Director of Public Prosecutions v Pinsent

[2016] VCC 1368

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01027

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEAU PINSENT

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	13 September 2016
DATE OF SENTENCE:	14 September 2016
CASE MAY BE CITED AS:	DPP v Pinsent
MEDIUM NEUTRAL CITATION:	[2016] VCC 1368

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms G. Overend
For the Accused	Mr N.R. Leslie

Pages 1 - 6

 

 

HER HONOUR: 

1Beau Pinsent, you have pleaded guilty to one charge of recklessly causing serious injury.  The maximum penalty for this offence is 15 years' imprisonment.  As to the circumstances of your offending, they are fully set out in Exhibit A, the summary of prosecution opening upon plea.  I was provided with CCTV footage from the hotel where the offence occurred, Exhibit B, which I viewed and describe as follows.

2You were out with friends, drinking in the early hours of the morning of Sunday 10 May 2015, at an Irish pub in Wantirna South.  You and your friends are depicted enjoying yourselves on the dance floor, though at one stage there is an exchange between you and Mr McDonald, another patron who is trying to get past you.  Mr McDonald goes past and you continue dancing with your friends.

3About four minutes later Mr McDonald has come past you again.  I understand that he had, after a conversation with security, agreed to leave the premises and he was on his way out.  I was informed that you were not aware of that agreement.  When Mr McDonald came past you, you struck him to the right side of his face with our elbow hitting his jaw.  He fell onto a chair or table close by and was knocked unconscious.  He is seen soon thereafter being attended to and assisted in walking by staff.

4Your actions were unprovoked, quick and vicious.  You were taken away by security immediately after the assault, though you were not compelled or requested by staff to wait for police to attend.  You left the premises soon thereafter.

5Police attended after you had gone and Mr McDonald was taken to hospital, where it was determined he had sustained a fractured jaw and a superficial laceration and bruising to the right side of his head.  Mr McDonald required surgery and had a plate inserted in his jaw.  He was discharged from hospital on 12 May.

6I received a victim impact statement from Mr McDonald and it was read aloud in court.  I take that material into account, Exhibit C.  His injuries were painful and he required assistance with eating for a number of weeks.  It is apparent that your actions have impacted on his life in many ways, including initially his capacity to work and his level of confidence in social situations.

7You were contacted by police and arranged an interview with them regarding this incident on 23 May 2015.  You made a no comment interview.  You were released pending a summons that was not issued until 2 March 2016.  No satisfactory explanation for this delay of nine months has been provided by the prosecution and it is somewhat inexplicable, given the CCTV footage.  The matter resolved at committal mention on 14 June 2016.

8You are currently aged 22, though at the time of this offence you were 21.  You are a young offender.  You have the support of family and friends; your parents and your sister attended court with you.  Additionally your sister provided a character reference.

9You completed Year 10 at school and have been employed since leaving school initially bricklaying and then roof tiling.  You completed an apprenticeship in roof plumbing early this year and have been with the same employer, NJM Roof Plumbing, for the last five years.  I received a reference from your employer.  It is apparent you are viewed as a reliable, hard-working and honest employee and that you provide valuable assistance to other more junior staff.  Your employer, who is aware of you in a social context, has indicated his view that this behaviour was out of character for you. 

10I was informed on the night of this assault that you had been consuming alcohol with your friends, though you maintain that you were not heavily intoxicated.  That is consistent with your presentation as viewed in the CCTV footage.  Your resort to violence in this public and social context is, however, inexcusable.  By your plea to this offence you accept that, though you did not intend to cause serious injury by your actions, you were reckless as to the consequences.  That is you saw the probability that serious injury would result.

11I take into account your plea of guilty.  You have pleaded guilty at the first opportunity and you will receive the full benefit of the plea.  Further, there is the utilitarian benefit in the plea.  None of the witnesses, particularly Mr McDonald, was required to give evidence and you have saved time and cost to the community by not running a trial. 

12I also accept that your plea is indicative of remorse.  I heard evidence from you in relation to that aspect and it is apparent to me that you are remorseful and recognise the effect of your conduct on yourself, but more importantly on the victim.  You indicated that you have modified your drinking habits since this occurred, perhaps reflective of your understanding of the effect alcohol can have on your behaviour.

13Of concern to me is your prior conviction for this same offence at the Children's Court in February 2013.  I was informed that this matter proceeded as a contested hearing and that you were, without conviction, placed on a youth supervision order, which you successfully completed.  The circumstances of this offence related to a fight outside a party you had attended with your cousin.  The situation escalated, whereby the victim suffered a puncture wound; however, no weapon was ever located.  Again alcohol played a role in your involvement in this offence.

14I am conscious of the remarks made by the Court of Appeal in Mogoai v The Queen [2014] VSCA 219 at paragraph 14, that although prior findings of guilt should not be given disproportionate weight, it is a matter that is relevant to the leniency that might otherwise have been shown to you and the other relevant sentencing matters listed therein.

15There were some aggravating features of this offence.  It was an unprovoked, vicious attack by you with your actions directed at the victim's head.  Although there was no weapon used and the assault was of short duration, the effect on the victim has been significant.  The victim, and as are other members of the public, is entitled to feel safe in this social environment. 

16In Russell (2010) 244 VR 471 at 62 it was recognised that in matters of this nature there are conflicting sentencing considerations. On the one hand there is a great public benefit in the rehabilitation of an offender, a young offender in particular, and in the maximising the prospect that the offender will carry on a law-abiding life in the future. At the same time, the prevalence of street violence or, in this case, random violence in a public place is such that deterrence must of necessity be a significant sentencing consideration.

17This offence occurred approximately 16 months ago.  You have not been in trouble since and I accept that you have modified your behaviour.  That change may be reflective of the recognition by you of the seriousness of the consequences of your actions on this night and you have had the final resolution of this matter hanging over your head for this period of time.  Given your age, family support, good work history, your plea and remorse, I accept that your rehabilitation prospects are good.

18Principals of general deterrence, denunciation of conduct and just punishment are applicable to your offending.  Given your prior offending, specific deterrence also has a role to play. 

19Your counsel submitted all sentencing purposes could be met with the imposition of a community correction order, relying on Boulton and the principles therein.  The prosecution submitted that a term of imprisonment was the only appropriate disposition.  I had you assessed by Corrections for the purpose of determining your suitability for a community correction order.  Your conduct in engaging in this unprovoked act of violence is troubling.  Young men who engage in this kind of conduct need to be sent a message that the community will not tolerate such actions and that those who engage in it will be punished. 

20Taking all relevant sentencing considerations into account and given your age, family support, employment and good rehabilitation prospects, I am, however, prepared to place you on a community correction order with the punitive aspect being work in the community.  You will be required to be subject to supervision and to participate in offence-related programs as directed, including in respect of alcohol.  The order will go for a period of three years and you will be required to do 200 hours' community work.  If you breach the order, you will have to come back before me.  In addition, I propose to fine you $3,000 in relation to the offence. 

21So, Mr Pinsent, what I am proposing to do is to place you on a community correction order for a period of three years.  You will be required to do 200 hours' community work in the course of that.  You will also be required to be subject to supervision of the Office of Corrections.  You will also be required to attend any programs that the Corrections people deem suitable that you should attend and also address any alcohol issues that you have.

22I understand that the conditions and the requirements of the order have probably already been explained to you and you understand the obligations.  Further, you understand the consequences of failing to meet those obligations have been explained to you and you understand what will happen if you do not do what is required under the order.  To be clear, you will come back before me for resentencing for this offence and my options will be much more limited in what I can do in relation to you.

23If you had not pleaded guilty to this matter pursuant to s.6AAA of the Sentencing Act, I would have sentenced you to a term of imprisonment of 12 months.  An application has been made for a forensic sample order.  Is that opposed?

24MR LESLIE:  It is not opposed.  I have explained it to Mr Pinsent, Your Honour.

25HER HONOUR: Thank you. Pursuant to s.464ZF(2) of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from the mouth until a sample of sufficient standard is obtained for the placement on a database.  I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under supervision of an authorised member of the police, then the sample will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.

26Now, my associate has prepared the order.  He is going to take that to you to sign.  Sorry, yes, what I am also going to require you to do, Mr Pinsent, is come back before the court again in three months' time so that I can ensure that everything is progressing as promisingly as things are at the moment.  All right.  Did you want to go, Mr Leslie, with your client?

27There are the 464 orders and I will just sign the community correction order.  Thank you, 9 o'clock tomorrow, thanks Trevor.

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