Director of Public Prosecutions v Tauschke

[2019] VCC 1448

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

AT BALLARAT
CRIMINAL JURISDICTION

CR 19-00851

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALAN TAUSCHKE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Ballarat
DATE OF HEARING:	4 September 2019
DATE OF SENTENCE:	4 September 2019
CASE MAY BE CITED AS:	DPP v Tauschke
MEDIUM NEUTRAL CITATION:	[2019] VCC 1448

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecution
For the Accused	Mr R. Alexander	Buscombe, Madden

HIS HONOUR: 

1Alan Tauschke, you can remain seated.  On 21 September 2018, just before midday, a victim in this matter was waiting at a bus stop in North Ballarat.  You, Mr Tauschke, ran up from behind him and hit him viciously across his face with an iron bar.  He tried to run but you continued to hit him on his arm and leg.  He collapsed to the ground. 

2At this point, your co-accused drove up to the scene in the victim's car.  Your co-accused got out and commenced to assault the victim.  You continued to assault him as well.  That is the two of you, young - and in your case a tradesman with some power - were beating a small thin man in his 40s who was defenceless on the ground.  The victim tried to use his phone to call 000 but you took the phone from him and also took his wallet.  You then got in the car and escaped. 

3This cowardly and brazen attack in broad daylight was witnessed by a bus driver and other members of the public.  Help was summonsed.  The victim was taken to hospital, where it was found that he had suffered a fractured skull, a fractured wrist and a serious laceration to the shin requiring stitches.  His wrist required surgery to insert a metal plate.  Thankfully and fortunately for the victim and for you as well, there was no brain injury resulting from the fractured skull. 

4You were arrested and interviewed on 24 September 2018.  Thereafter, you were remanded until a grant of bail in October 2018.  You were arrested and remanded on other unresolved matters on 13 February 2019.

5A contested committal in this matter was held on 1 May 2019.  You did not participate in the cross-examination, but rather, you negotiated to plead guilty to a single charge of recklessly causing serious injury and a charge of theft.  Your co-accused is awaiting trial. 

6The attack with a brutal weapon on the victim simply standing at a bus stop is grave offending.  You continued the attack on him with your weapon while in the company of your co-accused.  This adds to the seriousness.  You caused bone fractures and a fracturing of the victim's skull is particularly serious.  Stealing his phone and wallet while he was down also reveals the callousness of your conduct. 

7In very recent times in the Director's appeal of DPP v Betrayhani, the Court of Appeal has reaffirmed how the seriousness in terms of objective gravity of an example of recklessly causing serious injury is to be assessed.  It is to be assessed by reference what was said in the earlier decisions of the Court of Appeal in Winch where the court said the following:

'We begin with the objective gravity.  As the court said in Winch:  "The court's assessment of a particular instance of recklessly 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."' 

8In this case, the great force used in striking the victim with an iron bar so that his skull and separately, his wrist, were fractured means that you are taken to have foreseen clearly the high probability of serious injury being caused. 

9As was the case in Betrayhani, you struck the victim in a surprise attack when he was completely unaware and unprepared, more so than in Betrayhani who, the victim in that case was in some way connected to what had proceeded to the fight outside a hotel though while outside he had no continuing involvement in the altercation.  In this case, the victim was completely and utterly unaware that you were in the vicinity with an iron bar, about to hit him.  Also adding to the foresight of high probability of causing serious injury was you deciding to arm yourself with the dreadful weapon - an iron bar. 

10Further, and unlike Betrayhani where there was one forceful strike, you hit with the bar more than once over this man's body, breaking bones in his head, arm and deeply piercing the skin on his leg.  I have discussed with counsel the role, if any, in my assessment of your  foresight of the probability of causing serious injury the fact that in the past you had fractured another man's skull in a one-punch attack.  I have revised the decision of the Court of Appeal given, I think, on 9 August 2018 in the matter of Lim v The Queen, and I explicitly state that I have not factored your prior convictions into my assessment of the objective gravity or in any way affecting your foresight of the probability of causing serious injury. 

11The other factor mentioned in Winch and reaffirmed in Betrayhani is that I must consider the extent of seriousness of the injury you caused.  Those it seems the victim has not permanent or life-changing injuries - and that is fortuitous - these injuries were serious, causing pain and some ongoing problems.  He was hospitalised though the full picture was not helpfully set out for me.

12The Court of Appeal in Betrayhani also referred to the broad impact of such crimes when citing the DPP v Russell where the court said the following

'Random street violence is a scourge on our society.  Typically, the violence is brief and unpremeditated, but it has profound and enduring consequences.  Innocent people are killed or seriously injured; their families are devastated; their communities disrupted.  And the outburst of violence is ruinous for the offender, too.  Imprisonment with all its destructive consequences is virtually inevitable, as is the shame and embarrassment felt by the offender's family.'

13There is nothing that could be put to reduce your moral culpability.  Indeed, you took time to arm yourself and then launch your unprovoked attack in broad daylight.  Indeed, all the circumstances lead me to conclude that your moral culpability is very high. 

14You said to the psychologist who saw you at the behest of your solicitors, Dr Cunningham, that behind all this attack was that the victim was thought to have false imprisoned or in some criminal way dealt with a friend of yours' mother.  There was a reference to Narelle when you were attacking this man.  This was said to be some misguided loyalty but taking the law into your own hands increases rather than diminishes your moral culpability.  

15I do not forget that you are still a young man.  When you attacked the victim, you were just days away from your 23rd birthday and thus you are shortly to turn 24.  Notwithstanding your young age, you have accumulated a number of concerning prior convictions in the Children's Court and in the adult court.  These include the concerning violent offences of recklessly causing injury in 2011, robbery in 2013, unlawful assault in 2014, all dealt with in the Children's Court. 

16And in April 2015, you received from the Magistrates' Court a 12-month community corrections order for the crime of recklessly causing injury.  I have referred to that latter matter already where it was that you fractured a young man's skull, causing internal bleeding by a single blow, causing him to fall down the stairs he was coming up.

17I have read the summaries in that matter and all other matters provided by the Crown. 

18Obviously, the community corrections order with the programs that were directed at your rehabilitation such as anger management and drug treatment was imposed by the Magistrate in 2015 had little positive effect upon you.  What appears to be emerging is a tendency to commit violence.  Mr Tauschke, this must stop.

19Thus, while I do not ignore the need to give weight to your rehabilitation due to your age, it must be tethered.  That is, because you are not a first offender or anything like that.  You have been given chances before by the courts in the past to reform but you have not taken them up.  Rather, you have escalated your criminality by committing this latest brutal and cowardly attack.

20The sentencing purposes of denunciation and deterrence remain very significant and weighty considerations.  As to your personal circumstances as noted, you are 23, soon to 24.  Your parents separated when you were very young.  You did not see your father until you were about eight.  You described your father favourably.  You were raised by your mother.  She re‑partnered.  You have four half-sisters.  Your mother and your sisters continue to support you. 

21You told the psychologist Dr Cunningham that your stepfather was violent.  You mother, as I have said, still supports you, including visits to the prison and she was here in court.  Importantly, she will have you resume living with her once you are released. 

22You left school at Year 9 and secured work first as a roof tiler.  You then moved to the trade of plastering, securing an apprenticeship, completing that and then embarking as a tradesman.  Your employer, Mr Purt, wrote a letter for your bail application, indicating that you had worked for him for seven years.  He considered you reliable and honest.  He is willing to have you back as an employee on your release.  You did work for him, it seems, while on bail but before being charged with the other offences and remanded on 13 February 2019.

23Your work history as a young man is to your credit.  However, you said to Dr Cunningham that leading up to this offending your methamphetamine use escalated such that you could not maintain your employment.

24As to drugs, your cannabis use commenced at 13.  You took to ice at 16 and were addicted and well in the grip of that dreadful drug by the age of 19.  You say that your time on remand has had the positive effect of abstinence and hopefully you have broken your addiction to that drug. 

25Your drug use and your unthinking loyalty to other like drug users saw you deteriorate to the point of engaging in this mindless criminality.  Your drug use, however, is no excuse on the contrary.  The lengthy addiction that you have had to ice makes you a risk for falling back into drug use and consequently, no doubt, to further offending.  You must yourself squarely address your drug problem upon your release. 

26Your counsel urged that my sentence have a component of a community corrections order which would include drug treatment.  The prosecution contended that only a term of imprisonment with a non-parole period could properly punish you for this serious crime.  I have reconsidered the principles in the important decision of Boulton v The Queen. 

27There is a capacity to punish, deter and rehabilitate by imposing a community corrections order together with imprisonment.  However, in my view, the seriousness of this example of the crime of recklessly causing serious injury, taken with your prior history and your uncertain prospects of completely reforming mean that the appropriate and just sentence is one which requires a term of imprisonment too long for a community corrections order and one where a minimum non-parole period is in my view appropriate to fix.  Whether you get parole is for others, not me.

28I make it clear that your plea of guilty which was at the committal means that your sentence is less than it would otherwise be.  I cannot discern any other evidence of remorse except for the plea of guilty at the committal prior to the cross-examination of the victim. 

29These crimes, especially the recklessly causing serious injury, committed by you with your criminal history require me to give weight to denunciation.  The community will not abide violence of this kind in the public streets or anywhere.  It causes fear in our community that our streets are not safe.  The courts must play a role in reasserting proper values.  I must also send an unambiguous message that if others are tempted to violence of this kind, then long terms of imprisonment await.  I must deter you from your violent ways. 

30Your prospects of rehabilitation are guarded at best though I do not overlook your rehabilitation.  The potential for parole is what I have to facilitate your reform but in the end, it is up to you, Mr Tauschke.  Will you please stand?

31For committing the crime of recklessly causing serious injury, you are sentenced a term of imprisonment of four years and 10 months. 

32For committing the crime of theft, you are sentenced to a term of imprisonment of six months. 

33I order that that two months of the sentence imposed on the charge of theft be cumulative upon the sentence I imposed on the recklessly causing serious injury.  That results in a total effective sentence of five years and I fix the minimum non-parole period of three years. 

34Had you pleaded not guilty to these offences and been found guilty, I would have imposed a sentence of six years and six months with a minimum of four years and six months.

35I have been told that you have served 238 days that are attributable to this offending.  That figure having been reckoned, I now declare that 238 days is part of the sentence that I have just imposed.  I will ensure this declaration is entered into the records of the court so that the authorities are left in doubt that you have already served 238 days of the sentence I have just imposed.  The mathematics adds up, does it, gentlemen?  And what were the other orders you sought?

36MR O'DOHERTY:  Forensic sample, Your Honour.

37HIS HONOUR:  A forensic sample.  Mr Tauschke, the application has been made that a forensic sample be obtained.  What that means is that the authorities will seek to take a scraping or a swab from your mouth sufficient for your DNA to be placed on the database.  I have considered that application.  I intend to grant it.  I do so because of the seriousness of the circumstances of this offending, also due to your prior convictions and the granting of such an order is in the public interest.  If you do not cooperate at the time the authorities come to take the sample from you, then they are authorised to use reasonable force to ensure that the forensic procedure is conducted.  Do you understand that?

38OFFENDER:  Yes.

39HIS HONOUR:  You can be seated.  Is there anything else required?

40COUNSEL:  No, Your Honour.  

41HIS HONOUR:  Thank you.  I thank counsel for their assistance.  Mr Tauschke, you can be taken downstairs now.

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