Director of Public Prosecutions v Ritchie

[2017] VCC 1548

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-17-01814

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEITH RITCHIE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	24 October 2017
DATE OF SENTENCE:	27 October 2017
CASE MAY BE CITED AS:	DPP v Ritchie
MEDIUM NEUTRAL CITATION:	[2017] VCC 1548

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions
For the Accused	Ms J. Clark	Kurnai Legal

HIS HONOUR:  

1Keith Ritchie, you have pleaded guilty to one charge of causing serious injury intentionally and one charge of affray.  Those crimes carry maximum penalties of 20 years and five years respectively.  You are now 31 years of age.  You pleaded guilty at the earliest reasonable opportunity and must get the benefit of that plea of guilty.  I am satisfied that you now have appropriate remorse in relation to this matter, indeed a sense of shame.  You must also, of course, get the utilitarian benefit of that plea of guilty. 

2Unfortunately in this situation you do have a very concerning criminal history.  You have, on a number of occasions, been convicted of assault, and on my calculations there are two charges of having caused serious injury, albeit recklessly.  You have been gaoled for violence before.  It is clear from your criminal history and from the conversations in the Koori Court that essentially your violence is alcohol-related.  Unfortunately, you are a very big man and the consequences of your violence can be catastrophic, as I am about to detail.

3The circumstances of this offending are that back in around about 2010 your grandfather was assaulted by a group of people.  One of those alleged to have been involved was a Mr Powney, who was apparently acquitted by a magistrate.  You had been told, I accept, that there was to be no payback in relationship to it and that that advice had in fact come from your grandfather.  In any event, your grandfather subsequently died.

4There is no material before me that suggests that the assault that occurred on him at that point was responsible for his death, but it certainly appears to be the belief of members of his family, including you, certainly at that time.  He had been seriously assaulted and he had been kicked and stomped on.

5On 31 December of last year Mr Powney was at the Lakes Entrance foreshore watching the fireworks.  He was there with a group of friends.  After the fireworks concluded, a group of people, including you, a Mr Solomon, who I have already sentenced and for whom parity plays no part in this matter, Victoria Hayes and a Mr Baxter.  As Mr Powney's group reached the CFA shed, they were set upon initially by you, Mr Ritchie, and then, on the material before me, by Mr Baxter.  Mr Solomon played a lesser role in the affray that followed.  At one point
Mr Powney was struck with a beer bottle, but there is conflicting evidence over how that happened.  You had run up and struck him.  You continued the assault upon him and he was stomped on repeatedly, kicked and given a dreadful hiding.  He looked unconscious, according to one witness, and one witness described him as being kicked in the head as you would a "football or a soccer ball."

6After one kick to the head, which was either you or Mr Baxter, the witness heard that person say, "You want to do this to my pop, cunt."  I point out that he was also Mr Baxter's pop.  He was also punched.  His partner tried to join in but was grabbed and thrown out of the way and told not to be involved.  At one stage Mr Solomon picked up a broken beer bottle and threatened Mr Powney's friends and lunged at one of them, and as I said, I have already sentenced him and parity plays no part.  People began to arrive and everybody essentially took off.

7Mr Powney was taken by ambulance to the Bairnsdale Hospital.  His injuries were not clear at that point, other than it was known that he had a fractured skull and severe bruising to the brain.  Two days later he was able to be stabilised enough to be conveyed to the Alfred Hospital for further treatment, where it was established that he had suffered multiple fractures to his skull, bruising on the brain, a fractured ear socket which has caused a diminution in hearing, and that diminution is believed to be permanent, but I would not be sentencing on that basis.  He has also suffered from post trauma amnesia.  After two days in the Bairnsdale Hospital he spent 25 days in the Intensive Care Unit at the Alfred Hospital and was then transferred to the Alfred Brain Recovery Centre for months of treatment and rehabilitation.

8When you were interviewed, you no made a "no comment" record of interview and ultimately were charged and pleaded guilty.

9The offending is extremely serious, and so in a situation where you have to receive a very significant custodial sentence, I think it is important that I make it very clear to all concerned as to why that is so. 

10The victim in the matter - and whether the assault was justified or not is not the point - said this, "In result of my accident and having a brain injury, I could not live with my partner and daughter, as I now suffer some behavioural changes including some of the typical emotional volatility and some communication difficulties.  I am unable to work now, as I have a fracture in my skull that will never heal, so that makes me a big liability.  I can no longer go motor bike riding with friends due to my brain injuries and ongoing medical stuff.  Due to my brain injury and ongoing recovery and my difficulties I now face, I will struggle to get my car licence.  I now suffer from depression and I'm paranoid after what happened to me and I'm relatively housebound as I'm now scared for my safety.  I now live between my mum's and elder sister's house.  Due to my brain injury and medical condition, I now suffer from depression and anxiety and I can't be alone.  I suffer from short-term memory loss.  I am extremely scared for my safety and life now with my brain injury and the fracture I have through my skull.  I am also extremely stressed and scared for my daughter and partner's safety, as I am unable to protect, not only myself, but them too if something was to ever happen again.  Everyday life is a big struggle for me since I was assaulted and I find it hard to look at any positive things when I'm so different now."

11His sister said, "To sit beside him in a Melbourne hospital watching him lie there lifeless, as his mother and partner massaged his body to stimulate muscle and blood flow, is heartbreaking.  I would take two days a week off from my work to be with him in Melbourne, putting so much financial strain on my family.  Matthew's hospital rehabilitation was what broke me emotionally and mentally.  This man has been in my life since his birth, and to see him need assistance to feed himself and watch him cry in doing this broke me.  Can you imagine yourself learning all over again to walk, talk, feed yourself and toilet train?  It's gut wrenching.  But most of all, he woke up in a hospital not understanding why he was like this.  His PTA is the hardest of all to understand.  I still cry some days, driving home from work, just wanting my Matthew back.  So yes, this has ruined us, but our love will always be with him."

12That is what you did, Mr Ritchie, and that is what, I am afraid, you are going to have to pay the penalty for. The offending has to be regarded as very serious indeed.  It calls for the application of general and specific deterrence as well as denunciation and appropriate punishment.  I have also taken into account, obviously, the other victim impact statements that have been filed.

13Turning to matters personal to you and endeavouring to work out what the appropriate gaol sentence is. Firstly, you participated in Koori Court.  You do not have to do that, and I thought you showed a lot of courage in doing so.  You came to Koori Court having committed a very serious and shameful crime and you were able to face the Elders and deal with it, and you should be proud of yourself for that.  Your family came in support of you, and again, that augurs well for the future that you do have their support.  I was very impressed by your Auntie Colleen, who spoke in court, and also the others, Auntie Cath, who spoke on your behalf.

14You are obviously, when you are sober, a good man.  A good man.  But when you drink, this is the sort of thing that can happen.  All your priors, from what I can gather, relate to drink.  The only thing that can occur is if you can just not drink.  You explained to the Elders how you have done AA within the gaol system.  For the first time you feel that you have got somewhere with it all.  You did it firstly with remand prisoners, but it was not of much assistance, but with the sentenced prisoners, it had a far greater effect on you.  In gaol you have been involved in the Indigenous Lead initiative, and all those things are very much to your credit.

15I think there is probably not a lot of point in going through your background in great detail.  Obviously you are an Aboriginal man and your family are.  You are the eldest of four children.  You grew up around Bairnsdale.  You are in a relationship and you have three children aged three, two and one.  You also have a 12 year-old son from a previous relationship.  You have little education in real terms.  You are obviously a good footballer, and you have basically been drinking since a very young age and this is what it has led to. 

16In terms of gaol, you have been doing Koori art twice a week, Koori woodwork twice a week, and as I said, you have been doing other programs.  You have done the Beyond Survival course and, most importantly, the AA courses.  As I have said, I have no doubt that you are extremely remorseful, indeed shameful, about all this. 

17In previous occasions when you have been on community corrections orders, you have been able to maintain yourself and do them properly.  You can go extended periods without drinking, and that just has to be what occurs in the future.  You are engaging in courses, you have got the family's support, and I take into account that, so far as you are concerned, as is often the case, unfortunately, with Koori prisoners, that you will be missing a lot of milestones.  You run the risk of being in custody when people pass, your children are very young and you are missing their milestones.  As was pointed out to you very forcefully, as you well understand, during the course of the sentencing conversations with the Elders, they cannot be bluffed for too long as to where you are and what is going on.  It is a massive problem for them as well as for you, and I take that into account in terms of the punishment that you are going to receive in that respect.

18The prospects of your rehabilitation are entirely up to you and they relate virtually solely to the use of alcohol.  I accept that you would want to work and you are perfectly capable of working. The risk of you reoffending, I think, can be fairly said to be dependent upon whether you ever take the top off another stubby.  If you do, the prospects are just dynamite.

19You have undergone other sentences during the course of your remand period, so I am also taking into account a period of roughly five months as Renzella time.  I also take into account, bearing in mind other sentences that have been, in recent times, imposed for offending of this nature, the principles outlined in Toumngeun, which are that when a judge does see a chance for reformation, he may give a more lenient sentence to endeavour to achieve that, because obviously in your situation your rehabilitation would be far, far better, more beneficial for the community than for you to be spending long periods of time in gaol for episodes of extreme drunken violence.

20In any event, as I have said, having listened to you talk to the Elders and the respect that you showed and discussing with them what has happened in your life, I have no doubt that at the base you are a good person, Mr Ritchie, but unfortunately I have got to pass the sentence according to law, not according to emotion.

21Accordingly, on the charge of affray, you are sentenced to be imprisoned for a period of 12 months.  On the charge of intentionally cause serious injury, five years.  I direct that six months of the sentence imposed on the affray be served cumulatively upon the sentence imposed on the intentionally cause serious injury, which gives a head sentence of five and a half years.

22Because of the prospects of your rehabilitation, I am going to give you an opportunity for parole, which will come earlier than might otherwise have been the case.  Accordingly, you will need to serve a minimum term of three years and three months before becoming eligible for parole, and I direct that 120 days be reckoned as having been serve under this sentence. 

23Just so that yourself and your family realise the benefit of having made that plea of guilty - I am sure your counsel will explain it to you - had you pleaded guilty and fought this out and lost a trial, I would have given you eight with a six.  So your plea of guilty, if you behave in gaol, has saved you massively and your family. 

24All right.  There are no other orders I have to make, are there?

25COUNSEL:  No, Your Honour.

26HIS HONOUR:  Yes, thanks for that.  Yes, all right, you can take him now, thank you.

27COUNSEL:  As Your Honour pleases.

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