Director of Public Prosecutions v Tobin

[2020] VCC 359

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01858

DIRECTOR OF PUBLIC PROSECUTIONS

v

JULES TOBIN

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 March 2020
CASE MAY BE CITED AS:	DPP v Tobin
MEDIUM NEUTRAL CITATION:	[2020] VCC 359

REASONS FOR SENTENCE
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Subject: Assault emergency worker and affray
Catchwords: guilty plea – attack on police officer in the execution of his duty – serious offending – 1^st offender – stable relationship and stable employment – no drug, alcohol or mental health issues – excellent rehabilitation prospects – Boulton v The Queen applied
Legislation Cited:
Cases Cited: Boulton v The Queen (2014) 46 VR 308
Sentence: 2 year community correction order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Livitsanos
For the Accused	Mr L. Hartnett

HIS HONOUR:

1On 30 March 2020, after an earlier sentencing indication hearing, you pleaded guilty to one charge of assaulting an emergency worker and one charge of affray.

2The circumstances of your offending are set out in the prosecution summary of opening. They are agreed facts.

3On 23 February 2019 you were the DJ at a birthday party at St Kilda. After the party, you joined the group for drinks at a nearby nightclub. Around 3 am, next morning, two police officers, McKenzie and Shepherd, arrived in response to a complaint, one of the group, Trent Potts, had assaulted someone in Fitzroy Street. When police tried to arrest Potts, he ran off. Some of his friends came to his assistance. In the course of a struggle with police, McKenzie struck Potts’ sister with a torch. When 2 others from the group set upon Shepherd, you stood nearby and yelled at police. A fifth member of the group wrestled with McKenzie. When McKenzie went to the ground you kicked him twice to his leg. Other police arrived assist and, when Potts was arrested, you were heard to call police “scum”.

4At the scene, police asked you for your name and address and you complied. Next day, you were asked to attend the police station for questioning, and you did. You admitted your involvement.

5I have read the transcript of your police interview.

6You admitted you were part of the group which attacked police. You said you were walking about and screaming for the situation to stop. You said you are not an aggressive person and, if you had had less to drink, you would have just walked away. Police showed you some of the film bystanders had taken and you admitted you kicked the police officer. You said, when you saw the girl get hit, you tried to contain yourself but made an “extremely bad decision” and all kicked the police officer before you walked off.

7You were charged and released on bail.

8At committal, you faced additional charges not contained in the indictment before this court. You pleaded not guilty at that stage. Post-committal negotiations led to a sentence indication hearing on 20 March 2020.

9Mr Hartnett, who appeared, with Ms Menegas, on your behalf, in comprehensive written and oral submissions, acknowledged your offending was serious. He accepted, ordinarily, your attack on the police officer would have warranted a term of imprisonment. However, he submitted, relying on the guideline judgement of Boulton v The Queen (2014) 46 VR 308, your case is an example of one where a community correction order can meet all sentencing objectives, even in an instance of serious offending. He relied on the following factors in mitigation of penalty:

firstly, your cooperation with police when they questioned you

secondly, your plea of guilty and remorse

thirdly, your prior good character; and

fourthly, your excellent prospects for rehabilitation

10You are now 27 years old.

11You have no criminal record.

12Mr Hartnett produced a considerable body of impressive material which evidenced your prior good character.

13You have a stable relationship with your partner of 4 years. She owns her own home and she had your baby in November 2019.

14You have stable employment and support them both. You will complete your carpentry apprenticeship in 2022.

15You have strong family and community support. You have a good record of community service and you have no drug, alcohol or mental health problems.

16I received and read the psychological report of Patrick Newton. In his opinion, which I accept, you have experienced a degree of anxiety as a reaction to your worrying about the perception others will have a view following the publicity surrounding your offending, your concern about the outcome of this proceeding and the ongoing effects of your exposure to the violent events in Fitzroy Street.

17I also read your letter of apology to both police officers. You expressed your remorse for your actions and wrote you have taken positive steps, including engaging in community work for a mental health foundation, to be a better person.

18Mr Livitanos, who appeared for the prosecution, acknowledged the powerful mitigating factors, including excellent prospects of rehabilitation. Nevertheless, in his submission, your offending was very serious, and a prison term is warranted.

19In relation to the gravity of your offending submitted:

Firstly, while it is not alleged your kicks caused Mr McKenzie an injury, causing injury is not an element of the offence of assaulting an emergency worker

Secondly, even though your violence was limited to a very short attack on Mr McKenzie your yelling helped to promote the totality of the affray and you must take some blame for the overall episode.

Thirdly, by the enactment of section 31 of the Crimes Act, which created an indictable offence punishable by a maximum penalty of 5 years imprisonment, Parliament has identified emergency workers as a special category of victim. Accordingly, general deterrence and denunciation are primary sentencing factors.

Fourthly, your assault of a police officer the execution of his duty, while he was wrestling with another offender, was gratuitous and cowardly,

and, for those reasons, very serious offending.

20I have viewed the bystanders film in real-time and in slow motion several times.

21Your offending was serious. Your assault on Mr McKenzie was cowardly and gratuitous. Your yelling promoted the affray.

22However, your misconduct was brief. Your kicks were delivered in quick succession, without great force, and the police officer was not physically injured by them. Your participation in the affray, which itself lasted about 2 minutes, was relatively minor. You were not involved in the violent attack on the other police officer, Shepherd.

23Nevertheless, the law must protect emergency services workers when they are performing their duties. So, it follows, general deterrence is an important sentencing consideration. Ordinarily, a term of imprisonment would be warranted for your offending.

24On the other hand, as the prosecutor properly acknowledged, there are forceful mitigating factors in your favour.

25I accept you are genuinely remorseful for your actions. I also accept, disinhibited by alcohol, you acted in a way out of character, which you deeply regret.

26You are a first offender. You have a stable relationship and stable employment.  You have very strong family and community support.  You have given community service yourself.

27I accept you have excellent prospects for rehabilitation.

28Prison is the sentence of last resort. As the Court of Appeal said in Boulton’s case: “A community correction order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned CCO with lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation” [131]

29I find yours is an exceptional case.  You did not know the other people who have been charged with more serious offences arising out of this violent attack on the police.  You were not involved in the violence, except to the extent that I have described. Your participation was much different to that of the others who will be standing trial in respect of the offences charged against them.

30Notwithstanding the gravity of your offending, I have decided a community correction order can properly meet all sentencing objectives, including just punishment and your rehabilitation.

31I have had you assessed for a community correction order and you have been found suitable.

32Unsurprisingly, you have been assessed as a low risk of reoffending.

33Community corrections take the sensible view that minimising interventions is an effective way of maintaining a person’s low risk of recidivism.

34I accept the assessing officer’s recommendation for minimal order conditions to allow you to continue with your otherwise pro-social lifestyle.

35On the charge of assault emergency worker and the charge of affray you are convicted and released on a community correction order for two years and the sole condition, as an element of punishment for you, will be that you perform 200 hours community work. 

36But for your guilty plea I would have imposed a term of imprisonment of nine months.

37MR LIVITSANOS:  As Your Honour pleases.

38MR HARTNETT:  As Y you our Honour pleases.

39HIS HONOUR:  Thank you, everyone, for your assistance. Mrs Ryan, please adjourn the court.

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