Director of Public Prosecutions v O'Farrell

[2024] VCC 579

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00256

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM ARTHUR O’FARRELL

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	MILDURA
DATE OF HEARING:	1 May 2024
DATE OF SENTENCE:	2 May 2024
CASE MAY BE CITED AS:	DPP v O’Farrell
MEDIUM NEUTRAL CITATION:	[2024] VCC 579

REASONS FOR SENTENCE
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Subject:Recklessly causing serious injury

Catchwords:              Guilty plea –– very high utilitarian value - limited criminal history – risk of prisonisation

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:

Sentence:                  Total effective sentence: 81 days imprisonment and 18-month Community Correction Order.

S 6AAA total effective sentence of two years imprisonment with a 15 month minimum term

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D O’Doherty	Office of Public Prosecutions
For the Accused	Mr G Davis	Hilton-Wood Solicitors

HIS HONOUR:

1William Arthur O’Farrell, on 1 May 2024, you pleaded guilty to:

(a)   one charge of recklessly cause serious injury;

(b)   one charge of make threat to kill; and

(c)   one charge of contravene a family violence intervention order.

Circumstances of offending

2On 29 April 2024, the jury was empanelled to try a charge of intentionally cause serious injury against you.

3On 30 April 2024, near to the conclusion of the Prosecution case, I was compelled to discharge the jury without verdict, through no fault of yours.

4You have five children with Rebecca Matthews. When the two of you separated, she re-partnered with Benjamin Wood. Your children lived with Matthews and Wood.

5You had regular contact with the children on weekends, when they stayed with you.

6On 6 August 2022, when you drove to Commercial Street, Merbein, to drop two of your children off to their mother, in a confrontation with Wood, you struck him to his left arm with a pipe wrench.

7At trial, you did not dispute you had struck Wood. Your defence was you had acted in self defence.

8Wood told the jury, he was in the car with Matthews, when she drove to Merbein to collect the children. He said, when she stopped alongside your parked car, he got out of the car’s front passenger seat to collect the children. He said, as he walked to your car, you ran at him with a bar and, as he raised his left arm above his head, you struck his forearm. He said, as he ran from you, he tripped and, when he fell to the ground you hit him twice to the back. He said, as he picked himself up, you got into the driver’s seat of your car and drove off.

9Under cross-examination, he agreed:

(a)   he had previously threatened you;

(b)   he said you had also threatened him;

(c)   the night before, he had sent abusive and threatening messages to your wife and you and, in a telephone call, said to you, “give me a time and place and we’ll knuckle”; and

(d)   when he arrived at Merbein he was wearing rings on his right hand which would hurt if he hit someone.

10He denied he got out the car, at Merbein, intending to fight you. He said he got out of the car to collect the kids.

11He agreed he had never attended for an exchange of the children before.

12He agreed he had been sentenced to prison terms twice for violent offending.

13He denied a history of schizophrenia or substance abuse. He said he smoked medicinal cannabis for epilepsy.

14Rebecca Matthews told the jury, when Wood got out of the car you ran at him, carrying a steel bar. She said you raised the bar above Wood, Wood put his arm up and you struck you with the bar. She said she then lost sight of the two of you, but heard two loud thuds.

15She said she got the children out of your car and, when you got back into your car, she approached you. She said she asked you what you were doing, you said “send him to the house, because I’m gonna kill him”.

16Two bystanders gave evidence.

17Matthew Monk told the court he was walking along Commercial Street when he heard a commotion. When he turned towards the noise, he saw you get out of a white car, carrying something like a tyre lever and walk onto the footpath. He saw Wood get out of the black Kia and approach you. He didn’t see you strike Wood, but heard a “crack”. He then saw you get back into your car and drive off.

18David Littleton told the court, as he got into his car, which was parked on Commercial Street, a black Kia, which Matthews was driving, pulled alongside his car. He saw a man, get out of the Kia’s passenger side, rush around the front of his car and confront you. He saw you hit the other man with a heavy looking object to his left side. Afterwards, he recognised you as someone he had been to school with many years earlier.

19CCTV film, from a camera located at the police station across the road, shows you get out of the car and walk quickly to the footpath in the direction of Matthew’s car. Wood’s initial movements cannot be seen. It is possible he got out of the Kia and walked in the direction of your car before you alighted from your car. The film then shows two of you, partially obscured, on the footpath, facing each other. You struck Wood with an object to his left side and chased him onto the road. When he stumbled to the ground you stopped and walked back to your car where you got the children out and gave them to Matthews. When you got back into your car she walked to the driver’s window. There was time for the two of you to have spoken before you reversed out of the parking bay and drove off.

20Matthews took Wood to Mildura Hospital for treatment of his injured arm.

21Next day, police questioned you.

22You told them Wood had threatened to harm you many times, and as recently as the night before you drove to Merbein to drop off your children. You said his threats had made you very anxious. You said when you pulled up in Commercial Street you saw him run around the side of his car with what looked to be a knife in his hand. You said you had a pipe wrench, which you had intended to drop off to mate, in the car. You said “I grabbed that ‘cause I feared for my life and the kids’ life… I jumped out to try and put a bit of space between him and the kids. I genuinely feared for their safety and mine.… So I just did everything I could to protect myself”.

23You said you panicked and swung at him. You agreed you hit him it. You said “I don’t know where I hit him. I just swung. – I was in that much of a panic I don’t really remember.… I just wanted to protect myself and the kids”. When asked what you were intending to do when you hit him he said, “just getting him away from me and the kids.”

24Dr Schreiber, a forensic physician from VIFM, told the court he reviewed the hospital records of the treatment of Wood’s injuries. He said Wood suffered a complex fracture to his left forearm. The fracture was fixed with screws and plates at operation. In Dr Schreiber‘s opinion, fractured bones generally take 6 to 8 weeks to heal.

25Relying on this evidence, which was not challenged, I am satisfied you caused Wood a substantial and protracted injury.

26Wood had surgery on 7 August 2024. He discharged himself from hospital later the same day. It appears his recovery was not complicated.

27I assess the seriousness of his injuries to be lower level of the serious injury type.

28The pipe wrench was produced to the court. It was a substantial object; it was  about 80 cm long and weighed approximately 4 kg.

29By your guilty plea, you acknowledge you were aware, by striking him with the pipe wrench, you would probably cause him a serious injury.

30I am satisfied, when you saw Wood in Matthews’ car, you believed he was a threat to you, and you needed to defend yourself from him. I accept he rushed at you, and, as the CCTV footage shows, you struck him only once, to his left side.

31By your guilty plea you accept, objectively, your conduct was not a reasonable response in the circumstances.

32Overall, I assess the seriousness of your offending falls below midrange for the crime of recklessly causing serious injury.

33I accept your threat to kill Wood was made, spontaneously, when you were feeling anxious and scared. You did nothing following it, other than drive away in your car.

34It is a low-end example of the crime of threat to kill.

35There was a Family Violence Intervention Order in force at the time. By striking Woods and threatening to kill him in the presence of Matthews and your children you contravened that order.

36Matthews’ response to seeing you hit Wood was to approach you, after you had given her the children and then got back into your car, and ask you “what the fuck you had done”. I cannot conclude she was actually fearful for herself or your children.

37There is no evidence your children saw you strike Wood. It is highly unlikely they heard the threat. Likewise, I cannot conclude either of them were fearful.

38It is a low-end example of the crime of the type.

39I accept you are remorseful.

40You were cooperative with police in their investigation.

41You attended the police station voluntarily. You gave frank answers to police questions. You admitted you hit Wood with a wrench. You said you did so to protect your children and yourself.

42At the end of the questioning you were charged and remanded in custody.

43While were in custody, you arranged for your wife to get the wrench from your friend and hand it in to police.

44Self-defence was an issue squarely before the jury. By entering your plea, you have given up the opportunity of an acquittal in the event of a retrial.

45Your guilty plea has very high utilitarian value. Additionally, it demonstrates you accept responsibility for your actions.

46You are entitled to a demonstrable sentencing benefit for it.

47You spent 81 days in remand custody, at times under lengthy lockdowns, until a Magistrate admitted you to bail. You have not reoffended since your release into the community.

48You have a supportive wife, whom you married two years ago. You live with her, and her two children, at Wentworth.

49You have stable employment as a crane operator.

50You have maintained regular weekend contact with your children, without incident.

51Under family court supervision, you have undertaken a behavioural program to constructively deal with the breakdown of your relationship with your children’s mother and you are undertaking a lengthy parenting program to help you be a good father to your children

52Your mother and two of your siblings live locally. You are highly regarded in your community.

53You have a limited criminal record, with no history of serious violent crimes or imprisonment.

54You have no history of substance abuse.

55You have no history of mental illness although, in 2021, you sought the assistance of a counsellor to help you deal with the grief of your father’s tragic death.

56Overall, I consider you have excellent prospects of rehabilitation.

Consideration

57The maximum penalty of 20 years imprisonment demonstrates the seriousness of the crime of recklessly cause serious injury. Ordinarily, a lengthy prison term would be imposed.

58However, I am satisfied you committed your crime in extenuating circumstances. Wood was a violent and threatening man. He has a history of ADHD, schizophrenia and substance use disorder. [1] He wanted to fight you. When you saw him, you were afraid and you acted to protect yourself and your children..

[1] Mildura Hospital Inpatient Assessment Order for Benjamin Wood dated 7 April 2022 (Exhibit 10).

59Nevertheless, as you accept, your attack on him is not acceptable. You must be punished for it.

60Your threat to kill Wood amounts to very modest additional criminality.

61I reach the same conclusion in relation to the family violence intervention order contravention.

62Mr O’Farrell, by the sentence I impose I must denounce your conduct, punish you, and deter you, and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.

63And I must also impose the least severe sentence necessary to achieve the purposes of sentencing.

64I am satisfied a composite sentence of a prison term equivalent to your time already spent in custody, combined with a community correction order tailored to promote your rehabilitation, can achieve all sentencing objectives in your case.

65Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charges of recklessly cause serious injury, make threat to kill and contravene family violence intervention order, you are sentenced to 81 days imprisonment together with an 18-month Community Corrections Order.

66I declare your presentence detention is 81 days. You have already served your prison term.

67In relation to the CCO, in addition to the core conditions, I impose the following special conditions:

(a)   Supervision;

(b)   Offending reduction programs; and

(c)   Mental health treatment and rehabilitation.

68While there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to two years imprisonment and fixed a minimum non-parole period of 15 months.

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