Director of Public Prosecutions v Tolley
[2014] VCC 1201
•25 July 2014
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-14-00258
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID JOHN TOLLEY |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 25 July 2014 | |
DATE OF SENTENCE: | 25 July 2014 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Tolley | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1201 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – plea –recklessly causing serious injury
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Sentence: Two (2) years imprisonment with a non-parole period of twelve (12) months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Moore | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr C Morgan | Kerry Clancy |
HIS HONOUR:
1 David John Tolley, you have been convicted by a jury of the charge of recklessly causing serious injury, the maximum penalty for which is fifteen years’ imprisonment.
Circumstances of offending
2 You attended the Commercial Hotel in Beechworth some time before midnight on 8 June 2013. Also present were the victim, Simon Reed, and his friend, Margaret Edwards. Ms Edwards was tired and intoxicated and lay for a period on a couch in the hotel. At some time after midnight on 9 June 2013, they left the hotel and you followed. A short distance from the hotel, an altercation developed between yourself and Mr Reed. Mr Reed has no memory of what occurred. Ms Edwards walked some distance away from you and Mr Reed, but when she turned around, she described what she saw from approximately 10 to 15 metres away, as follows:
Q:“So you turned around and you saw Simon on the footpath? – What position was he?---
A: He wasn’t moving. He was lying on his back
Q: What was happening?---
A: David was kicking him and punching him.
Q: Whereabouts?----
A: In the stomach.
Q: Where was he punching him?---
A: In the face.
Q: Could you describe how he was positioned, David?---
A: He was, he was bent over him basically giving him a ---.
Q: Was Simon responding?---
A: No.
Q: Do you know how many times he punched him?----
A: Approximately three or four times.
Q: Do you know how many times he kicked him or you saw---?
A: About the same.
…
Q: When you saw this happening, what was your reaction to it?---
A: I couldn’t believe it.
Q: What did you do?---
A: I couldn’t do anything, I was just in disbelief.
… .”[1]
[1]Transcript 89-90
3 The altercation was witnessed by a number of women who had been out to dinner and on a tour around Beechworth. One of the women, Ms Tania Rose, gave the following evidence as to what occurred:
Q: “Then what did you see?---
A:Well it looked like what I believed to be like a bear hug. One guy put his arm around the other guy.
Q:Yes?---
A:Again, looking like mates but then as he pulled him in, he started to hit him and that alerted our attention immediately.
Q:Where was he hitting him?---
A:The chest and then started – the head.
Q:What happened then?---
A:They just continued to – they were beating each other, both at one stage, but as the attack became more aggressive, one was less and one was a hell of a lot more and they got to the side of the road and we were driving slowly up the street to watch, to – to see what was happening. It just continued. The beating just continued.
Q:When you say ‘the beating’ where was – I take it one man was getting beaten was he at that stage?---
A:Yes.
Q:And the one who was getting beaten, what position was he in?---
A:He eventually ended up on the floor.
Q:On the ground?---
A:So by the time he got to the side pavement he ended up on the ground and the man was on top of him.
Q:Doing what?---
A:Beating. Fists to the chest and then he eventually it was physically picking him up – the torso, the body and just smashing him into the ground.
…
Q:That was when you were across the other side of the road, was it?---
A:Yeah.
Q:Or pulled up in the kerb?---
A:Well when we were stopped at the other side of the road, that’s when it started, when he was laying on the floor and he – the other guy was on top. We became heightened, obviously because we realised how aggressive this is becoming, so between us the girls said: ‘Right, we’ve got to get in front. We’ve got to get closer and make alert in the street’ and that’s when we started telling Liza to hit the horn really hard and just hold the horn to make awareness in the street, maybe someone will hear something, because as a group we decided that we wouldn’t get out of the car, ’cos we – we didn’t know – then we pulled up in front of him.
…
Q:Blowing the horn?---
A:He’s on the floor.
Q:Blowing the horn, switching the lights on?---
A:Yeah. Windows open. We were yelling a lot. Screaming.
Q:Was that stopping him?---
A:No. Not at all.
Q:The man, was he moving at all?---
A:No.
Q:The one who was getting beaten?----
A:No.
…
Q:What did you say?---
A:I called – I told him he was fucking mad. ‘You’re going to kill him.’
Q:Did he acknowledge you?---
A:Not at all.
Q:How did he appear visually?---
A:Possessed.”[2]
[2]Transcript 144-145
4 Various other of the women gave evidence as to what they saw. Some said they observed the assailant as wearing a red shirt, which was the colour of the shirt worn by Mr Reed on the night. However, I have concluded that they were mistaken given the short time of their observation and the violence of the situation. While their evidence varied to some extent, I am satisfied what they witnessed was you on top of Mr Reed punching him and slamming his upper body, including his head, into the ground. Some witnessed you kicking him. Such was Mr Reed’s state that he was either dazed or unconscious, and not able to respond to, nor to protect himself from the beating.
5 I accept the evidence of Ms Rose that the altercation commenced with each of you striking or attempting to strike the other. But that situation quickly developed to the point where the assault became very one sided. Mr Reed was by then unable to provide any resistance and despite that, your assault continued, notwithstanding the calls from the women to stop. At that point, your attack was a cowardly and brutal assault upon Mr Reed.
6 He sustained various injuries and was taken to the Wangaratta Hospital, where he stayed overnight. He suffered bruising and swelling to the head – seen clearly in photographs taken by the police at the time – two fractured ribs, bruising to the right hand and right-hand rear side of his head, and some back pain. He was fortunate not to have suffered significantly more severe injuries. Most of the injuries repaired within four weeks or so, although the fractures to his ribs took a considerably longer time to repair. I accept his evidence that even to the present day he suffers some pain and some restriction in the ribs. He also said that he is concerned about going out at night and wary of his surroundings. On any view, even accepting his memory of precisely what occurred is limited, he was subjected to a very violent assault.
Prior criminal history
7 You have been convicted of a number of offences. Some involve motor vehicle offences and are of little relevance. In 1993, you were convicted of recklessly causing injury and served a twelve-month Community Based Order. In 1997, you were convicted of hindering police, which charge was adjourned without conviction. In 2000, you were convicted of obtaining property by deception and fined $700. While these matters are relevant, they do not loom large in your sentence for this offence. The recklessly causing injury is relevant, but was committed more than twenty years ago.
Factors personal to you
8 You are now forty-nine years of age and your wife, Amy, is a local nurse. You have two young sons of that relationship, now aged four and six. You have three older sons by a previous relationship.
9 I was informed by your counsel, and accept, that you have always been in employment, except for brief periods when you were either incapacitated, including recently, or the carer for your children. You have practised principally as a remedial massage therapist and undertook training in the 1980s. After various different jobs, you came to Beechworth in 2006 and practised as a self-employed masseuse in that area until recent events made it difficult for you to continue your therapy work.
10 I was provided with a large number of testimonials from various people with whom you have had contact in the course of your therapeutic work, and from others in the community. I was informed that all of the authors were present in Court to support you, together with a number of other friends and relatives.
11 Dr Alison Winkworth, a speech pathologist, of Albury in particular noted the very high regard in which you were held by the local community for your obvious competence and skill as a massage therapist and acupuncturist. She, and a local nurse, Ms Ranee Wilkinson, described you as having provided therapy not only to themselves, but successfully to a wide range of other patients. Each described you as a man dedicated to your family and that the offending was out of all character to the person that they had come to know over a considerable period. Mr Halliday, solicitor, of Beechworth, and Mr Lidgerwood, accountant, of Wodonga, each of whom you have had business dealings with, hold high opinions of you, referred to your involvement in the community and regarded you as a genuinely kind and committed person. Mr Don Pope, of the Uniting Church at Beechworth, has known you since you were a small boy and described you as a loving parent and husband, prepared to help those in disadvantaged situations. Friends, and members of your community, Ms Sue Breen, Gwen Gray and R G Stelling, spoke of the assistance you have provided to them, the responsibility and love you have exhibited for your family and the open and trustworthy manner in which you have always dealt with them. Mr Greg Clydesdale referred to your community involvement and described you as trustworthy and honest.
12 I was informed by your counsel that of recent times, you have suffered significant physical injury; firstly, as a result of an incident at the MCG, when you caught a man who was falling from a balcony above and suffered a spinal injury. In March 2013, you were involved in a frightening incident when a tornado struck a vehicle that you were travelling in, and picked it up. You were thrown some distance and suffered significant physical injury as a result. According to a report of Albury Wodonga Health of 10 February 2014, you were described as having reduced range of movement in the cervical and lumbar spines, right shoulder and right lower limb. The report referred to you as suffering chronic pain in those areas and with limited physical functioning. As a result, you have not been able to carry out your massage therapy. According to the various tests undertaken, you were severely restricted in the activities of daily living and, as a result, have suffered depressive and anxiety symptoms with sleep disturbance, frustration and social withdrawal. Approval has been apparently granted for you to undertake a pain management program to deal with these issues.
13 According to the report of Dr Susette Sowden, psychologist, she has treated you over a considerable period in 2013 and again of recent times. Upon psychological testing, you presented with symptoms of post-traumatic stress disorder because of the tornedo. As a result, you have suffered depression, chronic pain and require further ongoing treatment. She described you as having a serious psychological disorder, which would be significantly adversely affected by any term of incarceration.
14 I was informed that medical appointments had been made for you to attend the Alfred Hospital in August of this year, in particular with a neurosurgeon, and neuropsychologist, to address the physical and psychological issues from which you currently suffer.
Sentencing considerations
15 The purposes for which a court may impose a sentence are:
·punishment – to an extent and in a manner which is just in all the circumstances;
·deterrence, both specific and general;
·rehabilitation;
·denunciation and/or protection of the community.
16 In sentencing you, I must have regard to a range of matters including the seriousness of the offending, the effect upon the victim, your personal circumstances, and the matters referred to in the extensive testimonials produced on your behalf. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society. In offending of this nature, the most important sentencing considerations are just punishment, general deterrence and denunciation.
17 I accept the plea of your counsel that your prospects of rehabilitation are strong, and the consequent risk of reoffending modest. I accept that you have largely been in full-time employment throughout your adult life and have been a productive member of the community. I accept that you are devoted to your family, including your three older sons, and have very considerable community support. I accept the plea of your counsel that the prospects of you committing any further similar offending are remote. As a consequence, specific deterrence is of only modest relevance.
18 I accept that because of your significant physical and psychological conditions, any time spent in prison would be more difficult and onerous upon you than a person in otherwise reasonable health. I accept that the conditions from which you suffer require treatment, and that that treatment would be best provided in the community rather than in the prison system. It was not pressed by your counsel, and to the extent it was raised in the psychological report of Dr Sowden, I do not accept that in particular the symptoms of post-traumatic stress disorder were significantly involved in, or explain the assault, and there is no reduction in moral responsibility as a result.
19 As stated, the sentence I am about to impose takes into account the prior criminal offending of 1993, but given the age and the penalty imposed, that matter is of little significance.
20 I have concluded that your involvement in the altercation with Mr Reed, while at the outset stemming from some disagreement, and involving each of you, shortly turned into a very one-sided aggressive and disturbingly violent affair. I accept the evidence of Ms Edwards, and Ms Rose that at least for a period, you inflicted blows, kicks or knees and perhaps worst of all, the forceful pushing or dropping of Mr Reed’s head and upper body onto the hard pavement. A measure of the acute violence of your actions was the chilling manner in which the various witnesses from the Beechworth tour gave their evidence. I reject the submissions of your counsel that your conduct was that of excessive self-defence. The evidence is not such as to enable me to determine precisely who was responsible for starting the altercation, but a point came where I am satisfied that you could have left the affair without subjecting Mr Reed to the serious assault described. I further do not accept the contention that in fact, for a significant period, it was Mr Reed sitting above you, inflicting blows and kicks.
21 I accept, however, that the injuries suffered by Mr Reed placed the offending at the lower level of cases of this nature. I further bear in mind that the jury concluded that it was not your specific intention to cause Mr Reed serious injury, but rather, given their acceptance that the act was reckless, that you knew your acts would probably cause him serious injury.
22 Your counsel submitted, even notwithstanding the violence involved, that your conduct could be appropriately dealt with by the imposition of a Community Corrections Order, to be undertaken over a considerable period of time, and with extensive conditions. However, I have determined that conduct of this type, which is regrettably all too frequently seen in these courts, merits a period of immediate imprisonment. Far too often, late at night and usually with the involvement of alcohol, a person is punched or struck and suffers serious brain damage or death. Rather through good fortune, neither occurred in this case, but those in the community minded to be involved in violence must be aware that a likely result will be a term of imprisonment.
Sentence to be imposed
23 Taking into account all of the matters to which I have referred, I impose the following sentence. On the charge of recklessly causing serious injury, you are convicted and ordered to serve a term of imprisonment of two (2) years. Given the strong prospects of rehabilitation to which I have referred, a longer than normal period of parole is appropriate. I direct that you serve a minimum period of twelve (12) months imprisonment before becoming eligible for parole.
24 I further directed that pursuant to the provisions of Section 464ZF(2) of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from the mouth or a blood sample in accordance with the provisions of the Crimes Act. Having considered the seriousness of the circumstances of the offence, I am satisfied that in all the circumstances the making of the order is justified. I further note that the order is not opposed and the granting of the order is in the public interest.
25 Yes, anything further?
26 MR MOORE: No, Your Honour.
27 MR MORGAN: No, Your Honour; only may I just speak to my client briefly before he's taken - - -
28 HIS HONOUR: Yes, certainly. Would the police officers present please allow Mr Tolley the time to speak to his counsel and family. Thank you.
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