Director of Public Prosecutions v Slio

[2014] VCC 1356

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-12-01805

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEVE SLIO

---

JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 August 2014
CASE MAY BE CITED AS:	DPP v SLIO
MEDIUM NEUTRAL CITATION:	[2014] VCC 1356

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Cordy
For the Accused	Mr Lovitt QC

HIS HONOUR:

1Steven Slio, you were convicted by a jury of causing serious injury recklessly, Charge 2, but acquitted of Charge 1, causing injury intentionally.

2Two victim impact statements were tendered to the court, including that of the victim Trent Cantwell which was read to me.  I have read them and taken their contents into account.  Trent Cantwell sustained residual medical damage from the assault, which included significant scarring to the neck region.

3In the early hours of 11 March 2012, you were at the Cape Live Bar at 298 Brunswick Street in Fitzroy.  You had been drinking there for some time.  However, it is not clear to me how much you had had to drink.  At around 2.40 am, you were in the toilet of the premises when an incident occurred.  As to what actually occurred in there it is somewhat uncertain.  The victim Mr Cantwell had no recollection of an incident in the toilet area. 

4Mr Draffin at page 164 of the depositions described an incident involving a man with a jaggered scar on the forehead, which describes yourself.  He says he heard yelling inside, and there was sort of threatening and aggressive voices.  It does not describe you as doing any of the yelling, but that is what he said he heard and you were present.

5Mr McEvoy at page 331 of the depositions says that he was in the toilet.  A person had a conversation with him after brushing shoulders with him, he was asked what he was doing and he said "I'm going for a piss cunt".  The person then said "Don't call me cunt, I just got out of prison, I'll slitch you, I'll slitch you".  Now that person on the material is not you, but somebody who might have been with you.  Then a skinny man came from the toilets who tried to calm the situation down and that probably was the victim.

6I am satisfied that an incident of some abuse occurred in the toilet to which you were a witness.  It was on any account a minor incident, but somehow and for reasons unknown, it seemingly motivated you to attack Mr Cantwell shortly thereafter outside the toilet.  You struck him to the head with a bottle and then left the bar.  The police were called, but for the actions of the police and a bystander in rendering medical assistance to Mr Cantwell, he might not have survived.

7On your behalf, Mr Lovitt submitted in mitigation.  One, you had no prior criminal history.  Two, you were otherwise of good character.  Three, he relied on your age, you are now 25.  Four, he said you had no alcohol or drug problems.  Five, he said the incident was out of character on the evidence of the witnesses called in the trial as to your character, and that it was aberrant behaviour.  Six, he asked that the behaviour be seen in the context of the aftermath of your car accident which occurred on 3 October 2011.  In that accident, you suffered injuries to your arm and hip, and scarring to your forehead.  He tendered eight medical reports detailing the injuries.

8In particular he referred to the diagnosis that you became depressed in essence because of your inability to resume your work and your physical sporting activities.  Prior to the accident, you had an excellent work record as a sander and floor polisher.  Because of those injuries, you could not continue in that profession.

9Seven, he submitted that in this context you were in effect listless, and had nothing to do and your visit to the Cape Live Bar was your first social outing since that accident.  Eight, he told me you were the carer for your mother who is on an invalid pension.  Nine, he submitted that you are unlikely to reoffend and have good prospects of rehabilitation and ten, he submitted that I should distinguish the jury finding from the more serious charge of causing serious injury intentionally. Of course you are not to be sentenced on the basis of Charge 1.

10The leading case on recklessly causing serious injury is the case of Winch v R reported at 2010, VSCA 141 and apart from setting out the principles in relation to sentencing people for what are known as glassing cases, after a conviction or a plea for recklessly cause serious injury, the court at paragraph 34 referred to the mental element of the offence, and said "Recklessness means that the offender has consciously disregarded a known risk".  Paragraph 35, the court goes onto say:

"The offence of recklessly cause serious injury is only committed if the offender foresaw the probability that his action would cause serious injury to the victim, and went ahead regardless of that probability.  This is not mere carelessness where the offender fails to appreciate the risk of injury.  This is conscious disregard of a risk of serious injury which the offender knows to exist".

11Going on in Paragraph 36:

"As this court pointed out in Ash v R, the court's assessment of the seriousness of a particular incident of recklessly cause serious injury will involve considering both the degree of probability that serious injury will result, and the degree of seriousness of the injury thus foreseen.  What makes glassing a serious instance of recklessly cause serious injury almost by definition is the obvious dangerousness of a glass or bottle whether broken or not, when used to strike a blow to the head or face.  Hence, the offender who is convicted of this offence of recklessness, is to be taken to have foreseen a high probability of serious injury".

12It is on the basis of that definition of recklessly cause serious injury that I have sentenced you. 

13In reply Mr Cordy submitted that your actions were a gross over reaction and constituted despicable conduct, that caused significant ongoing medical issues for Mr Cantwell.  He submitted that I also should take into account your otherwise good character, your age, and he said you had probably had good prospects of rehabilitation.

14The case, in respect of glassing cases say that general deterrence is the primary sentencing consideration and I refer not only to Winch, but a case of Trowstale v R, 2011 VSCA 81.

15In Paragraph 31 and onwards in Winch, the court sets out the typical glassing cases which are almost identical to what occurred here.  Paragraph 32, after describing the conduct as inherently dangerous, the court said:

"Glassing cases have a number of recurrent features.  The typical glassing of which the present appeal is an illustration occurs in or near licenced premises.  There is usually an act of alcohol fuelled aggression.  In disproportionate response to an actual or perceived slight.  The typical offender is young and of generally good character and is full of remorse after the event". This is not relevant here.

16In the following paragraphs, the court goes onto consider the relevance of age and good character when considering these offences, types of offences and I adopt what the court said about that.

17The sentence I impose here must also reflect the court's denunciation of your conduct.  Why you reacted in this manner, as to what on any version of the incident in the toilet was a minor episode of abuse and/or insults is unfathomable to me.  However you did and you must suffer the consequences.  The victim was entirely blameless.  Your act was a gross overreaction with serious consequences for Mr Cantwell. 

18I accept that because of your good character and otherwise lack of a criminal history that although specific deterrence has a role to play, it has a lesser role because of those factors.  I accept there is nothing in the material to suggest that you are likely to reoffend, and on the prison documents tendered, it suggest that you have taken a positive attitude since your incarceration.

19I accept the assault occurred in the context of the ramifications of your car accident.  You were depressed, and had time on your hands.  Your inability to work is probably at the root cause of all of this.  But the context goes no further than that explanation.  Clearly, you should have stayed home that night.

20I have taken into account all of the submissions made by both parties, and the principles set out in s.5(1)(2) of the Sentencing Act.

21On the charge of recklessly cause serious injury, I sentence you to a term of imprisonment of four and a half years, with a non-parole period of two and a half years. I declare that the time that you have served of 70 days be reckoned under s.18(1) of the Sentencing Act to be time served as part of the sentence I have just imposed. I declare under s.6AAA of the Sentencing Act that but for your clear ‑ ‑ ‑

22MR CORDY:  It's not required Your Honour. 

23HIS HONOUR:  No.

24MR CORDY: Section 6AAA, it's not a plea so ‑ ‑ ‑

25HIS HONOUR:  I am sorry.  Sorry, I have had a week of people tell me I was not doing it.  Yes of course.  All right, are there any other orders I need to make?

26MR CORDY:  I think Your Honour made the 464 order before lunch.

27HIS HONOUR:  Yes, yes I have.

28MR CORDY:  Thank you.

29HIS HONOUR:  All right, thank you Mr Slio.  You can remove him, thank you.

30MR LOVITT:  Your Honour pleases.

31MR CORDY:  As Your Honour pleases.

32HIS HONOUR:  Adjourn the court until 10 o'clock on Monday, thank you.

‑ ‑ ‑