Director of Public Prosecutions v Smith

[2017] VCC 1338

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00884

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW SMITH

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	26 July 2017
DATE OF SENTENCE:	11 September 2017
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2017] VCC 1338

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Recklessly cause serious injury – persistent depressive disorder and borderline personality disorder – History of self-harm – Expressions of remorse

Cases Cited:            R v Verdins (2007) 16 VR 269

Legislation:Sentencing Act 1991

Sentence:Convicted and sentenced to Community Corrections Order of 3 year’s duration – Additional conditions of unpaid community work, mental health assessment and treatment – alcohol assessment and treatment – Programs to address re-offending – Curfew – Judicial Monitoring Review

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Moran (Plea) Ms P. Thorpe	Solicitor for Public Prosecutions
For the Accused	Mr M. Reardon	VLA

HER HONOUR:

1Matthew Smith, you have pleaded guilty to one charge of recklessly causing serious injury, which has a maximum penalty of 15 years’ imprisonment.  The maximum penalty reflects the seriousness with which Parliament regards this offence.

2At the time you committed the offence you were 21 years old.  The complainant was 23 years old and is now 24.  His name is Dylan Hatfield. 

3By way of opening I was told by the learned prosecutor that on the night of 20 October 2016 you and the complainant were out in the Frankston CBD in your respective groups, drinking and socialising, at a number of licensed venues. 

4Your co-accused, Jesse Hoath and Reece Wangman, as well as a witness, Stuart Albrecht were also out together with other friends in the Frankston area on that night.

5Mr Albrecht met with Mr Hoath and Mr Wangman at a venue called, ‘Flanagans’.  You first met Mr Albrecht there.  The complainant was in a group at the same venue at this time.

6Some tension arose between the group that the complainant was in and another group comprising of people known to you, as I understand the situation. 

7In amplification of this aspect, I was told by the learned prosecutor, that Mr Wangman, or one of your co-offenders, addressed the complainant as "Sweetie" which triggered some acrimony between some of your companions, and the complainant and his group.

8At about 1 am, Mr Hoath and Mr Wangman left Flanagans, as did the complainant and his group, all making their way to another venue called, ‘Rockstar Bar’.  About 20 minutes after this, Albrecht and a female friend also attended this venue.  You tried to get into this bar but were delayed by a phone call and so arrived after lock-out time.

9Subsequently Mr Albrecht and the female friend left this venue and went to get some food.  They then saw you on the street and picked you up to drive you home.

10At about 2.30 am at the Rockstar Bar, an argument erupted between Mr Hoath and Mr Wangman, and the complainant.  Subsequently, they became involved in a physical fight outside the bar where punches were thrown.  As I understand the position, the complainant was actively involved in this fight, but there were a limited number of punches thrown by each of the parties.  After the fight ended Mr Hoath and Mr Wangman moved to a nearby kebab shop.

11At about 2.42 am Mr Albrecht received a call from Mr Wangman asking to be picked up.  You were still in the car with Mr Albrecht at that time and Mr Albrecht and you returned to the Frankston CBD to collect Mr Wangman and Mr Hoath. 

12Around the same time at the kebab shop Mr Hoath and Mr Wangman were approached by the complainant and his friends and a verbal and physical dispute broke out.  Various people at the scene were yelling and attempting to break up the fight.  I was told that the fight comprised physical posturing and pushing.

13The prosecution says, that as Albrecht pulled up to collect Wangman and Hoath, the fight was still going.  That is what was contained in the prosecution opening although the learned prosecutor today seems to have a different version, slightly, in relation to that aspect. 

14I was told that you got out of Albrecht's car and approached the group.  The prosecution say that you walked up to the complainant and punched him once to the head. 

15In your record of interview, you described the punch as a left hook to the lower jaw and you said that you thought that the blow knocked the complainant out. 

16As a result of this blow, the complainant fell backwards on to the pavement, his head striking the pavement.  The complainant remained unconscious after his head hit the pavement and blood was immediately visible under his head. 

17You then left the scene, telling police in your record of interview, that you left because you freaked out.  Other people at the scene tried to help the complainant. 

18Police arrived quickly and the complainant was taken to the Alfred Hospital.  He was admitted to the intensive care unit and remained in an induced coma for three days.  He was released to a rehabilitation centre on 26 October 2016. 

19His injuries were as follows. 

(a) Traumatic brain injury with multiple bleeds in the head with

(i)  subarachnoid haemorrhage,

(ii) subdural haemorrhage,

(iii) bruising on the brain,

(iv) blood collection in the front centre of the brain, intra and extra axial. 

(b) He also suffered craniofacial fractures with

(i) complex fracture (comminuted with displacement) on the right hand side of his skull parietal area with air inside the skull (pneumocephalus)

(ii) fracture in the right wedge-like pyramix shaped (petrous) part of the temporal bone at the base of the skull,

(iii) traverse fracture in the butterfly shape wedge-like inner skull bone that combines eye sockets and base of skull, sphenoid bone and body fracture involving the sphenoid sinus. 

(c)He suffered loss of consciousness,

(d) permanent hearing loss to his right ear. 

(e) Scalp laceration on the back of the head occipital area,

(f) loss of memory after 31 October 2016,

(g) a loss of the ability to read, write and perform basis mathematics, which is resoling with rehabilitation, and

(h) potential long-term injury to his jaw. 

20You were interviewed by police on 23 October 2016 and made full admissions. 

21You have no prior convictions, which is somewhat remarkable in view of your very difficult background. 

22At the plea hearing, although the summary of prosecution opening was understood to be agreed, your counsel sought to paint the scenario as one of disproportionate self-defence, in circumstances where he said that you perceived that the complainant was about to assault you. 

23This was rejected by the prosecution and I was asked to view CCTV footage in relation to the event.  I have now viewed that footage and considered submissions, both oral and written, made by the prosecution and defence in respect of this aspect of the matter. 

24As this is a matter which would be of a mitigatory nature, it is incumbent upon the defence to establish the scenario put forward, on the balance of probabilities.  I am unable to satisfied, on the balance of probabilities, that the victim was actually preparing to assault you which caused you to react violently. 

25However, I am satisfied on the balance of probabilities, that in your heightened emotional state, you perceived threat to you and your friends and behaved in a pre-emptive fashion towards the victim.

26It is evident that there was no fighting in progress at the time that you alight from the car as was submitted by Ms Thorpe on behalf of the prosecution this morning.  However, it was accepted by the prosecution today, that immediately before the assault, the victim's group and your group were advancing toward each other, just before the assault by you.  I make this finding on the basis of the Crown's concession, the CCTV footage, what you said in the record of interview as to your perception at the time, evidence that you were in a heightened emotional state on that evening, and in light of the fact that you knew of aggression between members of your group and the complainant's group earlier in the evening, yet you had distanced yourself from any argument or aggression in which others in your and the complainant's friendship group had previously taken part- on this occasion, you behaved aggressively, which appears to be explicable by virtue of the fact that you perceived some threat to you. 

27In all of the relevant circumstances, I accept that you perceived that the complainant was presenting an imminent threat, regardless of whether he actually was and you reacted violently and disproportionately in response. 

28However, even having accepted this, your offending is serious and calls for a punishment which is just in all of the circumstances.  I must also give appropriate weight to the need to denounce your conduct in all of the relevant circumstances. 

29A victim impact statement has been prepared in this matter.  As you might expect, the impact to the victim has been profound.  Since the incident, he has been battling depression and is unable to find any joy in life.  He finds it difficult to discuss the incident with a counsellor or anyone else.  He feels that his emotional and psychological state is not improving even though he tries to tell himself otherwise.  He also struggles with anxiety and does not feel comfortable around anyone any more.

30This had negatively impacted upon his relationship with his girlfriend and with others in his life.  He is having difficulty sleeping and is often up late at night as he cannot fall asleep.  His physical injuries have resulted in him missing at least 12 months of football which he used to regularly play with a local club.  Not only has he been deprived of football as a sporting activity, he has also been deprived of this as a significant aspect of his social life. 

31He expresses concern about the injury to his jaw as to whether it will resolve and he is also concerned about his loss of hearing.

32Mr Hatfield said, in his victim impact statement which was dated 29 May this year, that he was set to return to work within the next fortnight, however, he had not been able to work since the incident for various reasons.  Part of his reason was his battle with anxiety and depression, but also he now became easily mentally fatigued and was very drowsy as a result, which made him a liability at his workplace.

33He indicated that he suffers from post-traumatic stress disorder which made his behaviour unpredictable.  He also felt vulnerable and uncomfortable if anyone was standing behind him since he was assaulted by you.  He said that his entire savings had been spent because of missing work.  As a result, he now owes his parents thousands of dollars. 

34His parents have covered medical costs, but he wishes to pay them back in the future.  He says that ongoing costs, such as those of seeing a counsellor, are being covered by the Victims of Crime Compensation Scheme. 

35Mr Hatfield is currently completing his fourth and final year of a Bachelor of Education degree at Victoria University.  He had aspired to becoming a teacher, however, his studies have been compromised because of the effects of the assault.  Although he initially thought he would be unable to continue his studies, largely because he had lost the ability to complete basic mathematics and lost the ability to read and write, he has been slowly rehabilitating in this respect and says that such complications are sorting themselves out.

36Mr Hatfield said that his entire life has changed and he does not feel like the person that he once was.  He does not like being this new person and finds each day to be a battle.  He cannot see the situation changing and he says that, despite being a victim of crime, it already feels like he is the one in gaol. 

37I have also taken into account a counselling report, which accompanied the victim impact statement, completed by a registered psychologist, Mr Warner.  He states Mr Hatfield is suffering from post-traumatic stress disorder and depression and he confirms the various things that Mr Hatfield has stated about his well-being. 

38Mr Smith, these are the very real effects of your conduct and I take them into account when sentencing you. 

39Mr Reardon, on your behalf, submitted that there are a combination of factors in your case which made your situation exceptional.  He submitted that on the night of this incident your involvement began as one of a peacekeeper rather than aggressor. 

40I accept that in the earlier episode referred to in the Crown opening there is no suggestion of you being involved in any altercation in which the complainant was involved.

41I was told that when the comment was made to the complainant earlier at Flanagans, you walked away from the situation and that the only time you were violent was when you perceived that your friend, Jessie Hoath was in danger. 

42I was told that you had always been protective of your family and that you considered Jesse Hoath to be akin to a brother.  I was told that on the night that you committed this offence you had gone out to distract yourself from feelings of having failed to protect your younger sister who had recently disclosed to you that she had been raped by an older man.  I was told that you were on your way home when a call was received from Mr Hoath and Mr Wangman who asked to be picked up as the men they had fought with had followed them to the souvlaki shop.

43At the further plea hearing today, the learned prosecutor pointed out that you had told police in your record of interview that you were wanting to get something from the shop, which somewhat conflicts with the other account, although both could be true.

44In the past, you have avoided violent situations for fear of harming someone because of your solid stature.  Your lack of prior convictions is testament to the fact that you have been successful in these endeavours in the past.  Indeed, on the evening in question you avoided any confrontation until you assaulted the complainant with one punch, albeit that the punch produced dreadful consequences. 

45I take into account your background which is a very sad and difficult one.  Your biological father left the family when you were a toddler.  Your mother and stepfather were both heavy drug users which meant that you were placed in foster care when you were only five years old.  Sadly, you never saw your mother alive after you were removed into foster care.  You were not able to attend your mother's funeral.  I was told that, because of your mother's death, due to substance abuse, and because of your early exposure to the scourge of drugs in your household, you have avoided taking illicit substances, which is a great credit to you. 

46After the initial placement into foster care, you endured a number of different placements and eventually built a rapport with foster parents who were entrusted with your care when you were about six years old.

47Eventually, your grandmother was granted custody of you and your siblings and half-siblings.  She has been a lasting and benevolent influence on your upbringing.  She raised you and your two older siblings and two younger half-siblings.  She quit her job as a meals-on-wheels worker in order to look after the four of you, and you have a very close relationship with her.  Sadly, your grandmother had a stroke about nine months ago now, and you provide care for her.

48At the plea hearing, I was told that you moved back with her about two years ago.  You help with her day to day care, preparing meals and the like and you try to keep her motivated and more active.  I see that your grandmother is present in court today in support of you. 

49It was not submitted that imprisoning you would amount to exceptional hardship in respect of your grandmother, however, I take these matters into account in a more general way as part of your background and in support of your otherwise good character. 

50Further, I allow for the fact that any time which you might spend in gaol would be a harsher experience because of your anguish in not being able to provide for your grandmother.

51You were educated to Year 10 and obtained an apprenticeship as a baker, being employed in that field until you were 20 years old.  You received Centrelink benefits for two years in the context of you struggling to deal with the end of your first long-term relationship. 

52In about May this year, you commenced working in a restaurant with a view to commencing a chef's apprenticeship upon resolution of this matter.  Your hours are varied, between 40 to 70 hours per week.  The head chef, where you work, speaks very highly of you and also speaks of your remorse for your actions. 

53Mr Bugeja has known you for two years and attests to the fact that this episode is a one-off for you and that you are normally a very calm and happy person. 

54I received a further character reference from your workplace this morning which is also most supportive of you and attests to your good character. 

55In a most detailed report prepared by forensic psychologist, Ms Ellie Giavanni, dated 24 February 2017, you were diagnosed with persistent depressive disorder and borderline personality disorder.  Ms Giavanni conducted one assessment of you, albeit, a most thorough one.  She also found that you have experienced post-traumatic stress, although falling short of a formal diagnosis of post-traumatic stress disorder. 

56Although there is no record of any previous treatment for mental health issues, you have a history of self-harm since you were 14 years old.  In Ms Giavanni's opinion, the impairments of mental function were operating at the time of the offending and impacted on your conduct to a degree, as it impacted upon your ability to make, calm reasoned decisions and appropriate judgements, especially in the context of your heightened emotional state as at that time. 

57Although you had consumed three or four Jack Daniels mixed drinks during the course of the evening in question, you denied that alcohol played any part in your behaviour and I do not find otherwise.

58In the circumstances, I am prepared to allow for some reduction in your moral culpability, and the weight which we would otherwise attach to general deterrence and specific deterrence, and I make some reduction in the weight which would otherwise attach to the need to punish you and denounce your conduct.  However, I still attach fairly strong weight to general deterrence, in a bid to deter others who might be tempted to behave as you have.

59As this is your first offence, and you have no drug or alcohol issues, plus you have developed some strategies, despite your relative youth, to constrain your behaviour in the past, I find that your prospects of rehabilitation are very good, and that allowing for Verdins principles, I place very little weight on specific deterrence.  In all the circumstances, I place minimal weight on protection of the community.

60In all the relevant circumstances in which your plea of guilty was entered, I allow for a significant discount in the sentence you would otherwise receive, as your guilty plea was entered at the earliest possible opportunity.  In taking this course, you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of contested proceedings. 

61Further, your record of interview and expressions of remorse are heartfelt, in my view, and are consistent with your otherwise good character, which is evident from the character references tendered on your behalf. 

62I also find that you have a good level of insight into the seriousness of your offending and its impact upon the victim, although you may have a way to go in this respect.

63You conveyed your remorse most articulately to Ms Gianvanni, psychologist, indicating that you were seriously devastated about what you had done, saying that you had avoided this sort of conduct all of your life because you were aware of your large stature and that you could hurt others if you behaved in the way that you did towards Mr Hatfield.  You said that you wished that you could take it all back and that you felt terrible about what you had done.  I refer to paragraph 9.2(o) of the report.

64You have always accepted that you committed the assault, saying in your record of interview: "It was a stupid thing to do" and expressing concern for the victim at that stage. 

65Your expressions of remorse and insight, as well as your early plea of guilty, are factors that I have also taken into account when finding that you have very good prospects of rehabilitation. 

66You were 21 years old at the time of the offending, which is also a matter which I must factor in when determining an appropriate sentence in your case.  You are still a young man and I must do what I can to maximise your chances of rehabilitation, bearing in mind that a term of imprisonment is the last resort in sentencing.

67However, on occasion, the offending involved can be so serious that the youth of an offender must give way to other sentencing considerations.

68Your counsel submitted that your case was an exceptional one which ought result in an appropriately designed community correction order. The prosecution submitted that a term of immediate imprisonment was warranted although a community correction order, in combination with a gaol term, was within range.

69In making this submission, the Crown was saying that a gaol term of up to 12 months, plus a community corrections order of whatever length, was appropriate, as the law now provides that 12 months gaol is the maximum term that can be imposed in combination with a community correction order. 

70The law also provides that a court must not impose a sentence that is more severe than that which is necessary, or to imprison an offender unless the sentencing purpose or purposes in respect of that offender, cannot be otherwise achieved. 

71I requested the preparing of a detailed report from Community Corrections which is now to hand.  The report has been most helpful as it is detailed and thorough.  It recommends your suitability for a community corrections order and you are assessed as being at low risk of re-offending.  However, the question for me is whether the weight which I must give to all sentencing considerations relevant in your case, can be served by way of a community corrections order alone, or whether it must be in combination with a term of imprisonment.

72After much consideration I have come to the view that I can do justice to all relevant sentencing principles by imposing an onerous community corrections order in the particular circumstances of your case.  I can see no utility in sending you to gaol when you have such good prospects of rehabilitation and I accept that there are aspects of your case which are rather exceptional.

73It is very much in your interests, and in the interests of the community, to reclaim you, and in your case, a sentence of imprisonment may well have the opposite effect, in my view. 

74Would you please stand up, Mr Smith. 

75You are convicted of the offence before me. 

76I intend to place you on a community corrections order, but I can only do this with your consent, so please listen carefully to the order that I propose. 

77The community corrections order would run for a period of three years.  The conditions of the order would be as follows:  Firstly, there are mandatory terms that apply to all community corrections orders and would apply in your case.  They are, firstly, you must not commit another offence for which you could be imprisoned during the time that the order is in force.

78Secondly, you must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011.

79Thirdly, you must report to and receive visits from the Secretary to the Department of Justice or his or her delegate. 

80Fourthly, you must report to the Frankston Community Correction Centre before 4 pm within two clear working days of today, so that means by Wednesday of this week before 4 pm, but I would advise you to go tomorrow.

81Also, you must let a community corrections officer know within two clear working days of you changing your address or job, and you must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice or his or her delegate.

82Further, you must obey all lawful instructions from and directions of the Secretary to the Department of Justice or his or her delegate. 

83Now, the conditions that apply in addition to the mandatory terms that I have just taken you through, are as follows:

84You must undergo 200 hours unpaid community work within the next three years.  You may offset this requirement by satisfactorily completing up to 100 hours of mental health and/or alcohol dependency treatment. 

85Next, you must be under the supervision of a community corrections officer for a period of three years.

86Next, you must undergo assessment and treatment, including testing for alcohol abuse or dependency, as directed by the regional manager. 

87Further, you must undergo mental health assessment and treatment, including but not limited to, mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility if the need arises, as directed by the regional manager. 

88Now, in this regard, I note that you are a bit loathe to go through things from your past, but this is going to be an opportunity for you to do this and I want you to take that opportunity up, all right?

89Further, there will be a curfew imposed in your case.  You are to observe the following curfew for the next six months- that is, until 10 March 2018.  You are to remain at your grandmother's residence, being 2 Gadham Court, Frankston, between the hours of 10 pm and 6 am the following day.  The only exception to this condition is if you are required to work, in which case, you may leave your residence outside these times only in order to attend work, but you must travel directly to your workplace and remain there for as long as you are required to work, and then you must immediately and directly return from work to your home as soon as your work finishes. 

90You are to provide Community Corrections with your work roster within two days of it becoming available on any given occasion for the next six months, so that they can properly monitor your compliance with this curfew condition. 

91Further, you must undergo programs or courses aimed at addressing factors relating to the offending, as directed by the regional manager.

92The final condition is, you are to be monitored by me in relation to your progress on this order, as directed by me.  Your first monitoring appointment is to take place on Friday 8 December this year at 9.30 am.  Do not be late. 

93Ahead of that appointment, I will receive a progress report from Community Corrections and we will have a chat about how you are progressing on the order, and I hope it is good news.

94Do you consent to the terms and conditions of the order?

95OFFENDER:  Yes, Your Honour.

96HIS HONOUR:  I should tell you that if you do not comply with all of the requirements of this order, then you will face breach proceedings before me.  You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charge, in which case, you may very well be sentenced to a period of imprisonment. 

97I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending, or because of non-compliance with any of the other conditions of the order.  Do you understand this.

98OFFENDER:  Yes.

99HER HONOUR:  Do you maintain your consent to the order?

100OFFENDER:  Yes.

101HER HONOUR:  Therefore, in relation to the charge, you are convicted and sentenced to a community corrections order in the terms and conditions that I have just set out. 

102In a moment I will ask your counsel to assist you with the signing of the order. 

103Further, I make an order for a forensic sample to be taken from you by way of buccal swab of saliva from the mouth.  I make the order because of the seriousness of the offending and because the order is not opposed and it is in the public interest to make such an order. 

104I should warn you that, if you do not co-operate in the taking of a sample, the authorised officer may use reasonable force to take the sample from you.

105I indicate, pursuant to s.6AAA of the Sentencing Act 1991, if not for your plea of guilty, I would have sentenced you to three years imprisonment with a non-parole period of two years.

106You may come out of the dock and approach your counsel, sit behind him and my associate will provide you with the community corrections order and ask your counsel to assist you with the signing of that document. 

107(Orders signed and acknowledged.)

108All right, I have signed that order.  Is there anything further, counsel?

109MS THORPE:  No, Your Honour.

110MR REARDON:  No, Your Honour, may it please the court.

111HER HONOUR:  Yes, thank you, we will now adjourn.

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