Director of Public Prosecutions v Pollard

[2014] VCC 2317

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01028

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYLE POLLARD

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	31 October 2014
CASE MAY BE CITED AS:	DPP v Pollard
MEDIUM NEUTRAL CITATION:	[2014] VCC 2317

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For The Queen
For the Offender	Mr J. Desmond

HER HONOUR:

1Kyle Thomas Pollard, you have pleaded guilty to one charge of recklessly cause serious injury, the offence occurring in the early hours of the morning on 16 September 2012.  The circumstances of your offending are set out in Exhibit A, prosecution summary of the plea opening, dated 30 September 2014 and you are to be sentenced on that factual basis.

2On Sunday 16 September 2012, you and the victim in this matter Mikhail Jones were both at the Bay Hotel in Mornington.  You did not know each other and had no contact at the pub or prior to this night.  At closing time, you both left without any incident.  At about 3.30 am, CCTV footage provided from local businesses shows you, another male person and Dylan Thatcher heading towards the Empire Mall from the Bay Hotel.  Thatcher is seen to move across the main street towards the mall whilst you and the other man approached the victim.  The CCTV footage then reveals you and a second person speaking with the victim, then one of you striking him.  When this first blow is struck, you are standing side by side with the other male.  As a result of this initial blow, the victim falls to the ground and he is then repeatedly kicked and stomped on.  He makes no effort to defend himself from the attack.

3At the time of the kicking and stomping, both you and the second male are in very close proximity to the victim who is lying on the ground.  One of you moves away for a brief period of time then returns.  The CCTV footage shows that the two of you assaulted the victim but it cannot be established that it was you who inflicted the serious injury on the victim.  The Crown case is that you and the second male are acting with common purpose and you both are responsible for the offence committed and the serious injuries he received.  By your plea you are to be sentenced on the basis that you foresaw the likelihood that the victim would suffer serious injuries by your involvement in this offence.

4Reference is made in Exhibit A to the Crown summary that Thatcher had observed you kicking the victim.  It was submitted by your counsel that I could not be satisfied beyond reasonable doubt as I would be required to be, that it was you as opposed to the other male who was kicking and stomping the victim on the following basis.  (1) That I had seen Thatcher give evidence in the aborted trial and I could not be satisfied that he was a truthful and reliable witness.  (2) On viewing the CCTV footage and consistent with Thatcher's account in his evidence in the aborted trial, Thatcher was looking in the opposite direction to where the assault was occurring, and (3) contrary to the Crown submission, the CCTV footage was not clear enough to be able to observe or attribute responsibility for specific actions of either individuals.

5I viewed the CCTV footage a number of times and I accept the submission of your counsel.  It is not possible to determine what specific acts were undertaken by you and the other assailant in beating up this victim.  After the assault, the victim was dragged a short distance by you, then you left the victim on the ground lying unconscious in the Empire Mall, Mornington.  You, the other male and Thatcher all left the scene and you called a friend Benjamin Hearne to come and collect you, which he did and dropped you off at an address in Langwarrin.  Just after 4 am, a passer-by found the victim lying on the footpath.  The victim's jeans were halfway down his legs and his underwear was partially showing.  He noticed a cigarette butt placed in the victim's buttocks.  This cigarette butt was tested for DNA and the results matched your DNA.  I make no finding against you regarding the circumstances of the location of the cigarette butt.

6000 were called for assistance, police and paramedics attended soon thereafter.  Police who arrived first removed the cigarette butt from the victim's buttocks and then placed him in recovery position.  Police noticed the victim was breathing heavily and erratically and was unconscious.  Ambulances soon arrived and the victim was ultimately transported to the Alfred Hospital via air ambulance in a critical condition. 

7Mr Jones remained in a coma for four weeks.  His injuries were life-threatening.  He suffered various injuries as a result of the attack on him including a traumatic head injury.  CT brain scan should intraparenchymal subcoronoid and intraventricular haemorrhages.  He suffered post-traumatic amnesia for a period of 50 days.  On 24 October 2012, he was transferred to a rehabilitation unit and was discharged into the care of his family on 6 February 2013.  He has ongoing impairment including spasticity in his right arm.  He has no memory of the assault.

8The most recent medical report in respect of the victim was dated 28 October 2013.  He was reviewed at the Alfred Hospital on 20 August 2013, and at this time it was noted that he continued to show improvement clinically, continued to show evidence of spasticity in his right arm, his walking had improved and he had commenced running based activities, he was involved in some volunteer work as a pre-vocation training and he was formally discharged from neurosurgical follow-up.

9Without denigrating from the seriousness of the victim's injuries, it is apparent on the material before me that the victim does not suffer from any permanent impairment, and that he is making a slow and painstaking progress to recovery.  No doubt the effects of the crime on this victim have been life altering and will impact on the remainder of his and his family's life.  However, fortunately his injuries are not, as sometimes occurs in these kind of situations, such as to leave him severely mentally and physically incapacitated.  I received a number of victim impact statements from family members and the victim, and take the admissible parts of them into account.  (See Exhibit C, D, E, F, G and H.)

10Clearly, the impact and aftermath of this crime has had a significant effect on the victim and his family who now provide care for him.  In his statement the victim says,

"I don't want people to feel sorry for me or to hover over me when I try and stand up.  I don't like it.  I like being myself.  I like being by myself, choosing when I visited my family and friends or choosing what I want for dinner.  This is totally the worst.  I'm trapped in a body that doesn’t work properly, my eyesight's really bad, I can't surf any more.  Why me?  I never hurt anyone.  I wasn't asking for this.  I just want to get in my car and drive to work but I can't."

11His mother says in her statement;

"My first reaction was shock and disbelief when I received a call from police saying that Miccal had been found unconscious and put on life support and airlifted to the Alfred in Melbourne and was in a critical condition.  Within hours I was on a plane and by Mikhail's bedside in the intensive care unit, where he spent two weeks in a coma and a further four weeks in the neurology ward with post-traumatic amnesia.  These were the worst days of our lives for our family of six.  Seeing my son lying there and not knowing if he would survive or make a full recovery.  After five months Mikhail started walking again, and with all the rehabilitation and exercise was released and we moved into a house in Rosebud.  This is where the really hard work began and continues until this day.  Even then Mikhail has come so far, there is still no end to the issues and frustrations which arise on a day to day basis.  He cannot drive a car, depends on family a lot and has no capacity to work as a painter and decorated again.  There are still sleepless nights and the anxiety for the future, but at the same time I have a lot of hope."

12You are currently aged 24 years and are the second youngest of five children.  You were brought up in an abusive household in an environment of alcohol, drugs and violent abuse.  Your parents have separated and you have had an unstable home life, moving locations around 12 times or more and attending five different schools.  You left school at the end of Year 9.  You were introduced to alcohol at a very young age.  Despite the support your grandparents have provided to you, you have had little opportunities in life.  You were close to your grandmother Jean Tennyson, who I note has been in court with you during the previously aborted trial and this plea.  In the period of a few years before this offence, you lived with her and her now deceased husband.  His death occurred days before you were remanded in respect of this offence, and you have been denied the family support to grieve his death and I understand that you were close to him.  Your grandmother continues to support you whilst you are in custody and she has indicated that you have matured over the last two years.  (See Exhibit 1)  You have been employed on and off since leaving school for a period of about eight years.  Your employer has visited you in custody and is prepared to offer you work when you are released, (see Exhibit 2).

13You have a significant criminal history with 47 prior convictions from ten court appearances.  Many of these offences relate to traffic and other street kind of offending, but more significantly you have been convicted of a number of offences involving violence.  The circumstances of each of these offences was provided to me in the form of the related police summaries.  Although some of the details were disputed, it is apparent the circumstances of this offending were not out of character for you.

14You were convicted of offences relating to events at the date indicated as follows.  (1) Recklessly cause injury on 22 December 2004, (2) assault relating to events on 24 May 2008, (3) recklessly cause serious injury relating to events on 10 January 2009, (4) affray, the events occurring on 14 January 2009, (5) recklessly cause serious injury, events on 19 December 2009, (6) and intentionally cause injury and affray, events on 28 October 2010.  Many of these offences occurred in Mornington in the vicinity of hotels in that area. 

15Your history reveals you readily engaged in alcohol fuelled violence with little or no provocation and scant regard for the injuries to your victim or consequences of your actions.  In respect of the last of those offences, you were before this court on appeal from the Magistrates' Court on 1 March 2012.  You were convicted and sentenced to a period of 15 months' imprisonment, eight months of which was suspended.  The operational period of this sentence was two years.  Your offending in this matter breaches that suspended sentence.

16You are of course not to be punished for those offences again, and their relevance should not be accorded disproportionate weight. However, they do cast light on your moral culpability for this offence, your prospects for rehabilitation and violent propensity, and thus the need for community protection. (See R v Mogoai and Alexander [2014] VSCA 219 at [14].)

17This offence has a maximum penalty of 15 years.  There are a number of features that aggravate this offending.  i) This attack was unprovoked and the victim was defenceless; ii) You left him there.  It was purely fortuitous given the seriousness of his condition immediately after the assault that a person came by and called emergency services; iii) The victim suffered very serious injuries; iv) The beating constituted by punching and kicking the victim when he was on the ground can only be described as savage; v)  You committed this assault in company; vi) You were on a suspended sentence; vii)  You have a number of relevant prior convictions for violence.

18The Crown submitted that dragging the victim along the footpath after he had been assaulted was an aggravating feature.  However, such action was not for the purpose of attempting to hide or conceal the victim as he remained lying unconscious outside a shop front.  I do not accept this action in itself is an aggravating feature of the offending.

19A trial commenced, though the jury were ultimately discharged by me without verdict on charges of intentionally cause serious injury, recklessly cause serious injury as an alternative, and affray.  The Crown case at the trial was that you alone were responsible for the injuries to the victim.  Soon after the trial was aborted, the Crown accepted your plea of guilty to recklessly cause serious injury on an alternative basis.  That is, that you and the other person were acting in concert in committing this offence, and it could not be determined who had inflicted  which injuries.

20It was submitted that the acceptance of your responsibility for this offence on that basis was indicative of a maturation of attitude, but also remorse in relation to your involvement in this offence.  You have accepted responsibility for this offending and when the alternative basis of liability was proposed, you indicated you would plead guilty.  Your plea of guilty has saved time and expense to the community.  I am satisfied your plea of guilty in the circumstances of the history of this matter and the way it has been conducted is indicative of remorse.

21Regarding your prospects of rehabilitation, I was provided with the report from Katrina Bould, manager Community Programs Youth Support and Advocacy Services Frankston.  You have had a number of referrals to this service between 2007 and 2009 as a consequence of your involvement with Youth Justice.  Their involvement helped assist you with alcohol and drug issues and it was reported that each time you were engaged with services, that you were a respectful young person and had a well-established therapeutic relationship with those there to assist you.  The support of your grandparents was also noted.  Your involvement with this service ceased in July 2009.  It is apparent from this report that you are capable of addressing issues and are receptive to assistance.  However, as is evident from events since July 2009, you have been unable to maintain an alcohol and violence-free lifestyle for an extended period.

22Clearly any rehabilitation prospects are dependent upon your ability to stay off drugs and alcohol. The latter particularly is linked to your significant history involving violent offending. Given your relatively young age, and with that important qualification, your prospects for rehabilitation are reasonable. The Court of Appeal recently in R v Mogoia and Alexander approved the remarks of Acting Chief Justice Winneke in Wright [1998] VSCA 84 at [6].

"Youth and rehabilitation must take a backseat to specific and general deterrence where crimes of wanton and unprovoked viciousness are involved.  Particularly where the perpetrator has been given previous chances.  The kind of offending that the appellants engaged in is sadly so prevalent that general deterrence, specific deterrence and denunciation must be given prominence".

23The circumstances of this offence are very serious.  Both specific and general deterrence loom large in the sentencing considerations I have to take into account.  This is particularly so given your prior history and also to discourage those who act in a similar manner with a preparedness to consume significant amounts of alcohol and then commit unprovoked violence on the streets of Mornington in company with another male.  Also denunciation of the contact itself and your clear incapacity to control your violent tendencies means that denunciation carries a significant role in sentencing. 

24The nature of your conduct occurring as it did in the early hours of the morning with you and another under the influence of alcohol in a public street makes community protection important.  These sentencing principles  however need to be balanced with your personal circumstances and the rehabilitation issues that were previously canvassed.  If you could stand up please Mr Pollard?

25Mr Pollard, in respect of the charge of recklessly cause serious injury, you are convicted and sentenced to a period of six years' imprisonment.  I set a non-parole period of four years.  Pursuant to s.6AAA, if you had not pleaded guilty to this matter, I would have sentenced you to a period of eight years' imprisonment with a non-parole period of six years.  I declare pre-sentence detention at 752 days.  Are there any other orders?

26COUNSEL:  No, Your Honour.

27HER HONOUR:  All right, thank you.  You can remove the prisoner, thank you.

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