Director of Public Prosecutions v Tate

[2015] VCC 283

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR 13-00381

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE TATE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Shepparton
DATE OF HEARING:	12 March 2015
DATE OF SENTENCE:	12 March 2015
CASE MAY BE CITED AS:	DPP v TATE
MEDIUM NEUTRAL CITATION:	[2015] VCC 283

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 D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr S. Petrovich	Sofra Solicitors

HIS HONOUR: 

1Shane Tate, over four years ago, around February 2011, you and Melissa McCarroll argued from time to time.  You and Ms McCarroll were the parents of a then four year old son.  On 16 February 2011, an argument broke out and you threatened to set loose some horses that Ms McCarroll owned and were adjisted on land that you owned.  As it turned out she was with a neighbour, Mr Edmunds, at the time.  She and Mr Edmunds went in his car to the block.  You, like her, had been drinking that night.  You were driven to the block yourself by a friend, Justin Morgan.  I was told today that you rang the police on the way because you feared that there might be trouble. 

2When Ms McCarroll and Mr Edmunds arrived, arguing and yelling quickly broke out.  Mr Edmunds was also, it seems, worried that there might be an argument.  He became particularly concerned about Ms McCarroll and got a jemmy bar from the car.  He came at you and hit you in the face and jaw area.  You defended yourself along with the assistance of Mr Morgan and ultimately got the better of the older Mr Edmunds.  You got the jemmy bar off him.  You went too far in defending yourself.  You then broke some windows and headlights of Mr Edmunds' car. 

3You pleaded guilty to one charge of intentionally causing injury and one charge of criminal damage.  Mr Edmunds early on pleaded guilty in the Magistrates' Court to recklessly causing injury, that is the injury to you when he started the affair by striking you with the jemmy bar.  That matter was in the Magistrates' Court and was adjourned on him giving an undertaking to be of good behaviour.  For completeness, the prosecution led no evidence against Mr Morgan today and he was just found not guilty by direction.

4This offending had its context, but it is no excuse to go too far once you had the better of Mr Edmunds.  His injuries have resolved, but, with his pre-existing problems, he has not worked since. 

5You sustained significant injuries and you too have not worked since.  That is a matter of great regret no doubt.  The stress, including financial stress upon you has been significant.  You have lost a good deal because of this matter.  You are now 35 years old.  You have prior criminal matters heard in the Magistrates' Court for dishonesty and drug offences and relevantly for criminal damage.  These matters arise from six court appearances between 1996 and 2007 and, by and large, are well over a decade old.  I note all your penalties to date have been without conviction.  Importantly, you have had no trouble since this offending in 2011.  You continued to see your son and provide important parenting to him. 

6The delay in this matter is a matter of great regret.  The issues were crystal clear from the night it all happened.  For some reason a committal was not heard until two years had passed.  Thereafter the matter was in the overcrowded court list at Bendigo, until it was moved to Shepparton where the funding of the trial for Mr Morgan further delayed things.  Ultimately the matter settled and, in my view, in terms that should have seen it resolve years ago. 

7To your significant benefit, the sentencing regime has altered while this case awaited a hearing.  The new community corrections regime and the guideline judgment in R v Bolton makes it well open to impose a Community Corrections Order without needing to turn to the sentencing option of last resort, that is imprisonment. 

8Had you gone to trial in this matter, Mr Tate, and been convicted, you would have been in prison.  So, although late, your plea of guilty is important.  Your counsel urged that you be punished by way of fine, but you have little or no money and would in the end convert any fines to unpaid community work.  In my view a Community Corrections Order with unpaid work is a just and appropriate and sufficient punishment and it will itself facilitate your ongoing reform.

9The Community Corrections Order I am about to impose is no soft option and it is, in my view, to say the same, just, appropriate and sufficient to denounce your excessive behaviour on the night and deter you and others from behaving like this in the future.  Would you please stand, Mr Tate.

10I intend to impose an aggregate penalty for both Charges 1 and 2.  For committing the crime of intentionally causing injury and the crime of criminal damage, I place you on a one-year Community Corrections Order with 120 hours of unpaid work.  There will be conditions that apply to everybody who is on a Community Corrections Order which will be read to you shortly and if you consent to the order being made and you sign a document, that will bring the matter to an end.

11Had you pleaded not guilty to these matters and been found guilty of them, I would have imposed a term of imprisonment of 15 months with a non-parole period of nine months. 

12The prosecution seek an order that you provide a forensic sample.  Considering that due to the seriousness of the circumstances, the fact that you have a prior criminal history although no convictions and because you do not stand in the way of the order and ultimately it is in the public interest, I intend to grant the order and I will sign that order shortly.  What you have to do is go to the police station here in Shepparton in the next period of time, and it sets it out when you have to do that on the form, and provide the forensic sample, or submit to a scraping of your mouth.  What you have to understand is that if you at the time do not cooperate, then the people who come to do it are authorised to use reasonable force to get the forensic sample from you.  The way through it of course is, as you have said here through your counsel, you consent to the order being made. 

13The other document will be printed and we will have that read to you and you sign it shortly.  You can be seated now. 

14Mr Tate, this Community Corrections Order will last for 12 months, 12 March 2015 until 11 March 2016.  These are the mandatory terms that are required of everyone on such an order:  You must not commit any other offence for which you could be imprisoned during the time the order is in force.  So, for the next 12 months, you must do as you have been doing for the past four years at least, that is, stay out of trouble.  Of course, the way forward is not to be in any trouble again.   If you do commit an offence for which you could be imprisoned, then you will breach this order and you will come back before me and then it will be a totally different scenario. 

15You must comply with any obligation or requirement under the regulations of the Sentencing Act.  That will be that you have got to have your photograph taken by the Office of Corrections, so they know who you are.

16You must report to and receive visits from the Office of Corrections. 

17You must report to the Community Corrections Centre here in Shepparton, that's in Wyndham Street around the corner, within two clear working days of this order starting.  Go straightaway.

18You must let the Community Corrections officer know within two clear working days if you change your address or your job if you get one.  Just keep them informed of what is going on. 

19You must not leave Victoria without first getting permission to do so; that is any time across the border. 

20You must obey all lawful instructions from and directions from the Office of Corrections.

21That applies to everyone.  What applies to you in addition to those things is that you must perform 120 hours of unpaid community work over the 12 months.  That is, turn up on time every time to complete the hours that are allocated for you.  Get it done as quickly as possible and get on with your life. 

22If you agree to that, then sign the document.  Come out of the dock, Mr Tate.  Come up and sit behind your lawyers. 

23Mr Tate, you have signed that.  You get a copy of it.  If you breach this order, it is extremely unlikely I will forget this case, it is one of the oldest in Victoria and it has troubled me that it hasn't been on for as long as it has, so I am unlikely to forget it.  Complete the order and do not come back to court.  

24Is there anything else required?

25MR O'DOHERTY:  No, Your Honour.

26HIS HONOUR:  Thank you very much, Mr Petrovich.  Once your client has got a copy of it, if he wishes, or the solicitors, then he is free to go and likewise yourself.  Thank you for all your assistance.  I just need to speak to Mr O'Doherty about the other matters in the list. 

27MR PETROVICH:  Yes, Your Honour.

28HIS HONOUR:  So feel free to leave at any point.

29MR PETROVICH:  Thank you.

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