.  I have got to take into account the impact on Mr Pace of the offence, and it is clear - when he gave his evidence he was obviously shaken up by the offence, and in the victim impact statement he indicates that it has caused him uncertainty and has been unsettled.  He fears about whether his door is locked and he has a scar on his head, he is having counselling to help him to address the shock and sequelae of the matter, and it also caused him problems with his family life.  So all that indicates that this would have a significant impact on the complainant, which

I must take into account.

11Turning to matters in mitigation - as I say, you pleaded not guilty and fought your own case, and you conducted the case in quite an economical manner, and you are not to be criticised for that.  You indicated in your plea to me that since the event you had undertaken a men's behaviour program, and also been referred for a mental health treatment program and seen a counsellor and a psychologist, and they have indicated that you do not require any further therapy or treatment.

12You indicated on the plea that as a consequence of the publicity associated with the event, and being in custody for a period, you suffered significant financial loss in your business: losing bookings and suffering reputational damage as a result of publicity in the local newspaper.  I am prepared to take those matters into account - that you have already suffered some damage as a result of the offending.

13You described your occupation as an entrepreneur to the jury, and you have a number of businesses, including a seafood company, a modelling agency and an events management company.  You indicated on the plea that you also own a mobile bar called "Thirsty Camel" and having that mobile licenced premises, you have applied for a number of liquor licences which you have been able to obtain. This would indicate that you must, as far as the liquor people are concerned, been of good character. 

14The prosecution are not alleging any prior convictions against you, so I am required to deal with you on the basis that this is a one-off event of someone who otherwise has no prior convictions for assault-type offences.

15You have indicate that you are married.  You have a partner of 13 years and you have got a four-year-old child.  So you have obviously got a reasonable amount of get-up-and-go in you and that you have been able to move on from this event - you have obviously suffered significant reputational damage, as well as, according to you, some problems in your businesses as a result of this hanging over your head. 

16Be all that as it may, the fact is you have now been found guilty by a jury of one count of recklessly causing injury, which is a significant criminal conviction. 

17

The learned prosecutor, in his sentencing submissions, submitted that a fine would be appropriate and I am prepared to accede to that.  In fining you,

I have taken into account the fact that you have spent a period of ten days in custody and no doubt that was quite a salutary experience for a person of your age and you have learnt your lesson and, even though you have pleaded not guilty, so there is no suggestion of remorse, you have taken action to address underlying issues by taking a men's behavioural program and having counselling. 

18So weighing all those matters up and I accept that lower level recklessly causing injury cases are dealt with by way of fines in some cases and taking into account the fact that you have spent ten days in custody, the sentence of the court is as follows: 

19I convict you of the charge of recklessly causing injury and I fine you $7,000 and I give you four months to pay that fine.  If you cannot pay the fine, then you can apply to the registrar to convert it into community work. 

20Any other consequential orders I need to take, Mr Ginsbourg? 

21MR GINSBOURG: No, Your Honour.  There is no forensic sample because it is not a sentence of imprisonment.

22MR GINSBOURG: No, there's no further orders sought, Your Honour. 

23HIS HONOUR:  All right.  All right, that is it, Mr Muller.  And I take this opportunity again to thank Mr Ginsbourg for his conduct of this trial and of the circuit and adjourn sine die. 

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