Director of Public Prosecutions v Priest and Anor.

[2014] VCC 2098

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

AT GEELONG
CRIMINAL JURISDICTION

CR-14-01675
CR-14-01676

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES KEEGAN PRIEST
DAMIEN RICHARD PRIEST

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	11 November 2014
DATE OF SENTENCE:	19 November 2014
CASE MAY BE CITED AS:	DPP v Priest & Anor.
MEDIUM NEUTRAL CITATION:	[2014] VCC 2098

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Gibson	Office of Public Prosecutions
For Offender J. Priest	Mr H. Rattray	Dowsley & Associates
For Offender D. Priest	Mr A. Zingler	Robert Starry Lawyers

HIS HONOUR: 

1James Priest and Damien Priest, you have pleaded guilty intentionally causing serious injury to Mr Wayne Gates and to intentionally causing injury to Ms Jamie Nicholls.  You, James Priest, have pleaded guilty to false imprisonment of Jamie Nicholls.

2I will shortly make orders imposing sentences which you well know will involve imprisonment.

3You and the community are well entitled to know the reasons for the sentence.  They are lengthy, but nonetheless, endeavour to comply with the simple directive of the Court of Appeal in R v Storey when it was said that the task of a sentencing judge is to consider what you did and why you did it as well as who you are.  I add for myself the importance of also discerning what your futures hold.

4James Priest, when you were 19 you met Jamie Nicholls and formed your first important relationship.  You travelled with her from your native New Zealand to Western Australia.  From there you moved on to Geelong and by this time the two of you had had your first child.  Your second child was born in Geelong and you obtained solid, well paid work at an abattoir and then at Alcoa.  You had a third daughter. 

5By late 2012, or even early 2013, you may well have thought that your life was stable and looking bright.  Your partner, Ms Nicholls, had a cousin living in the western suburbs of Melbourne, a Kelly Flemming.  She was in a relationship with Mr Wayne Gates.  You and your partner saw a good deal of Ms Flemming and Mr Gates.

6It was said that Ms Flemming and Mr Gates used ice and were struggling with addiction.  To do something to separate herself from bad influences, it seems, Ms Flemming moved in with you in Geelong in 2013.  Shortly after Mr Gates moved in as well.  You, Mr Priest, were the sole income earner in this group. 

7What followed was that your partner, Ms Nicholls commenced a relationship with Mr Gates.  When you learn of it you were devastated by this and in particular that Ms Nicholls had commenced using ice and was taking the family money to pay for that drug.

8You took time off work to try and get help for Ms Nicholls and play a more direct role in raising your three daughters.  You lost motivation and ultimately you lost your job. 

9You did not want Mr Gates around.  In October 2013, when he did come to your house in Geelong, you attacked him and his car with a tomahawk.  You were arrested and ultimately fined by a magistrate.  This should have been a warning to you not to respond to your situation with violence.  It was a warning, unfortunately, that you did not heed.

10You deteriorated psychologically and made an attempt on your life.  Your brother, Damien Priest, then in stable employment with a good job in New Zealand decided to come to Australia and support you. 

11Ms Nicholls went with the three children to a house in Winchelsea and you, Mr James Priest and you, Damien Priest, were planning, it seems, to move to Melbourne and start afresh.  Everyone, no doubt, wishes that that had occurred.

12On 29 January 2014 the two of you men met up with Ms Nicholls and the three girls in Eastern Gardens in Geelong for a picnic.  After, what I presume, was a pleasant event, they went back to Winchelsea.  You two were planning to head to Melbourne after staying the night in the car in Geelong, but you did not go up the road to Melbourne, rather, in the early part of the morning you drove to Winchelsea. 

13You got into the house and found Mr Gates in bed with Ms Nicholls.  You, Mr James Priest, lost control, became enraged and then the two of you commenced a brutal, frightening attack on both Mr Gates and Ms Nicholls. 

14They were taken by surprise, waking to find you both on their bed.  You, James Priest, first attacked your ex-partner, punching her and kneeing her when she fell out of bed.  She was able to run to the front door but you, James Priest, followed her stopping her escape. 

15Through all this you, Damien Priest, were fighting Mr Gates.  You were calling out to your brother to give you help.  On your way back to the bedroom, James Priest, you went to the kitchen and got a knife. 

16Now armed, you went into the bedroom and joined in the attack on Mr Gates.  You stabbed Mr Gates in the buttocks and hip or pelvis area.  The force used must have been considerable because you left pieces of the knife in at least his pelvis bone.  The two of you seriously beat Mr Gates to his head and torso.  Both of you men are fit and powerful.

17The extent of Mr Gates's injuries revealed the great force that you used to hurt him.  He was rendered helpless and both of you left.  As it turned out both of you took off for Sydney; being arrested there some days later. 

18Ms Nicholls had got help from neighbours and called the police and an ambulance.  Before the ambulance arrived Mr Gates was seen covered in blood, not breathing and struggling for breath.

19When the ambulance arrived Mr Gates was agitated and confused and not responding to verbal commands.  His Glasgow Coma score was as low as three out of 15 at some point.  It was clear he had sustained multiple injuries including a closed head injury.

20The situation was, obviously, very serious but it significantly deteriorated when he had a cardiac arrest in the ambulance.  His heart was able to be re-started after three minutes of resuscitation by expert MICA paramedics. 

21He was air-lifted to the Royal Melbourne Hospital where he was put in an induced coma and his breathing occurred through a ventilator and he remained on a ventilator for some time. 

22He was cared for in the intensive care unit for 12 days and his whole hospital stay was 37 days with then further lengthy periods in rehabilitation facilities in Melbourne and later in Geelong as an in-patient and out-patient.  I will turn to the long-term consequences for Mr Gates shortly.

23His injuries included multiple facial fractures.  These were described as Le Fort fractures, a medical categorisation, that indicates significant fractures of many facial bones in different dimensions.  Fractures of this kind are indicative of a great force being used in the blows or blunt force trauma inflicted. 

24The injuries he sustained were set out in the medical reports and read by the prosecutor in his opening. 

25Doing my best to translate the injuries into language ordinary people can understand it seems Mr Gates sustained fractures to both eye sockets involving orbital floor and both sides of the orbital socket.  A fracture to the bone connecting the orbital bones to the bones of the skull near the temple.  These significant and large bones are called the greater wing of the sphenoid.  There were multiple and significant fractures to both sides of the jaw bone or mandible involving fractures and dislocations high up on the jaw at the condyle neck and the next section down, the ramus. 

26The fractures were comminuted, meaning the bone was shattered into fragments, bespeaking a very significant force upon a bone structure not easily broken, let alone, shattered. 

27There were fractures to a plate, which is part of the facial or skull bones above the jaw, near the eye socket.  Mr Gates's perigoid plates were described as heavily comminuted meaning significant shattering fractures.  Another part of the one structure in the same region is the carotid canal which is the passageway of the carotid artery which goes up from the neck delivering blood to the brain.  The right canal was fractured. 

28On any analysis, these dreadful and very significant fractures of facial bones are telling of the great force used on Mr Gates.

29There were other injuries including the collapse of the right lung and stab wounds leaving pieces of the bread knife in the right side of the pelvis. 

30He had a partial amputation of his left ear, again, revealing the great force used on him. 

31The injury of, perhaps, the longest lasting and most debilitating consequences, was Mr Gates's traumatic brain injury. 

32It is considered by the expert physicians as properly described, or categorised, as an "extremely severe traumatic brain injury", which together with the secondary hypoxic damage caused when he had a cardiac failure, has resulted in severe and permanent cognitive impairment.  That life-changing and distressing outcome for Mr Gates is based on what the rehabilitative specialist, Dr Toni Hogg, says in her report and I quote. 

33"Wayne demonstrated a fundamental slowing of information processing which affects every aspect of his cognitive functioning.  He has specific difficulty learning and spontaneously retrieving information, particularly auditory verbal material.  Even if repeated, he struggles to spontaneously retrieve this information after the briefest of delays.  Against this background of deficits he demonstrated intact basic inattention and visuo-spatial construction was a relative strength.  The results of his severe cognitive slowing and poor verbal memory impacts on every aspect of Wayne's life and he has required a case manager to help him secure Centrelink Disability Support Pension and housing support.  His life has continued in a chaotic fashion and he is now locating to supported accommodation at a country town in Victoria because he fears for his life in Geelong.  He is unfit, from a medical perspective, to hold a driver's licence because of his severe cognitive impairment which impacts on his previous occupation as a truck driver.  It is unlikely that he will ever be fit again to regain a truck driving licence and it is also unlikely that he will remember that he has had a driver's licence cancelled which puts him at risk of difficulty with the law". 

34Mr Gates's life has forever changed by the violent attack of you men.  He writes with assistance in his compelling Victim Impact Statement that, "The crime will have a life-long effect on me". 

35He had plans for himself, his then partner, Jamie Nicholls, her children and his own seven year old daughter but all those plans have been dashed.  He is now isolated and on his own. 

36He was a hardworking, skilled truck driver with many licences, but that career is over.  Financially, he is dire straits and he writes, "I've never been homeless before, never.  I've always had my own place and always worked.  I'm now linked to a Bethany program and have an allocated case manager who works with people like me 'homeless, complex cases' and I guess in my case complex means disability.  It is still hard for me to take in how my life has changed.  I feel I have nothing now.  The old me has been taken away because of the crime.  I'm not the same person I used to be".

37As well as ongoing physical problems arising from his facial injuries, such as dribbling when stressed and not being able to control his tear ducts, so it looks like he is constantly crying, he adds this.  "It takes me a long time to get going in the morning.  I'm stiff and sore all over like an old man.  My body won't do what my brain tells it to do.  I feel retarded and can't co-ordinate my body.  Sometimes I get called names, like, 'spastic'  and so on.  People can see that I am different now".

38He goes on.  "I have had terrible trouble swallowing and my talk and speech were badly affected.  I've done a lot of rehab to learn to swallow.  Everything I ate used to get stuck and it still does sometimes and I've had to learn to drink a cup of coffee again".  He will never be 100 per cent.  He speaks about his voice box being damaged when the physicians were working on him.

39As well as these ongoing physical problems he says, in his simple and heart-felt words, the following.  "I am sad and depressed every day.  I don't really sleep well at night but when I do sleep I often wake up feeling stressed and worried about what the future holds for me.  There is a huge difference in me now to what I remember about my life before the crime.  I am different, emotionally and physically".

40He obviously has significant cognitive deficits but he does not quite appreciate the extent of that.  His words expose his uncertainties when he writes, "The physical rehabilitation and testing is ongoing.  I'm told my brain has been affected but I'm not sure in what way.  I know when I get stressed things go backward for me, not just in my brain, but in my body.  My physical health goes backwards".

41As spoken about in the expert rehabilitation report it is clear that he will not be permitted to drive but the fear is that he will not appreciate this and that could lead to difficulties.  He writes in his Victim Impact Statement, "I'm not sure if I can get my licences back and I'm not sure if I can get my truck and car licences back.  Everything is suspended because of the injuries I sustained.  I know in myself I won't be able to do the things I did in the past but I'm hoping to have a car and truck licence still.  I'm not sure what I'll do if I don't have that".

42I am required to consider the impact of your crime on the victim.  Also it is a factor in my required assessment of the gravity of what you did and your moral culpability.  I should, before making those assessments, not overlook the crime of intentionally cause injury upon Ms Nicholls. 

43She was set upon and punched receiving soft tissue injuries.  It was, for her, a most frightening experience. 

44Your attack, especially on Mr Gates, was sustained and of almost unbridled ferocity.  It is plain you intended to cause serious injury and you achieved that in no uncertain terms.  The categorisation of causing the maximum injury possible, or really serious injury, are now complicated by the creation by our Parliament of other offences of gross violence subsequent to the decision of the Court of Appeal in Nash v The Queen. 

45I make it plain you are not to be punished for crimes you do not face.  In the end, I am satisfied you intended to cause serious injury, and on that spectrum of serious injury yours is significantly advanced, but short of the categorisation of an intention to cause really serious injury.  In the event, you did cause life-changing injury as was conceded by your counsel – both of your counsel. 

46I do note and have taken into account you both, for instance, did not intend for Mr Gates to have a cardiac arrest resulting in a lack of oxygen to his brain.

47However, what makes this a grave example of the crime of intentionally causing serious injury, is that you acted in company, combining your own already significant powerful force, into the overwhelming power of the two of you. 

48You, James Priest, were in the end, armed with a deadly weapon which you used multiple times causing awful injuries and leaving part of the knife in Mr Gates's body.  You attacked him when he was vulnerable, asleep in bed in a home he was well entitled to feel safe in.  You did so when children were present in the house, your own children, James Priest, no doubt causing them in the long-term fear and possible trauma. 

49When you, James Priest, were attacking your ex-partner she tried to speak to your sense of decency and reason.  She says as she bled from the face at the front door, "I don't feel well, please get help.  Help me".  You at first said, "Oh, shit, okay" and then you turned and said, "I'm gunna fuck you up now".

50Although your brother was calling for help you could have gone and grabbed him and taken off.  Rather, you armed yourself and joined in the escalation and violence against Mr Gates.  Your moral culpability is very high.  That is true, to an extent, in respect of you as well, Damien Priest.

51Ms Nicholls was entitled to leave the relationship safely and establish a new relationship without fear for herself or her new partner.  Men who feel rejected must understand, that if they resort to violence thinking the slight to them justifies such conduct, then they are very much mistaken.  It is a compounding matter, that this terrible violence was in fact a re-assertion of dominance by a male once involved with a woman, whose perceived wrong, to say that the relationship is over and I am moving on. 

52The courts will meet this social evil with stern punishment which endeavours to re-assert decent values of equality and respect. 

53That said, and given the concessions relating to drug use, I take into account that this was an eruption of rage in the moment when you, James Priest, realised that Ms Nicholls was still involved with Mr Gates and thus likely with drug use. 

54While that, in some senses, goes to the question I raised at the outset of why you did what you did, it does not excuse it.  The courts must reinforce the important values I have spoken of and also the value of respect for the law as the way of sorting out such problems. 

55Both you men have pleaded guilty before there was a contested committal.  That is in your favour and I have ensured that your punishment is less than it would otherwise have been as a consequence.  Your pleas followed the charges crystallising into the ones on the indictment.  I do not regard you as ever doing anything other than facilitating a resolution of the matter as opposed to fighting the charges.

56Your plea is a rightful acknowledgement by you both of your dreadful crimes and your responsibility for causing such life-changing impact on Mr Gates.  Acknowledgement of that responsibility, in the circumstances, is no small matter.

57I am well convinced of your remorse.  You are weighed down with what damage you caused.  You recognised how you have ruined Mr Gates's life, and caused real damage to the lives and families of others, including your own. 

58You, James Priest, also feel keenly that your brother is in the predicament he is in as a consequence of your problems.

59What you have done to your own lives is all the more unfortunate because of the real potential each of you plainly had to live productive lives absent this outburst of violence. 

60In your favour is your remorse, your regret and your shame and that has been factored into the various sentencing considerations that I must have regard to. 

61As brothers your early personal circumstances are aligned.  Your parents split up early and you spent time with each resulting in many schools and interruption to your educations.  Your mother was unstable, it seems, due to the effect of too much alcohol and gambling. 

62You, James Priest, left school at 17 at Year 11 level.  You got work in an abattoir and took these skills to Australia when you migrated with Ms Nicholls.  You have never had any interest in drugs or the excesses of alcohol. 

63Your father wrote and your cousin, Ms Ricki-Lee Warner, wrote and also gave evidence before me speaking highly of your dedication as a father.  Ms Warner was taken aback at your violence as she knew you as a placid man, hardworking and family oriented. 

64Those that know you have emphasised your real remorse.  Ms Warner says that you are, "Completely broken over your actions regretting what has happened every day".

65You, yourself, wrote a letter expressing your deep remorse and your insight into your own failings, as you now think carefully and deeply about your own predicament and the problems facing Mr Gates.  All this is to your considerable credit.  In and of itself it is important, and additionally, your remorse allows for confidence that on your release you will remain out of trouble and fully reformed.

66The separation of you, James Priest, from your children is and will be deeply felt.  I should add, I was impressed also with the letter from your ex-work mate at Alcoa, Mr Blythe, who saw you as a man of real potential and substance.  The crimes do not fit the man he knew at work. 

67Your work history is very much to your credit and again allows the confidence about your rehabilitation. 

68I take into account your suicide attempt and the high level of stress and despair you felt at the end of your relationship.  The important point remains that men cannot react with violence no matter what depth of despair they feel.

69Your prior driving matter is of no consequence.  Though, as outlined, the early attack on Mr Gates in his car, is a factor against you in respect of deterrence to you. 

70You have done all you can while on remand with the available courses to learn new skills and improve your insight into your anger and failure to cope.  That is to your credit. 

71You, Damien Priest, are the elder sibling by just a year.  It is accepted by all that your role and your conduct in the crimes was less than that of your brother.  You are without any prior criminal history and I must ensure this is not lost in the mix of sentencing considerations.  You are entitled to ask for a more merciful sentence because of your past good character.

72You have a solid and impressive work history since you left school as a teenager. 

73You took on parenting responsibilities at the very young age of 17.  You have two young daughters who moved to Queensland with their mother in 2008.  You remained in New Zealand but were keen to become involved in their lives around the time of this offending. 

74You displayed a degree of blind loyalty to your brother in jumping into a fight which was, in truth, his problem.  You had heard of his difficulties coping with the breakdown of his relationship so you came to Australia to support him.  You learned of his serious suicide attempt and remained here supporting him. 

75You have a close relationship with your cousin, Ms Warner, who spoke impressively of your better qualities.  She told me of your loyalty that may have led to your ultimate downfall.  Your violent conduct was, to her mind, completely out of character.  Your father wrote in similar terms in a letter that I have taken into account. 

76Those that know you speak of your deep remorse as well.  You, too, wrote of your shame and desire to make amends.  I have no doubt you are remorseful and can make a good fresh start upon your release.  You will, in all likelihood, resume your previous lawful life. 

77You, too, have done all you can while in prison in terms of courses and learning new skills and this is to your credit.  No doubt, you will continue to get what you can from your time in gaol. 

78For both of you there is no other alternative but the grave step of ordering you be imprisoned and for a significant term.  Your crime was, as your lawyers conceded, a serious example of the crime of intentionally causing serious injury. 

79Cases in the upper range of seriousness attract lengthy terms, approaching or exceeding double figures  Such sentences expressed, as must be the case, proper denunciation and deterrence to others who may consider engaging in terrible violence that forever diminishes another person's life.  Other sentence in other cases are fixed or determined by the unique circumstances of those cases but I am mindful of the various circumstances and sentencing outcomes in those cases, including those set out in the table of cases attached to the decision of the Court of Appeal, already mentioned of Nash v The Queen.  I have also considered other conglomerations of sentencing outcomes for this crime.

80I am mindful of the yardstick provided by the sentencing statistics and also, and importantly, the yardstick of the long maximum term of 20 years that Parliament has attached to this crime.  I am also mindful of the need to ensure that I give emphasis to the human dimension of this matter rather than pure mathematics. 

81It was put by Justice Nettle, just in June of this year, in these terms: 

"High authority dictates that we must regard other sentences as relevant comparatives.  That the complexities of sentences are not susceptible to precise mathematical comparisons.  They necessitate consideration, not only of the nature and gravity of an offence and the injury which may have been inflicted, but also of the nature and circumstances of the offender, his prospects of rehabilitation and the needs of community protection.  Potentially, therefore, the variables are unlimited, and to a large extent, of a nature incapable of more precise measurement than informed subjective assessment.  Therein lies the essence of the sentencing discretion and why it is that there is no one, necessarily, correct sentence for a given offence or an offender, only a range of sentences above or below which it is in error of law to go".

82There must be some measure of cumulation because of the separate but less serious crime of intentionally cause injury to Ms Nicholls.

83It is accepted by all, and I agree, there needs to be a different and lower sentence imposed on you, Damien Priest, because of the circumstances of the offence and your role, especially that your brother was the one who armed himself and used the knife, and also your lack of previous violence as compared to your brother's incident with the tomahawk.

84I do not need to say much about the period I have allowed for potential parole save for the obvious.  Whether you get parole and when, is for others, not me. 

85Also the minimum term I fix is what I assess as the minimum incarceration that justice requires in all the circumstances, those circumstances being, all the factors relating to the offence and to you as the offender. 

86Apart from that there are no formulas or fixed percentages.  You will need assistance to re-settle after release and I hope it is sufficient time, but again how long precisely that will be, is for others.

87I hope it has been made clear in my remarks thus far, that the foremost sentencing considerations are punishment for and denunciation of your grave crimes, deterrence to others who may consider acting in like ways, small measure of deterrence to you, personally, James Priest, and likewise, a small measure of protection of the community because of the extent of the violence and in your case, James Priest, your previous outburst of violence. 

88Your rehabilitation is not overlooked but here, rightly, it must yield to these other matters.  You still have much of your lives to live and I hope and am confident that you will be productive, ultimately, but of course, that is up to you men to make good the sentiments of regret that you have expressed.

89Doing the best I can I impose the following sentences and I just ask you to stand.

90I will deal with you, Mr James Priest, first.  Mr James Priest, for committing the crime of intentionally causing serious injury to Wayne Gates, I impose a sentence of eight years imprisonment. 

91For committing the crime of intentionally causing injury to Jamie Nicholls, I impose a sentence of one year imprisonment.

92For committing the crime of false imprisonment of Jamie Nicholls, I impose a sentence of six months imprisonment.

93I order that six months of the charge of intentionally causing injury, Charge 2, be cumulative upon Charge 1.

94That gives a total sentence of eight and a half years and I fix a minimum term of six and a half years before you are eligible for release. 

95I make declarations as to the period of time that you have already served and indications to you as to what I would have done had you pleaded not guilty to these offences after I have dealt with Damien Priest. 

96Damien Priest, for committing the crime of intentionally causing serious injury to Wayne Gates, I impose a sentence of imprisonment of six years and nine months. 

97For committing the crime of intentionally causing injury to Jamie Nicholls, I impose a sentence of nine months imprisonment. 

98I order that three months of the sentence imposed on the intentionally causing injury, Charge 2, be served cumulatively upon Charge 1, giving a total sentence of seven years and I fix a period of five years before you are eligible for parole. 

99Both you men have served 289 days in custody and that has been reckoned and I declare that that period of time is part of the sentence that I have just imposed. 

100I will ensure that this declaration is entered into the records of the court so that the prison authorities are left in no doubt that you have already served 289 days of the sentence I have just imposed.

101James Priest, had you pleaded not guilty to this offence and been found guilty of it, I would have imposed a sentence of ten years and six month with a minimum term of eight years and nine months.

102Had you, Damien Priest, pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of nine years with a minimum terms of seven years and six months. 

103I will make orders that have been sought from me with respect to disposing of evidence or aspects of the offence.  I think it is to know.  Are the mathematics or arithmetic right?

104MR GIBSON:  Yes, Your Honour. 

105HIS HONOUR:  Just a small cumulation, that is all in order?

106MR GIBSON:  Yes, Your Honour.

107HIS HONOUR:  Is there anything else required?

108MR GIBSON:  No, Your Honour.

109HIS HONOUR:  Both you men can be seated for the moment.  I take it that the Disposal Order hasn't come through in

110the ‑ ‑ ‑

111MR GIBSON:  We've got it.

112HIS HONOUR:  Thank you.  I will just sign that now. 

113(His Honour signing orders.)

114I thank counsel for their very significance assistance, including Mr Norton, of course.  If there's nothing further, Mr James Priest and Mr Damien Priest can be removed. 

115MR GIBSON:  If Your Honour pleases.

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