Director of Public Prosecutions v O'Connell
[2011] VCC 1054
•5 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-00357
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FREDERICK O'CONNELL |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9-13, 16-20 May 2011;17 June 2011;1 August 2011 | |
DATE OF SENTENCE: | 5 August 2011 | |
CASE MAY BE CITED AS: | DPP v O'Connell | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 1054 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – Sentence – intentionally causing injury – common law assault.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Holding | Mr C.Hyland, Solicitor for Office of Public Prosecutions |
| For the Accused | Mr Gibson with Ms McCann | Victoria Legal Aid |
HER HONOUR:
1 Frederick O’Connell, you have been found guilty of two charges of common law assault and one charge of intentionally causing injury, following a trial in which you pleaded “not guilty” to all charges on the indictment.
2 The indictment contained a charge of intentionally causing serious injury with the alternative of recklessly causing serious injury in respect of the victim, Allan Robertson, and it was agreed as between the parties that statutory alternatives of intentionally causing injury and recklessly causing injury arose from the allegations concerning those charges. Consequently, you were found guilty of the offence intentionally causing injury but in circumstances where, although the seriousness of the injury was litigated, you took issue with the entire scenario, as painted by the victim and other witnesses called by the prosecution.
3 The offence of intentionally causing injury carries a maximum penalty of ten years’ imprisonment, and common law assault has a maximum penalty of five years’ imprisonment.
4 I must now sentence you in accordance with the jury verdicts concerning this matter, and I do so on the following factual basis.
5 On or about 29 June 2007, after you had been drinking during the day on 28 June 2007 at the Sam Knott Hotel on the Warburton Highway, Westburn, and after having been asked to leave the hotel by the barman, Wally Lejian, you assaulted him by pushing him to the chest. This gives rise to Charge 1.
6 You then left the hotel and were found by Allan Robertson immediately outside the building in a drunken state. Mr Robertson gave evidence that he then helped you to your car, expecting that you would sleep in your car until such time as you sobered up. Having escorted you to your car, Mr Robertson, who had also been drinking at the hotel, said that you entered your car through the boot as there was apparently something wrong with the locks to the car doors. You confirmed that this is what you did in your record of interview. However, instead of taking advantage of the kindness that Mr Robertson had bestowed upon you and remaining in your car to sleep off your drunken state, you took hold of a metal wheel brace and attacked Mr Robertson with it. In his evidence he said that he was struck once to the centre top of his head and then to the right-hand side of his head and at one point he fell to the ground. He recalls being struck twice or perhaps three times and was bleeding from his head afterwards. I sentence you on the basis that you made contact with the victim’s head on two occasions, using the wheel brace.
7 It would appear that you only stopped attacking Mr Robertson when fended off by another or other patrons from the hotel. This is not precisely clear from the evidence given in this regard. Kim Dosser gave evidence that she took the wheel brace from you. However, there is a suggestion from Mr Robertson that others may have come to his aid.
8 The injuries which were documented when Mr Robertson attended hospital were as follows:
(i) Firstly, a four centimetre jagged laceration which is an irregular cut to the right side of the scalp.
(ii) Secondly, a seven centimetre long abrasion behind the right ear.
(iii) Thirdly, a five centimetre area of swelling and abrasion- a loss of skin in the middle of the scalp.
(iv) Fourthly, three abrasions measuring one centimetre with swelling and redness over the left front of the scalp.
(v) Fifthly, multiple shallow abrasions along the right upper back.
(vi) Sixth, a six by three centimetre area of swelling and tenderness in the right lower back.
(vii) Seven, a one centimetre abrasion over each elbow.
(viii) Eight, an abrasion on the back of the right hand.
(ix) And nine, a two centimetre abrasion on the front of the left knee.
9 In the circumstances, it would appear that the injury caused by the two blows were the first four injuries to which I have referred and that the remaining injuries may well have been caused by Mr Robertson going to the ground in a bid to try to avoid being further struck by you, as he described in his evidence.
10 Mr Robertson required treatment in respect of the first of these injuries- that is, the jagged laceration to the right side of the scalp. He elected to have the wound surgically glued and was offered paracetamol for pain relief. From notes made by a Dr Flynn, who examined Mr Robertson, a neurological examination was performed and no neurological injury was found. Mr Robertson denied any double vision or loss of vision and was mobilising easily, although he did complain of a frontal headache. He had pain and bruising over the right lower back which was worse with movement and tended to be very tender. When cross-examined, Dr Cobelas, who gave evidence of these injuries and their treatment, confirmed that the victim had denied any loss of consciousness and that his blood alcohol concentration, which was taken at 2.45 am, was .169 per cent.
11 The prosecution relied on the injuries to which I have just referred and submitted to the jury that, in combination, they constituted serious injury. However, this was obviously rejected by the jury who found you guilty in respect of intentionally causing injury.
12 After you had assaulted Mr Robertson in this most savage fashion, you were subjected to “summary justice” as your counsel put it.
13 The records indicate that you had signs of head trauma with swelling and bruising around the right eye and also bruising of the left temple and small laceration of the left earlobe, as well as multiple superficial grazes on your back. You had CAT scans of the head, face and brain which indicated no sign of fracture. There was soft-tissue injury surrounding the right eye but no sign of any fracture. You were noted to be alcohol affected and had a variable degree of consciousness impairment. Your blood alcohol content was .25 per cent at the time that your blood test was conducted, which was 2.30 am on 29 June 2007.
14 The factual basis upon which I sentence you in respect of Charge 5, common law assault, is that following the incident in the hotel car park, and after you were assaulted, you were placed in an ambulance and ambulance paramedic, Margot McIntyre, attended upon you. She was trying to assist you, but in your drunken state, you were abusive and unco-operative. The offending which gives rise to Charge 5 is that you spat blood in Ms McIntyre’s face in the course of your ride to the hospital. In your record of interview, you indicated that you were “acting real violently” when asked if a policeman got into the ambulance with you. You said that this was because you had heard the voice of “Rob”, a reference as I understand it, to Robert Poulter, and that you were threatening him and others whilst in the ambulance.
15 However, it is apparent that you were aware of your surroundings when in the ambulance and it must have been apparent to you that Ms McIntyre was doing no more than attempting to treat you for your injuries. Your conduct in assaulting her in this fashion is despicable and I regard this as a serious example of common law assault. I say this because you were attacking someone who was in the helping profession and trying to help you. Moreover, by choosing to spit blood at her, you placed her at some risk in the event of transferring some disease you may have had to her. You may well have been angry about what had occurred at the car park when you were assaulted but this in no way justified your actions towards Ms McIntyre.
16 In terms of the offence of intentionally causing injury which was committed by you, I regard this as a fairly serious example of that offence. Mr Robertson was fortunate, and so too were you, that the injuries that you intentionally inflicted upon him were not more serious, indeed life threatening, than those actually sustained. By choosing to use a metal wheel brace on a defenceless man, and in circumstances where there was absolutely no provocation, I regard your offending as quite serious.
17 You have numerous prior convictions in New Zealand dating from March 1977. Many of the offences are in respect of burglary or theft but you have the following matters in terms of offences against the person or for violence.
18 On 13 May 1983, you were convicted of two charges of threat to kill or to do grievous bodily harm and sentenced to six months’ imprisonment.
19 On 14 May 1984, you were convicted and sentenced for resist police, possess an offensive weapon and common assault, and you were ordered to undertake six months’ non-residential periodic detention.
20 On 8 August 1984, you were convicted and sentenced to one month’s imprisonment for assault police.
21 On 30 July 1985, you were convicted and sentenced to three months’ imprisonment for common assault and carrying an offensive weapon.
22 On 3 May 1988, you were convicted and sentenced to one year’s imprisonment for attempted sexual intercourse with a girl aged between 12 and 16 years.
23 On 16 December 1997, in this State at the Lilydale Magistrates Court, you were convicted of two charges of assaulting police or a person assisting police and you were fined $250.
24 In order to determine the question as to your mental state at the time of this offending, and since, I have considered a chronology of events, and that which you reported to various doctors/psychologists/psychiatrists along the way.
25 The incidents giving rise to the offences for which I now sentence you occurred on or about 29 June 2007.
26 You were then interviewed by police on 15 October 2007 and charged and bailed on 16 July 2008.
27 Your first consultation at the Yarra Junction Medical Centre was on 15 December 2008 for a sinus infection, and I refer to the letter from Yarra Junction Medical Centre dated 25 May 2011 which is Exhibit 2 on the plea.
28 On 10 February 2009, there was a filing hearing in this matter and after three adjourned committal mentions, two of which were made by defence, the matter was booked in for a contested committal hearing on 15 July 2009; that is, this was the date of the committal mention where the matter was booked in for a contested committal hearing.
29 On 9 December 2009, some two and a half years after you committed the offences, you attended Yarra Junction Medical Centre and gave a history of the incident of 29 June 2007. You gave a history of an alleged assault in 2007 and said that you were treated at Maroondah Hospital for head injury. You told a doctor at that time that you suffer from Post-Traumatic Stress Disorder with anxiety and panic attacks and had done so since this incident. It is apparent that it was not the doctor who came up with this diagnosis, but you; it is not apparent as to the source of your information in terms of such a condition that you understood you were suffering from. You were then referred to psychologist, Kaileen Pearson, for psychological counselling.
30 Unfortunately, Kaileen Pearson could not be located, having moved from the rooms where you saw her, and so a report was not forthcoming for the initial plea hearing. However, her consultation notes concerning you were obtained by your legal advisers after making a Freedom Of Information Application. They reveal that you saw her on five occasions, the first being 8 January 2010. You apparently indicated to her that you were seeing her because your solicitor had recommended this and because of Post-Traumatic Stress Disorder.
31 A strong picture which emerges from those notes of Ms Pearson is that you were reporting to her difficulties in respect of your mental state and general well-being since and apparently arising from the incidents of 29 June 2007. It is apparent that Ms Pearson was of the view that you were suffering from Post-Traumatic Stress Disorder, depression, and anxiety, and had the potential to harm yourself or others in the community, referring to others who had assaulted you to your perception and I refer to the entry in her notes dated 15 January 2010.
32 On 8 January 2010, Ms Pearson recommended that you attend your general practitioner and enquire about anti-depressants; you said that you would do this as soon as the appointment with her was over; that you liked the idea of this as it may decrease your anger and other difficulties, but as at 15 January 2010 you had failed to attend Dr Colombage’s surgery for this purpose.
33 On 19 March 2010, you told Ms Pearson that whilst in a maximum security prison, you had witnessed a man having his throat cut, who died; that you could not say anything to anyone as you would have been killed too. This reportage does not seem to feature in the reports of Dr Cunningham or Dr Glowinski of Forensicare, who were later asked to assess your mental health. You reported to each of these experts trauma that you had experienced in your childhood and you also referred to your incarceration in New Zealand because of offending which, at least, in part, you were led to commit by your father; but you made no mention of this apparently significant event whilst in gaol. I find that omission quite surprising; although, it does seem that the effects of alcohol abuse may well have interfered with your memory skills.
34 On 18 January 2010, you commenced anti-depressant/anti-anxiety medication, prescribed by Dr Colombage of Yarra Junction Medical Centre.
35 On 19 February 2010, you attended the medical centre for review and were advised to continue medication and counselling and a repeat prescription for Aropax was given for a period of six months. You have not attended the clinic since 19 February 2010.
36 On 3 March 2010, the contested committal hearing was conducted in relation to matters with which you were charged and the hearing finished on 5 March 2010, when you were committed on all charges.
37 A report from Dr Aaron Cunningham dated 15 June 2011 was tendered on your behalf upon the initial hearing of your plea. He had met with you at the Melbourne Assessment Prison on that date. The background referred to in the report and relied upon by your counsel, Ms McCann with Mr Gibson indicates that you reported a very difficult childhood and a father who was violent towards your mother and was in and out of gaol. You described him as, to quote you, “as a violent, nasty, standover man”. Your mother you described as quiet and placid and you reported being the unfortunate witness to such violence perpetrated by your father upon your mother. Your father was also incarcerated for assaulting your mother on several occasions.
38 You also reported that a good deal of your criminal history in New Zealand was the product of your father recruiting you for burglaries in which he was involved.
39 You reported to Dr Cunningham that you spent most of your younger years in Campbell Park School which was a home for, to quote you, “troubled boys”. You lived at this school from age 12 to 15 years. You said that this was a good experience save that you kept running away from the home and would be corporally punished with a strap when you tried to do this.
40 When you were 15 years old, you returned home but soon you were placed in Owairaka Boys’ Home and youth detention. You reported suffering physical abuse in these homes and said that you were getting into trouble with the law because of your father taking you on burglaries.
41 You had three long-term relationships whilst in New Zealand that you reported to Dr Cunningham. Your first relationship produced two children with whom you have had no contact for some time. This relationship ended when you were incarcerated. You then embarked on a six-year relationship with a Marie Clarke. One daughter was born of this relationship. Intermittent periods of incarceration put an end to that relationship. You have had no contact with your daughter from the second relationship. Your third relationship is with your current wife, Rebecca O’Connell, which has lasted for some 16 years and you have one child, Stormy Jane, who is five years old.
42 When you were 36 years old, you moved to Victoria with your wife, apparently in a bid to escape your past and criminal associates. This was also motivated by Mrs O’Connell’s wish to unite with her father. You worked for the next eight years and you and your wife lived in caravan parks around Australia, following the work that was available to you.
43 You reported to Dr Cunningham that at the age of 42, you settled in Shepparton and were struggling financially. You said that you met a man who reminded you of your father and began to fall back into, to describe, what you say, “theft behaviour”. As I understand it, this gave rise to the matters which are referred to by the learned prosecutor this morning which were dealt with in 2008 where you received a 150 hour Community-based Order in respect of one charge of burglary and one charge of theft. You then moved to a fruit farm in Yarra Junction where you lived for five months out of the year.
44 You have not spoken with your family in New Zealand for 16 years and indicated that your family was racist against your Maori wife.
45 You reported that your father pulled you out of school at the age of 13 years, saying that you did not need an education because you needed to support the family through the commission of burglaries.
46 You had engaged in fruit picking in Australia but after this incident you have apparently stopped doing this, obtaining employment as a sub-contract painter for Government accommodation. On the plea I was handed a reference from the employer in relation to painting and decorating work which I assume has something to do with what you told Dr Cunningham in this regard. Your employer indicates that the job that you had would be available to you upon your release from custody.
47 You reported to Dr Cunningham that you smoked cannabis intermittently and drank alcohol in order to become intoxicated once or twice per month. You said that you drank two to three stubbies per day after work and six to eight stubbies on the weekend with friends. You cut down your alcohol intake following this incident, apparently having had some insight into the connection between what had occurred and imbibing alcohol.
48 A mental state assessment was conducted upon you by Dr Cunningham. You reported prior diagnoses of depression, anxiety and Post-Traumatic Stress Disorder. In the course of the initial plea, I was handed two letters from your general practitioner who had apparently referred you to psychologist, Kaileen Pearson, and I have already referred to those letters.
49 Dr Cunningham stated that you said to him that you were starting to think that your childhood experience of abuse was triggered by the circumstances of the current offences. You said that you used to think that you were good at assessing people’s motives but that you were now thinking that you had been misinterpreting people’s behaviour due to paranoia. You indicated that following the events of 29 June, you stayed awake all night, guarding the house for fear that you would be attacked and that you were suffering in gaol because of paranoia. You are too scared to go out of your cell, but when you do leave it you are pacing up and down continually.
50 Dr Cunningham assessed you as meeting the Diagnostic and Statistical Manual of Mental Disorders’ criteria for Post-Traumatic Stress Disorder. He said that such disorder stems from your exposure to abuse and trauma in your childhood home and requires significant psychological intervention and community support to treat this condition. He indicated that you had begun to form some insight into your symptoms and their childhood origin. The insight was seen as a positive predictor for treatment.
51 Dr Cunningham assessed you for the presence of malingering and/or deception, subjecting you to another test which showed that you had a very high probability of genuinely responding; that there was no indication of malingering. He indicated that when you were assessed for risk of future violent offending, you presented as a moderate risk for this. He was of the view that your untreated Post-Traumatic Stress Disorder significantly contributed to such a risk.
52 In summary, Dr Cunningham was of the view that you had a cognitive function in the below average range and that your offence-specific risk factor was your alcohol abuse at the time of the offences. I must say that this is interesting in view of the fact that he does not appear to make any mention of your inebriation on the night of the offending in the body of his report. However, he does mention this in the course of the summary and opinion and indicates that your level of intoxication would have impaired your insight and judgment at the time of the offence. In his view, you might experience greater deficits in thinking and reasoning when intoxicated compared to an individual with average cognitive function.
53 He is also of a view that your Post-Traumatic Stress Disorder stemmed from your childhood history; that such a disorder is a severe psychological illness which causes significant symptoms of clinical anxiety and depression. The paranoid symptoms that go with such a disorder impair your thinking and reasoning by leading you to misinterpret behaviour as malicious and threatening.
54 Dr Cunningham said that such a disorder led you to interpret the behaviour of other males in the offence as a direct threat to your safety. It appears that he may have come to such a conclusion on the basis of what you say the events were on that evening. However, on the basis of Mr Robertson’s evidence and that of others, there were no other males in the car park at the time that you assaulted Mr Robertson, save for him; and he certainly was not threatening you at all, but rather trying to help you to your car. He was outside your car and you were able to lock it and keep him out, if you were experiencing such feelings of threat on that particular occasion.
55 Dr Cunningham also indicated that the disorder can lead to impulsivity and a propensity toward anger and that in the context of alcohol abuse disinhibition, your symptoms contributed to your violent behaviour. Again, this seems to be on the basis of what you have said, perhaps intermingled with what the victim says occurred to him in the car park. The difficulty is that Dr Cunningham seems to be partially basing his opinion in respect of a link between your offending and mental condition upon the events as described by you, but rejected by the jury. Notwithstanding this, the evidence does indicate that a short time before you attacked Mr Robertson, you had been ejected from the hotel and perhaps may have perceived some hostility towards you from other patrons because of the circumstances in which you were made to leave.
56 Dr Cunningham reported that you have shown insight into the link between Post-Traumatic Stress Disorder and your childhood, as I have already indicated, and the distortions of thinking which is caused by such a disorder. He believed that prior psychological engagement contributed to such an insight and that you would benefit from further treatment through a community-based psychologist. In this regard, as I have tried to do, I have referred to a chronology of events in order to place the view of Dr Cunningham in some proper context and I was also helpfully provided with a chronology in the course of the plea, to I have had regard (which is Exhibit A).
57 Mr O’Connell, I must tell you that following the initial hearing, I had some considerable disquiet about Dr Cunningham’s diagnosis of Post-Traumatic Stress Disorder and the purported link of such a condition with your offending. To that end I ordered that you undertake an assessment with an appropriate expert through Forensicare, and such report was then provided; prepared by Dr Glowinski, psychiatrist. He saw you via video link on 5 July 2011.
58 You gave a similar history to that given to Dr Cunningham. You reported to Dr Glowinski that after you committed these offences you had reduced your alcohol intake from a minimum of six stubbies of beer per day to a maximum of six stubbies per night, and sometimes you had abstained altogether. You also said to him that although you had not been able to work for some time due to emotional difficulties, you now felt you were able to do so as a painter. You wish to move to Perth or Queensland when financially able to do so, as you told him; that you felt the situation in Yarra Junction, following your offending, was unrecoverable.
59 You denied having any emotional or psychological difficulties before the offences for which I now sentence you. You reported that after these offences, you became heavily paranoid, and started carrying around a screwdriver for protection. Your paranoia seemed to be aimed at those who you encountered on the occasion of your offending at the hotel. You said that there had been murder threats levelled at you and your family.
60 At times you said you did not recall much of the incident leading to these offences and yet you continued to give an account, painting yourself as an innocent victim. You also said you believed that the police had, to quote you, "trumped the whole thing up" to cover up for an insufficient investigation of the crime scene and also accused them of, to quote you, "doctoring witnesses" including the ambulance officer. You said that numerous witnesses had perjured themselves in your trial.
61 Dr Glowinski found that you regarded yourself as a victim in respect of the offences before me, and also in respect of other aspects of your life. Toward the end of the interview you said to Dr Glowinski (to quote you) "Maybe, I just believe my own lies. Maybe, it’s my defence mechanism. I don’t know any more".
62 Dr Glowinski noted, as do I, that although there were numerous offences committed by you in New Zealand during your childhood and early adulthood, you were able to come to Australia and have been largely offence free for a number of years- although, of course, there are the burglary matters and the one matter at Lilydale Magistrates' Court to which I have previously referred.
63 He said that you appear to carry a general sense of being under attack which may have sprung from your childhood experience and have developed a personality structure, involving elements of paranoia. Dr Glowinski indicated that your tendency towards being persecuted, to quote him, "has coalesced and been given focus in the aftermath of your offending". (Page 5 of his report).
64 He found that you had a significant lack of insight and considered the possibility of a delusional disorder; he does not give a final diagnosis of this but said that he did not think that Post-Traumatic Stress Disorder "captures the unusual nature of your belief system and the discord of your unshakeable belief in the accuracy of your account", referring to the events of 29 June 2007. But he said that in either case, it did not seem that you were suffering the ill effects of any psychiatric illness at the time of the offending, but these have developed subsequently. He urges the court to take into account your present vulnerabilities and that you ought be further assessed in a bid to have you properly diagnosed and treated.
65 Dr Cunningham indicated that someone with your condition would have a more onerous experience of prison compared to someone without Post-Traumatic Stress Disorder, and that your symptoms were being triggered by the gaol environment. He was of the view that you had made progress in terms of your insight into your symptoms and their possible origin. He said that long-term engagement with psychological treatment and adherence to psychotropic medication would positively predict rehabilitation.
Application of Verdins’ Principles
66 On the basis of Dr Cunningham’s report, it was put to me by your counsel, Ms McCann, who gave a most eloquent plea on your behalf, I might say, that there was a demonstrable link between your Post-Traumatic Stress Disorder and the offending on this occasion, such as would justify a reduction in your moral culpability, and reduce the weight that I would otherwise place on specific and general deterrence. Further, she submitted that because of the fact that you were operating under such a condition at the time, there was a reduced need to impose a just punishment or denounce your conduct. She further submitted that time in gaol would be harder for you than for someone without your condition, which would warrant a further reduction in the sentence that you would otherwise receive. However, on the basis of the report of Dr Glowinski, it does not appear that you were suffering symptoms of any psychiatric illness at the time of your offending, but that these have arisen since; and this seems to be echoed also in the notes of Kaileen Pearson who saw you closer to the time of the offending.
67 As Mr Holding pointed out, I have to be satisfied by cogent evidence that there is a demonstrable link between your offending and any symptoms of psychiatric illness or impairment of mental functioning such as are shown to have been operating at the time and contributed to your offending. In the end I have come to the view that I am not so satisfied, but that rather your symptoms have presented themselves after these offences were committed. The fact of it is that on the night of this offending you were severely affected by alcohol, and it appears to me that this was what fuelled your violent behaviour on that occasion. Therefore, I will not allow for reduced moral culpability on your part; nor do I moderate specific and general deterrence or the need to punish you or to denounce your conduct.
68 However, in light of your present difficulties I allow for the fact that time in custody for you will be and has been harder than for those not so afflicted.
Delay
69 I have partly recited the history of this matter already, but to make it plain, whilst the incident occurred on or about 29 June 2007, your trial was finally heard between 9 and 19 May 2011, some four years after the incident. Your plea was heard initially on 15 June 2011, then there was the further plea, and finally, I come to sentence you today.
70 Regardless of the reasons for the adjournments which were sought by defence in relation to the committal mention, the fact of the matter is that there has been an inordinate delay in your matter coming to finality. I take this into account in sentencing you in two ways, both of which go in your favour. Firstly, you have had the anxiety and stress during those four years of not knowing your fate, which is something I must factor in when sentencing you. Secondly, in your case you have not re-offended in the intervening period, which is to your credit and is a positive indication in terms of your prospects of rehabilitation, and will also be factored in, when determining the weight I give to specific deterrence and protection of the community. I make it clear that I take such delay into account in these two respects, which count in your favour.
71 I have been told by your counsel that you have reduced your intake of alcohol since these events, consuming two (six-packs) of beer per week, and that you no longer attend hotels, preferring to drink at home. Of course, this was reported to me in respect of the time before you entered custody, as I understand it. You are not consuming any alcohol since being in custody. I have already referred to what you told Dr Cunningham and Dr Glowinski in this respect.
72 I also take into account the fact that you were dealt some “summary punishment” on the evening of this offending. I have referred to the injuries which you suffered at the hands of those who sought to avenge what had befallen Mr Robertson. In respect of Mr Robertson, I take into account his Victim Impact Statement, insofar as it reflects the medical evidence in this trial and I take into account that he was generally traumatised by the attack upon him. However there are matters in the Victim Impact Statement which have not been the subject of evidence concerning his further difficulties. So that whilst I take account of the fact that there has been some interference with his ability to work, I do not take into account those aspects of his Victim Impact Statement which are not supported by the medical evidence, which was referred to in the course of a trial.
Prospects of Rehabilitation
73 In terms of your prospects of rehabilitation, the risk of you re-offending is tied up with your ability not to imbibe large quantifies of alcohol and also to address your psychological condition, such as it is ultimately found to be. The fact that you have been able to stay out of trouble for the past four years, bodes well for the future, although you have a significant criminal history. You have also a significant lack of insight in respect of your offending, and perhaps generally, in terms of taking responsibility for your actions.
74 I take into account the character references provided on your behalf which attest to your otherwise good character and I also take into account that you have a strong relationship with your daughter, Stormy. Your relationship with your wife and with your daughter are good incentives for you to moderate your alcohol intake and to properly address your psychological problems such as they are found to be and to remain crime-free. I also take into account the matters that I have recited in respect of your background.
75 Mr O'Connell, in respect of your drinking habits, I put you on notice that if you were to re-offend whilst being affected by alcohol, the fact of you being affected by alcohol may well be treated as an aggravating feature of any future offending, as you now know that imbibing alcohol predisposes you to a far greater risk of committing offences. Overall, I assess your prospects of rehabilitation as fair. In view of your criminal record and risk factors, I must give some weight to protecting the community from you, especially in light of the random nature of your offending on this occasion and the matters to which I have just referred. I also give some weight to specific deterrence and a good deal of weight to general deterrence; that is, I must impose a penalty upon you which makes it clear to others who may be tempted to behave as you have, that this will be met with fitting punishment. I must also impose a punishment that is just in all of the circumstances, and denounce your conduct in committing these offences.
76 Your counsel submitted that a community-based disposition, together with a wholly suspended sentence would be appropriate in your case, in view of all mitigating features which must be taken into account, and in view of the considerations pursuant to R v. Verdins. Alternatively, a partially suspended sentence involving you to be released now was submitted as being appropriate by your counsel. However, the prosecution submitted that, notwithstanding significant delay, the seriousness of your offending and other mitigating factors (excluding R v. Verdins, as the prosecution submitted a link could not be established, and I have found that it could not) the Crown submitted that a head sentence of between two and three years with a non-parole period of between 12 and 18 months was appropriate in your case.
77 It was also put to me on your plea that if you were to receive a sentence of imprisonment for longer than one year, then this would compromise your residency and you would be required to return to New Zealand. No evidence was put before me in that regard- that is, as to whether deportation was a certainty in such circumstances. As I understand the position, it is not a certainty, albeit that you would be at risk in this regard. While the prospect of deportation can be a relevant consideration for the purposes of sentencing, such a prospect must be more than just speculative on assertion from the Bar table, as I understand the authorities. In order to have such a matter taken into account, evidence ought be provided that quantifies the risk of deportation. I refer to the case of Guden v R [2010] VSCA 196 at paragraph 25 to 26; and to 28 to 29, and the cases there cited; and I also refer to the matter of DPP v Yildirim [2011] VSCA 219. This has not been done and so I do not take it into account.
78 In the end, I have come to the view that a further period of imprisonment is warranted, and that a Community-based Order is not, in view of the seriousness of the offending and your criminal history, notwithstanding the matters in mitigation. Nor am I of the view that a wholly suspended sentence or a partially suspended sentence, which allows you to be released now is appropriate. However, in all of the circumstances, I will impose a sentence at the lower end of the Crown’s range.
79 Would you please stand up, Mr O’Connell.
80 I make the Disposal Order which is being sought by the Crown.
81 In respect of Charge 1,( the assault upon Wally Legion) you are convicted and fined $100.
82 In respect of the offence of intentionally causing injury (to Alan Robertson) you are convicted and sentenced to two years' imprisonment, which will be the base sentence.
83 In respect of Charge 5, the assault upon Ms McIntyre, you are convicted and sentenced to six months’ imprisonment. I order that two months of the sentence on Charge 5 be served cumulatively upon the sentence on the charge of the two years which I have imposed for intentionally causing injury, producing a total effective sentence of two years and two months. I order that you serve 12 months' imprisonment before becoming eligible for parole. I declare that you have already served 78 days by way of pre-sentence detention in respect of this sentence which I now impose.
84 Are there any further matters, counsel?
85 MS McCANN: No, Your Honour.
86 HER HONOUR: Yes, thanks. You can remove the prisoner. We will adjourn.
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