Director of Public Prosecutions v Todd and Wolfe

[2015] VCC 1340

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-15-01112
CR-15-00273

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEAN TODD
DYLAN WOLFE

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	11 September 2015
DATE OF SENTENCE:	21 September 2015
CASE MAY BE CITED AS:	DPP v Todd & Wolfe
MEDIUM NEUTRAL CITATION:	[2015] VCC 1340

REASONS FOR SENTENCE
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DPP v Todd
CRIMINAL LAW – Sentence – Intentionally Cause Injury, Affray – Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic) – DPP v Russell [2014] VSCA 308; Boulton v R [2014] VSCA 342; DDP v Tokava [2006] VSCA 156; R v Merritt, Piggott and Ferrari [2007] 14 VR 392 – CCO of 2 years, fined $4,000

DPP v Wolfe
CRIMINAL LAW – Sentence – Recklessly Cause Serious Injury – Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic) – DPP v Russell [2014] VSCA 308; Boulton v R [2014] VSCA 342; DDP v Tokava [2006] VSCA 156; R v Merritt, Piggott and Ferrari [2007] 14 VR 392 – CCO of 3 years, fined $2,000

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Pearson	Solicitor for the Office of Public Prosecutions
For Accused Todd	Mr D. Gibson	Victoria Legal Aid
For Accused Wolfe	Ms P. Smith	Revill & Papa Lawyers

HIS HONOUR: 

1Mr Dylan Wolfe and Dean Todd pleaded guilty to an Indictment, which contained three charges, Indictment No.C1409936. Insofar as Mr Wolfe was concerned, who was 21 at the time of this offending and is now 22, he pleaded guilty to an offence of recklessly cause serious injury to Shaun Riley. That is the victim in both Charges 1 and 2. Such is an offence under s.17 of the Crimes Act1958 (Vic) ‘the Act’. The seriousness of which is reflected by the fact that Parliament has prescribed a maximum penalty of 15 years' gaol for such offence.

2Insofar as the second and third charges on the Indictment, they are related to Mr Todd.  Mr Todd pleaded guilty to intentionally cause injury to Mr Riley.  This is an offence against s.18 of the Act.  While not as serious as the charge to which Mr Wolfe has pleaded guilty to, it is still obviously a very serious matter as reflected by the fact that Parliament has prescribed a maximum penalty of ten years' gaol.  Mr Todd also pleaded guilty to a charge of affray, which is a common law offence, for which the maximum penalty prescribed is one of ten years.

3The circumstances of this offending was set out in the prosecution summary, Exhibit A, to which both defence counsel accepted as reflecting the facts of the matter.  The background was simply that they were out at a hotel.  Throughout the day, there had been too much drinking in regard to both of them and as often happens in these circumstances, put those in combination with a whole lot of people congregating as they leave the hotel and circumstances can sometimes get out of hand.  It is just those very circumstances of wanton violence caused, and people injured, that was referred to by the learned prosecutor in DPP v Russell [2014] VSCA 308 ‘Russell’ and I take into account the fundamental principles and the manner with which the community, and indeed Parliament, looks upon these types of serious crimes committed at such venues.

4One only has to look at the CCTV, Exhibit B, to realise, my comment was how ridiculous this is, but you see people milling around outside the hotel close to the end of the night when a lot of people are leaving. It is not quite clear what happens, but clearly there are three groups of people, they get intermingled, there is an argument and apparently there is a drink spilled on Mr Todd.

5As referred to in Russell, these are the very background factors that are of concern in the community for minor issues.  Here we have two persons facing loss of liberty, being convicted of serious charges, which is going to impact on them for the rest of their lives.  Such come about from a minor infraction that was committed upon Mr Todd, and because of the impact of drink upon him, he reacts totally inappropriately.  They then both assault Mr Riley and as the CCTV shows, it is over so quickly.  When I use the term ridiculous, it is just crazy that people place their liberty in such jeopardy by behaviour, that is almost momentary.

6As set out in the summary, Paragraph 10 shows, that the two accused men approached the victim's group.  Apparently Mr Todd was grabbed on the arm by Mr Riley and he reacts by hitting him twice and walking off, and you see that in the CCTV.  At that stage, apparently, Mr Riley was on the ground.  Mr Wolfe then goes over and hits Mr Riley a few times, but could possibly have hit him more than that, and also recalls kicking him once.

7The victim remained motionless on the ground for a brief period and was then assisted to get up on the kerb.  Police arrived, by that time, both Todd and Wolfe had left the scene.  An ambulance transported Mr Riley to the hospital.

8There is an excellent summary insofar as the injuries that were suffered by Mr Riley contained at Paragraph 16.  Essentially, he suffered two fractures, a fracture of the orbit and a fracture of the nose.  Such came about from Mr Todd, the instigator in this matter, hitting him twice, forcing Mr Riley to the ground.  Mr Todd then walked off.  Then Mr Wolfe became involved in the manner that I have indicated.

9After the investigation, records of interview were conducted.  During Mr Todd's interview, he admitted to assaulting the victim by punching him twice.  He said that he went out to break up a fight, then the drink was thrown on him and the bloke grabbed him and then he ended up hitting him.  After he punched him twice, he walked off.  As I said, that is shown on the CCTV footage.  After the first punch, he said the victim went to the ground and he hit him again.  He stated that he had a lot to drink that night and identified himself.  It is, of course, a positive that Mr Todd was cooperative and indeed his own admissions went very much to forming the Crown case.

10During Mr Wolfe's interview, he stated he saw Mr Todd hit the victim twice and walk away.  He then states he hears someone in the crowd say the victim had a knife, and he freaked out and that is when he hit him. Again, what a stupid decision to make.  Again, no doubt, impacted by alcohol.  Mr Wolfe said he saw him kneeling on the ground after Mr Todd had struck him, he thought that Mr Riley was getting up, so he went over and hit him a few times and kicked him once.  Well a pretty gutless performance of course, hitting someone who is already down.  But again, we see the background, Mr Wolfe admitted to drinking about 12 drinks that evening.

11Insofar as the impact of this matter was concerned, as I said, that is set out in Paragraph 16, it is also set out in the medical material tendered to the Court.  Firstly, you have the radiologist's report of Dr Lim, Exhibit D, which shows the fractures to the nose and the orbit of the face.  Then the plastic report of Dr Ting, Exhibit E.  Dr Ting saw the victim approximately two weeks after the assault and undertook surgery to rectify the fractures to the nose and the orbit.  Dr Ting in her report, as far as she understood, that there was a good recovery structurally, with no indication of any further contact from that time with Mr Riley.

12Insofar as Mr Riley’s own victim impact statement, which was tendered and is Exhibit C, there does not seem to be inappropriate in what he had to say.  Mr Riley said he suffered some ongoing upset as to his inability to travel and go out to functions afterwards, because he was concerned about how he had been treated.  He had some ongoing difficulty with sleep and that continued for approximately a year and was still a problem when he made this statement, this statement being made in fact on 18 February of this year.

13Mr Riley also suffers serious pain, "To the right side of my face, and the pain is a constant reminder of what happened."  Now as I said during the hearing, we do not have an updated report unfortunately.  It would have been of assistance to the Court. Despite the plastic saying structurally all rectified, and there are no ongoing problems, Mr Riley seems to be left with an issue of pain.  Mr Riley also notes that he was embarrassed for a period from the way his face looked and the fact that because of the impact of the assaults, he was required to take over five weeks off from work.

14Mr Riley suggests that such injuries led to him being terminated although one would question that given that apparently he had worked there for five years.  He also notes in his last sentence that the assaults, and the impact on his employment, are such that he suggests they have ruined his life.  As I said during the plea, that perhaps might be somewhat exaggerated, however this is what happens when people are assaulted like this and one can understand his feelings.

15The prosecution sought orders under s.464ZF, that is forensic sample orders, and I will make those and I have signed such and they will be delivered in due course.

16Insofar as the plea itself as conducted by Ms Smith on behalf of Mr Wolfe, she referred to the fact that Mr Wolfe had cooperated and had been very honest in the record of interview in February 2014. That through no fault of his own, given that there was no committal in this matter, the charges were ultimately not filed until November of that year.  On his behalf, she accepted that the Court is dealing with a serious offence, and she accepted that the usual consequences of this offence must be a period of imprisonment.

17Mr Smith, on behalf of Mr Wolfe, submitted that I should take into account the fact that this was an early plea, that he has made full admissions, that from the first, he was concerned about the victim, as she pointed out even in the record of interview, Mr Wolfe was enquiring as to the state of the victim, that is at Question 174.  That in the record of interview, he acknowledged his guilt.  He said that such a thing should not happen, that he was ashamed of himself and the victim did not deserve what had happened to him.  Well no one can dispute that.  He also accepted, as evidenced in that record of interview, full responsibility.

18The background to the excessive consumption was apparently that Mr Wolfe is generally not a heavy drinker, so he instructed his counsel.  He had been out to the trotting that day, where he had a few beers, and then he continued to drink excessively at the hotel, as set out in his answer to Question 93.

19As Mr Wolfe said, insofar as the circumstances, he saw the situation develop with Mr Todd.  He accepted that through misguided loyalty, he got involved.  He suggests he got involved because he had heard someone talk about a knife. Given the seriousness of this charge to which he has pleaded and his cooperation, as I indicated to Ms Smith, I thought this was a very valuable plea.  Ms Smith also referred to the fact that there has been good structural repair insofar as the injuries, and that this matter had resolved essentially upon the admissions made by Mr Wolfe himself, albeit she said was always a matter that was going to be a plea. 

20Insofar as Mr Wolfe’s personal background, Ms Smith spoke of him as essentially a country boy, who lives with, and has been brought up by his mother.  He did the VCAL program at school and then went on to do a plumbing apprenticeship.  Unfortunately, he broke his hand and became unemployed and then went to do a roofing apprenticeship.  He is currently unfortunately unemployed, but he is back with his mother, he is helping care for his sister, he is very well supported by the family and it was put that this matter is very much out of character, especially given that his father is a police officer who works in Port Fairy apparently.

21I was advised, as is counsel's obligation, that there are pending matters.  Those matters are apparently going to trial and I therefore do not take them into account in this matter.  I have read the references of his partner, and of his sister, set out in Exhibits W1 and W2 respectively and those references are of value and I have taken them into account.  In particular, Ms Smith put by way of her submission on behalf of Mr Wolfe, his current age, still only 22, the fact that he has no priors whatsoever in regard to this type of activity, that he is cooperative, that there has been a significant period of delay and that he has shown by his actions, from the first, genuine remorse.

22Ms Smith was concerned as to what the Court would pass insofar as such penalty was concerned, and while understanding the normal consequences in an offence such as this, given the maximum penalty prescribed by Parliament. She submitted to the Court, on the principles of Boulton v R [2014] VSCA 342, that there should be no immediate period of imprisonment passed because of his age and his priors, essentially. That appropriate conditions could be blended into a Community Corrections Order, which would satisfy the requirements of the community and hopefully, with such an opportunity being given to Mr Wolfe, thereby ensure that he does not again commit such a serious offence.

23In response, the learned prosecutor stressed the significant injuries caused as a result of this attack.  Ms Pearson stressed that this crime was unprovoked, that gratuitous violence is not accepted by the community or the Courts, and referred to the comments already referred to in Russell.  While the facts are quite different, she relied on the denunciation of gratuitous street violence contained in that decision of the Court of Appeal.

24However, it was accepted professionally by the prosecution that Mr Wolfe's plea was a very valuable plea in the circumstances, and that his cooperation was very much part of that.  It was submitted that the Court could determine upon a Community Corrections Order, however given the seriousness of the crime, it was left to the Court as to whether a period of immediate imprisonment should be added.

25Coming then to Mr Todd, for whom Mr Gibson appeared.  The difficulty insofar as Mr Todd is concerned is that he is a person, not with great priors, but priors that indicate he has had a problem with alcohol for a considerable period.  He has three offences of driving a car while intoxicated and has lost his licence on each occasion.  He has had prior offences for robbery and threat of serious injury, again where he was treated relatively leniently, which would indicate the offences were probably not that dramatic.  However, of concern insofar as Mr Todd is concerned, is that within some three months prior to this offending, he had been given an opportunity when he went before the Bacchus Marsh Magistrates' Court upon a charge of unlawful assault.  He was given a no conviction fine, and despite that leniency, here we are with him being involved in this criminality.

26The written submissions of Mr Gibson are Exhibit T1, and I have taken those into account. It was accepted that this is the type of crime that should not happen.  It was accepted that this punching was such that amounted to the elements of the crime, however the matter had resolved in him pleading to the lesser charge, as against Mr Wolfe.  I must say, I have had some difficulty given the facts of this case, and what I have been able to read, as to how the matter has resolved.  However, that is not a matter for me.

27The submission insofar as the affray is concerned was that is at a very low level, I accept that.  I was cautioned insofar as considering the matter as to the issue of double punishment.  Both of them apparently met at work.  Mr Todd is a concreter.  He was brought up in a home, unfortunately, where drink and violence was a problem.  He is very close to his sister and, I am told, works hard as a concreter.  Life show us that violence begets violence, but one would have thought when you have been brought up in a home where there are problems, you would try to ensure that you do not travel down the same path. 

28The other issue with Mr Todd is that he has got obligations.  Albeit that he gets a good income and is fully employed, he has got three dependents. Given that, he should not be out at night, getting drunk and punching people up. It was put that this is all to do with his problem with alcohol.  It was further put to me that he has changed his lifestyle, and that he was a good provider.  However, as I said, all of that is at risk by his own behaviour.

29Mr Todd has, I accept, strong support from his partner and family. It was essentially put that despite the seriousness of this crime, again it occurred due to excessive alcohol and overreaction.  Again, he was particularly cooperative insofar as details of what happened. 

30Mr Gibson submitted that Mr Todd’s prospects of rehabilitation are good.  An immediate sentence of gaol in regard to Mr Todd would bring a considerable disruption to his life and those of his loved ones, but as I said during the hearing, you commit such crimes and that is what happens. You then come to Court and say I am sorry, I forgot to think about my own dependents.

31It was pointed out that he has been working full time over the last 18 months.  Since these crimes occurred, there has been no further transgressions and it was further put that in totality, this Court could consider even with his background, and I make the point, because he was treated leniently for prior matters, does not mean that he has to now be treated harshly, but where you have prior matters of this sort and a finding of guilt of an assault some three months before this offence occurs, it can limit the flexibility that a Court can exercise.

32In response to the proposition put by Mr Gibson that a Community Corrections Order would be appropriate, the learned prosecutor again stressed the issue of gratuitous street violence and the need for the Courts to take strong action in regard to such.  Ms Pearson stressed the fact that Mr Todd was considerably older than Mr Wolfe.  The issue of different roles is interesting in this case.  I have no doubt that Mr Todd was the instigator in these crimes, and I have no doubt that, stupidly, Mr Wolfe has jumped in.

33As I say, I struggle to see how the matter was resolved, but it was resolved in such way.  The submission on behalf of the prosecutor was that while a Community Corrections Order might be appropriate for Mr Todd, gaol should also be imposed, and that is immediate gaol.  They were the matters put to me, and each counsel submitted to me relevant sentencing statistics, which are of assistance to this Court.

34These sentences are always particularly difficult. There is of course a balance to be effected. I accept totally the matters put to me by the Crown, that wanton and unprovoked violence needs to be dealt with severely, especially where a person such as Mr Riley has suffered such a serious injury. Balanced against that are the circumstances that I have referred to. I am required to take into account the principles set out in s.5 of the Sentencing Act, and in particular in regard to s.5(4)(c) now insofar as it relates to Community Corrections Orders.

35Insofar as Mr Wolfe is concerned, I take into account that it is his first offence, that he is a younger person, that he has no priors and further, I accept that he did not instigate this matter.  That was instigated by Mr Todd.  As I say, I am not really across how the Crown resolved the actual criminality, between the two parties, but I accept, given the pleas.

36Insofar as Mr Todd is concerned, as I have said, he was the instigator and is the older person.  He has priors for assault and considerable issues with alcohol.  He has allowed this problem with alcohol to lead him to assaulting someone, placing jeopardy on his own job, his liberty and his obligations to three children.  It reeks of irresponsibility.

37It was put, as I said, by the prosecutor that while a Community Corrections Order could be taken into account, an appropriate sentence should include for Mr Todd a period of immediate gaol.

38The relevant sentencing principles in regard to Mr Wolfe are slightly different, however the fact is that Mr Todd, to this time, has never suffered a sentence of gaol.  In DDP v Tokava [2006] VSCA 156, Maxwell P said this at [21]:

"A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of a serious offence, if in the long term, the community's interest will be best served by that course."

39In R v Merritt, Piggott and Ferrari [2007] 14 VR 392, again, the President had to consider these propositions when dealing with younger offenders, and co-offenders, at [49], he said:

"The sentencing Court looks to the future as well as to the past.  There is a very great benefit to the community at large as well as to individuals themselves and their immediate families if future criminal activity can be avoided.  It is important that this Court, by its own sentencing decisions, recognises and rewards efforts at rehabilitation, just as we should support trial judges who do so.  It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of the offenders.  The preoccupation with retribution, which characterises much of the public comment on sentencing, is understandable but it focusses on only one part of the sentencing Court process."

40Taking account of all the statutory requirements and of the comments of the President that I have just read out, I have concluded insofar as Mr Wolfe is concerned that a period of imprisonment is not necessary.  However, I want to stress to you, Mr Wolfe, you would not want to come back in front of a Court again.  Next time, you will get a gaol sentence, given the serious nature of this offence.  Do you understand that?

41ACCUSED WOLFE:  Yes, I do.

42HIS HONOUR:  However, as I have said, given your youth, the fact that you have no priors and my finding that you did not instigate this matter, although you stupidly got into it, I have decided to accept the proposition that a Community Corrections Order is appropriate.

43Mr Todd, you present a much more difficult case.  You have assaults in your past, and have suffered consequences as a result of your abuse of alcohol.  On three occasions, you abused alcohol to the extent that you have been convicted of serious traffic offences.  Despite that and despite the fact that you were dealt with three months before these offences with a no conviction for an assault, here you are, punching someone out, out the front of this hotel.

44You are, however, relatively young.  It has been a very difficult consideration.  I have always taken a positive attitude to people, I am, as expressed by the President, loath to put someone in gaol if I think that there is an opportunity for them, given the experience of being before the Court and having their liberty so clearly at risk.  It is appropriate to give further opportunities.  As I say, it has been a difficult consideration as far as you are concerned.

45However, in the final analysis, I have decided to give you a chance, but again, you should understand there will be no more chances for you.  You come back before this Court, and you are into gaol.  Do you understand?

46ACCUSED TODD:  Yes, Your Honour.

47HIS HONOUR:  There are no more chances.  You have been given many, many chances.  This is the end. You have got to get rid of alcohol from your life.  You have been able to observe in your own home the effects of alcohol and assault in your own home, you have had to deal with it yourself. You have got to stop it yourself, so you do not live your own life under the aura of alcohol addiction, and its consequences.

48Mr Wolfe, you will be convicted on Charge 1 in this Indictment and sentenced to a Community Corrections Order, the term of which will be three years.  I should point out in making that determination, I have taken into account the positive assessment made on your behalf, as set out in Exhibit W4. I understand you have signed that document and you understand the requirements that are set out. You are to undertake unpaid community work over that period of three years and I set the hours that you have to work as 300 hours.  So that will come to essentially 100 hours a year, or whatever you ultimately work out yourself.

49I have also accepted that you undergo alcohol assessment and treatment because that is obviously important for you as well, that you should undertake supervision and also undergo offender behaviour programs as recommended.  You have got to ensure in your life that when you are in a position, and again, you have got to be a bit careful yourself about alcohol, but when you are in a position you do not react like you have.  I have determined however to impose a fine, given the serious nature of your offence, and you will be fined the sum of $2,000. I will give you a stay of six months in regard to that.  The reporting site for you for the Community Corrections Order is at Bendigo and I stress again my warning to you about not coming back to Court.

50Mr Todd, as I said, by a skerrick, you have missed gaol today, by a very, very narrow margin. On both offences, pursuant to the provisions of s.40(1) of the Sentencing Act, you will be sentenced to a Community Corrections Order of two years.  Insofar as that order is concerned, I point out again that taken into account on your behalf was the positive report received from the Community Corrections Department, being Exhibit T4.  Again, I understand that you have signed a document and understand the full terms.

51The requirements for you are unpaid community work, which I do impose and I set the period of 150 hours for you.  Treatment, rehabilitation, alcohol assessment and treatment.  This is fundamental as far as you are concerned.  You still were reporting at the time of this report daily consumption of alcohol.  Now that has just got to go from your life.  I understand as a concreter life is tough, you work hard and would meet a lot of friends who drink like that, but that is not to happen for you.  Equally, the offending behaviour programs and supervision are appropriate. I have determined that they should all be on your Community Corrections Order in addition to reporting to the Melton Community Corrections Department.

52Insofar as the circumstances of this case, given your background and your role, I have determined that I should also impose a fine on you and I do so in the sum of $4,000.  I order that you pay that within a period of six months.

53In regard to both of you, if you have any trouble in paying it over that time, and you come back to me to seek an extension, I would expect that a considerable sum has been paid.  I also, in regard to both of you, make a s.464ZF forensic sample order.  What that means is within 28 days of today's date, you must present at a police station and undergo a sample.  That records your forensic details forever on the police database and that is done because of the serious nature of the crime that you have both committed.

54Madam Prosecutor, is there any matters that I have not attended to?

55MS PEARSON:  No, Your Honour.

56HIS HONOUR:  All right, thank you.  If you both take a seat and we will prepare the documents.  Can I ask both counsel to emphasise my comments about not wanting to come back?

57MR GIBSON:  Yes, Your Honour.

58MS SMITH:  Certainly, Your Honour.

59HIS HONOUR:  Especially your client, Mr Gibson.

60MR GIBSON:  Yes.

61HIS HONOUR:  I should also point out to you these Community Corrections Orders now are strongly policed and it is very important for you to understand from the start that you can come back before me not only for having committed a further criminal offence but failing to attend any of these arrangements that are made for you.  Again, for both of you, given the serious nature of your offending, you would not want to come back for me to have to reconsider what I do with you.

62I thank all counsel for their assistance.

63MS SMITH:  As Your Honour pleases.

64HIS HONOUR:  It would not hurt to have a copy of the s.464ZF order, would it, for both of your clients so they know what to do.

65MR GIBSON:  Yes, it would, Your Honour.

66MS SMITH:  That will assist, Your Honour.

67MR GIBSON:  May I be excused Your Honour so I can speak to my client?

68HIS HONOUR:  Yes, thank you.

69MS SMITH:  Me also, Your Honour.  Thank you, Your Honour.

70HIS HONOUR:  Yes, both of you having signed that, we all know where we are for the next two and three years, all right.

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