Director of Public Prosecutions v Roberts, Shaun Michael
[2011] VCC 887
•29 June 2011
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-00488
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHAUN MICHAEL ROBERTS |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 June 2011 | |
DATE OF SENTENCE: | 29 June 2011 | |
CASE MAY BE CITED AS: | DPP v Roberts, Shaun Michael | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 887 | |
REASONS FOR SENTENCE
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Catchwords: RCSI-‘Glassing’-Whether R v Winch [2010] VSCA 141 applies re sterner sentencing practice-Concession by Defence that revised Crown Range was within the range based on ‘pre-Winch’ sentencing practice- Delay-Prospects of Rehabilitation-Wholly suspended sentence sought- Sentence of 2 years with non-parole period of 1 year imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Jeremy McWilliams | Solicitor for Office Public Prosecutions |
| For the Accused | Mr Daniel Gurvich | Slades & Parsons |
HER HONOUR:
1 Shaun Michael Roberts, you have pleaded guilty to one count of recklessly causing serious injury, which has a maximum penalty of fifteen years' imprisonment.
2 The prosecution opened the matter as follows:
The victim in this matter was a Mr Manmeet Singh, who was employed as a crowd controller or security guard at the Sandbelt Hotel in Moorabbin. On Thursday, 17 September 2009, in the evening, you were at the hotel, and drinking with another man.
3 At about 2.45 am on Friday, 18 September 2009, you and your friend walked towards the front door of the hotel on the way outside. You had a beer glass in your hand. As you walked to the door, you passed the victim, who was standing by the front door at the hotel.
4 Mr Singh told you that you were not permitted to take your glass outside at that time and asked that you finish your drink inside the hotel and leave the glass inside.
5 You and your friend continued to walk outside. Mr Singh then asked you to go back into the hotel, at which point you became verbally abusive towards Mr Singh.
6 During this abuse, you said words to the effect, “If you want the glass, I’ll give you the glass”, and then you physically confronted Mr Singh. You threw a punch at the victim, using your right hand whilst still holding the beer glass in your left hand. Mr Singh grabbed your right hand, preventing you from being able to strike him.
7 However, you then struck Mr Singh on at least two occasions to the right side of his face with the beer glass which was in your left hand. The glass broke on the victim’s face. During the course of the plea, by reference to the depositions, it would appear that you struck Mr Singh two or three times with the beer glass. At the committal hearing Mr Singh appeared unsure as to which blow had caused the injury to his face, however, he then stated that it was the first blow which caused this damage.
8 After you struck the victim with the beer glass, a struggle ensued between you and Mr Singh as Mr Singh tried to restrain and subdue you.
9 The police were called by other staff members and they arrived at the hotel shortly thereafter. When they arrived, they spoke with you and you were taken to the Moorabbin Police Station for interview.
10 The incident was captured on the hotel security CCTV recording system, a copy of which was obtained by the police informant.
11 As a result of being struck by you with the beer glass, Mr Singh suffered serious injury in the form of a large, deep laceration to the lower right-hand portion of his face with adjacent abrasions. The main laceration was some half centimetre deep and exposed facial muscle beneath the skin. The photos of the injury are quite shocking, although fortunately for Mr Singh and for you, the injury was to the side of the face rather than to the front, as is often the case with this type of assault, which are commonly referred to as ‘glassings’. The laceration required seventeen stitches to close and he received a tetanus injection and completed a five day course of antibiotics. In the course of the plea, Mr Singh’s committal evidence was referred to, where he said that it was six days after the stitches were inserted that these were removed and that no follow-up care was required.
12 No evidence is before me as to whether there was permanent scarring. In the absence thereof, Mr Gurvich submitted that I could not find that there was. However, as at the time of Mr Singh’s Victim Impact Statement, Mr Singh indicated that he had a scar on his cheek. As this matter is raised in a Victim Impact Statement as opposed to depositional evidence, I take it into account, not as part of a consideration of serious injury but as part of the impact this dreadful attack had upon the him. I shall refer to the Victim Impact Statement in more detail in due course.
Arrest and Record of Interview
13 You were identified and arrested at the Sandbelt Hotel on the night of the offence and taken to the Moorabbin Police Station at that time. A record of interview then took place where it appears that you made full and frank admissions.
14 You admitted to hitting the victim in the face with a glass. You claimed that you were angered by the victim’s request that you finish your beer within the building and that was the reason you responded in the way that you did. You claimed that the continued struggle was in response to the victim holding you by the throat and claimed that you did not remember how many times you hit the victim. You expressed remorse for the damage that was caused by the incident and claimed that the glassing was, “unintentional … if anything, all I wanted to do was hit him”. You also described your actions as, “irrational”. You claimed that you were under the influence of alcohol at the time of the offence and therefore did not fully appreciate what you had done.
15 Your offending was indeed serious, as you seemed to fully appreciate not long after you had committed the offence. However, the fact that you indicated to Mr Singh what you were about to do, shortly before striking him to the face with the glass, points to purposeful conduct on your part, albeit in the context of being affected by alcohol and having a reckless state of mind. Whilst purposeful, what you did was not premeditated, although your allusion to giving Mr Singh the glass not long before striking him with it, makes your conduct more serious than someone who simply strikes a victim with a glass on the complete spur of the moment. It also reveals an awareness on your part that you had a glass in your hand, contrary to what you have indicated to others afterwards, including the mother of your partner. Moreover, in contrast to a number of other cases involving “glassing”, you chose to strike Mr Singh on at least a second occasion, to his face.
16 I reject any suggestion that the injury that was sustained by Mr Singh was something capable of being regarded as ‘injury’, as opposed to ‘serious injury’, or the suggestion that the matter could have proceeded as a plea in the Magistrates’ Court. In this regard, I understand that the indication by you of a willingness to plead guilty to recklessly causing injury at the end of the contested committal hearing, was not so much based on the extent of Mr Singh’s injury, as on your state of mind. However, in this regard I do note that the doctor was cross-examined about the injuries that he found. In any event, the point of me addressing this matter is that even though serious injury is a sliding scale, I am of the view that what you inflicted upon Mr Singh came well within its definition. I do understand that Mr Gurvich, on your behalf, did not seek to minimise the seriousness of your conduct or the seriousness of the injury.
17 In terms of your conduct immediately after the incident, it is to your credit that you remained at the hotel for the police to arrive and pointed to the victim as being in greater need of help than you. Moreover, in your record of interview you amply demonstrated concern for the victim and regret for what you had done to him. In all the circumstances, I am satisfied that you have shown genuine and deep remorse for your actions, not only insofar as they will impact on you, but also that you have shown genuine remorse in relation to what you have done to Mr Singh. In this regard, I understand that following the incident you attempted to convey your apology to him on several occasions, without success.
VICTIM IMPACT STATEMENT
18 Mr Singh indicates in his Victim Impact Statement that due to the incident he has lost his self-confidence and that the sight of his face causes him to become depressed. He still has counselling with a doctor. He indicates that he suffers from depression and frustration. I note that defence did not seek to cross-examine the victim in respect of any of these matters, and in the absence thereof, I have no difficulty in accepting that the impact of which the victim speaks, in every respect, including his perception, at least, of his scarring, is as a direct result of what you have done.
Plea of Guilty
19 You initially offered to plead to guilty to recklessly causing serious injury at the committal mention stage on 21 December 2009. This was about three months after the offence was committed. At that time you faced the more serious charge of intentionally causing serious injury. Your offer to plead guilty to recklessly causing serious injury was not accepted by the Director of Public Prosecutions and so you then embarked upon a contested committal hearing, which took place on 24 March 2010. I was told by Mr Gurvich, on your behalf, that the committal hearing was of a brief duration (which is evidenced by the brevity of the depositions) and that the issues for the hearing were in relation to your state of mind and the nature of the injury inflicted.
20 The victim was cross-examined, as was a doctor, who gave evidence in relation to the injury sustained, as well as the police informant. I was told that the cross-examination of the victim was purely concerned with the issue of intention, the nature of the strike that he received and the number of strikes that were inflicted. In this regard, I was told that the security footage was unclear as to exactly what had happened. There was also cross-examination levelled at the extent of the injury, which appears to be dealing with the issue of whether a serious injury was in fact inflicted.
21 In any event, at the conclusion of the contested committal hearing, you indicated that you were willing to plead guilty to the offence of recklessly causing injury. No doubt, this was on the basis of the evidence adduced in cross-examination during the committal hearing and on the basis of legal advice. Accordingly, as at that time, you were no longer offering to plead guilty to recklessly causing serious injury, but to the lesser offence of recklessly causing injury, which offer was not accepted by the Director of Public Prosecutions.
22 However, it is true that if your initial offer to plead guilty to recklessly causing serious injury been taken up by the Director, then you would have been seen as pleading guilty at the earliest possible stage and entitled to a significant discount in the sentence that you would have otherwise received. If accepted, you would have saved the witnesses and, in particular, the victim, the trauma and trouble of giving evidence and you would have saved the community the time and expense of running a contested committal hearing. I understand that not only did the Crown not accept your indication that you would plead guilty to recklessly causing injury, after the committal, (and understandably, I might add) but they also indicated that they would pursue the most serious offence of intentionally causing serious injury. Then, shortly prior to the final directions hearing in respect of a trial where you faced this most serious of possible charges concerning your conduct, discussions were apparently instigated by the Crown. On 25 March 2011 you formally entered a plea of guilty to recklessly causing serious injury.
23 Therefore, the time at which you formally entered your plea was at about the time of the final directions hearing for the trial, which had been set down for May of this year. Again, I point out that the trial was in respect of intentionally causing serious injury as well as the offence to which you now plead guilty.
24 Upon close analysis of the stages and the steps taken by you or by the Crown, I have come to the view that you are entitled to a significant discount in respect of your plea of guilty, as if it had been entered at the earliest stage. The reason for this is that you indicated a willingness to do so at a very early point in time, and had this been accepted, you would have obtained the full benefit of your plea. I did not understand the Crown to be disagreeing with this proposition, but even if I am wrong about that, I am satisfied that, given the initial indication that you made through your solicitors, you are entitled to a significant discount, such as would accompany a plea of guilty, at the earliest possible opportunity. I am also satisfied that you have shown genuine and profound remorse for your actions, as I have previously said.
The Application of Winch v R [2010] VSCA 141
25 In Winch v R [2010] VSCA 141, the Court of Appeal said that henceforth (at paragraph 55):
“…Those advising clients in the future whether or not to plead guilty to recklessly causing serious injury, in a glassing case, should ensure that no assumption is made about the availability of a suspended sentence. For all the reasons we have given, a person who comes to be sentenced for recklessly causing serious injury on a plea of guilty, for a “glassing” offence — even with all the mitigating features to which we [that is the Court] have referred — should proceed on the assumption that he or she will be required to spend a significant period of time in actual custody.”[55]
26 Upon the further plea hearing in your case, Mr McWilliams for the Crown, submitted that I ought not have regard to pre-Winch sentencing practice, even if I was of the view that this was applicable, because the Court of Appeal in Winch had said that the former practice was erroneous. I must say I have great difficulty with such a proposition. The Court of Appeal in Winch, at paragraph 55, was effectively putting those on notice who had not decided whether to plead guilty or not guilty to the offence of recklessly causing serious injury, that they should not assume that a wholly suspended sentence was within the range any longer. This, and other statements in the judgement, do not translate, and nor could they, to put a person who had made the decision to plead guilty to this offence before such notification by the Court of Appeal- to put that person in the same position as someone who had decided to plead guilty after it.
27 In your case, it really all comes down to whether it would be unfair in all of the circumstances to have regard to what appears to be a sterner sentencing practice, as forewarned in Winch. I have come to the conclusion that it would be unfair because you initially indicated a willingness to plead guilty to recklessly causing serious injury before Winch v R was decided, and indeed, your indication that you would plead guilty to recklessly causing injury was before this time as well, although that does not really address the point. The fact of the matter is that you were no doubt advised to plead guilty to recklessly causing serious injury, at least partially on the basis that current sentence practice as at that time would apply. And indeed, such sentencing practice would have applied if the Director of Public Prosecutions had accepted your offer at that time. Whilst you changed your position in this regard after the contested committal hearing and ultimately entered a plea of guilty to recklessly causing serious injury after Winch had been decided, the rejection of your initial plea offer was the essential trigger for what then ensued in your case.
28 At the very least, the position in respect of your case, insofar as the application of Winch is concerned, (insofar as paragraph 55 is concerned), is ambiguous, and such ambiguity ought be decided in your favour. However, this does not mean that a wholly suspended sentence is warranted in your case. It means that current sentencing practice, which involved penalties of a lesser nature than those after Winch, will apply to my sentencing of you.
29 As the Court of Appeal has said time and time again, and in keeping with provisions of the Sentencing Act, current sentencing practice is but one of the matters that a sentencing judge must look at. Another matter is the maximum penalty for the offence in question, and of course, circumstances will almost always vary from one case to another; therefore the weight attaching to various sentencing principles will vary accordingly.
Specific Deterrence and Prospects of Rehabilitation
30 I now turn to your criminal history. You have a criminal history as follows:
(1) On 7 March 2008 at the Southport Magistrates’ Court you were fined $200 without conviction in respect of contravening a direction or requirement. Mr Gurvich told me that the background to this matter was that you were with a group of friends in Queensland and were told by police to move on in circumstances where you were intoxicated. You refused to move on, which gave rise to this offence.
(2) At the Maroochydore Magistrates’ Court on 2 May 2008, you were again fined without conviction (in the sum of $150) in respect of another charge of contravening a direction or requirement. I was told that this incident involved you refusing to move on when requested by police, again, when intoxicated.
(3) On 15 April 2008, you were fined $200 at Maroochydore Magistrates’ Court in respect of failure to appear, in accordance with an undertaking which concerned a misunderstanding or miscommunication in respect of an appearance for a driving matter.
31 While the last mentioned matter has no apparent relevance to the matter before me, the first two matters do, notwithstanding that compared with the offence to which you now plead guilty, they are of a rather trifling nature. The relevance is that on those two occasions you were affected by alcohol and refused to comply with the request of a person in authority. On the occasion of your offending on 18 September 2009, you again refused to comply with a request – this time made by a security guard or crowd controller, Mr Singh, who was just doing his job at the Sandbelt Hotel, and again, you were affected by alcohol.
32 It appears to me that when you are affected by alcohol you have a tendency to be uncooperative and, indeed, in relation to the matter for which I now sentence you, you have demonstrated a preparedness to be violent. This gives me some concern in respect of your prospects of rehabilitation, although I do note that you have no history of violence and character evidence called on your behalf indicates you are not normally anything other than of good character. However, I do factor these prior appearances into my assessment of the weight which I ought give to specific deterrence and your prospects of rehabilitation.
33 At the time of the offence for which I now sentence you, you were 25 years old and you are now about to turn 27. Your date of birth is 4 July 1984. You have a partner, with whom you have a sixteen month old daughter, and there is another child on the way, as your partner is due to give birth in several months’ time.
34 As demonstrated by the character witnesses who attended Court and the presence of family members, you have strong family support and the support of close friends. The character references and character witnesses all attested to your good character and the way in which this offending has impacted upon you. In particular, your drinking habits have changed somewhat in that you no longer go out drinking and you have moderated your intake of alcohol to some extent. In doing this, although you have not expressly indicated the reason to anyone who gave evidence before me, I accept the evidence of Mr Uttendorvski and Mr Parker, who both said that in cutting down your alcohol intake you had implicitly indicated an awareness that drinking to excess can lead you to acting unlawfully.
35 In the event that you have not made such a connection, Mr Roberts, I make it clear to you now, that given your criminal history, albeit limited, and given the circumstances of your offending on this occasion, there is a connection between your offending and abusing alcohol, and if you were to re-offend in the future in circumstances where you had abused alcohol, your decision to drink alcohol may well be regarded as an aggravating feature of any future offending. If this is found to be the case your offending will be regarded as more serious than would otherwise be the case.
36 In any event, in assessing your prospects of rehabilitation and assessing the weight I give to specific deterrence, I take into account that your drinking habits are somewhat reduced and that you have made such a connection between drinking and offending following this offence.
37 Also, your early and profound indication of remorse and willingness to plead guilty to this offence, are relevant matters for me to consider in this context. I also take into account that you have a longstanding ambition to enlist in the army, but that in the meantime, you have done what you can to obtain employment and you have undertaken courses, which have assisted you in obtaining an offer of employment as a cook in the event that you were unable to continue with army enlistment.
38 You have been of great assistance to the family of your partner, helping them with heavy work needed to be done at their home, and you have impressed them and your partner as a most solicitous father to your daughter. Therefore, you have an incentive, in the form of your existing family and the prospect of a second child, to abstain from further offending and to moderate your drink intake.
39 In all of the circumstances, I assess your prospects of rehabilitation as quite good, and I place less than moderate weight on specific deterrence. It appears to me that your risk of reoffending is very much tied up with you continuing to be moderate in your alcohol intake.
Just Punishment, General Deterrence and Denunciation
40 Your conduct on the occasion of this offending calls for just punishment and denunciation and I must place significant weight upon general deterrence. By this, I mean that I must send a strong message to other members of the community that behaviour such as yours will not be tolerated such that the sentence which I impose will serve as a deterrent to others not to behave in the way that you have.
Delay
41 I accept your counsel’s submissions in relation to delay in this matter, not withstanding that to some extent you contributed to this by indicating an intention to plead guilty to recklessly causing injury after the contested committing hearing. It has been about one year and nine months since the incident occurred and one and a half years since you first indicated a willingness to plead guilty to this offence.
42 I do not accept that the matter could, or at least should, have been dealt with in the Magistrates’ Court because of its seriousness, but notwithstanding this, I do accept that if the Crown had accepted your initial offer then there would not have been such a delay as this. I accept that during the period of delay you have endured the anxiety and uncertainty of knowing your fate, although as I have said, this should be seen in the context of you contributing to the situation by indicating that you would only plead guilty to recklessly causing injury at the contested committal hearing.
43 However, in the intervening period you have been able to demonstrate that you are capable of leading a responsible and offence-free existence. You have shown this through your work ethic, your attitude towards parenting and reduction in alcohol intake. In this sense, delay has worked to your advantage, as you have been able to demonstrate that you are at rather low risk of reoffending.
44 I was also told that the delay has perhaps resulted in you losing an opportunity to become enlisted in the army, although this appears to be dependent upon discretionary matters concerning your offending itself. I was told by Mr Gurvich that it has been indicated to you that if you were to be imprisoned your enlistment in the army would be most problematic, but that if you were to receive a wholly suspended sentence you would be in a position to make representations in relation to your suitability to be enlisted. This appears to be borne out to some extent by a letter which was tendered on your plea, dated 9 November 2009, indicating the sorts of matters which the army takes into account, although Mr Gurvich indicated it appears to be a pro-forma letter which does not specifically address the question of immediate incarceration.
45 I do take this matter into account in sentencing you, although I must say that it does not constitute exceptional hardship, but may be one of the unfortunate consequences that you have visited upon yourself, which has more to do with your actions on the occasion of this offending than any delay as such.
46 Upon the further plea hearing in this matter, the Crown submitted to me that notwithstanding their submissions concerning current sentencing practice, that in view of the delay and issues peculiar to your case, a sentencing range between two and three years with a non-parole period between 12 and 18 months, was applicable. An immediate term of gaol was submitted as appropriate. This range was reduced from that given previously but was said to be based on sentencing practice post the decision of Winch v. R.
47 Mr Gurvich maintained his submission that a wholly suspended sentence was within the range and acknowledged that on a ‘pre-Winch’ basis an immediate term in the order of the range put forward by the Crown was also within the range. However, he submitted that in all of the circumstances peculiar to your case, such a sentence was not appropriate and referred to the seriousness of the injury inflicted in Winch, in contrast to your case.
48 I have given these submissions most anxious consideration.
49 Would you please stand up, Mr Roberts
Forensic sample
50 Firstly, I must make an order in relation to a forensic sample. The count upon which you have been convicted is a forensic sample offence under Schedule 8 of the Crimes Act 1958. The prosecution has applied for an order, pursuant to s.464ZF of the Crimes Act, that you should undergo a forensic procedure so as to provide a forensic sample. That application, as I understand it, has been consented to by you.
51 I am satisfied that in all of the circumstances the making of the order is justified for the following reasons: the seriousness of the offence; the order is by consent; and the granting of the order is in the public interest. Therefore, I order that you provide a scraping from your mouth, in accordance with Sub-division 30A, Part 3 of the Crimes Act, until a sample of sufficient standard is obtained for placement on a database.
52 Notwithstanding your present consent, I should tell you that the police may use reasonable force, if necessary, to enable the forensic procedure to be conducted. I have signed the form which has been provided to me by the prosecution in this regard.
53 Having had regard to sentencing practice at the time that you offered to plead guilty to this offence, and that is the time that you first offered to plead guilty to this offence, and in light of all of the matters to which I must have regard, I am afraid that I am of the view that an immediate term of imprisonment is warranted in your case. I make it clear that in sentencing you I do so on the basis of previous sentencing practice that applied at the time that you initially offered to plead guilty to this offence, and after attaching what I regard as appropriate weight to all sentencing considerations. However, in light of all of the mitigating factors in your favour, I propose to sentence you at the bottom end of the range put forward by the Crown.
54 In respect of Count 1, recklessly causing serious injury, you are convicted and sentenced to two years' imprisonment with a non-parole period of 12 months. If not for your plea of guilty I would have sentenced you to three years' imprisonment with a non-parole period of two years.
55 Is there anything further, counsel?
56 MR GURVICH: If Your Honour pleases. No, Your Honour.
57 HER HONOUR: Yes, thank you. You may remove the prisoner. We will adjourn thank you.
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