Director of Public Prosecutions v Schuetz

[2014] VCC 1616

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-02129

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEN SCHUETZ

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Melbourne
DATE OF HEARING:	19 - 24 September 2014
DATE OF SENTENCE:	25 September 2014
CASE MAY BE CITED AS:	DPP v Schuetz
MEDIUM NEUTRAL CITATION:	[2014] VCC 1616

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Fitzpatrick	OPP
For the Offender	Mr M. Katz	Marshall & Associates

HIS HONOUR: 

1You, Benjamin Schuetz, have been convicted after trial of one count of recklessly causing injury, and found not guilty of a count of aggravated burglary and one count of intentionally causing injury.  You also, of course, pleaded guilty before the trial to one count of theft. 

2These crimes arise out of circumstances which were fully explored during the trial, but which in broad compass concern the fact that you had, with others, on the evening in question, been drinking heavily at the home of one of your co-accused, I believe Mr Dudman, and then at a hotel.  It is clear that during the evening you, with two others at least, shared a bottle of Jägermeister and also had approximately six or seven beers, and then of course at the hotel a similar number, so that by the time you and your co-accused left in the vehicle, you were all heavily under the influence.

3It is all right, Officer, thank you.  Mr Schuetz is seated in the body of the court.  Sorry, there we go. 

4VOICE (from body of court):  Yep, that's all right, thanks.

5HIS HONOUR:  So that is with my permission. 

6VOICE:  All right, thank you. 

7HIS HONOUR:  Thank you both very much. 

8VOICE:  Thank you.  Thank you, Your Honour. 

9HIS HONOUR:  Just returning to the facts. 

10You then, in a car, have headed off to the premises of Mr Clark, the victim.  It was the belief of you in the car that you were hoping not to find Mr Dudman's then partner at those premises, one Stephanie Chapman, although unhappily, at least as far as Mr Dudman was concerned, her car was there.  He alighted from the still moving vehicle, broke into Mr Clark's premises, and thereafter severely assaulted him in circumstances which were very clearly described by Mr Clark in evidence.  Ms Chapman was also assaulted by Mr Dudman, although not nearly as badly. 

11Your involvement, I consider in view of the jury's finding to be as follows that you were - when you entered the premises, you had not formed any intention to assault Mr Clarke so much is evident from the acquittal on that count.  You then found yourself witnessing the assault of Mr Clark and participated in that to the extent of a kick or stomp to Mr Clark's head.  Mr Clark described that action in his evidence as a kick which he saw coming and was able to deflect by moving his head and did not describe in any detail the injury he suffered as a result. 

12In fact the injury to the right of his head arguably, the top-right side of his head is fairly significant but of course I could not be satisfied what was a result of the kick and what was a result of the very savage beating that Mr Dudman inflicted upon Mr Clark.  So in the circumstances it seems to me that the appropriate view is to take off the injury you caused to be a modest amount of the damage suffered by Mr Clark to the right side of his face, given Mr Clark's own description of the fact he saw it coming and was able to deflect some of its force.

13You then left those premises, and that morning made admissions to your involvement certainly with regard to the theft before an impacted wisdom tooth had its effect and there was no further recorded interview.  Ultimately of course you pleaded not guilty to the matters before me and you were successful in a significant regard in that you were - the jury acquitted you of the two serious counts, or two more serious counts.

14I have also had the advantage of reading the two victim impact statements which have been tendered in the matter, and I particular have read Mr Clark's statement and am concerned about what he's had to say and that's Exhibit 1.  And I am sorry in a way that he does not want it read to the court to indicate to you just how much he has suffered both physically and emotionally as a result of the events on this evening, and the effects for him are significant and ongoing and one cannot feel very sorry for him in the circumstances in which he found himself on that particular evening knowing of the repercussions that has had for him in his life which are ongoing. 

15I accept in the circumstances of Ms Chapman has made the best of it and resumed the relationship with the person who was the instigator of the offence on the evening.  In the circumstances, I accept your plea with respect of theft indicates your remorse for that and indeed you expressed that to police in your recorded interview that morning.  With respect to your personal history and circumstances, Mr Katz who appears for you on the plea - although not on the trial - described your current situation and particularly in light of the record of prior convictions which I found most helpful.

16I note that you were before the Children's Court in 2005 when you were 14, and I put those matters to one side noting that you were dealt with without conviction.  It is clear that you then developed in your early twenties a narcotic habit in the sense you were a cannabis user and a fairly heavy cannabis user, and perhaps in those circumstances given the coincidence of the dates when you were before the court, you entered into a relationship which was obviously problematic and there were court appearances as a consequence of that and also the birth of a son.  I understand that that is no longer problematic, given the  mother and the son reside in Western Australia and you of course have begun a new relationship and your partner was present in court.  And you also with her have a son, and it is clear that young boy has significant problems and the exhibits describe his admission to hospital for cardiac surgery.  I have got no doubt that that has been very significant in you and your partner's life in the recent time and has caused you to mend your ways and indeed become the sort of person that Mr Stockholt, the managing director of Esdock transport with whom you are employed, described in his letter to the court, which is Exhibit A.

17I think it shows some maturity on your part and indeed he speaks of the fact that you have shown maturity and composure since the birth of your second child, which he notes was born with some serious health problems.  He describes you as a mature young man with strong family support and that you have grown, matured and developed in the two years that he has known you.  He puts this as an unreserved character reference on your behalf, based on the knowledge of your commitment to your vocation, and he has found you to be efficient, professional and honest.  And it seems to me there is sufficient - before the court to indicate that the person who was before the courts on a number of matters, you have certainly recently sought to change your ways. 

18The conviction for unlawful assault on 22 June 2012 and the subsequent breach of the community corrections order that you were sentenced to as a result of that was something which concerned me, although having heard about the circumstances of the offending and the subsequent breach of the community corrections order, it seems to me those matters are of no great weight with respect to the sentencing exercise today. 

19I have every reason to believe that you can make good your rehabilitation which you have sought to do in the last 15 months since this matter occurred. 

20Also of course, I note that you are a truck driver earning $500 or thereabouts a week and your financial circumstances were explained to me by Mr Katz this afternoon, and you hope to go onto full time permanent work shortly with the firm described in Exhibit A now that this matter is behind you. 

21You have been in no further trouble since this matter, and as a result, I am satisfied the chances of your rehabilitation are reasonably good, notwithstanding those prior convictions, given the recent change in your circumstances.  

22I have had regard to parity of sentence.  I have the sentence of your co-accused before me, and Judge Gamble's sentencing remarks of 28 February 2014 which I have read, and I note His Honour's sentence in those circumstances of a three year community corrections order with the core conditions and various other special conditions to be attached to it.  His prior convictions were more modest, and of course he pleaded guilty.  On the other hand, his assault on the evening could only be described as extreme, and the photographs reveal that your involvement was peripheral at best.  Although of course the fact that kicking anyone to the head in any circumstances is a matter of some significance, and certainly gives rise to issues of general deterrence, which of course are always significant in cases such as these involving, as they do, assault to a man who is in his bed in the early hours of the morning. 

23Specific deterrence I do not believe to be of great significance, given the circumstances of this particular case.  I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your reoffending, which I hope, in view of the matters which I have described in the sentence today, to be modest.

24As I say, there has been some little delay in the matter coming before me, but what is important is you have utilised that time in effecting your rehabilitation, and you deserve credit for that. 

25An application has been made for an intimate forensic sample to be taken from you, and you have consented to this through your counsel, and I am satisfied it is in the interests of justice, having regard to your prior convictions and the seriousness of your offending, that in all the circumstances I order that an intimate forensic sample, namely saliva, be taken from you.  That sample may be taken by a doctor or nurse or other authorised person.  A saliva sample is taken by wiping a swab inside the mouth, and although you have conceded, if you change your mind I must inform you that the police may use reasonable force to enable that procedure to take place. 

26Yes, if you would stand please, Mr Schuetz.  These are without doubt serious offences, and in all the circumstances, there will be convictions with respect to both.  With respect to the charge of theft, there will be a fine of $500, and I will allow three months to pay that fine; and with respect to the conviction for recklessly causing injury, there will be a community corrections order of 12 months duration with 100 hours community work, and in addition to the core conditions, there will be added special conditions.  In addition to the unpaid community work, condition of a treatment and rehabilitation condition under s.48(D)(3), offender behaviour programs, and also that says a subset of that treatment and rehabilitation condition, and there will also be a s.48(E) supervision condition. 

27Now I understand you signed the document to indicate that you have understood the terms of that order, and you agree to it being made?

28OFFENDER:  Yes, Your Honour.

29HIS HONOUR:  All right, thank you.  So that will be prepared, and I will get you to sign it.  There you go, ask and you shall receive. 

30All right, so if you sign that please.  Mr Katz, you will explain that to Mr Schuetz.

31MR KATZ:  Yes, Your Honour. 

32HIS HONOUR:  Just while that is happening, Mr Fitzpatrick, no problems about the way we dealt with that summary offence?

33MR FITZPATRICK: Your Honour, we have sought some advice on that, and under s.142 of the Criminal Procedure Act. 

34HIS HONOUR:  Yes.

35MR FITZPATRICK:  We understand that it either may be withdrawn, or when the matter is listed for plea, that the summary charge will be withdrawn.  If the accused pleads guilty to a specified charge in the indictment or - the prosecution charge will continue.  In the circumstances, after speaking to our fellow counsel, it appears that the correct procedure is for the Crown to withdraw it and Your Honour mark it withdrawn struck out.

36HIS HONOUR:  All right.  Is that what I did?

37MR FITZPATRICK:  I think that is what Your Honour did.

38HIS HONOUR:  I think that rings a bell.  All right, thank you.

39MR FITZPATRICK:  Thank you, Your Honour.

40HIS HONOUR:  Yes.  I think that's - thank you.  The summary charge is withdrawn and struck out and noted as such. 

41All right, thank you.  That completes the matter, Mr Katz?

42MR KATZ:  As Your Honour pleases.  Thank you.

43HIS HONOUR:  Mr Fitzpatrick?

44MR FITZPATRICK:  Yes, Your Honour.

45HIS HONOUR:  All right.  Well thank you for both of your involvement in the trial.  Mr Schuetz, I am sure I do not need to tell you how close you came to going out the back door.  You have got your chance, I just hope you can take advantage of it, and I am confident you can, otherwise I would not have taken the path I did.  But given what you have done in the last 15 months, you give me every confidence that you are worthy of the chance.

46OFFENDER:  Thank you, Your Honour.

47HIS HONOUR:  We will now adjourn until tomorrow morning, 9.30

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