Director of Public Prosecutions v Nerone 1019
[2013] VCC 1019
•22 August 2013
/
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00858
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PATRICK NERONE |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 22 August 2013 | |
CASE MAY BE CITED AS: | DPP v Nerone 1019 | |
MEDIUM NEUTRAL CITATION: | ||
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Plea) (Sentence) | Mr Carr Ms Taylor | OPP |
| For the Accused (Plea) (Sentence) | Mr Desmond Mr Kelly | Melasecca, Kelly & Zayler |
HER HONOUR:
1 Patrick Daniel Nerone you have been found guilty by a jury of one charge of causing serious injury recklessly to Mr Craig Arnold. This offence carries a maximum penalty of 15 years’ imprisonment.
2 In your record of interview you admitted punching Mr Arnold in the face and the trial was run on the discrete issue of whether or not you appreciated the risk of serious injury as a consequence of the punch.
3 The circumstances of the offending may be briefly set out as follows. At around 5:30pm on Saturday 25 September 2010 you were at the shopping strip in Point Nepean Rd, Dromana with your fiancé and some friends. You had been drinking. Mr Arnold was walking near the shopping strip. He had also been drinking. You and your friends had an argument with Mr Arnold, which turned into a scuffle, during which there was pushing and shoving between yourself and Mr Arnold, and you punched him several times. You were not charged in relation to these acts and I will not take them into account when determining your sentence, other than to the extent that they provide the background to your offending.
4
After this scuffle, Mr Arnold walked away from you and crossed the road onto the central nature strip of Point Nepean Road, where he stopped due to traffic on the other side of the road. You and your friends followed him to the central median strip. Your fiancé called out to you and your friends to leave
Mr Arnold alone. When he reached the nature strip, Mr Arnold turned towards you and your friends. One independent witnesses, Ms Lacey, said that, before being struck by you, Mr Arnold was moving backwards, facing you, with his hands up. Another independent witness, Mr Blyth, also testified that Mr Arnold had his hands up in a defensive manner. You contended that
Mr Arnold was talking back to you, or, as you put it, “getting back in my face”. Whilst there was some disagreement between counsel at the plea hearing as to what Mr Arnold was doing or saying immediately before you punched him, it is clear that he had turned towards you. You conceded at trial that you acted without lawful justification or excuse when you punched Mr Arnold hard to the jaw or face. After you punched Mr Arnold, he did not appear to attempt to stop his fall in any way. He fell to the ground and hit his head on the road. As Mr Arnold lay unconscious in the roadway, a nurse, Ms Kay Walton, who was a witness in the trial, stopped and assisted him. You stood by saying “I’m sorry, I’m sorry”.
5 When the police arrived at the scene, you voluntarily told them that you had punched Mr Arnold after an altercation. You were arrested and interviewed by the police. You said that prior to punching Mr Arnold you told him “just please walk away” but that Mr Arnold did not do so. You admitted that you were not defending yourself when you hit him and you expressed your regret. You asserted that you did not want to hurt Mr Arnold and did not think your actions were going to cause harm or injury to him.
6 By its verdict, the jury rejected this assertion, and found that you were aware that your act in punching Mr Arnold would probably cause him injury and went ahead anyway.
7
It was common ground at the plea hearing that the force of the punch to
Mr Arnold’s face or jaw led to him falling to the ground and striking the back of his head, resulting in multiple skull fractures and brain damage. Mr Arnold spent over a month in hospital and then a further two months in a rehabilitation facility. He will have permanent cognitive problems and is unlikely to ever be able to live independently, to drive a car or to hold meaningful employment.
Personal Circumstances
8 You were born on 5 January 1976 and were 34 years of age at the time of the offence. You grew up in the Coburg and Brunswick area with your mother, father and two brothers. You attended a number of secondary schools, and repeated Year 10. You then left school and were mostly unemployed for the following 18 months, until your uncle employed you in his bin hire business when you were 18 or 19 years old. You worked for your uncle for about 6 and a half years, and obtained your truck licence during this time. For the past 10 years you have been working in the building industry with the same company.
9 You have a history of drug use and heavy reliance on alcohol. You began smoking marijuana in year 10 when you were introduced to it by your then girlfriend, whom you were with for 9 years from the age of 15. You developed panic attacks as a result of your marijuana use and ceased using it for the next 10 years. After giving up marijuana, you began relying heavily on alcohol. You were introduced to speed in 2003, and in 2004 you began using ice. You also began spending large amounts of money gambling at the Casino. In 2009 after a confrontation with your mother, you decreased your amphetamine use but were still using socially. You met your second partner, with whom you now have a son, in 2009 and gradually stopped using ice after meeting her. You say that you completely ceased your use of amphetamines a couple of weeks before your son was born in April 2011. At the time of the offence, you had not completely ceased using amphetamines, but had not used it for at least a week before the incident. You had, however, been drinking alcohol.
10 Since the offence, you have married your wife, had a son together, bought a house and a car. I understand however that you have separated now and that your son is living with your ex-wife. You have sought to establish some family life together, however you had a number of separations between the time of the offence and the time of the trial during which you would not see your son for months. You have also had relapses into amphetamine use. As of the date of the plea hearing on 22 July 2013 you and your wife were separated and living apart.
11 You have a number of prior convictions, but none for violent offences. In 1993 you received a bond for the offence of sexual penetration with a child between 10 and 16 years of age, when you had consensual sex with your 14 year old girlfriend. In June 2006 you were fined without conviction for handling stolen goods in circumstances where you purchased a motorbike which you did not know was stolen but which turned out in fact to have been stolen. In April 2008 you were also convicted and fined for stating a false name. In March 2009 you served a one month imprisonment after breaching a suspended sentence which had been imposed in April 2008 for driving whilst authorisation suspended, and the breaching offence was for driving while under the influence of alcohol. I do not consider any of these offences as relevant to sentencing for the current offence. It is relevant, however, that you breached the suspended sentence you received in 2008.
Sentencing Hearing
12 Mr Desmond made a plea in mitigation on your behalf and his submissions may be summarised briefly.
13 The trial was run on a discrete issue of whether you appreciated the risk of serious injury when you punched Mr Arnold. By admitting all elements of the offence except this one, and not arguing a defence of self-defence, you ensured the trial was as short as possible. While you do not receive the statutory discount for pleading guilty, credit should be given to you for conceding all other issues and thereby minimising the duration of the trial.
14 You were remorseful immediately after you punched Mr Arnold, and witnesses have attested to this. Mr Desmond said that you attempted to render assistance to Mr Arnold and you admitted to the police that you punched him when they attended the scene. You expressed concern about Mr Arnold’s welfare in the police interview, and continued to inquire about his welfare in the following days. Ms Pamela Matthews, forensic psychologist, also said in her report dated 15 July 2013 that you present as genuinely remorseful for your behaviour and empathetic towards Mr Arnold and his family.
15 On your behalf, Mr Desmond tendered a psychological report from Ms Pamela Matthews [exhibit A], six character references [exhibits B-G] and a sentencing snapshot for the offence of causing serious injury recklessly [exhibit H] .
16 Ms Matthews diagnosed you with an Alcohol Use and Stimulant Disorder and noted that you lack insight into the seriousness of your substance use. She also diagnosed you with a Major Depressive Disorder and said that due to the level of your depression, your time in custody was likely to be more onerous on you than the average person until your depression is treated and has stabilised. She also noted that contact with your son would be an important factor in managing your depression and any time in custody. Ms Matthews concluded that from a rehabilitation perspective, you require involvement in longer term drug and alcohol treatment, as well as psychopharmacological and counselling intervention. These diagnoses were made by Ms Matthews in July 2013 and relate to your presentation at that time. They do not relate to your presentation at the time of the offence in September 2010. In that regard Ms Matthews noted that on the day of the offence you had consumed eight pots of beer and in her view this had a disinhibiting effect on you along perhaps with some social anxiety in relation to the conflict between the victim and your friends.
17
The six character references tendered on your behalf all speak of your good character. Ms Belle Parker [reference undated, exhibit B], a head of the Natural Disaster Forum and the Mud Army in Bundaberg Queensland, wrote of your ongoing efforts and generosity in helping the victims of the Bundaberg floods in 2013. Mr Shane Callaghan [18 July 2013, exhibit C], a work colleague who has known you for 10 years, wrote that you are a “trusted and reliable work colleague” and that this offence is “very uncharacteristic and not in his nature at all.” Reverend Marzi [21 July 2013, exhibit D], a Parish Priest, wrote that you came to see him two days after the offence and that you were very upset and extremely remorseful for your actions. He wrote that he next saw you on 15 July 2013 when you asked him to provide a reference to the Court, and that on this day you were very tired, upset and extremely depressed over what had happened to you, your marriage and your son.
Mr Steve Marasco [3 June 2013, exhibit E], site manager at your place of employment wrote that your determination to succeed will see you employed with the company for many years and that you are a “valuable employee".
Mr Jean Pierre Frendo [reference undated, exhibit F], who has known you for six years at work, wrote that you are like the brother he never had, and that you are a great family man. Finally, Mr Jason Cachia [17 July 2013, exhibit G], another work colleague whom you have known for six years, wrote that he found the offence “surprising” as he knows you as a “caring and responsible person”. Mr Cachia wrote that he is confident that you will take responsibility for your actions and that you will not reoffend. I note that Mr Callaghan, Reverend Marzi and Jason Cachia each were aware of the current offence of which you have been convicted.
18 You have strong family support as well as support in the community. A number of your family were present at the plea hearing, including your mother, father, aunt, uncle, niece and a close friend, and a number of your family members were also present at your trial. You also have support at your workplace, as is evidenced by the references provided by your work colleagues. You have had stable employment in the same company for the past 10 years.
19 Mr Desmond submitted that, for a number of reasons, I should find that your offence is not a serious example of recklessly causing serious injury. Firstly, Mr Arnold was drunk and confronted you and your friends; secondly, you did not use a weapon; thirdly, you only threw one punch - and it was not that punch, but rather the fall to the road, which caused the serious injury.
20 Mr Desmond submitted that you have no priors for crimes of violence and that this incident was an aberrant episode. You have a strong supportive network of family, friends and colleagues, as well as stable full time and longstanding employment for the past 10 years, and good prospects for rehabilitation. You have already experienced imprisonment in the one month you spent there for the breach of your suspended sentence in 2009, and have a well-founded fear of returning to prison. The matter has had an ongoing and serious emotional impact on you over the past three years; your marriage has broken down and you no longer live with your son. Your depressive condition has worsened as you have waited to be dealt with.
21
Mr Desmond submitted that, while a goal sentence of between two and three years was appropriate in this case, given your good record and the circumstances of the offence, the community would not expect or require you to serve any immediate term of imprisonment and that any term of imprisonment imposed should be wholly suspended. In this regard,
Mr Desmond relied on the Sentencing Snapshots dated June 2012 [exhibit H] which indicate that a wholly suspended sentence is available for this type of offence and he also relied on the case of Buhagiar & Heathcote (1998) 4 VR 540 as authority for the proposition that a wholly suspended sentence is a severe and real response to serious offending and is capable of achieving real deterrence.
22 Mr Carr, on behalf of the prosecution, submitted that given the seriousness of Mr Arnold’s injuries, this is a serious example of recklessly cause serious injury, and that your moral culpability is quite high.
23 Mr Carr tendered a Victim Impact Statement written by the victim’s mother, Ms Ida Arnold [exhibit 1]. Ms Arnold spoke about how it broke her heart to see her son go from an independent person to someone who is totally dependent on his family and friends. Ms Arnold said:
"Craig will never be the same and has to suffer the effects of this incident for the rest of his life. He has no social life and will never have the chance to have a family of his own. Our lives have been changed forever".
24 I have taken Ms Arnold’s victim impact statement, apart from the final paragraph which was objected to by Mr Desmond, into account in determining the appropriate sentence.
25 Mr Carr conceded that you ran the trial on a limited issue and thereby saved time, that you showed remorse from the time of the incident and continued to demonstrate a great deal of remorse. He submitted that the psychological evidence from Ms Matthews was that you lacked insight into the relevance of your use of alcohol in relation to the offending and would benefit from drug and alcohol treatment. He submitted that this was relevant to your prospects of rehabilitation but this could be addressed by treatment while on parole. He conceded that due to your psychological condition you will experience time in custody more onerously till your condition is treated and stabilised. However he submitted that given the seriousness of the offence and the maximum penalty of 15 years’ imprisonment, the appropriate range was an immediate term of imprisonment of two and a half to three years with a non-parole period of 18 months to 2 years. Mr Carr conceded that a suspended sentence was available but submitted that that it was not appropriate in this case because of the seriousness of the offending, in particular the lifelong impact of the incident on the victim, and also because you have already served one month in gaol after breaching a suspended sentence and that experience was not sufficient to deter you from offending in this case. He submitted that general deterrence, punishment and denunciation were important sentencing considerations.
26 The prosecution also sought an order for the taking of a forensic sample.
Sentencing Considerations
27 There is no doubt that your offence warrants a term of imprisonment. This has been conceded by your counsel. The issue to be determined is the length of the term of imprisonment and whether that term of imprisonment should be wholly or partially suspended.
28 I turn first to the seriousness of the offence. I characterise the offence here as in the mid range of seriousness. I accept that it was of short duration in that a single punch was thrown, albeit against a background of at least a few more minutes of pushing and shoving and words being exchanged. There does not appear to have been any premeditation on your part. No weapon was involved. Both you and Mr Arnold were affected by alcohol.
29
On the other hand, your moral culpability is not reduced by any mental or behavioural disturbances. You knew that Mr Arnold was affected by alcohol. Before being punched, Mr Arnold was retreating from your group, with his back to you, and crossing the road away from you. You could have, and ought to have, let him continue on his way. There was no reason to pursue him as you did in company and there was no explanation from you as to why you followed him in company across the road. He was forced by oncoming traffic to stop at the central nature strip. You punched him to the face with a closed fist without warning when he turned towards you, in circumstances where you were not acting in self-defence or with any lawful justification. A punch with a closed fist to the head or jaw is an inherently dangerous act and the jury found that you were aware that your punch would probably cause
Mr Arnold serious injury but went ahead anyway.
30
I accept that you did not contemplate the very serious and longstanding injuries which Mr Arnold sustained as a result of your punch but I must nevertheless have regard to the impact of your behaviour on Mr Arnold, but without allowing the serious injuries that he suffered to swamp other relevant sentencing considerations. I note that the impact of your offending on
Mr Arnold is very considerable in that he has suffered permanent brain damage and will be unable, for the rest of his life, to live independently or to work or drive. He is now only 45 years old.
31 On the authorities, offences of violence causing serious injury must be given strong condemnation through sentencing. A significant purpose of my sentence must be to discourage both you, subject to what I say below, and others from repeating such behaviour and to unequivocally denounce this offence of violence.
32 I accept that you have learned a great deal from having gone through the criminal justice process as a result of these events. I accept that you have deeply regretted the consequences of your actions on Mr Arnold. In the circumstances, I accept that you are unlikely to reoffend and that specific deterrence is not a major consideration in this case.
33 I also consider that you have good prospects of rehabilitation. I have some concern about your lack of insight into the relevance of your use of alcohol in relation to the offending but I consider that this could be addressed by treatment while on parole. Although you have separated from your wife, and she and your son no longer live with you, I note that you have a very supportive family network, as well as a solid group of friends and colleagues. You have a very solid work history, particularly in the past ten years and continue to be employed full-time as a crane driver.
34 Your prior offences mean that you do not come before the court as a first time offender, entitled to the benefit of an otherwise unblemished record and character, but your record includes no violent behaviour, nor any entrenched criminal behaviour, and your history of steady employment is consistent with that. On the other hand, in the past you have been given a chance to avoid prison but squandered that chance. You contravened the suspended sentence imposed on you on 24 April 2008 for driving whilst authorisation was suspended and by exceeding the prescribed level of blood alcohol. The sentence of one month’s imprisonment was wholly restored on 23 March 2009 and you served that term. I note that you did not commit the current offence within the operational period of that previously imposed suspended sentence and that you have committed no offences since committing the current offence.
35 By pleading not guilty to the charge, which you were entitled to do, you lose the benefit of the statutory discount to which you would automatically have been entitled. However, it was common ground on the plea, and I accept, that you have demonstrated remorse genuinely and consistently from the time of the incident. This has been noted by Ms Matthews and others.
36 I also accept that because of your depressive disorder you will find your experience of your time in custody more onerously until your condition is treated and stabilised.
37 Having regard to all the above factors, and the maximum penalty of 15 years’ imprisonment, I consider that an immediate term of imprisonment is appropriate.
Sentence
38 Mr Nerone, would you please stand.
39 Patrick Nerone, on the charge of recklessly cause serious injury, you are convicted and sentenced to two and a half years imprisonment with a non-parole period of 18 months.
40 In relation to the forensic sample order sought by the prosecution, I am satisfied that in all the circumstances, the making of the forensic sample order is justified because the seriousness of the circumstances of the offending warrant the order, the order is not opposed and the granting of the order is in the public interest. I therefore order that pursuant to s.464ZF(2) of the Crimes Act 1958 that you undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with sub-division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the data base. I inform you that at the time of the request if 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 taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Nerone?
41 PRISONER: (No audible response.)
42 HER HONOUR: Would you like to approach your client.
43 MR KELLY: Yes, Your Honour.
44 HER HONOUR: Yes. I'm sorry, I read to you a standard order but it seems to me that the order that has been submitted is a variance of what I've just read. So can you check what's being sought here today. Is it just a - - -
45 MS TAYLOR: Your Honour, that's correct.
46 HER HONOUR: Yes.
47 MS TAYLOR: Is Your Honour referring to the blood sample and scraping from the mouth, the variation?
48 HER HONOUR: Yes.
49 MS TAYLOR: It was the practice, Your Honour, a scraping from the mouth suffices for the purpose, a blood sample is not required.
50 HER HONOUR: All right. Mr Nerone has been - you explained to him?
51 MR KELLY: Yes.
52 HER HONOUR: Now are there any custody management issues that need to be noted? I've thought that if he continues to suffer from his depressive disorder that should be noted.
53 MR KELLY: Yes, Your Honour.
54 HER HONOUR: If there are any drug and alcohol issues you might want to consult with him and we can include those.
55 MR KELLY: Yes, perhaps I'll just take some quick instructions.
56 HER HONOUR: Just check with him before I sign the orders, thank you.
57 MR KELLY: No, Your Honour, if Mr Nerone could see a nurse as soon as possible certainly in relation to the ongoing depression but there are no current drug or alcohol symptoms.
58 HER HONOUR: All right, so we'll just note that in relation to the - - -
59 MR KELLY: I don't know if Your Honour can order this but he has asked if he could hug his parents before he's taken away.
60 HER HONOUR: Absolutely. I'll sign the order and leave the Bench for a few moments.
61 MR KELLY: As Your Honour please.
62 HER HONOUR: Are there any other matters?
63 MR KELLY: No, Your Honour.
64 MS TAYLOR: Thank you.
(Orders signed and acknowledged.)
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