Director of Public Prosecutions v Price

[2024] VCC 1336

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00310

DIRECTOR OF PUBLIC PROSECUTIONS

v

XZAVIER PRICE

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2024
DATE OF SENTENCE:	30 August 2024
CASE MAY BE CITED AS:	DPP v Price
MEDIUM NEUTRAL CITATION:	[2024] VCC 1336

REASONS FOR SENTENCE

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Subject:             Criminal law - sentence

Catchwords:      Plea of guilty to one charge of recklessly causing injury and two summary charges – fight in moving vehicle - fractured rib caused by punch - in company with others – in public – long term drug abuse – extensive criminal history – 22 years old.

Sentence:          TES imprisonment for 285 days

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms G. McMaster	OPP
For the Accused	Mr H. Moodie	Peter Lunt Lawyers

HER HONOUR: 

1Mr Price, you have pleaded guilty to one charge of causing injury recklessly and the two summary characters, driving while disqualified and commit an indictable offence while on bail. 

2To return to the circumstances that the prosecutor read out just a few moments ago, in the early hours of 21 February 2022 the complainant, Dale Russell, received a phone call from a man known to him as Damien Jones.  Jones asked Russell to meet him in relation to using or buying drugs.  They met in a Coles car park in Lilydale.  They talked before walking to Russell's car, where they were joined by you and a third man called Hayden Stoyles.

3It was agreed that you would drive Russell's car to his home and that Jones would follow in another car.  You got in the driver's seat of Russell's car and he got in the front passenger seat.  While you were driving Russell started to argue with you and told you to stop the car and to get out because he did not want you coming to his house.  The two of you began to fight.  You punched Russell and wrestled with him, causing Russell's rib to fracture.  This is the charge on the indictment, recklessly causing injury.

4You lost control of the car and crashed into a tree.  You continued to fight and the car rolled back into another tree.  Russell locked the car with you in it and when Jones arrived he tried to get into the car.  Russell got out of the car, Jones ran towards him throwing punches at him.  Russell ended up on the ground and felt weak and unable to get up and found he was bleeding.

5You and Jones then left the scene.  Russell drove his car home and friends took him to hospital where he was treated for life-threatening injuries comprising three stab wounds to his back and a fractured rib.  Chest drains were inserted due to bilateral lung collapse.  His wounds were sutured and he was given antibiotics, intravenous fluids and a medication to stop the bleeding.  Russell remained in hospital till 28 February and it took several weeks for his rib to heal.

6The prosecution accepts that you have pleaded guilty on the basis that who stabbed the victim is unclear but that you caused the injury to his rib in the course of the fight.  The fight had been witnessed by members of the public, who made a statement.  Russell made a statement soon after the incident, leaving out some details as to who was involved and what happened.  You were arrested on 23 February 2022 for an unrelated matter and observed to have a cut on your face and scratches on several parts of your body.

7At the time of the offence you were on bail and you were disqualified from driving,  hence the two summary charges.  You were remanded on the date of your arrest and released on 3 March 2023, having served a sentence of three months for other matters during that time, leaving 285 days of pre‑sentence detention.  Stoyles was discharged at committal and Jones pleaded guilty to a single charge of affray.  He was convicted and sentenced to 120 days' imprisonment, which was reckoned as already served. 

8The complainant provided a victim impact statement in which he described his fear for his family because of people coming to his house as a consequence of the incident.  We just heard that victim impact statement read aloud to the court.  This has caused him to leave his house and his job and to isolate himself, as he no longer trusts people.

9Turning now to your own personal background and some circumstances relating to that, you are one of three children born to your parents and you live with you father and your two young step-siblings.  Sadly, your mother died when you were six years old, just after your parents separated.  Your father remarried, but your stepmother, to whom you were close, died when you were in high school.  You have been diagnosed with post-traumatic stress disorder, possibly connected with these deaths.

10You left school the same year your stepmother died, in Year 10, and did not complete any further education but started working with your sister in her furniture restoration business.  You have also partially completed a bricklaying apprenticeship and have worked in that industry. 

11You used cannabis as a teenager and have experimented with a wide range of illicit drugs against a background of a long-standing habit using methamphetamines since the age of 18.  Your criminal history commenced at that time and you have been before the courts many times, mainly for driving and drug-related offending but also for possession or carrying weapons variously classified.  However, there are no previous appearances for violent offending.  Sentences have generally been community-based, but in 2021 you served a non-parole period of 18 months mainly for drug-related offending.  For a young man it is quite an extensive record.

12As to your prospects for rehabilitation, you have completed a safe driving course and were in the process of obtaining your driver's licence until recently, both of which could be regarded as encouraging signs.  You have had stable housing and family support and employment available to you.  These would ordinarily be regarded as protective factors and no doubt some of them will still be in the future.  Treatment for drug abuse would be another.  All these positive indicators have become somewhat academic in the face of more recent events.

13Following the sentence indication given on 30 July 2024, your arraignment and the hearing of the plea was adjourned to 1 August 2024.  You failed to appear on that date.  The hearing was further adjourned to 6 August and again you failed to appear.  A warrant was issued and you were brought before the court on 14 August.  In the meantime you had appeared in the Magistrates' Court and had been remanded in custody in relation to a large number of charges, some of which are said to be serious. 

14You are due to appear again in the Magistrates' Court soon. I will come back to that later.  In September and October there are further mention dates and no application for bail is contemplated.  I was invited by your counsel to proceed to sentence on the premise that you would be remaining in custody for the foreseeable future in relation to those matters.  I had indicated that an appropriate sentence was time served of 285 days with a Community Correction Order, but of course that is no longer open. 

15Both general and specific deterrence must be highly important components of your sentence.  The offending was serious, committed in the company of two others, and a knife was used, causing very serious injuries to the victim.  The offending was potentially dangerous for others, commencing in a moving vehicle and spilling onto the road in view of members of the public, which did not act as any deterrent at the time.  It was in effect continuation of your criminality that has become established since your relative youth, as I said, at only 22 years of age.

16However, there are a number of matters in mitigation.  Some leniency is due on account of your period on remand, having been subject to some restrictions caused by the pandemic, which are still affecting prisons as well as the wider community.  It was submitted on your behalf that your sentence having been served on remand for almost 10 months, by inference, you have not had the benefit of programs and courses that might be available to a sentenced prisoner and I take that into account.

17You pleaded guilty at what can be called an early stage, as soon as an offer was made by the prosecution, even though the trial was due to start the day after the sentence indication hearing.  I note that the trial indictment included far more serious charges and may have taken up to 10 days.  The complainant's credibility and reliability were in issue and he was the crucial prosecution witness.  Although he gave evidence at the committal, the plea has spared him from having to give evidence again at a trial.  Accordingly the utilitarian value of the plea is high and deserving of a meaningful discount on sentence.

18I have mentioned your youth and, although I must take it into account, it has diminishing mitigating force because of your continued history and the serious nature of the offending.  Your rehabilitation, however, does remain an important consideration.  Your counsel's submission at the earlier hearing was that time served is a sufficient sentence and at that time the prosecution submission differed on the issue of a Community Correction Order to address your use of drugs, and that has been reiterated by the prosecutor today.

19It was not put that your offending on this occasion was committed while under the influence of drugs, but your criminal history indicates a close connection with drug abuse and offending.  For that reason I had considered that a Community Correction Order dealing only with drug assessment and treatment would be an important adjunct to your sentence, being clearly needed in terms of both your rehabilitation and community protection.

20At that time I considered that your prospects for rehabilitation were probably reasonable but would seem to depend considerably upon remaining drug free.  Your recent alleged offending and consequent remand have put that order out of reach at the present time.

21The maximum penalty for recklessly causing injury is five years' imprisonment, for driving while disqualified it is two years' imprisonment or a fine of 240 penalty units and for committing an indictable offence while on bail it is three months' imprisonment or a fine of 30 penalty units.

22Mr Price, I am going to sentence you now to a sentence of 285 days for the indictable charge.  For driving while disqualified and for committing an indictable offence while on bail I sentence you to prison for one month for each of those offences, to be served concurrently with the prison term.  I declare that the 285 days' pre‑sentence detention be declared as already served and I shall note that on the court record.

23I make no further order in lieu of the Community Correction Order that I had intended to impose.  If you had already been sentenced for the matters which are currently outstanding I would have taken into account the principle of totality in regard to that sentence.  You have spent some days on remand already and considerably more time is contemplated, with no application for bail being made.  Of course the future is a matter of speculation and I take that time into account only in an overall sense.

24If you had pleaded not guilty to these charges I would have sentenced you to a total effective sentence of 12 months with a three-year Community Correction Order. 

25Are there any other matters?  First of all, Ms McMaster, have I neglected or missed anything?

26MS McMASTER:  No, we've done the s6AAA, Your Honour, so that's good.

27HER HONOUR:  Yes, that was it.  Yes, thank you.  anything else, Mr Moodie?

28MR MOODIE:  No, Your Honour.

29HER HONOUR:  Thank you.  I hesitated a bit over the mention date in the Magistrates' Court.  Was it last week that he was ‑ ‑ ‑

30MR MOODIE:  I think there was one yesterday.

31MS McMASTER:  Yes, and then there was going to be October I thought.

32HER HONOUR:  Yesterday, all right, thank you.  I'll just fix that.  Thank you, Mr Tipstaff.

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