Director of Public Prosecutions v Russell
[2014] VSC 292
•25 June 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL TRIAL DIVISION
S CR 2013 0144
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYRONE STEVEN RUSSELL |
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JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 May 2014 | |
DATE OF SENTENCE: | 25 June 2014 | |
CASE MAY BE CITED AS: | DPP v Russell | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 292 | |
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CRIMINAL LAW – Sentencing – Recklessly causing serious injury – Recklessly causing injury – Affray – Accused part of a group which engaged in violent, unprovoked public attack on another group – Accused punched two members of other group – Guilty plea – Genuine remorse – Youthful offender – Sentence of 15 months’ imprisonment with a non-parole period of 8 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Grant | Solicitor for Public Prosecutions |
| For the Defendant | Mr P Guggenheimer | Melasecca Kelly & Zayler |
HER HONOUR:
Tyrone Steven Russell, you have pleaded guilty to one charge of recklessly causing serious injury, one charge of recklessly causing injury, and one charge of unlawfully making an affray.
The charges arose out of a violent altercation between two groups of young people, which took place at Rye in the early hours of 31 December 2012, and which left one man dead and several others injured.
At the time of the offences, you were living and working in Western Australia. You had come back to Melbourne in late December, to see family and friends. You had invited a number of friends to stay with you for the New Year’s period, in your parents’ caravan at a caravan park in Rye. They included your co-accused, Dylan Closter and Thomas McCluskey (also known as McCluskey-Sharp), both of whom had been your friends for some years.
On the evening of 30 December, your friends, Derrick Perawiti and Mitchell Robinson, as well as Messrs Closter and McCluskey, had a few drinks at the caravan park. You then went to the Rye Hotel for dinner. Over the next few hours, your group drank, ate dinner, and placed gaming bets. Another friend, Jasmine Acfield, also joined your group at the hotel.
Just before 8.00 pm, you and some of your group returned briefly to the caravan park. After checking on your mother’s welfare, and collecting warmer clothes, your group drove to the Rye carnival.
After the carnival closed, the six of you moved to a seated area near the Rye pier. There you were joined by your friend, Max Huntley, and two of his friends, Shaneah McDowell and Aleksandra Joskovska. You remained in the pier area. Mr Closter left briefly at 11.00 pm to buy a bottle of Galliano liqueur, and then returned to the group. Mr Robinson, Ms Joskovska and Ms McDowell then went with Mr Perawiti to sit in his car, which he had parked in the nearby car park.
There were a number of groups of young people at the Rye foreshore that night. One of these groups included David Cassai, Jesse Smith, Vincent Tran, Andrew John, Julian Geldard, Matt Werner, Vasu Phillips, Shelley Motin and Sarah Zerella. They were strangers to you and your group.
The Cassai group had left Portsea on a bus at 12.30 am, heading for Rosebud. However the bus only went as far as Rye, so they proposed to walk the remaining distance, along Point Nepean Road. Around 12.45 am, they started walking in the direction of Rosebud, spreading out into smaller groups as they walked. They were on the opposite side of the road to your group.
As they walked along past a sports shop, Mr Smith removed a street sign from its bracket. He then carried it in a spear motion towards the front of his group. This attracted the attention of someone in your group. One of your friends yelled at Mr Smith to put the sign down, however he continued down the road with it. Some of Mr Smith’s own friends then urged him to put the sign down, after hearing the yelling from the other side of the road. Mr Smith put the sign down, after carrying it for a little over 50 metres. There is no evidence that Mr Smith used, or threatened to use, the sign as a weapon directed at your group or anybody else.
The following facts in relation to the affray have been agreed between you and the prosecution for the purposes of sentencing you.[1] By 12:54:05, Mr Closter had already crossed the road and was walking towards a group, which consisted of Messrs Cassai, John and Tran. Mr Closter deliberately “hip and shouldered” Mr Cassai. Words were exchanged between the two men, and Mr Closter continued to behave aggressively towards Mr Cassai, as he was backing away. Mr Closter threw a number of punches at or towards Mr Cassai, and chased him over a short distance. Mr Cassai did not throw any punches at Mr Closter; nor did Mr Tran or Mr John, both of whom were yelling at Mr Closter to stop attacking Mr Cassai.
[1]The trials of your co-accused, Mr Closter and Mr McCluskey, have not yet occurred, and I make no findings against them as to what facts may ultimately be established at their trials.
Phone records show that at 12:54:18, you called your ex-girlfriend, Stephanie Cain. After speaking to her for only 8 seconds, you told her you had to go. You told her you could see “Zooey” (which is Mr Closter’s nickname) getting bashed, or something about him being with a group of people and needing help; you hung up. You then ran from the carpark and crossed Point Nepean Road. Along with Mr McCluskey and 2 or 3 others from your group, you followed Mr Closter as he advanced towards the other group.
Mr Closter punched Mr Tran to the face, injuring his jaw. Then Mr Closter wrestled with Mr Cassai, causing him to fall backwards onto the road at 12:54:31. Immediately thereafter, Mr Closter punched Mr John to the head, causing him to fall backwards onto the road.
Mr Cassai’s friend, Mr Phillips, then tried to grab hold of Mr Closter’s clothing, to stop him from chasing Mr Cassai. Mr Closter managed to break free and continued chasing Mr Cassai, as he walked backwards on the footpath, retreating from Mr Closter.
CCTV footage shows you and Mr McCluskey joining the affray at 12:54:35 am. You both advanced towards Mr Cassai, as he was being pursued by Mr Closter. Mr Cassai had his hands up, with open palms, in a passive and defensive manner, as did Mr Phillips.
Footage taken at 12:54:39 shows Mr Closter chasing Mr Cassai and attempting to punch him. Mr Closter lost his balance and fell towards an apartment door, before resuming his pursuit of Mr Cassai, who was still retreating.
Mr Phillips ran back towards the altercation, to try to calm things down. Mr Phillips had his hands in the air, with open palms out; as he turned away, Mr McCluskey punched him to the face.
Mr Cassai’s friends, Messrs Werner, Smith and Geldard, had been walking further ahead, and were not immediately aware of the trouble on the road behind them. Once alerted, Mr Geldard and Mr Smith both ran back towards their friends.
Mr Geldard tried to break up a scuffle between one of his friends and one of your group. Almost immediately, he was punched to the ground. CCTV footage taken at 12.54.41 shows you punching Mr Geldard in the face, causing him to fall sideways on the road. As a result of your assault, he sustained bruising to his left cheek and lower lip, and felt pain in his right elbow and hip when he hit the ground. He required medical attention, and it was difficult for him to eat until the swelling around his jaw subsided. He also suffered from emotional trauma, which is ongoing. This conduct constitutes the offence of recklessly causing injury.
Almost immediately after punching Mr Geldard, you punched Mr Smith in the face. Mr Smith had joined the scene, after he saw your group punching Messrs John, Tran and Cassai. He tried to push one of your group away from Mr John. As he was distracted by seeing your attack on Mr Geldard, you punched him once to the jaw, causing him to fall backwards onto the edge of the road and footpath. He sustained a serious injury, namely a greenstick fracture of the jaw, which caused him serious pain for months after the incident. Even now, he still suffers from occasional pain, and clicking or locking of the jaw. He also continues to suffer from emotional trauma. This conduct constitutes the offence of recklessly causing serious injury.
The attack by your group on the other group continued after you had thrown your two punches. At one stage, while Mr Closter and Mr Cassai were wrestling, Mr Closter fell to the ground. As he was trying to get up, Mr Cassai kicked him in a defensive manner. Mr Closter got up and continued his attack. Mr Cassai was walking backwards, with his hands up in a passive manner, palms facing outwards. Mr Closter took several steps towards Mr Cassai and punched him once to the face, causing him to fall backwards onto a brick pavement, sustaining fatal head injuries. You remained present at the scene throughout this latter part of the attack.
According to an independent witness, James Cozzani, Mr Cassai and his group did nothing to provoke your group’s aggressive attack on them.
After the incident, you and the others crossed back over the road, towards the car park. Witnesses heard your group running and screaming out, with someone yelling “welcome to Rye, cunts” and “that’s what we come here for”. You and some of the group then returned to the caravan park.
The attack upon the Cassai group, including the actions and words of you and the others in your group, constitutes the offence of affray.
At 12.58, you spoke again on the phone to Stephanie Cain. You told her you had been in a fight, had knocked someone out, and had been with Mr Closter. You also said that you hit a man so hard that you did not think he would walk again.
You called Ms Cain again at 1.13 am, asking her to walk past the scene, to see if the man you hit had got up. She refused to do that.
You returned to Perth on 1 January 2013, as previously arranged. Back in Western Australia, on 2 January you voluntarily went to the Mandurah police station. This was after there had been considerable media coverage of the incident, including the playing of some CCTV footage. Your parents had seen the coverage, and encouraged you to go to the police station and hand yourself in.
You told the police that you wanted to speak to the Victorian investigators about the incident in Rye. You then gave a brief record of interview to the Western Australian police. You stated that when the fight broke out, you were a bit behind the rest of the group, on the phone to Ms Cain. You said you heard yelling and arguing, then saw four males swinging at Mr Closter. You claimed that you feared for Mr Closter, because he was outnumbered in the fight. You said that as you approached the group, two of the males had their hands up, and that you hit both of them in the jaw. You said you were not aware at the time as to what had started the fight.
You provided a substantially similar account to Victoria Police, when they interviewed you on 4 January 2013.
In fact, you could not have seen four males swinging at Mr Closter, as no such attack in fact took place. Your group, particularly Mr Closter, were at all times the aggressors. That said, you were about 30 metres away, speaking on the phone to Ms Cain, when you first became aware of the fight. It was night time, and I accept that it may not have been entirely clear to you from across the road what was actually happening. You misperceived the true situation, and thought that your friend required assistance. Without stopping to evaluate what was occurring, you immediately rushed over to participate in some way.
In pleading guilty to these charges, you have accepted that you were not in fact acting in defence of Mr Closter, however you may have perceived the situation at the time.
The maximum penalties for these offences are:
· Causing serious injury recklessly – 15 years’ imprisonment
· Causing injury recklessly – 5 years’ imprisonment
· Affray – 5 years’ imprisonment.
Although it was spontaneous, and of very short duration, this was nevertheless a serious affray, involving a violent, frightening and completely unprovoked attack by members of your group on another group, late at night and on a public street.
You were not present and did not see what started the affray; but once you became aware of it, you quickly ran over and joined in. You positioned yourself close to Mr Closter, ready to take on anyone who you perceived to be a threat. Things happened very quickly; the time between your joining the affray and punching Mr Geldard and Mr Smith was only about 8 to 10 seconds.
After you had knocked both of them to the ground, your remained with your friends, ready to participate further. The continued presence of yourself (and the rest of your friends) enabled and encouraged Mr Closter to continue his attack on Mr Cassai, an attack which ultimately proved fatal. The Cassai group were not acting aggressively, and were trying to diffuse the situation and retreat; this was very much a one-sided fight.
A bystander of reasonable firmness and courage might reasonably be expected to have been terrorised by seeing such people being knocked to the ground in circumstances such as these. A participant in an affray must take some share of the blame for the overall picture, not merely for their own acts.
You have not been charged with homicide, and I am not sentencing you on the basis that you are responsible for causing Mr Cassai’s death. But in considering the nature and seriousness of the affray, it is relevant to consider the nature and degree of violence by members of your group, including the fact that one person died and several others were injured as a result of that violence. These facts indicate that the affray was more serious than a minor melee.
The two punches you threw were aimed directly at your victims’ faces, in quick succession. You hit each of your victims hard enough to knock them to the ground with a single blow. A trained and experienced martial arts fighter, you would have been well aware of how to throw a punch, and how hard you were punching them. Indeed, you told Ms Cain you believed you had hit one of them so hard he would not walk again. There was no objective basis for you to have perceived that it was necessary for you to hit these two men in order to help your friend. You simply rushed in, without taking the time to assess the situation. These are serious instances of both offences.
As far as your involvement in the incident was concerned, this was not a case of alcohol-fuelled violence. You rarely drink alcohol, and there is no suggestion that you were in any way affected by alcohol on this occasion. Rather, your conduct is explicable by reason of your immaturity, and a dysfunctional coping mechanism when faced with potentially threatening situations.
Victim impact statements have been provided by Mr Geldard, Mr Smith and their mothers. Apart from the physical injuries already described, your actions have caused both young men to be stressed, fearful, and constantly on their guard when they are out in public. Your actions have also affected their work and studies. The consequences of your assault, and the affray of which you were a part, have also brought great stress, anger, anxiety, frustration and sadness to the victims’ families.
You were born in September 1991 and are now 22 years old. You grew up with your parents and younger brother in the Yarra Junction and Kilsyth areas.
You left school at the end of year 10, after a largely uneventful education and childhood. You were not particularly academic, but were a very keen and talented sportsman, particularly in football and karate.
You completed part of an apprenticeship in building and construction, and have done labouring jobs since then.
A significant incident occurred when you were 17 years old. As you, your brother and some friends were walking home through a supermarket carpark, you were surrounded by a large group of youths. Some of your friends ran away, but you and two others were trapped and attacked by the other group. In the course of the fight, you were stabbed just below the right eye. The injury was serious enough for you to be hospitalised; it required two subsequent skin grafts.
After that incident, your behaviour started to deteriorate. You started arguing with your father, became quite withdrawn, and moved out of home when you were 18. You were unemployed and started to get in trouble with the law, beginning with a series of driving offences. You also started to use and sell various illegal drugs. In April 2011, you were sentenced to 4 months’ imprisonment, to be served by way of an intensive correction order, for offences including trafficking methylamphetamine (“ice”) and GHB, and using ice.
You have one prior conviction for violence. In June 2012, you were convicted of recklessly causing injury, in respect of an incident that occurred in July 2010. On that occasion, you had been at a hotel, attending a family dinner. After your family left, you stayed talking to friends. One of your friends started a fight with an older, intoxicated patron; you joined in and punched the other patron twice, in order to help out your friend. You were convicted and fined $6,000 for that offence.
Your first serious relationship, with Stephanie Cain, broke up around the end of 2011. You took that really badly, and required medication to cope with your depression. You have not suffered from low mood or depression since then.
In April 2012, you moved to Perth, to try to make a fresh start away from your previous circle of friends. You had stopped using drugs, and focussed on your martial arts training. You quickly got a job as a roof plumber, and managed to stay out of any trouble with the law until the present incident.
After you became aware of the severity of the incident at Rye, you handed yourself in to the police. At that stage, you were not sure whether it was you or somebody else in your group who had killed the man who died. You gave the police a full account of your involvement in the incident.
In August 2013, you were committed to stand trial. The trial was set down to commence on 24 March 2014. You entered a plea of guilty on 20 March 2014. You had offered to plead to the two recklessly causing injury charges, but not the affray, at an earlier time than that.
You are entitled to a discount on the sentence to be imposed upon you in recognition of your plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a trial of these charges against you.
I accept that you are also genuinely remorseful for your actions.
Since you returned from Perth, you have been living with your parents, focussing on your martial arts training and your new relationship, while you await sentencing for these events.
A report was prepared on your behalf by Ms Michelle Wauchope, a forensic psychologist, dated 30 April 2014. She describes you as having developed a particularly dysfunctional coping mechanism, as a result of being attacked and stabbed when you were 17. She says this has led you to you being hyper-vigilant, and to hitting first and asking questions later, to ensure you get control of the situation straight away. Certainly, that fits in with the nature of your offending in the hotel incident in 2010, as well as the current incident.
Notwithstanding some general discussion in Ms Wauchope’s report about the different ways in which people can respond to traumatic events, and her speculation about the possible effect of incarceration on you, your counsel disclaimed any suggestion that Verdins-type principles might be relevant here.
You are still relatively young, and have few prior convictions (and no serious prior convictions). You have never served a sentence in prison. The law says that the youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where the matter properly arises. In the case of such an offender, rehabilitation is usually far more important than general deterrence; rehabilitation benefits the community as well as the offender. Even when an offender has previously been incarcerated, a shorter period of imprisonment may be justified than would ordinarily be the case. Of course, those principles are not immutable, and due regard must be had in each case to other relevant matters, including the seriousness of the offence. In sentencing you, I am mindful of the fact that these are serious offences.
I accept that you have reasonable prospects of rehabilitation. You do not drink alcohol, and have ceased using illegal drugs. You have the support of your family and friends, your Muay Thai coach, and others involved in martial arts with you, many of whom have written positive, lengthy references on your behalf. You have a highly disciplined life, in terms of your fitness and approach to sport. When you are released from prison, you want to complete your apprenticeship and settle down with a family and home. Until this current incident, you had been turning your life around, after a short period of immature behaviour and offending following the attack on you.
Although rehabilitation is an important sentencing principle in this case, general deterrence still has a role to play. There is a clear need to deter others from engaging in random, late night, street violence between groups of young men. This type of conduct also needs to be denounced and punished.
There is also a need for specific deterrence in this case. Unfortunately, this is not the first time that you have chosen to join in an incident, in order to assist a friend who had got themselves into a fight. You must learn to curb your impulsivity, to stop and carefully evaluate a situation, before rushing into a fight.
I am aware that putting a youthful offender such as you in an adult prison for the first time may have devastating consequences. But I am not satisfied that anything less than a term of immediate imprisonment would be justified here.
Recklessly causing serious injury is the most serious of the three offences, and also carries the largest maximum penalty. It is appropriate to treat it as the head sentence, for the purposes of considering questions of cumulation.
Having regard to the fact that these offences all occurred quickly, and as part of a single incident, it is appropriate that there be substantial concurrency between the sentences.
Furthermore, although there is a difference between the specific legal elements for affray (on the one hand) and the two other charges, there is the common factor of unlawful violence in the context of a case such as this one. The same acts of violence which constitute recklessly causing serious injury, and recklessly causing injury, also constitute a large part of the acts of unlawful violence creating the terror that is the essence of affray. There are some distinguishing features between the offences, which provide a warrant for some cumulation, but it must be limited, and care must be taken to avoid double punishment.
For recklessly causing serious injury, I sentence you to 12 months’ imprisonment.
For recklessly causing injury, I sentence you to 7 months’ imprisonment.
For affray, I sentence you to 10 months’ imprisonment.
I order that 2 months of the sentence imposed for recklessly causing injury, and 1 month of the sentence for affray, be accumulated on the sentence for recklessly causing serious injury.
That makes a total effective sentence of 15 months’ imprisonment.
In all the circumstances, and having regard in particular to your age, your history, and the desirability of promoting your rehabilitation under the supervision of the Adult Parole Board, I fix a period of 8 months before you become eligible for parole.
I declare, pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to a total of 27 months’ imprisonment, with a minimum non-parole period of 18 months.
I note that there is no presentence detention in this case.
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