Director of Public Prosecutions v Rabbito
[2016] VCC 605
•12 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01384
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW RABBITO |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 and 9 May 2016 | |
DATE OF SENTENCE: | 12 May 2016 | |
CASE MAY BE CITED AS: | DPP v Rabbito | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 605 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr S. Ballek (at plea) Ms K. Aaskov (at sentence) | Office of Public Prosecution |
| For the Accused | Mr C. Terry | Victoria Legal Aid |
HER HONOUR:
1 Andrew Rabbito, you have pleaded guilty to one charge of recklessly causing serious injury. The maximum penalty applicable to that charge is 15 years’ imprisonment.
2 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor (Exhibit A). I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most disturbing. Your behaviour was obviously quite unacceptable, and I am sure you know that.
3 I turn to a brief summary of your offending.
4 On 21 February 2015, Mr Schmidt was with his wife and friends at the beach at Port Melbourne. It got to around 6.30-7.00pm when his group began discussing where they would have dinner when Mr Schmidt heard someone screaming. The screaming came from behind him and Mr Schmidt said to others that it sounded like a woman was being murdered.
5 Mr Schmidt turned around to see you with a child draped horizontally over your shoulders, holding the child by the wrists and ankles. That child was your son, Nathan.
6 You walked with Nathan over your shoulders to the sea. Nathan was screaming and protesting your actions. Mr Schmidt said the boy was saying things like, “no”, and, “I can’t swim”. Your behaviour was attracting the attention of other people on the beach and people were appearing to film your actions on their mobile phones.
7 You went into the sea with your son and Mr Schmidt watched from the beach. You became aware you were attracting attention and the disapproval of people on the beach and began saying things like, “He’s my son, I can do whatever I like to him”, telling Nathan to shut up and stop making a scene.
8 You then lifted your son above your head and threw him into the sea. Your son struggled in the water and began wading back to shore, but you took hold of him again and dragged him back out. On two further occasions, Nathan struggled with you, making his way back to shore, only to be dragged out again by you.
9 Mr Schmidt said the boy was wailing, crying, clearly terrified and humiliated by your offending.
10 Mr Schmidt decided he had to intervene to assist your son, feeling, as a member of the Victoria Police, he was duty bound to do something about your actions.
11 Mr Schmidt stepped forward to the shoreline as you and your son were emerging from the sea. You said to him, “What the fuck are you looking at?”. Mr Schmidt said, “I’m looking at you. The kid’s obviously had enough”.
12 You became highly aggressive, swearing and saying that no one could tell you what to do with your child. Mr Schmidt said at that point he tried to defuse the situation by saying words to the effect, “I’m sure you must have some good intention to teach your son to swim,” and you briefly calmed down. Then, without warning, you threw a “haymaker” punch at Mr Schmidt with your right fist.
13 Mr Schmidt put up his left hand in a defensive action and the punch narrowly missed his nose. He felt what he assumed was your fingernail scrape along his left hand, drawing a small amount of blood.
14 Mr Schmidt was angry and lifted his fists in a defensive stance and a heated exchange occurred between the two of you. You called Mr Schmidt a “dog” and Mr Schmidt called you “a coward” and “a bully”.
15 The confrontation lasted a few minutes. Mr Schmidt’s friends came to his assistance and you backed off and left the beach. Unfortunately, you did not leave the area.
16 Mr Schmidt returned to his friends, thinking the incident was at an end when a woman, your wife, approached him from the carpark. Unfortunately, she entered into the "situation" and verbally abused Mr Schmidt, and in reply he said, “Piss off, you fat bitch”.
17 You then went over to Mr Schmidt, raising yourself on the balls of your feet, punched him to the face with what Mr Schmidt described as a “powerful, downwards punching motion”. This assault was captured by one of the beachgoers who filmed it. I watched this during your plea hearing. An audible cracking sound was apparent as a result of your punch to the victim’s face.
18 Mr Schmidt staggered backwards. The left side of his face was numb, his vision blurred and he could feel his cheekbone had caved in. You left the scene.
19
Police and ambulance arrived and Mr Schmidt was taken to St Vincent’s Hospital. He had six facial fractures to the left side of his face, including fractures to the eye socket, cheekbone and jaw. He underwent surgery on
25 February 2015, during which two titanium plates and metal screws were inserted into his face to assist the mending of the bones. Those screws and plates will be in his face for life. He has a prominent scar over his left eye and visible contour depression to the left side of his face.
20 Subsequent to that surgery, Mr Schmidt had ongoing headaches and pain due to the damage to his facial nerves as a result of your assault. He had a reduced sense of taste and smell and suffered restricted vision in his left eye. Recent medical material confirmed his visual symptoms had largely resolved.
21 I shall turn to the Victim Impact Statement sworn by Mr Schmidt later in these sentencing remarks.
22
Regarding your offending, Mr Terry, who appeared on your behalf at your plea hearing, submitted your wife, who was at or near the car with the children, had either seen or heard the fracas at the water’s edge. She became concerned for you, which led to her “reprimanding” Mr Schmidt which, in turn, led to
Mr Schmidt calling her “a fat bitch”, which led to you reacting in a totally inappropriate way that you did, i.e. by punching Mr Schmidt to the side of the face.
23 Mr Terry submitted that the incident happened fairly quickly. He also conceded that the ongoing impact of your offending upon the victim had serious consequences. You agreed you were very angry when you punched the victim of your offending.
24 You were interviewed by police on 27 February 2015. At that time you said you punched Mr Schmidt to the jaw, but claimed you acted in self-defence. I discussed some of your answers in that interview with Mr Terry. At the initial altercation (not the subject of the charge before me) you said Mr Schmidt swung a fist at you first, i.e. before you attempted to punch him. Your account of this is not consistent with the observation of others at the beach at the time. As I discussed with Mr Terry, at that time of the interview you were not entirely candid about your involvement with Mr Schmidt on this day. You were not at that time exhibiting remorse for your offending.
25 You have pleaded guilty to this charge and you are entitled to have that fact taken into account in your favour, and I do so.
26 By your plea of guilty you have saved the time and cost of a trial, and witnesses, in particular the victim of your offending, has not been required to give evidence upon your trial.
27 I accept your plea of guilty was entered at the earliest opportunity in the circumstances.
28 The charge date was 27 February 2015, and at a committal case conference on 26 May 2015 the matter resolved, however the prosecution at that time were requiring further medical material.
29 There were a number of difficulties with your representation and defence adjournments before your plea on 3 May 2016. I am prepared to accept your plea of guilty indicates some remorse for your offending.
30
You have a significant number of prior court appearances dating back to
6 February 2002, mostly driving-related and dishonesty offences. Most recently, however, you appeared at the Broadmeadows Magistrates’ Court on 16 December 2014 on a charge of a threat to inflict serious injury and burglary, for which you received a six months’ term of imprisonment which was wholly suspended for a period of 15 months. Your offending before me on
21 February 2015 breaches that suspended sentence. You, of course, are not being re-sentenced by me for that offending. It does, however, show your disregard for court orders, such being relevant when assessing your rehabilitation prospects.
31 I was given some information by the prosecutor regarding that offending dealt with on 16 December 2014, which occurred on 6-7 May 2013 (relevant to the threat). The offence of burglary occurred on 3 May 2014. At the time of the latter offending you said you were a heavy drug user.
32 It was just two months and a few days following that sentence being imposed that you committed the very serious offence that is before me.
33
In addition, you appeared at the Broadmeadows Magistrates’ Court on
13 May 2014. You were then dealt with for contravening a Community Correction Order. The order was cancelled and a new order made for a period of 18 months.
34 It appears the initial Community Correction Order was made on 23 July 2012, subsequently breached on 8 October 2013 and the breach proven. At the time of that breach you, according to Mr Terry, had difficulty with your compliance, in particular since the fire engulfed the family home in 2012, and specifically, I am referring to the fire on 27 July 2012 . The Magistrate then extended the operation of the Order.
35 Mr Terry said at a further breach hearing on 13 May 2014, you had completed all conditions relevant to drugs and alcohol, road trauma and had attended all supervision appointments, although you said you were ‘homeless’ and had significant financial hardship.
36 This current offending breaches that most recent Community Correction Order. Again, I am not sentencing you for that breach. However, you yet again have not complied with a Court Order, such being relevant to my assessment of your rehabilitation prospects.
37 Your lack of previous compliance with a Community Correction Order was further referred to in the assessment I arranged for you with Corrections in this current plea.
38 In that assessment report, dated 3 May 2016, to which I shall also later refer, Community Correction Services records indicated you accrued multiple absences across all order conditions and not just, as you suggested, failure to attend community work following your house burning down.
39 You also reported on 3 May 2016 your second contravention was due to further offences only, however, Community Correction Service records indicated you accrued multiple unacceptable absences, primarily from unpaid community work.
40 I arranged for counsel to attend to further address this recent assessment on 9 May 2016, and shall return to that hearing in a moment.
41 I also note on 14 May 2014 you were sentenced to one month’s imprisonment. Imprisonment, unfortunately, did not deter you from further offending.
42 Mr Terry submitted that up until when you went into prison you were using drugs, including during the Community Correction Order. Ultimately, whether or not that Community Correction Order is formally breached, I am of course, not sentencing you for breaching that Order. I nevertheless remain concerned by your offending while subject to that Order.
43 As I discussed with your counsel, your prior criminal history shows you have regularly “flaunted” the law, although I note no other charges for violence of the type that is before me, i.e. actual infliction of injury by you.
44 Your counsel, Mr Terry, also prepared an outline of written submissions on your behalf and addressed those during the course of your plea hearing [Exhibit 1].
45
He submitted you attended at the police station by appointment on
27 February 2015 and made admissions in your record of interview. I have referred to the context in which you then said your offending occurred, i.e. self-defence (now abandoned on your plea). You were charged, released on bail, and have been on bail until this plea hearing.
46 Mr Terry conceded your offending put you at risk of immediate imprisonment, however, urged that you could be appropriately sentenced by the imposition of a Community Correction Order.
47 Mr Terry referred to your background and history.
48 At the time of sentence you were 32 years of age. You were born in Northcote and then lived in Epping. Your parents separated when you were 17 years of age and I am told you rarely see them. You are the eldest of four children and also have two step-brothers and two step-sisters. You instructed that you were no longer close to any of them.
49 You instructed you had no issues growing up, other than being diagnosed with ADHD and having been prescribed Ritalin until you finished high school.
50 You attended St Joseph’s Primary School in Northcote, then St Monica’s Secondary School in Epping, where you finished Year 10. Thereafter, you began a carpentry and furniture-making apprenticeship. You could not complete that as the business closed down after you had worked there for about six months.
51 Thereafter, you had various jobs including that as a stonemason and kitchen bench installer, a concreter and, ultimately, owner/contractor of JCN Concreting and Paving, a business you have been operating for approximately six months. I accept you have had only limited periods of unemployment.
52 You instructed you did not have any mental health issues, although had previously suffered bouts of depression.
53 Your home burnt down in 2012 and you had, not surprisingly, family and financial difficulties as a result. Your house was not insured. You had to live with your wife’s parents for about 18 months until January 2014, which you described as a time of great stress for your family.
54 Ultimately, you had to sell the land on which the house once stood, but those proceeds did not cover the mortgage that was still owed. It appears that the mortgage of $200,000 was paid out by your wife’s parents.
55 You said you had recently suffered with kidney stones and may need surgery in the future, although there were no firm plans in that regard.
56 You instructed you started using cannabis at age 16 and using Ice at 18, becoming addicted to it. You said you stopped using about two years ago after spending one month in custody, your only previous term of imprisonment.
57 You said you had never been through rehabilitation or counselling, although instructed you had recently commenced counselling with “First View”. No further information was provided regarding that.
58 You married your wife, Amanda, when you were 21, with five children of that relationship. Your son, Nathan, who was involved in this incident at the beach, was diagnosed with ADHD in November 2014, although I shall return to some later reports in a moment.
59 On the day of this offending you said you had only consumed two or three stubbies at lunch, had dinner in between, and were not intoxicated. Your family had stopped at Port Melbourne on the way home for a swim. You said it was not unusual for Nathan to behave in the manner observed by witnesses, although you instructed you could understand how Nathan’s cries may have been misunderstood by those at the beach. You and your wife regarded Nathan’s protestations as quite normal.
60 You described your behaviour as “merely horseplay” with your child, trying to teach Nathan not to be fearful of water. It was submitted by your counsel you only had good intentions whilst playing with your son in the water. As I have said, you accept Mr Schmidt and others may have viewed your behaviour differently.
61 You instructed when your wife was called “fat bitch” by Mr Schmidt you were aware that she was very self-conscious of her body image and in response you over-reacted and punched Mr Schmidt.
62 Mr Terry submitted your offending fell at the lower end of the range for recklessly causing serious injury, as it involved a single punch offence, with no weapon, no life threatening injuries, no pre-planning, no alcohol and as a response to an emotional situation.
63
As I discussed with Mr Terry, you were, however, consistent with the prosecution opening, in a highly aggressive state prior to the offending before me whilst at the water’s edge. You had then thrown a “haymaker punch” at
Mr Schmidt with your right fist narrowly missing the victim’s nose. It was some minutes later you responded in the way you did to the comment by Mr Schmidt to your wife. This incident could have ended after the “haymaker punch”. Unfortunately, it did not.
64 Mr Terry submitted that this offending, unlike other cases involving recklessly causing serious injury charges, did not involve alcohol or drugs. I discussed that with Mr Terry and while that is so in your case it, nevertheless perhaps means that you were not “befuddled/adversely affected” by the presence of alcohol and drugs at the time you inflicted the serious injury to your victim.
65 Mr Terry submitted that while general deterrence, he conceded, was relevant, he urged that I consider your offending as not “typical” of other charges of recklessly causing serious injury, rather, that on this occasion you just “snapped”. I am not convinced that there is offending "typical" of this charge, although a lot has been said by the Court of Appeal regarding punches to the face.
66 Mr Terry submitted there are no matters pending and between entering into your bail for this offending and your plea hearing you have not been in any further trouble with the police. Mr Ballek did not submit to the contrary. I am also aware of this and I take that into account when assessing your overall prospects of rehabilitation.
67 Mr Terry said that your wife continued to "stick by you". You had a good work history, have always worked, with some periods of unemployment, albeit of only short duration.
68 I heard evidence from your wife, Amanda Rabbito. She has known you since you were 16 years of age and you have been married for eleven years, with five children of that union. She described you as having a caring role with your children and that you were a good father, a hard worker, employed constantly since leaving school, albeit with some short periods of unemployment.
69 Ms Rabbito gave evidence of the house burning down in July 2012, and that it was not insured because of financial difficulties the family then had in meeting insurance payments. As a result of the fire, the children required counselling.
70 Two of your five children had ADHD, Christian, aged 9, and Nathan, aged 7.
71 You and your family were currently living in a rental property in Craigieburn and you had most recently started up a small concreting business, JCN Concreters and Pavers, with a few customers. In addition to that business Ms Rabbito was in receipt of Centrelink payments of $720 per fortnight by way of Family Allowance.
72 The rental of the current property was $1,652 per month and she gave evidence she would not be able to cover the rent herself from the Centrelink payments.
73 Ms Rabbito gave evidence that if you were to be incarcerated she would need to move to live with her brother in Kerang, which was about three and a half hours away.
74 Ms Rabbito gave evidence that Nathan and Christian saw a paediatrician on an approximately six monthly basis for their ADHD and their ADHD required strict routine in the family. In addition, Nathan had a speech impediment.
75 Ms Rabbito’s parents live in Greenvale, they are in their 50s and, she said, had limited ability to assist and look after the children or have the children reside with them. She said her parents had paid out the $200,000 mortgage that was outstanding on the home that burnt down. Following the plea hearing, Mr Terry said he spoke to Ms Rabbito and the money was not a gift but, rather, to be paid off.
76 Ms Rabbito gave evidence you turned to drug use when times were difficult and that there was a Mental Health Care Plan proposed for you, yet to be formalised.
77 In cross-examination, Ms Rabbito confirmed her two parents were in their late 50s, she had a brother in Kerang, aged 34. She had a good relationship with her parents and she confirmed she and your family lived with her parents off-and-on over an 18-month period after the house burnt down.
78 She described the children as being hyperactive and that it was too difficult for your parents to live with the children in the same house.
79 There was an option that she and the children would be able to go to Kerang to live with her brother, although said that would have an adverse impact upon the children. The children who are attending school, attend a Catholic school with special programs, as I understand it, for some of the children.
80 Mr Terry submitted that all those circumstances amounted to exceptional circumstances relevant to family hardship. In my opinion, those circumstances, which included the likely need for your family to move from the family home with two children with ADHD, a change in schooling and impact on the financial situation, does not amount to exceptional circumstances. I do, however, accept that imprisonment will weigh more heavily upon you, being aware your family will have ongoing difficulties in your absence as a result of your offending/incarceration. I take that into account, consistent with general sentencing principles in mitigation of your sentence.
81 Mr Terry submitted that in your new business you had some work scheduled to the end of the financial year, and that having a business of your own meant potentially greater rewards to you, and would encourage you to remain drug-free and retain stable accommodation.
82 Mr Terry submitted you had good prospects of rehabilitation. I am not as optimistic regarding your rehabilitation prospects, given your extensive prior history (I again note not for the same offending), and breaches of Court Orders in the past. In so deciding, I have not lost sight of your cessation of drug and excessive alcohol use, and your employment history to date. I must, however, when sentencing you seek to maximise your prospects of rehabilitation as they may be.
83 There were a number of references before me.
84 From Adam Rabbito, dated 13 April 2016, your brother. He confirmed your childhood diagnosis of ADHD and treatments you received. You were prone to making poor choices that you later regretted. Nor did you cope well with bad news. Most of your past offending, he said, were at times of bad news and financial stress.
85 You lost your home to fire in 2012. He described your one month in prison as a wake-up call for you and that you missed your children. I digress and note that still did not deter you from your offending before me.
86 You had expressed regret for your behaviour.
87 He confirmed your new concreting business.
88 From Tina Zampichelli, dated 1 May 2016, your aunt. She referred to some poor decisions having been made by you in the past and your lack of a strong male role model in your childhood. You were a loving and responsible father.
89 From Maria Martin, dated 26 April 2016, your mother-in-law. She described you as a mature and caring father and husband. You were a hard worker. You had shown regret for your actions and the impact of it upon your family and also upon the victim and his family.
90 You were actively involved in school activities for your children. You greatly assisted her daughter with the care of your children. She did not regard you as a violent person and she confirmed your recent new business.
91 There was a report from Dr Alam, of Craigieburn Superclinic, dated 28 February 2016, regarding a proposed Treatment Plan and requesting sessions for your anxiety, depression and anger.
92 Also correspondence from Dr Martin, Paediatrician, dated 3 November 2014, referrable to Nathan’s possible ADHD and his delay in several areas of his development. A further report from Dr Martin dated 2 April 2015 was tendered, in which Nathan was described as having behavioural issues and that Nathan did not yet qualify for a diagnosis of ADHD.
93 Also tendered was correspondence from Department of Health & Human Services dated 27 May 2015, which confirmed that DHHS were not seeking to be involved with your family following the incident involving Mr Schmidt.
94 There were two Victim Impact Statements before me from Mr Schmidt, and he has suffered considerably as a result of your offending.
95 In his first Victim Impact Statement, sworn 7 August 2015, he described your offending as having turned his life and career upside down. There had been enduring psychological, emotional and financial consequences as a result of your assault upon him.
96 An immediate outcome of the assault was that he needed to spend a week in hospital and he underwent surgery for six facial fractures, including eye socket, jaw and cheekbone. Titanium plates and screws were inserted. He now had a prominent scar over his left eye which constantly reminded him of the incident. A fingernail scratch by you to his left hand later became infected.
97 As a result of your assault upon him, he had headaches and severe damage to his facial nerves, numbness to several parts of the left side of his face, which had not resolved as at August 2015. As at that August 2015 date, he had also experienced a loss of smell in his left nostril and sense of taste.
98 For more than a month after this assault he had restricted vision in his left eye, he lost confidence driving a vehicle and suffered pain when he turned his left eye. As at August 2015 he was having difficulty reading and concentrating without getting a headache or feeling nauseous. As at August 2015 he was taking strong pain medication for the injury to his face. He had also suffered severe withdrawal symptoms following cessation of Oxycodone, a medication he had been prescribed.
99 In addition to the physical injuries he sustained, there was a considerable psychological toll on he and his wife. He was anxious and suffered mood swings. He had been diagnosed by his psychiatrist as having Post-Traumatic Stress Disorder, and this was further addressed in a report from Mr Xuereb, Psychologist.
100 He had spent in excess of $6,000 as at August 2015 on medical-related expenses, which caused financial pressure to he and his wife.
101 Since your assault upon him he was jumpy, irritable and found handling crowds and noise difficult. He had become withdrawn and as at August 2015, remained in poor health, both physically and mentally. As at August 2015 he had not been able to return to work and was continuing to see pain specialists and psychologists/psychiatrists.
102
There was a second statement from Mr Schmidt before me, sworn
28 April 2016. He was still in constant pain due to the nerve damage under his left eye, down to his teeth and gums. He did not have a sense of smell in his left nostril and had a diminished sense of taste.
103 For five weeks following surgery to his face on 31 March 2016, he was still in considerable pain and had noticeable swelling to the left-hand side of his face. The full effects would not be known for at least another couple of months, but there was a likelihood his nerve damage was permanent.
104 He has also, since mid-November 2015, been placed on heavier medication, which had unfortunate side effects. He still had nightmares, sleep disturbance, depression and severe anxiety. He had not been able to return to work.
105
Also before me was a report from David Xuereb, Psychologist, dated
30 July 2015. I have read that report and heard submissions from both counsel, in essence, regarding the pre-existing mental health of Mr Schmidt.
106 I agree with Mr Terry that there is some ambiguity as to whether Mr Schmidt had any symptoms of PTSD prior to your assault on him. Accepting he did, however, the report is clear those symptoms were at least exacerbated by your offending.
107 The effect upon a victim is a relevant sentencing consideration (see s.5 Sentencing Act 1991). I am, however, conscious that I must not allow the effects upon a victim to swamp the sentencing process.
108
Relevant to the charge of recklessly causing serious injury, Mr Terry referred to a number of authorities, Nash v R[1], Ashdown v R[2], Markovic v R[3] and
DPP v Gerrard[4].All citations will be provided in the final revised version.
[4] [2011] VSCA 200
[1] [2013] 40 VR 134
[2] [2011] VSCA 408
[3] [2010] VSCA 105
109
When describing the serious injuries sustained by your victim, Mr Terry submitted that the injury fell towards the lower end of serious injury, in that
Mr Schmidt’s recovery from your offending had been substantial, although he conceded there appeared to be some uncertainty regarding ongoing nerve damage. He submitted there were no significant injuries that had persisted as a result of your offending and that Mr Schmidt was in hospital for five days, not longer. Mr Terry submitted your offending was at the lower end of seriousness for this offence.
110 Mr Ballek, who appeared on behalf of the prosecution, submitted that the offence of recklessly cause serious injury with a maximum penalty of 15 years’ imprisonment was serious, and that the injuries sustained by Mr Schmidt were ongoing. Mr Ballek submitted you must have known, from the cause of the sound that resulted from your punch, that it was a serious injury.
111 Regarding the submission that the serious injury fell towards the lower end, he submitted that the injury and gravity of your offending placed your offending above the lower end. In that regard, he referred to DPP v Russell[5], and I discussed that at some length. There are difficulties comparing cases factually, as facts vary enormously case to case. There is also difficulty relying on statistics. There is no doubt that statistics have a place in sentencing, but there are a number of factors missing from those statistics, such as whether there are parity issues, whether Verdins[6] principles applied, and other matters relevant to sentencing. Ultimately, I am required to consider the appropriate disposition based on your offending and also taking into account all matters in mitigation of sentence.
[5] [2014] VSCA 308
[6] (2007) 16 VR 269
112 Most recently in Russell the Court of Appeal referred to sentencing for the offence of recklessly causing serious injury.
113 By pleading guilty to this charge, you have acknowledged that when you punched Mr Schmidt to the face you were aware that he would probably suffer serious injury:
“As the court has made clear, in determining the seriousness of a particular instance of recklessly causing serious injury (this) involves considering both:
(a) the degree of probability that serious injury will result; and
(b) the seriousness of the probable injury foreseen.” [para.51]
114 In my opinion, you would be aware there was a high probability serious injury would result from you punching Mr Schmidt to the face with a blow of the force to the face as used by you.
115
I note the different factual basis upon which the Court of Appeal assessed
Mr Russell regarding (a) above, that that placed his awareness, I accept, as higher than yours. Relevant to (b) above, in my opinion, you would be aware that with such a punch to the face the injury would probably be very serious.
116 The Court in Russell described a fractured jaw as a "substantial injury".
117 In my opinion, the injury to Mr Schmidt does not fall at the lowest end of the spectrum of serious injury, rather, towards low to mid-range.
118 Mr Terry urged that a Community Correction Order was the appropriate disposition for your offending. Ultimately, I have determined that that is not appropriate and I do not agree. His secondary submission, without abandoning his primary submission, was a combination of imprisonment with a Community Corrections Order.
119 I am conscious of the decision of R v Boulton & Ors[7], which has been referred to in a number of decisions subsequently, including DPP v Maxfield[8], Alam v R[9], Marocchini v R[10], Hutchison v R[11] and recently Gul v R[12].
[7] [2014] VSCA 342
[8] [2015] VSCA 95
[9] [2015] VSCA 48
[10] [2015] VSCA 29
[11] [2015] VSCA 115
[12] [2016] VSCA 82
120 Boulton has made it clear, that sentencing courts need to rethink the conventional wisdom about whether prison is really the only option. Boulton emphasised the great disadvantages of imprisonment and the advantages of a Community Correction Order, which permitted punishment to be imposed whilst also advancing an offender’s rehabilitation. I observe it has always been the situation that a term of imprisonment must always be the last resort of the court.
121 I note, however in Hutchison that it was stated:
“It should not be thought that Boulton offers a ‘get out of jail free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed”. [See para.17 of that decision.]
122 I did not understand the decision in Boulton to remove the requirement that a sentencing judge must take into account all of s.5 Sentencing Act 1991, nor did I understand the decision of Boulton to mean the sentencing principles previously stated by the Court of Appeal relevant to this type of offending now amounted to nought. Nor did I understand Boulton’s case to remove the instinctive synthesis required when sentencing. I also did not understand Boulton to remove the need for me to mindful of the maximum penalty for this offence as set by Parliament.
123 To enable me to further consider, however, Mr Terry’s submission of a combination sentencing disposition, I arranged for you to be assessed for your suitability or otherwise for a Community Correction Order.
124 In the Corrections Assessment Report, dated 3 May 2016, you were considered unsuitable for a Community Correction Order based on your past non-compliance with previous Orders. Having received that Assessment Report and further information regarding your breach of past Community Correction Orders, I heard further submissions from both counsel on 9 May 2016. I will not repeat the detail of that discussion here but the transcript of the hearing will reveal that discussion.
125 In brief, you were unable to recall what you told Corrections staff your reasons were for not attending supervision or community work. It is apparent, at least from the material, your reference to the house fire was not recorded. Now I go on to say the fire is not in dispute, there are concerns regarding your instructions to Mr Terry at the initial plea hearing that that was your reason for not attending for community work.
126 I, of course, can impose a Community Correction Order despite your recent unfavourable assessment. However, would such a disposition in combination with a term of imprisonment, adequately and appropriately reflect all sentencing considerations?
127 Regarding general deterrence, Mr Ballek submitted this was an example of public violence and there was a need for general deterrence when sentencing you.
128 Regarding the need for specific deterrence, you do have prior court appearances, which is conceded were mostly non-violent offending, but you have also breached a suspended sentence and a Community Correction Order.
129 Mr Ballek submitted that there were no exceptional circumstances relevant to family hardship based on the evidence that was before me and, as I said, I agree, but that does not mean that it is an irrelevant consideration.
130 Regarding the current medical condition of your victim, Mr Schmidt was still in constant pain, said Mr Ballek, did not have a sense of smell and continued to have Post-Traumatic Stress Disorder and unwanted side-effects, and had not been able to return to work. In addition, he was seeing a psychiatrist.
131 Mr Ballek referred to the need for denunciation and just punishment and submitted that the appropriate disposition was a term of imprisonment, however, submitted that it could be in combination with a Community Correction Order should I consider such to be appropriate.
132 At the recent hearing on 9 May 2016, Mr Ballek, whilst submitting a combination disposition was open, however submitted that having received the breach material, to which I have previously referred, it may be more appropriate to impose a head sentence and a non-parole period.
133 In my opinion, a disposition involving a Community Correction Order would not be appropriate, nor would the combination of an immediate term of imprisonment with a Community Correction Order be appropriate in all the circumstances, taking into account not only your offending but all matters in mitigation of sentence.
134 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must take into account matters such as general deterrence, which is of considerable importance in a case such as this. There is also the need for specific deterrence when sentencing you, given your criminal history, albeit I note not for similar offending. Your most recent appearance in 2014 is, however, troubling, as are your breaches of court orders and overall "flaunting" of the law.
135 I must also consider the protection of members of the community from you and bear in mind the likelihood of your re-offending. This concerns me.
136 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
137 On Charge 1, you are convicted and sentenced to 2 years and 4 months' imprisonment and I direct you serve a period of 15 months before you are eligible for parole.
138 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of this offence following jury verdict, in other words, if you had pleaded not guilty and been found guilty, I would have sentenced you to a term of imprisonment of 4 years and set a non-parole period of 2 years and 6 months.
139 Pursuant to s.18(4) Sentencing Act, I declare you have spent 9 days in custody by way of pre-sentence detention (up to and including yesterday, 11 May 2016) and direct that that be entered into the records of the court.
140 The prosecution made application for a forensic sample. This was not opposed by counsel on your behalf. I make the order in the terms sought. It will be for a saliva sample and I must advise you the authorities may use reasonable force in order to obtain that sample and I make that order based on the seriousness of this offending and your prior history.
141 First of all, were there any other orders?
142 MS AASKOV: No, Your Honour. Thank you.
143 HER HONOUR: Good. Nine days, is that correct? Up to and including yesterday?
144 MS AASKOV: Yes, Your Honour.
145 HER HONOUR: All right, thanks, everybody, both counsel, I mean.
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