Director of Public Prosecutions v Murray

[2022] VCC 1312

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

CR-21-00906

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS MURRAY

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2022
DATE OF SENTENCE:	29 July 2022
CASE MAY BE CITED AS:	DPP v Murray
MEDIUM NEUTRAL CITATION:	[2022] VCC 1312

REASONS FOR SENTENCE

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Subject:Criminal law – Sentence upon plea of guilty

Catchwords:              Recklessly cause serious injury – Utilitarian benefits of plea – 42 year old male – General good character – No criminal priors – Genuine remorse – Excellent prospects of rehabilitation – Low end severity/gravity of offending – Low risk of further offending – Risk of deportation as a protective factor – No other criminality or anti-social purpose – Absence of aggravating factors – Stress, anxiety and depressive symptoms – General deterrence, just punishment and denunciation – Specific deterrence and community protection of little weight – Boulton – Worboyes – Community correction order

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:R v Boulton (2014) 46 VR 308; Worboyes v The Queen [2021] VSCA 169

Sentence:Community correction order with conviction for 2 years 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Singh	Director of Public Prosecutions
For the Accused	Mr T. Kassimatis QC	Tony Hargraves & Partners Lawyers

HIS HONOUR:

1Thomas Murray, you have pleaded guilty to one charge of recklessly causing serious injury committed on 12 November 2019. 

2The maximum penalty for that offence is 15 years' imprisonment.

Summary of Offending

3The agreed basis for your guilty plea is set out in the summary of prosecution opening dated 6 July 2022.  You are to be sentenced based on those facts, which I summarise and make findings about as follows.

4Just after 3.30 pm on Tuesday 12 November 2019 you were driving into the city along Peel Street approaching the Queen Victoria Market in the left-hand lane.  Just behind you, Hyperion Daulay was in the right-hand lane.  As you crossed the intersection at Victoria Street, you were confronted by a wooden pellet on the road, a cyclist in the bike lane and up ahead a van parked in the bike lane.  Apprehending a possible collision, you merged from the left lane into the right, in front of
Mr Daulay.  You did so without indicating and Mr Daulay honked his horn at you.

5At the next intersection, the Dudley Street roundabout, Mr Daulay followed you closely and honked his horn at you a second time still apparently upset with your previous driving.  You told police he almost sideswiped your vehicle, had his window down and was shouting at you.

6A few minutes later you crossed over Latrobe Street in William Street, stopping outside The Mint due to traffic congestion.  Mr Daulay followed close behind you, stopping his car on the pedestrian crossing.

7Mr Daulay got out of his vehicle and walked towards your car to confront you saying words to the effect of “can you use your indicator?”.You got out of your car and bumped chests with him.  You both argued and then Mr Daulay pushed you away but you stood your ground, you were bigger than him.  He turned away and walked back to his car.  You told police you then said something like, “Mate, I couldn’t do anything. The box was there.”  In response, Mr Daulay turned back, asked “what did you say?”, angrily took off his cap and stormed back towards you.  In a very quick incident, he grabbed your shirt collar and you reacted by swinging your right arm punching him in the left cheek.  He fell backwards onto the road, hitting his head and losing consciousness.  Witnesses immediately went to him, saw him bleeding from the back of his head and left ear.

8A bystander told you to wait at the scene for police which you did after moving your car to the side of the street.  They arrived, arrested you and took you to Melbourne West police station for interview.

9Mr Daulay remained in hospital for 8 days, although he had to return after complications.  He was found to have bleeding on and swelling to his brain, a skull fracture, an injury to the nerve supplying the muscles of his face and ongoing symptoms of concussion.  The brain bleeds and the skull fracture all had the potential to be life threatening.

10It is plain from Mr Daulay's victim impact statement dated 25 July 2022 (Exhibit 1) that your actions have eroded his quality of life.  Over the last two years since the incident, he has suffered with headaches, dizziness, depression, anxiety and insomnia, which at times were “unbearable” but have fortunately improved over time and with treatment.  He has suffered some loss of hearing in his left ear said to be permanent and he still sees a physiotherapist and psychologist.  Prior to the offence, Mr Daulay enjoyed an active social life and economic stability.  Subsequently, he has withdrawn socially and has lost employment opportunities.

Procedural History 

11During your police interview, you answered questions and largely corroborated the above account.  Importantly, you admitted that you hit Mr Daulay causing him to fall.  Mr Daulay’s account at committal of his own conduct during the incident was seen to be less than reliable.

12Police charged you with intentionally causing serious injury and bailed you to appear at Court two days later.  That most serious charge was the subject of a contested committal hearing on 3 May 2021 at the conclusion of which you were committed and pleaded not guilty.

13By application dated 1 July 2022, you sought a sentence indication in the matter, on the agreed basis that the prosecution would accept a guilty plea to recklessly causing serious injury.  Your application was granted and heard on 8 July 2022.  Following the indication, you pleaded guilty.

14Your plea has utilitarian benefits in obviating the cost and burden of conducting a trial. It reflects a willingness to facilitate the course of justice and acceptance of responsibility for your wrongdoing.  I accept that it also indicates contrition for what you did.

Personal circumstances

15You are now 42 years of age and following your arrival in Melbourne at age 35 you worked full-time as a head chef at a large city entertainment venue, at times seven days a week, for approximately 6 ½ years.  You have maintained prosocial activities outside of employment and in 2016 you formed a relationship with your current spouse.  Together you purchased a property in 2021 and you have a child.  You recently resigned from your work as head chef to find less demanding work that affords you more time for your family responsibilities.

16You rely on 13 character references and they all speak highly of your dependability and general decency towards others.  Former colleagues describe you as
level-headed, considerate and reliable, including during trying professional situations.  Others describe your proactive and unwavering support of family and friends.

17These references reveal a person who does not present with signs of elevated risk of antisocial behaviour.  Instead, they demonstrate a stable history of strong employment with positive interpersonal relationships.  They attest to someone who a wide variety of people find trustworthy, including around children and vulnerable people.

18You have no criminal history and I find this offending to be out of character.  You have demonstrated genuine remorse and have excellent prospects of rehabilitation.  Indeed, I expect you have likely attained substantial rehabilitation during the 2 ½ years since the offence.

Sentencing

19Your counsel, Mr Kassimatis, submitted and the prosecutor agreed that this was not a serious example of this type of offence and that your charge could have been dealt with summarily.  I note the range of cases summarised by the Judicial College of Victoria relating to recklessly causing serious injury.  As the prosecutor very fairly conceded there are few cases, other than those at the low end of the spectrum of gravity, that bear much similarity to this case.

20Your counsel submitted that your guilty plea, its added utility during the COVID pandemic, the delay by the time of sentence, your previous good character, your insight, your shame and disgust in your actions, your remorse and victim empathy, and your low risk of further offending, together, weigh heavily in favour of a
non-custodial sentence.  He also raises the risk of your deportation as a further protective factor in favouring your reform.  The prosecutor very fairly agreed with these matters.

21Whilst these injuries are most serious it is also conceded that your offending was very brief and that you were not the one to initiate contact with Mr Daulay.  There is no suggestion that you intended these serious consequences or that there was any other criminality or anti-social purpose accompanying your offending.  This is consistent with your remaining at the scene and immediate cooperation with police, along with the shock and remorse you expressed during the interview.

22These factors, as well as the absence of aggravating factors, all distinguish yours from those cases regularly seen in this court and which routinely warrant imprisonment, the penalty of last resort.

23The psychological report of Sandra Cokorilo (Exhibit 3), dated 30 June 2022, sets out her reasons for finding that you present a low risk of further offending.  Ms Cokorilo also observed the post-traumatic stress, anxiety and depressive symptoms you have experienced following the offence.  I accept these opinions.

24Your counsel submitted that a community correction order alone would deter others while imposing just punishment and denouncing your conduct, all while consolidating your rehabilitation.[1]  Mr Singh candidly conceded that the matters put in mitigation were substantial and I agree.  Further, I find that specific deterrence and community protection attract little weight in this case.

[1]R v Boulton (2014) 46 VR 308

25I am bound to assure that any sentence I impose discloses a perceptible amelioration in sentence coming as it does during the COVID pandemic and I aim to do so.[2]

[2]Worboyes v The Queen [2021] VSCA 169

26On the Court's request, your suitability for a community correction order was assessed and confirmed.  In light of your low risk, minimal conditions were recommended as a means to ensure your otherwise pro-social lifestyle.

27As part of the assessment, a senior mental health clinician recommended that you be required to engage in psychological treatment under any order to be made, to deal with any pervading mental health conditions that might impede your progress or increase future risk.

28Accordingly, on the charge of recklessly causing serious injury, with your consent, I impose a community correction order with conviction for 2 years with the following further conditions: 

(a)   That you perform 150 hours of unpaid community work;

(b)   That you cooperate with assessment and engage in treatment for your mental health as directed; and

(c)   That you engage in offending behaviour programs as directed.

29I direct that any hours you spend under treatment or in programs be deducted from your community work hours.

30In accordance with s6AAA of the Sentencing Act1991, I indicate that but for the guilty plea, I would have imposed six months' imprisonment as well as a CCO.

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