Director of Public Prosecutions v Robertson
[2022] VCC 326
•11 March 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-02324
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN ROBERTSON |
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JUDGE: | HIS HONOUR JUDGE LYON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 11 March 2022 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2022] VCC 326 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords:
Legislation Cited: Sentencing Act 1991 (Vic);
Cases Cited:
Sentence: Community Corrections Order for a period of 12 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Casey | |
| For the Accused | Mr A. Marshall |
HIS HONOUR:
1 Nathan Robertson, you have pleaded guilty to the offence of Affray which carries a maximum penalty of five years’ imprisonment. You have admitted your prior criminal history.
2 I will return to the significance of your criminal history in the context of this offending later in these sentencing remarks.
Circumstances of Offending
3 The Crown tendered the summary of prosecution opening as Exhibit A. A summary of your offending is as follows:
4 On 20 December 2020 CCTV footage shows that moments before, Jeremy Robertson was riding his bike past the address where Brandon Juresko lived. Your brother, Jeremy Robertson, got into a verbal argument with Mr Juresko, who was in the front yard with three other friends, including Benjamin Norsworthy. The fight developed and Mr Juresko punched Jeremy Robertson to the head and then started to shape up to him.
5 You were at home and about to get in your car to attend a work Christmas function when you received a call from your brother to help him.
6 You drove your Nissan Patrol approximately 300 metres to outside Mr Juresko’s place. It was then that your participation in the Affray commenced. The following occurred:
·You got out of your car and walked over to the blue Commodore where Mr Juresko was sitting in the front seat and Mr Norsworthy was a passenger in the back passenger side seat. You opened Mr Juresko’s car door and punched him several times to the head. Mr Juresko bit your finger;
·You smashed the front passenger window;
·The blue Commodore drove off and ran over your brother's bike, which became lodged under the car. At this point Mr Juresko had moved to the driver's seat and was driving;
·You returned to your car and followed the Commodore down Osborne Avenue and left into Victoria Street;
·CCTV footage shows the front passenger side of your patrol making contact with the rear driver's door of the Commodore over a distance of approximately 55 metres. The damage to the door was depicted in photographs tendered on the plea;
·Witnesses gave evidence that you rammed the rear of the Commodore on at least a couple of occasions. The CCTV footage does not support this, nor is there any damage to the rear of the Commodore, which was protected by a towbar that also shows no evidence of damage. There are no photos of the front of your car which supports this either. I am not sufficiently satisfied that such conduct occurred and ought to form part of the Affray; and
·You stopped your car on Victoria Street to allow your brother to get out of the car and retrieve his hat, which had apparently blown off as he lent out the passenger window.
·I will then quote from the Crown opening
While the patrol is stationary, the Commodore is approximately 90 metres further east on Victoria Street. CCTV shows the deceased step out of the rear passenger door of the Commodore whilst it was in motion, travelling at about 40 kilometres an hour. He immediately fell and struck the back of his head on the road, causing an injury that proved fatal six days later at the Alfred Hospital.
7 The Commodore driven by Mr Juresko drove off. He took his car to his mother's place in West Geelong and hid the Commodore in a garage.
8 The CCTV footage shows your car arriving at the position where Mr Norsworthy lay, several seconds later. The CCTV shows two cars driving ahead of you on the roadway.
9 You and your brother attended to Mr Norsworthy until the police and ambulance came. You were arrested at the scene.
10 You participated in a record of interview, where you admitted your participation in the confrontation with Mr Juresko and to driving the Nissen Patrol. You told police that after collecting your brother's hat you went to follow the Commodore again when the back door flew open and Mr Norsworthy jumped/ or flopped out. You stated that you stopped and tried to help him as much as you could.
11 I note that you have not spent any time in custody over this offending.
Objective Gravity and Moral Culpability
12 I now turn to a consideration of the objective gravity of your offending, and an assessment of your moral culpability.
13 The offence of Affray is constituted by using unlawful violence in circumstances where your conduct would have caused a person of reasonable firmness to be terrified, and that you intended to use violence or were reckless as to whether your conduct involved the use of violence.
14 In this case the Crown submits that the offence of Affray was constituted by your conduct after stopping the Nissen Patrol outside Mr Juresko’s home in that you:
·Went to the car in which he sat and punched him several times to the head;
·Smashed the car window;
·Pursued the Commodore in your Nissen Patrol; and
·Used your car in a nudging manoeuvre; referred to by Mr Bourke QC for the Crown as a ‘pit manoeuvre’, to cause damage to the driver's side rear door on both cars were travelling along Victoria Street.
15 I emphasise that I am satisfied (in accordance with both the submissions of the Crown and defence) that you are not to be sentenced for causing Mr Norsworthy’s death.
16 I am satisfied that Mr Norsworthy was present for and witnessed each of the four components of your conduct which constitutes the Affray. I am satisfied that, all together, these circumstances are sufficient to make out the elements of Affray. Given his proximity to your offending, Mr Norsworthy was a person who may well have been so affected by your conduct.
17 On this basis, I consider I am justified in having regard to the victim impact statements of his father and his partner.
18 There is simply insufficient evidence to explain why Mr Norsworthy opened the car door and stepped out whilst it was travelling at about 40 kilometres an hour. Mr Bourke QC submitted that I could draw the inference that Mr Norsworthy was terrified by the actions of the Affray and wanted to get away from it. Whilst that may be a reasonable inference to draw, your counsel Mr Marshall submitted that other reasonable inferences are also open. It is not known what, if anything, was said in the car with Mr Juresko.
19 In the end, I am satisfied that there was a sufficient break in time, distance, and conduct between your car and the Commodore such that you cannot, and ought no,t be held responsible directly for causing Mr Norsworthy to get out of the car. His motivation for doing so may never be known.
20 Nevertheless, I am satisfied, as I say, that I may have some limited regard to the victim impact statements. I also recognise that Mr Norsworthy’s partner, Ms Vella, participated in the proceedings and wanted her grief at Mr Norsworthy’s death communicated to the court as it formed part at least of the overall circumstances against which the offending occurred.
21 I acknowledge the tremendous grief and enormous sense of loss that Ms Vella and Mr Grambeau feel, even if Mr Norsworthy’s death is not inextricably linked to the offending.
22 In my view, the four components of Affray relied upon by the Crown in this instance and, in particular, your driving, and intentionally making contact with the other car, make this offending relatively serious.
23 Your moral culpability for your offending is not mitigated by the fact that you went to the aid of your brother. The CCTV footage shows that at the time you attended after your brother's call for help, Mr Juresko was in the passenger seat of the car. It was you who chose to go up and punch him and it was you who chose to smash the car window after that, it was you who decided to follow the car when Mr Juresko moved into the driver's seat. In other words, you made several conscious, voluntary decisions to take on this fight and to keep it going.
24 Your offending must be met by principles of deterrence, denunciation and a measure of protection of the community.
Personal Circumstances
25 You were born in Geelong on 12 December 1991 and are 31 years of age.
26 You were raised by both parents on rural properties in the Geelong area. You are one of six siblings. You reported no history of parental substance abuse or violence, and you have a good relationship with your family. You have recently put some distance between yourself and your brother Jeremy.
27 At the age of seven or eight you were diagnosed with attention deficit hyperactivity disorder.
28 From the age of 12, you worked in the local area. School was a struggle. In primary school, you had problems with both learning and with your behaviour. In high school you continued to struggle with learning and you were bullied. You completed your schooling to year 9.
29 At age 17, you moved out of your family home to be closer to work. You formed a relationship with your first partner and lived with her for about seven years. When that relationship ended, you were very depressed, and you moved back into the family home.
30 You have a prior appearance for intentionally causing damage. I was told this arose out of coming to your brother's aid again. He smashed the window of a drug dealer's car. You also have a prior matter for careless driving. I was told this related to squealing the tyres of your car.
31 You have since met your current partner Kellie. You have been together for nearly eight years and have two children together, Kayleigh, aged six, and Arthur, aged two.
32 Outside your work and family, your main interest in life are cars and legal drag racing.
33 You have worked as an exhaust fitter for Scott Carmody for about 15 years. In the last number of months, you were working part-time on the advice of your doctor, but have recently returned to full-time work. You are a valued and committed worker.
34 I have read the character references of your partner Kellie Muller, Aaron Harris, and Kellie's father, Brian Muller. You are valued by your partner as a provider, and you are valued by her father and her brother-in-law. It is apparent that you have deep and committed family support. In particular, your partner Kellie speaks of your depression, anxiety, and your rumination over Mr Norsworthy’s death.
35 I was provided with the report of Lisa Jackson, psychologist. As a child you were diagnosed with ADHD, and then 10 years ago you were diagnosed with depression and anxiety. You are medicated with sertraline. Your distress at Mr Norsworthy’s death led to a deterioration in your condition. As a result of that distress, in December 2021 you made a serious attempt on your life. Since then your medication has been doubled to 100 milligrams a day.
36 Ms Jackson reports that you had some history of drug use, but it has not been a problem and that you have not used drugs for years; although that seems to conflict somewhat with the mental health assessment undertaken for the CCO which said that you seemed to indicate that you occasionally used amphetamines. In any event it does not appear to be a problem recognised by either your forensic psychologist or the Department of Corrections. I would warn you though that with the order that I am going to put you on, any drug use would break that order.
37 Ms Jackson considers that you remain in need of counselling and treatment for your conditions.
38 I am prepared to accept that you have reflected deeply on the whole of the events of 20 December 2020.
Submissions
39 In submissions Mr Marshall, who appeared on your behalf, submitted the following factors should operate to mitigate your sentence:
· The plea of guilty and remorse. The plea was made at the earliest time. In the circumstances I have outlined I am prepared to find the plea is attended by remorse. As such, the plea should be held that the plea offer was made at an early time and was made during a time of uncertainty caused by COVID. As such, it should be rewarded for its utilitarian benefit and for facilitating the course of justice;
· Mr Marshall submitted about 15 to 16 months have passed since your offending. He relied upon this period as indicating some delay. I prefer to conclude that you have not committed any further offences in this time;
· Whilst Mr Marshall conceded that your prior criminal history has relevance, he forcefully submitted that your prior matters were indeed minor in both instances;
· Mr Marshall submitted that notwithstanding your prior matters and your offending on this occasion, your long and steady work record, and the support you have from friends and family combine to make your prospects for rehabilitation good;
· He submitted your plea offer was made during the COVID-19 pandemic that I have just mentioned, and you have not tried to alter or shift your plea. I recognise that your plea was offered and the matter listed for hearing during this time of uncertainty created by the pandemic, and the courts have said that you should be rewarded for this; and
· Mr Marshall submitted that you pose a low risk of reoffending.
40 Mr Bourke QC, who appeared for the Crown, submitted that a period of imprisonment combined with a CCO was within range of my sentencing discretion. Mr Bourke also submitted, in his careful and considered manner, that the imposition of a CCO on its own was within the appropriate sentencing range for your offending.
Analysis
41 After carefully reviewing the objective gravity of your offending, I conclude that it is serious; especially, as I have said, for the driving component. Nevertheless, there are a number of factors that I must take into account when I assess how the objective principles of sentencing are best satisfied in this case.
42 In my view. you have good prospects for your rehabilitation and you probably pose a low to medium risk of reoffending, although I note that the CCO assessment report noted your risk of reoffending as medium.
43 You have been assessed for your suitability for a CCO, and I consider that to be the appropriate disposition in this case. I consider the CCO should have both a punitive, that means a punishing effect, and a therapeutic effect. That means a helping effect to help you achieve your rehabilitation.
44 Mr Robertson, there are certain conditions which flow with the imposition of every CCO, so there are certain terms and conditions that every person placed on a community corrections order must agree to and comply. I am going to read them to you and I am going to ask you if you understand each of the generic conditions, that is the general conditions that I am about to read. I am going to ask you first if you understand them, and secondly if you agree to abide by them.
45 The first is that you must not commit, whether inside or outside Victoria during the period of the order any offence punishable by imprisonment. An offence punishable by imprisonment can be very wide ranging, so shoplifting, for example. Even though most people do not go to prison for it, is an offence punishable by imprisonment so you must not commit any offence, whether inside or outside Victoria that is punishable by imprisonment. Do you understand that?
46 OFFENDER: Yes, Your Honour.
47 HIS HONOUR: Secondly, you must comply with any obligation or requirement prescribed by the Office of Corrections regulations. Do you understand that?
48 OFFENDER: Yes, Your Honour.
49 HIS HONOUR: Third, you must report to and receive visits from the Office of Corrections during the period of the order. That is, they can ask you to attend at their office and they can come and visit you at your home and sometimes even work. Do you understand that?
50 OFFENDER: Yes, Your Honour.
51 HIS HONOUR: The third is that you must report to the Community Corrections Centre specified in the order that I am about to make within two clear working days after the order comes into force, so by 4 pm, let's say Tuesday, but I would suggest that you get on the phone and report immediately after this, but do you understand that you have to report immediately after the order comes into force? I'm not getting any audio on that. Yes?
52 OFFENDER: Yes.
53 HIS HONOUR: Thank you. You must notify the Office of Corrections of any change of address or employment within two clear working days after the change. You understand that?
54 OFFENDER: Yes, Your Honour.
55 HIS HONOUR: You must not leave Victoria except with the permission, which might be either general permission or specific to a particular trip, but you need the permission of the Office of Corrections to leave Victoria. Do you understand that?
56 OFFENDER: Yes, Your Honour.
57 HIS HONOUR: You must comply with any direction given to you by the Office of Corrections that is necessary for Corrections to give to ensure that you comply with the order and that might be an order given to you either verbally or in writing. Do you understand that?
58 OFFENDER: Yes, Your Honour.
59 HIS HONOUR: Mr Robertson, first of all in relation to the general conditions, do you agree to comply with those conditions?
60 OFFENDER: Yes, Your Honour.
61 HIS HONOUR: In addition to those I propose the following special conditions be imposed on the order. The first is that the order run for a period of 12 months from today. The second is that you perform 100 hours of community work over the 12 months. As a component of that I'm going to make - so that's the punishing part. The next is that I'm going to order that you receive treatment and undertake offender specific programs but I am going to order that any treatment and rehabilitation that you undertake and programs that you undertake will count against the hours of unpaid community work so the more treatment, the more programs that you undertake, those hours will count against the 100 hours of community work. Do you understand that?
62 OFFENDER: Yes, Your Honour.
63 HIS HONOUR: I propose that you be under the supervision of a community corrections officer for 12 months, and that you must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric treatment in a hospital or residential facility as directed by the regional manager, and then finally you must participate in programs and/or courses that address factors relating to your offending behaviour.
64 In the report the assessing officer noted my request that you undergo an anger management course. I am not going to make that as a specific condition of the order. I will leave it to the Office of Corrections, but it is likely that offender programs could include courses such as anger management. Do you understand each of the specific conditions I intend to impose?
65 OFFENDER: Yes, Your Honour.
66 HIS HONOUR: Before I ask you whether you consent to the making of the order, because I can't make it unless you do consent because you have to sign the order, I must tell you this. You can breach the community corrections order in one of two ways. You can breach it by committing a criminal offence punishable by imprisonment and even if a period of imprisonment is not imposed, that will breach the order and you will be brought back before me for re-sentence. Do you understand that?
67 OFFENDER: Yes, Your Honour.
68 HIS HONOUR: And you can breach the order by failing to comply with the order. That is, by failing to undertake the work which might be that you fail to attend on a particular day and don't give a satisfactory explanation or you failed to attend for supervision or you don't attend for mental health treatment or the like. Do you understand that they are the ways you can breach the order also?
69 OFFENDER: Yes, Your Honour.
70 HIS HONOUR: If you breach the order you will be brought back before me for re-sentence. You can be charged with breaching the order, which is a separate offence, and then you would come up for re-sentence before me on the original charge of Affray. If you breach the order by committing a further criminal offence or by non-compliance with the order, then given the nature of your offending - this is not pre-judging the matter because you haven't breached the order, I haven't even made it yet - but it is likely that you would face a period of imprisonment if you don't comply with the order. Do you understand that?
71 OFFENDER: Yes, Your Honour.
72 HIS HONOUR: Mr Robertson, do you consent to the making of a community corrections order for 12 months with a condition that you undertake 100 hours of community work, that you be under supervision, that you undergo mental health assessment and treatment, and participate in programs that address offending behaviour. Do you consent to the making of such an order?
73 OFFENDER: Yes, I do, Your Honour.
74 HIS HONOUR: The order of the Court will be as follows. On the charge of Affray, Mr Robertson, you are convicted and sentenced to undergo a community corrections order for a period of 12 months. In addition to the general conditions, I order that you first must undertake unpaid community work of 100 hours over the 12 months.
75 Second, that the treatment and programs you undertake will contribute to counting down the community work hours. Third, that you must undertake mental health assessment and treatment as directed by the Office of Corrections, and fourth, you must undertake offender behaviour programs.
76 In addition to that, I suspend your licence for a period of six months from today, and I have made it six months because the major - or one of the two major components of the Affray was some pretty poor driving.
77 The 6AAA declaration is that but for your plea of guilty to the offence I would have sentenced you to a period of five months' imprisonment.
78 Mr Casey, are there any orders I have missed? Were there any ancillary - - -
79 MR CASEY: No. No ancillary orders. It's covered everything.
80 HIS HONOUR: Thank you for your participation at late notice today, Mr Casey. I'm grateful. Mr Marshall, anything on your perspective?
81 MR MARSHALL: No, Your Honour.
82 HIS HONOUR: The order will be prepared and it will be sent to your solicitor's office, Mr Marshall.
83 MR MARSHALL: Thank you, Your Honour.
84 HIS HONOUR: Your verbal consent and your previous consent is sufficient. We don't have to send it to the Office of Corrections. We don't have to send it to you for signature so all you need to do now, Mr Robertson, you'll get a copy of the order but you must make contact with the Office of Corrections. Do that ASAP. In fact do it before you leave your solicitor's office.
85 OFFENDER: Yes, Your Honour.
86 HIS HONOUR: Nothing else? I will adjourn.
87 MR CASEY: Thank you, Your Honour.
88 MR MARSHALL: As Your Honour pleases.
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