Director of Public Prosecutions v Tolhurst
[2024] VCC 565
•1 May 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00320
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICKY TOLHURST |
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JUDGE: | HER HONOUR JUDGE HAWKINS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 April 2024 | |
DATE OF SENTENCE: | 1 May 2024 | |
CASE MAY BE CITED AS: | DPP v Tolhurst | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 565 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentencing.
Legislation Cited: Crimes Act 1958 (Vic), s17, s18; Sentencing Act 1991 (Vic) s5
Cases Cited:R v Verdins & Ors [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169; Russo v. The King [2024] VSCA 55; Tan v The Queen [2019] VSCA 226; Hogan v The Queen [2017] VSCA 230; Mehmet v. The Queen [2019] VSCA 211; DPP v. Larkin [2022] VCC 437; Boulton v The Queen (2014) 46 VR 308.
Sentence: 12 months’ imprisonment combined with an 18 month Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Kerlin | Office of Public Prosecutions |
| For the Accused | Ms J. McGarvie | Nelson Brown Legal |
HER HONOUR:
1Ricky Tolhurst, you have pleaded guilty to one charge of recklessly causing serious injury, which carries a maximum penalty of 15 years in prison.[1]
[1]Crimes Act 1958 (Vic), s17
The circumstances of your offending
2The circumstances of your offending are set out in the summary of prosecution opening for plea dated 14 March 2024,[2] the accuracy of which you accepted through your counsel.
[2]Exhibit A – Summary of Prosecution Opening dated 14 March 2024
3At approximately 7.30 pm on Wednesday, 27 October 2021, you were at home with your mother. The victim, Girish Moses, who was your neighbour, was walking his dog along the footpath of Bayfield Road West. As Mr Moses approached your address, he stopped in the front of property to allow his dog to defecate. You observed Mr Moses bend down to pick up after his dog and believed he was acting suspiciously.
4You went outside to confront Mr Moses, and this led to a verbal argument. The argument became heated, and you took a broken baseball bat out of the rear of your vehicle, which was parked at the front of your property, and swung it at the victim. Mr Moses lifted his left arm to protect himself. The bat hit his left forearm, causing him minor injuries. You then swung the bat a second time and again connected with the victim's left arm near his elbow. This second swing resulted in the victim sustaining an open fracture to his elbow and caused him to fall to the ground. You got on top of Mr Moses and put the bat on top of his chest to stop him from leaving. After a short time, you let him get up off the ground.
5Mr Moses returned to his home and was driven to hospital for treatment by his partner. You called Triple 0 to report an assault requiring ambulance assistance.
6You gave a no comment interview to police.
The impact of your offending on the victim
7As a result of the assault, Mr Moses sustained an open fracture and dislocation of his left elbow. He underwent lengthy surgery for the insertion of a metal plate and screws into his arm. He remained in hospital for a week and was not able to use his arm for six weeks. On 23 March 2023, Mr Moses underwent further surgery for the removal of the metal plate, and he was again hospitalised for two days. He has been attending physiotherapy but is unlikely to regain a full range of movement in his left elbow.
8In his victim impact statement read to the court, Mr Moses stated that this incident has affected his and his partner's lives in every way. [3] He notes that you still live next door to each other, and you see each other often.
[3] Exhibit B – Victim Impact Statement of Girish Moses dated 14 June 2024.
9Mr Moses is still not able to work in his trade as a bricklayer and he is struggling to come to terms with the fact that the career he has spent 25 years building is over. He has been advised that he will require further surgeries on his arm.
10Mr Moses is still experiencing physical pain because of this incident. He says that he had not taken drugs for 25 years prior to this incident, and he was due to cease methadone use at around Easter this year. The pain caused by this incident, however, caused him to briefly relapse and this has delayed his ability to cease methadone. He says that, out of everything, this has been the most disheartening thing for him to deal with.
11In her victim impact statement, Mr Moses's partner, Kelli Membrey, describes the night of the incident as an 'absolute nightmare'.[4] As a result of the incident, Ms Membrey was required to take four months off work to serve as a full-time carer for her partner. She says that not only has this incident caused significant emotional stress and pain, it has also taken a financial toll.
[4] Exhibit C – Victim Impact Statement of Kelli Membrey dated 14 June 2024.
The objective gravity of your offending
12The offence of recklessly causing serious injury is an inherently serious offence. The objective gravity of such offending will depend on the probability that a serious injury will result and the degree of seriousness of the probable injury.
13Your counsel, Ms McGarvie, submits that your offending was not entirely unprovoked. The agreed Summary of Prosecution Opening, however, does not describe any provocation on the victim's behalf. On the contrary, the victim's actions are the actions of an innocent and responsible dog owner and neighbour. I must sentence on the basis of the agreed facts, not what you say occurred.
14Mr Tolhurst, your offending was of short duration and occurred in the context of an argument between neighbours. It was unplanned and was not committed in the company of co-offenders. You made no attempt to disguise your identity. Your actions were, however, an extreme and unwarranted escalation of the earlier verbal argument. As your plea to this charge acknowledges, you struck the victim in conscious disregard of the risk of serious injury you knew then existed.
15Your first strike caused minor injuries, yet you continued, and swung the bat a second time, hitting the victim's elbow, causing the serious injury. A broken baseball bat is less likely to immediately threaten life than a weapon such as a firearm or knife, but, in circumstances where you used it to strike the upper body of the victim twice and then used it to pin him to the ground, your use of this weapon must be considered a serious aggravating factor.
16Whilst the consequences of the fracture will be lifelong for the victim, the injuries themselves are not life threatening, and it is a less serious example of 'serious injury' encompassed by this offence type.
17I conclude that the overall gravity of your offending is mid-range for offending of this type.
Your personal circumstances
18Mr Tolhurst, you are now aged 29. You are an only child and were raised in the eastern suburbs of Melbourne. Your childhood was unstable, you moved house regularly and your parents' relationship was volatile. Your father drank alcohol heavily and was verbally abusive towards you. Your parents eventually separated when you were 12 years of age. You found this event 'traumatising' and your father became particularly hostile following separation.
19Despite a complex relationship with your mother, you resided with her until January of this year. I note that she attended court on your plea and again today to support you.
20Your school years became increasingly problematic in secondary school. You felt bullied and ostracised in Year 7 and eventually moved schools. Social problems continued and your behaviour deteriorated. You ultimately left school at the beginning of Year 10.
21You then went on to complete an apprenticeship as a motor mechanic and enjoyed stable employment with the same company for eight years.
22You have been employed at ASSEMCO since the end of 2021, working in truck and heavy vehicle assembly. Your work colleagues describe your strong and loyal work ethic. Notably, Ryan Trafford speaks of his knowledge of your occasional relationship conflicts and 'anger-related mental health problems' but has never experienced you to direct physical anger towards him.[5]
[5] Exhibit 8- Bundle of character references.
23Your de facto mentor, Allan Morris, speaks of your significant potential and your aspirations to engage in additional studies within the project management field in the future.[6]
[6] Ibid
24I note that you have been in a relationship with your current partner since last year, and she attends court today in your support. You moved in with her and her two teenage children in January this year.
25You commenced drinking alcohol at 17 and your drinking reached problematic levels in your early 20s. You express a desire to reduce your consumption.
26You also developed a cannabis addiction at 17, and you abused the drug daily until you were 23. You used the drug regularly until about three months ago and your abstinence is confirmed by negative drug screens tendered on your plea.[7]
[7] Exhibit 4 – Drug Screen Results from Greater Knox Family Practice collected 4 April 2024 and 23 February 2024.
27A long-term physical health issue was resolved last year, and you are otherwise in generally in good health.
Your criminal history
28You have no prior criminal history. A personal safety intervention order was made to protect the victim after this incident. You pleaded guilty to contravening that order by engaging in a verbal exchange with the victim outside your respective addresses. This subsequent matter is not relevant for sentencing purposes other than to assess your level of remorse and prospects of rehabilitation.
Your mental health
29The forensic psychological report of Dr Matthew Barth dated 4 April 2024 reports that you described periods of depressive moods and self-esteem issues dating back to your early adolescent years.[8]
[8] Exhibit 1- Forensic Psychological Report of Dr Matthew Barth dated 2 April 2024.
30Whilst you are currently experiencing symptoms of a moderate level of depression and anxiety, you have been able to continue with your daily routine without evident difficulty. Dr Barth concluded that your symptoms are not sufficiently severe to meet DSM-5-TR criteria for any mental disorder.
31Dr Barth opined that you are of normal intelligence with normal thought processes. He described that a comprehensive assessment of your interpersonal and behavioural adjustment indicated that you are an immature man. He described that your decision making is impulsive and your insight into your behaviour limited. Moreover, you have had recurrent difficulties dealing with interpersonal conflict. He concluded that your awareness of the various processes associated with your anger remains comparatively superficial and thus makes it difficult for you to institute effective control strategies during emotionally challenging situations. He recommended that addressing these issues should be a clear focus of psychological intervention.
32Finally, Dr Barth opined that your history of substance abuse has been sufficiently severe to warrant a diagnosis of moderate-level alcohol and cannabis use disorder. He opined that you pose a 'moderate' risk of violent reoffending. Accordingly, he recommended that offence specific treatment is required to reduce your risk of reoffending.
Your moral culpability
33You are a man of average intelligence and, despite Dr Barth's reservations about your level of maturity, I observe that you have been able to function well in the community without contact with the justice system prior to this offending. Counsel do not submit that the principles in Verdins' case have any application to reduce your moral culpability. [9]
[9]R v Verdins & Ors [2007] VSCA 102.
34I accept that your plea of guilty and your expressions to Dr Barth are some evidence of your acceptance of responsibility for your actions and of your remorse. Those expressions are, however, somewhat tempered by your post-offence conduct, for which you pleaded guilty, of contravening an intervention order put in place to protect the victim of this offending.
35On balance, your moral culpability for this offending remains high.
Your prospects of rehabilitation
36You have no prior convictions and are of otherwise good character. You are well regarded in the community and have an excellent work history as a qualified mechanic. You told Dr Barth that you understand that you need to develop better ways of managing your anger and believe it is your responsibility to do so. You have a strong desire to participate actively in any treatment required of you.
37You have sought treatment in respect of the underlying causes of your offending. You commenced a course of supportive psychological treatment with psychologist Christian Acciriato on 7 November 2022[10], and completed a four‑session anger management course on 4 April 2024[11] prior to this plea. Overall, I describe your prospects of rehabilitation as 'optimistic'.
[10] Exhibit 2- Letters of Christian Acciarito (Treating Psychologist) dated 24 March 2023 and 14 December 2022.
[11] Exhibit 7- Anger Management Certificate signed by Robert McInnes dated 4 April 2024.
Delay
38There has been considerable delay in the finalisation of this matter. You were not charged with the offending until February 2022. Due to the serious injuries the matter was uplifted on 21 June 2022. You first offered to plead guilty in November 2022, but the factual basis for the plea was not resolved until July 2023.
39The impact of delay, not of your own making, is relevant in two ways. Firstly, you have had this matter hanging over your head for an extended period of time, and secondly, you have used this time productively to make progress towards your rehabilitation. In so doing, you have actively demonstrated that you are taking responsibility for your actions.
Your plea of guilty
40You pleaded guilty at the committal mention of this matter. The prosecution accepts that yours ought be considered an early plea. The victim and another witness, your mother, were cross-examined at a committal hearing. The matter subsequently resolved on the factual basis upon which you had earlier offered to plead guilty, and ultimately your plea avoided the need for a trial and for witnesses to give further evidence and be cross-examined.
41Whilst the trial backlog in the County Court has now been reduced to pre-pandemic levels, I accept that your plea, entered during a time whilst the justice system was still 'catching up', has contributed to this recovery. Accordingly, your plea has significant utilitarian benefit, and you will receive an actual and palpable sentencing discount for your plea in accordance with the principles outlined in Worboyes' case.[12]
[12]Worboyes v The Queen [2021] VSCA 169
Sentencing purposes and practices
42In sentencing you I must have regard to a range of matters such as the seriousness of your offending, your culpability for it, and your personal circumstances. I must balance the interests of the community in denouncing criminal conduct and deterring others from engaging in similar offending with the interest that the community clearly has in seeking to ensure, as far as is possible, that offenders are rehabilitated and are reintegrated into society.[13] Specific deterrence will have less relevance in your case as you have no prior convictions, but I must impose a sentence which is proportionate to the gravity of your offending considering all of these circumstances. The sentence must be no more than is necessary to satisfy these various objectives of sentencing.
[13] In accordance with the purposes set out in s5 Sentencing Act 1991
43I have also taken into account current sentencing practices for the offences to which you have pleaded guilty.
44I have been specifically referred to a number of comparative cases which are given as general examples of the application of sentencing principles for offending of this type.[14] In the case of Russo the Court of Appeal remarked that an unprovoked assault against a victim with a metal bar to the face; which resulted in the victim having a fractured jaw and dental injuries, by an offender without prior convictions, no subsequent offending, and who had excellent prospects of rehabilitation, in circumstances where the cases of Verdins and Bugmy operated to reduce that offender's moral culpability; was significant offending which warranted an immediate term of imprisonment, with a combination sentence being towards the lower end of the range. At paragraph 45 in that case their Honours stated:
'Had general deterrence featured prominently in the sentencing mix, we would have expected a sentence considerably in excess of the composite sentence imposed. Put another way, we regard this sentence as very lenient indeed given the egregious criminal circumstances of the offending. To attack a man from behind, with an iron bar to the face, occasioning substantial and protracted injury, whilst recklessly indifferent to the consequences is significant offending'.
[14]Russo v. The King [2024] VSCA 55; and Tan v The Queen [2019] VSCA 226; Hogan v The Queen [2017] VSCA 230; Mehmet v. The Queen [2019] VSCA 211; DPP v. Larkin [2022] VCC 437.
45A head sentence with a non-parole period was found not to be manifestly excessive in the case of Mehemet, where a 27-year-old offender had no priors and did not use a weapon.[15] All limbs of Verdins were applied in that case and he was found to have good prospects of rehabilitation.
[15] Mehmet v. The Queen [2019] VSCA 211
46By contrast, a CCO alone was imposed on the offender in this court in the case of Larkin in circumstances where no weapon was used.[16]
[16] DPP v. Larkin [2022] VCC 437.
Counsel's submissions on disposition
47Mr Tolhurst, I have taken into account all matters raised on your behalf in the course of your plea, in which your counsel spoke to her very detailed and helpful written submissions dated 8 April 2024. I have also had regard to all documents tendered on your plea.
48Your counsel Ms McGarvie stressed in particular the opinion of Dr Barth that:
'Mr Tolhurst's offending has provided him with an opportunity to gain insight into his need for personal change. If this motivation can be harnessed to assist him to fully commit to the treatment he requires and provided that appropriate supports are put in place, there is an unprecedented opportunity for Mr Tolhurst to achieve constructive change in his life in the long term'.
49Ms McGarvie submits that, notwithstanding the seriousness of the offending, a community corrections order can achieve all relevant sentencing purposes, including general deterrence, denunciation and just punishment, as well as promoting your rehabilitation. I have regard to the decision in Boulton's case on this point.[17]
[17]Boulton v The Queen (2014) 46 VR 308
50Mr Kerlin for the prosecution submits that, given the objectively serious nature of your offending and the proper application of the relevant sentencing principles, the court ought impose a sentence of imprisonment involving a head sentence and a non-parole period.
51Mr Tolhurst, I must balance these competing considerations, but on balance given the very serious nature of your offending and your high moral culpability for it, I have formed the view that no sentence other than one that involves an immediate term of imprisonment will be just in all the circumstances of this case.
52I am satisfied, however, that given your lack of prior convictions, favourable prospects of rehabilitation, the Worboyes discount and other mitigating factors, a sentence combining an immediate term of imprisonment followed by your release onto a Community Correction Order will best satisfy all of the relevant sentencing considerations in operation here.
Sentence
53Ricky Tolhurst, I sentence you as follows:
54On Charge 1, recklessly causing serious injury, you are convicted and sentenced to 12 months' imprisonment. Upon your release from custody you will commence on a Community Correction Order for a period of 18 months. Your counsel has told me this morning that you will consent to being placed on a corrections order.
55The conditions of this order will be that:
(a) you must attend at Ringwood Community Corrections Service within two clear working days of the order commencing;
(b) you will be under the supervision of a Community Corrections Officer for 18 months, which means that you are required to be supervised, monitored and managed as directed;
(c) you must undergo assessment and treatment, including testing for:
·alcohol abuse dependency as directed;
·mental health as directed; and
·programs to reduce your risk of re-offending;
(d) you must not commit an offence punishable by imprisonment during this order;
(e) you must not leave Victoria without permission of Community Corrections;
(f) you must let your Community Corrections Officer know within two clear days of changing your address or job;
(g) you must comply with any lawful direction given by a Community Corrections Officer that is necessary to ensure you comply with the order; and
(h) if you contravene this order by either committing further offences or by failing to comply with the conditions then you can be brought back before this court, fined and resentenced, and that might mean you go to gaol for the offence of contravention or further gaol for this index offending.
56You have indicated your oral consent to being placed on this order, Mr Tolhurst, and I direct that that consent be entered onto the court record.
Pre-Sentence Detention
57You have no pre-sentence detention.
Section 6AAA declaration
58Pursuant to s6AAA of the Sentencing Act I indicate that had you pleaded not guilty and been found guilty after trial I would have sentenced you to a term of three years' imprisonment with a non-parole period of two years.
Ancillary orders
59I make the order for disposal in the form sought. The order is made by consent.
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