Director of Public Prosecutions v Powell, Danny
[2013] VCC 288
•8 March 2013
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-01247
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANNY POWELL |
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JUDGE: | His Honour Judge McInerney | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 March 2013 | |
DATE OF SENTENCE: | 8 March 2013 | |
CASE MAY BE CITED AS: | DPP v Powell, Danny | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 288 | |
REASONS FOR SENTENCE
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Subject: Criminal law – plea – sentence
Catchwords: recklessly cause serious injury – recklessly cause injury – domestic violence – alcohol abuse by offender and victim – no prior criminal convictions for violence
Legislation Cited: ss.17 & 18 of the Crimes Act 1958 – s.18 of the Sentencing Act 1991 – s.6AAA of the Sentencing Act 1991
Cases Cited:
Sentence: total effective sentence of 2 years and 6 months imprisonment with a non-parole period of 12 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Hoare | Ms S. Threlfall Office of Public Prosecutions Regional Prosecutions |
| For the Accused | Mr S. Payne | Ms M. Mangan Victorian Legal Aid |
HIS HONOUR:
1 In this matter the prisoner, Mr Powell, has pleaded guilty to two charges in Indictment Number C10254097.1.
2 The seriousness of these charges is demonstrated by the fact that the maximum penalty prescribed by Parliament in regard to Charge 2, of recklessly cause serious injury, is one of fifteen years. Insofar as Charge 1, of recklessly cause injury, the sentence also is one of imprisonment, maximum sentence of five years, obviously though not as serious in regard to Charge 2.
3 The prisoner comes before the Court essentially without any priors of violence albeit for a longstanding resisting police matter. He is of the age of fifty and has pleaded guilty. Against that, of course, has to be balanced what appears to be, certainly in regard to Charge 2, an extensive and extended period of assault.
4 The background to these offences relate to the relationship between Mr Powell, his fiancée and the Sharpes. Apparently prior to these circumstances, Mr Sharpe decamped from where he was living, with Mr Powell, with Mr Powell's fiancée. Subsequent to that Mrs Sharpe has associated with Mr Powell, to use the words of Mr Payne in "consoling each other". It is obvious that part of that consolation related to a considerable amount of alcohol and clearly both parties are used to extensively abusing alcohol.
5 It seems that the victim, as a chronic alcoholic and has been such for some time, to the extent that she has a cerebral injury as a result of alcoholism and one only has to look at the photos of the victim to understand that. Clearly, from what I gather, Mr Powell is not of such a degree.
6 However, Mr Powell apparently has had extensive and long term alcoholic problems, and certainly as an indication, on this night he had allegedly no memory of what happened, but especially in regard to the circumstances on the 22 January 2012, that is the said events. One only has to look at the photos to see the numerous assaults that were carried out.
7 It is quite clear, from the fact that there were no ongoing issues and no fractures, that the assaults were not of a severe magnitude, although numerous, and also the fact of the dragging of the victim is important to understand.
8 There is, of course, no issue as was set out in the Crown statement that both of them were intoxicated. One has in the depositions, the report of Dr Joanne Love, the forensic officer, and of course one has the photographs.
9 I must say that the answers provided by Mr Powell in the record of interview were somewhat reprehensible. Comments about "She doesn't do what she's told", "You've got to use just the right amount of force". These seem neanderthal comments by a man in this day and age talking about how to deal with a woman. Mr Payne, even though your client is fifty years of age, he needs to grow up and come into the modern world. Talk about dealing with a woman in such a manner is outrageous.
10 However, to give Mr Powell his due, despite what he initially said in the record of interview, he has pleaded guilty. While that does not necessarily indicate remorse it is a matter that entitles him to a discount because of its utilitarian effect.
11 It is always difficult when you have a person before the Court who has never been to gaol before. Traditionally, this Court always extends mercy to persons who are in that position, especially a person who has got to the age of fifty years. He has obviously had a good background, his mother is in Court supporting him. He is well qualified and unfortunately, because of the very early experience in his employment, he has been cruelly affected insofar as his health is concerned because of the impact of his first job, which has impacted upon him quite dramatically, in the sense of the ongoing problems of sores and scarring atrophy which has led to prolapse. That prolapse itself must create difficulties in regard to his employment as a carpenter.
12 Sentencing in these circumstances is difficult for a Court. On the one hand is the revulsion felt in the community, as expressed by our Parliament in the maximum penalties provided for assaults, especially assaults producing a combination of injuries upon which the Crown rely on this case to effect the serious injury. As I said, there are unhealthy aspects to that in the sense of the extent of it and the amount of bruising. However, against that one must look at the reality as to the quick recovery and the limited physical consequences being nil in the sense of long term. However, one of course cannot disregard the statements as to the emotional effect upon the victim as set out in the victim impact statement.
13 There is no effective dispute between counsel that this is a matter worthy of a sentence of imprisonment. The question is really a question of how to structure that. While I did not seek advice from the Crown in response to the propositions put by Defence, the Crown has put a range essentially in regard to the minimum. It seems to me upon reflection that that is not too far short of the mark and having taken account of all the matters put to me by Mr Payne, I will sentence as follows.
Sentence
14 You can stand up please, Mr Powell.
15 Mr Powell, on Charge 1 you are sentenced to a period of imprisonment of nine months.
16 On Charge 2, you are sentenced to a period of imprisonment of two years.
17 I order that six months of the sentence on Charge 1 be served cumulatively with the sentence on Charge 2, making a total effective sentence of two and a half years imprisonment.
18 I order that the minimum period that you must serve prior to being eligible for parole is a period of 12 months imprisonment.
19 I declare pursuant to s.18 of the Sentencing Act 1991 that the two hundred and eighty-one days that you have served are to be deemed as service of this sentence.
20 So that that means in layman's terms, Mr Powell, that you will serve the balance of a year over and above your two hundred and eighty-one days to date. All right?
21 I declare pursuant to s.6AAA of the Sentencing Act 1991 that had Mr Powell not pleaded guilty I would have sentenced him to a period of imprisonment of three years with a minimum of two years.
22 I do not consider, given the circumstances of this case and the background of Mr Powell, that it is necessary to impose a forensic sample order, pursuant to s.464ZF of the Crimes Act 1958. I do not see a risk of recidivism of this type.
23 One would hope, Mr Powell, that you have gained from this. Obviously gaol for you has been very difficult and I take that into account to the extent that I can. However, in the end all the consequences come down to you.
24 OFFENDER: Could I say something?
25 HIS HONOUR: No. Such consequences apply because of what you have done. And in those circumstances it ill befits you to come before the Court and say "I'm not enjoying gaol". You are only getting gaol because of what you have done yourself.
26 You, obviously, in the future need to align your life in a situation where you are not placed in a position by way of alcohol where you lose all capacity to control yourself. Because if you do you are going to be back in front of this Court and you will not get any leniency next time. Do you understand that?
27 OFFENDER: I was arrested for rape, Your Honour, not for assault.
28 HIS HONOUR: You are not before the Court for the rape, are you?
29 OFFENDER: No.
30 HIS HONOUR: Well, what is the point of that? Why do you want to tell me that?
31 OFFENDER: Well, that's why I was arrested.
32 HIS HONOUR: You might have been. I am not worried about that at this stage, I am worried about sentencing you for assaulting a woman.
33 OFFENDER: Yes.
34 HIS HONOUR: And gravely assaulting a woman.
35 OFFENDER: Since I've been in gaol Suzanne and her husband, Ed, have gone to my place and burgled it, taken about $9,000 worth of my stuff.
36 HIS HONOUR: Yes, well I cannot deal with that. That is up to the police to deal with. Yes, I do not think there is any point in me taking the matter any further. Any matters that need to be raised?
37 MR HOARE: No Your Honour.
38 MR PAYNE: No, Your Honour.
39 HIS HONOUR: Yes. Mr Powell, Mr Payne will explain those matters to you and if you have got any beefs with what has gone on since you have been in gaol, well you will have to go and see the police about it. All right? Thank you.
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