Director of Public Prosecutions v Townsend, Stuart

[2012] VCC 2145

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

AT MELBOURNE

CRIMINAL DIVISION

Case No.CR-12-01833

DIRECTOR OF PUBLIC PROSECUTIONS

v

STUART TOWNSEND

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 December 2012
CASE MAY BE CITED AS:	DPP v Townsend, Stuart
MEDIUM NEUTRAL CITATION:	[2012] VCC 2145

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Plummer	Office of Public Prosecutions
For the Accused	Mr T. Roubos

HIS HONOUR:

1       Mr Townsend, you can remain seated for the time being.

2       Stuart Townsend, you have pleaded guilty to an indictment containing three charges.  Charge 1, that on 15 July 2012 without lawful excuse you intentionally caused serious injury to Trent James Rutherford; Charge 2, that on the same date without lawful excuse you intentionally caused injury to Murat Cansaden, and Charge 3, that on the same date you assaulted Clinton Bayss unlawfully. 

3       The maximum term of imprisonment for the offence of intentionally causing serious injury is 20 years' imprisonment.  The maximum term of imprisonment for intentionally causing injury, I think is 10 years, is that right, Mr Plummer?

4       MR PLUMMER:  Yes, Your Honour.

5       HIS HONOUR:  And common assault is what?  Common law assault.

6       MR PLUMMER:  Five years, Your Honour.

7       HIS HONOUR:  Five years.  Thank you. 

8       You have also admitted prior convictions, which include a number of offences of violence and some of that violence of quite recent nature, and offences recklessly causing serious injury in 2009, affray, unlawful assault, recklessly causing injury, destroying and damaging property, for which you were sentenced to a total effective sentence of 18 months' imprisonment.   That sentence of imprisonment was appealed to the County Court and the sentence was affirmed on 28 January 2010.  Clearly, you served at least the minimum term of 12 months that was imposed on that occasion.

9       The offending conduct was described by the prosecution by reference to the prosecution opening, which is Exhibit A on the plea, and I incorporate that document into these reasons for sentence in its entirety.  I am not going to read it out again, suffice it to say that after a night out, which commenced with attending your brother's birthday party, you ended up at the Seven Nightclub. You were hoping, with your friends, to obtain admission to the nightclub.   You were denied that admission because you were wearing shoes that were regarded as inappropriate by the management and you were given the bad news by one of the security guards employed by the nightclub.

10      Whilst engaged in conversation with that security guard, you produced a box cutter and you slashed the security guard across the neck causing him serious injury.   You have pleaded guilty to intentionally causing that injury. 

11      You did not stop your violent conduct at that time.   When another security guard came to intervene, he too was attacked by you with the box cutter and effectively you stabbed him in the chest.  He was fortunate perhaps that he did not suffer a more serious injury, but he did suffer some injury.

12      You then continued your violent behaviour and aggressive behaviour and carried out an assault on another member of the staff of the nightclub.  I might say that that assault was also carried out with you wielding the box cutter and wielding in a manner which fortunately did not cause any injury, but might have.   It was not through your own efforts that more serious injury or injury occurred to that third victim of your conduct that night.  He was fortunate he did not suffer any injury at all.

13      Your attack on those three people was totally unjustified and unprovoked.  No doubt it was fuelled by alcohol, possibly by drugs and alcohol, but none of that excuses your conduct on the night.  The three members of the staff of the club were going about their business; they were at work. 

14      Attacks on security officers at licensed venues late at night or in the early hours of the morning are not uncommon.   I accept the submission of the prosecution that courts must impose sentences that pay proper regard to the need to deter others from committing offences of that kind.  Indeed your counsel has conceded that general deterrence is a significant sentencing factor that I have to consider.

15      Eventually, you were dispossessed of the box cutter by your third victim, or in the altercation with your third victim.  You ran.  It seems that you were caught by members of the security staff, and to put it as gently as I can, restrained.  I suspect that you may have suffered some quite significant injury at that time as a result of the efforts to restrain you.  You described that in your interview with the police.  You chose to make no comment in response to the allegations that were drawn to your attention, claiming that you were too drunk to realise what you had done.

16      

Fortunately, the only person who suffered any serious injury was

Mr Rutherford.   He was fortunate that his injury was not even more serious.  The laceration to his neck was superficial in nature, 20 centimetres long.   He required 27 stitches to close it up, but there is no indication that he suffered long-term physical effects from his injury.

17      I think it is fair to say that the job of a security guard, bouncer, as they are frequently referred to, is a difficult and dangerous one.  Mr Roubos frankly confessed that he had some experience in working in that field and noted that it was unfortunate that the first of your victims had strayed into the street rather than remaining within the confines of the premises and left himself somewhat vulnerable to attack.

18      However, the prosecution also tendered a DVD of the CCTV footage.  It is plain that the security guard at that time had no warning that you were likely to attack him until you actually carried out that attack.   It would seem that his venture out from the relative safety of the club premises was designed to explain to you why it was the management had not been prepared to admit you to the club.

19      It seems to me that the courts do have to consider a measure of protection for persons engaged in that sort of security work, and if the courts do not impose suitable sentences, then it seems to me that the courts are failing in their obligation of that protection to people going about their work, that work being designed, at least in part, to protect others from the violent conduct of people who carry weapons to licensed premises.   It is not without significance that apart from going out for a social evening that night, you also took with you a box cutter to the licensed premises.

20      Turning to matters personal to you.  You are 22 years of age having been born on 27 January 1990, so you will shortly be 23;  22 and a half at the time of the offending.  It seems that you come from a good family, and you have the continuing support of that family.

21      Your counsel has tendered the reports of Dr Cunningham dated 6 August 2009 and 18 December 2012 respectively. 

22      The first report was prepared in relation to the court appearances to which I referred earlier dating back to 2009 and 2010.   Mr Cunningham sets out something of your background history in the report.  He noted that you were of average range of intellectual functioning, no indication of intellectual disability, you apparently had been diagnosed earlier in your life with attention deficit hyperactivity disorder, and you received medication at an early age for that condition.

23      It appears that you have been abusing alcohol and drugs, in particular amphetamine and cannabis, for some time.  There, as I pointed out to your counsel, seems to be a little inconsistency in the reporting of all of that, but I accept that you have abused a number of drugs.   I note from p.2 of Dr Cunningham's more recent report that you have been recently expelled from the Finks Motorcycle Club due to drug abuse, which may seem quite surprising.   You apparently reported to Dr Cunningham weekly abuse of cocaine, heroin, methylamphetamine and alcohol in the community.

24      You reported the use of 4 grams of cocaine per week, one gram of heroin per week and one gram of methylamphetamine per week and daily abuse of alcohol.

25      On the previous occasion when this matter came before me, namely 7 November this year, your counsel called on your behalf a Mr Dearney, who was the Chief Executive Officer of the St Paul's Rehabilitation Centre, Napier Street in Strathmore.   He has been for many, many years engaged in assisting people like yourself to rehabilitate themselves from the habitual use of illicit drugs and alcohol.   He had visited you whilst you were on remand.    I deduce from his evidence that he felt he could help you and he felt that you were willing to be helped, and I thought quite articulately suggested that this was a course of salvation for you that would hopefully be available to you at some stage.

26      I have got no doubt that if Mr Dearney is available he will do everything he can to help you.  The extent to which that is successful may well depend on the extent to which you, yourself, are willing to participate in what will be a difficult period.   It will not necessarily be easy to shed habits that have become ingrained.

27      I have to say though that there are some, dare I say somewhat disturbing aspects of the reports of Dr Cunningham in that he diagnoses two conditions; one being paranoid personality disorder and the other antisocial personality disorder.   He indicates that the definition of paranoid personality disorder is a pervasive distrust and suspiciousness of others such that their motives are encrypted as malevolent.

28      Apparently you indicated that you have a habit of suspecting, without sufficient basis, that others are exploiting, harming and deceiving you and you have unjustified doubts about the loyalty and trustworthiness of friends and associates.

29      So far as the antisocial personality disorder is concerned, that is defined as a pervasive pattern of disregard for and violation of the rights of others in the context of that condition you evidence a failure to conform to social norms with respect to lawful behaviours, deceitfulness, impulsivity, irritability and aggressiveness, reckless disregard for the safety of others, consistent irresponsibility and lack of remorse.

30      As prosecuting counsel pointed out, on p.2 of his report Dr Cunningham says this:

"Mr Townsend reported a need for stimulation and feeling a rush.  He stated that the appeal of violent behaviour is experiencing a rush.  He stated that he feels 'normal' and 'calm' in violent situations."

31      The concern that arises from that is, as your counsel conceded, those are personality traits that are likely to be with you for life.  That leaves the court in a situation where it has to consider protection of the public, and what your prospects of rehabilitation really are.

32      However, although the earlier report of Dr Cunningham suggest that you were not motivated to seek help, there are grounds for a view that you have come to the realisation that these the difficulties, these conditions, of the nature that were diagnosed by Dr Cunningham will need a good deal of treatment and rehabilitative effort on the part of professionals, on the part of those that support you, and most particularly from yourself.  Your own motivation will determine whether the efforts of others on your behalf are going to be successful.

33      It seems to me that there is good in you.  It is hard to ignore your record and one cannot do that.   It is hard to ignore the serious nature of this particular conduct, and one cannot do that either.  But you are still only 22 years of age.   The court, I think, would be entirely justified in imposing a very substantial term of imprisonment upon you and requiring you to serve a significant portion of that sentence.

34      The nature of the offending and the need to deter others and to protect others would suggest that such a sentencing would be entirely justifiable, and I am talking about a sentence that is higher than the range that was put forward by the prosecution.

35      However, I bear in mind that although the offending conduct is serious, there are many, many more serious cases of this kind that come before the courts where people have more serious injuries as a result and lasting physical consequences.   That is not this case, fortunately.

36      I note that you have pleaded guilty and it seems to me that that is consistent with the submission of your counsel that you are now remorseful for your conduct, remorseful in the sense that you recognise that you attacked people viciously who were simply going about their work and remorseful for the fact that you have dragged your family once again to the court to see the consequences of your actions played out.   You have also saved the community the expense of a trial and assisted to facilitate the course of justice, and you are entitled to credit for that.

37      I canvassed with your counsel, and indeed the prosecution, the balance that I need to strike between expressing the denunciation of this court for offending conduct of this kind and punishing you adequately for the offending and deterring you from committing offences of this kind in the future.   I think there is a risk, quite a substantial risk of your reoffending, unless you engage wholeheartedly in a rehabilitation process.   I have got to, as I have said already, impose a sentence which pays proper regard for general deterrence, that is deterring others.

38      But I note that you have been in protective custody and that regime imposes restrictions that are greater than that of other prisoners.

39      PRISONER:  It's not protection, Your Honour.

40      HIS HONOUR:  I'm sorry?

41      PRISONER:  It's not protection.

42      HIS HONOUR:  I have misunderstood something.  Not protection.

43      MR ROUBOS  It's not protection as in – it's called a management unit, Your Honour.

44      HIS HONOUR:  I see.  I'm sorry, did you not use the - - -

45      MR ROUBOS  I think I used the term "protection."

46      HIS HONOUR:  All right.  I accept - - -

47      MR ROUBOS:  In the gaol world, Your Honour, it is quite a significant term.: 

48      HIS HONOUR:   I think you said protection unit at Charlotte.

49      MR ROUBOS:  It's called the Charlotte Unit, it's management unit.

50      HIS HONOUR:  Is it your submission that I should take that into account?

51      MR ROUBOS:  Yes, Your Honour.  It's basically like solitary in effect, that's what it is.  I'm sorry, Your Honour, about the - - -

52      HIS HONOUR:  That's all right.  Your client was the one has intervened and put me right.

53      MR ROUBOS:  Thank you.

54      HIS HONOUR:  You have been in a management unit and it is submitted on your behalf that that imposes a more restricted regime and that I should take that into account, and I do.

55      Ultimately, I think the only thing that saves you from a much more substantial sentence is your youth and the guarded prospects of rehabilitation.   They are significantly enhanced by the support you have from your family as evidenced by their attendance in court.   They may be able to finance you to have treatment even whilst you are in custody.   If Mr Dearney is still alive and healthy when you finish your sentence, he or perhaps his successors may be able to assist you to continue with the rehabilitation process.   In all the circumstances, I think that I am justified in reducing somewhat the period that you would have to serve before becoming eligible for parole.

56      Doing the best, therefore, to balance those competing considerations and to facilitate your rehabilitation as far as I reasonably can, I propose to sentence you now, so if you would stand, please.

57      For the offence in Charge 1 of intentionally causing serious injury I sentence you to a term of imprisonment of 3 years and 9 months and I convict you.

58      On Charge 2 of intentionally causing injury, I convict you and sentence you to a term of imprisonment of 20 months. 

59      On Charge 3 of common assault, I sentence you to a term of imprisonment of 6 months.

60      I order that the sentence on Charge 1 is the base, and that 10 months of the sentence on Charge 2 and 3 months of the sentence on Charge 3 be served cumulatively with each other and upon the sentence imposed on Charge 1.

61      It makes a total effective sentence of 4 years and 10 months imprisonment, and I order that you serve a period of 3 years before you become eligible for parole.

62      But for your pleas of guilty, I would have sentenced you to a term of imprisonment of 6 years with a non-parole period of 4 years.

63      I think that I was asked on the previous occasion to make disposal orders, is that right, Mr Plummer?

64      MR PLUMMER:  Yes, Your Honour.

65      HIS HONOUR:  And also to order that Mr Townsend undergo a forensic procedure.

66      MR PLUMMER:  Yes, Your Honour.

67      HIS HONOUR:  For the taking of DNA.  Are either of those orders opposed?

68      MR ROUBOS:  No, Your Honour.

69      HIS HONOUR:   I will make both of those orders.  You may sit down now whilst I just attend to it.

70      MR PLUMMER:  Your Honour, just one final matter, presentence detention.

71      HIS HONOUR:  Yes, of course.  Thank you for that.  What is that now?  Is it 243 days, is that right?

72      MR PLUMMER:  Your Honour, we have calculated it as 159 days, and that's from 15 July.

73      HIS HONOUR:  Now, I have got myself completely confused.  Yes.  Could you just spell that again?  159, is that right?

74      MR PLUMMER:  159 days.  The offender went into custody on 15 July and that is calculated up until today, including today.

75      HIS HONOUR:  Mr Roubos, do you agree with that?

76      MR ROUBOS:  Yes, Your Honour.  I had 160, but it's probably my fault.

77      HIS HONOUR:  160.  Does that include today?

78      MR ROUBOS:  Yes.

79      HIS HONOUR:  I think we don't include today.

80      MR ROUBOS:  159.

81      HIS HONOUR:  159. 

82      I declare that 159 days of presentence detention are to be reckoned as time served on the sentences that I have imposed, and I have deducted it form the sentence that you have to serve and I order that those facts be entered into the records of the court.

83      Mr Plummer, you have given me two different versions of the forensic sample application.  Can you just remind me which of those that I need to be concerned with?  I think it's the shorter version, isn't it, because he's going to be in custody so he won't be required to attend a police station.

84      MR PLUMMER:  Yes, Your Honour, that's correct.  The shorter version.

85      HIS HONOUR:  I might just leave the court whilst I just write those orders up with the dates and so on and so forth.  You can take the prisoner down.  Mr Roubos, if you want to say anything else?

86      MR ROUBOS:  No, Your Honour.

87      HIS HONOUR:  Mr Roubos, I just want to compliment you on your plea.  I thought that as I said during the course of your plea that it was extraordinarily frank and to the point and realistic, and I think it assisted your client as much as he could possibly have been assisted.

88      MR ROUBOS:  Thank you, Your Honour, I've been (indistinct) in the past so I'm glad it's well received, thank you.

89      HIS HONOUR:  Mr Plummer, thank you for your assistance too, I didn't mean to short change you on the compliments.  But the orders for forensic sample and disposal, I will have those signed and they will be placed with the court file.  Do you need a copy today, yourself?

90      MR PLUMMER:  Not today, Your Honour, but if  - - -

91      HIS HONOUR:  They will be sent back.

92      MR PLUMMER:  If one original signed disposal order and forensic sample order could be sent to the OPP, that would be appreciated.

93      HIS HONOUR:  There is one thing that I should have told your client before he went, and that is that the order for the forensic sample will require him to provide – will authorise a police officer to request a sample by a scraping from the inside of his mouth, and if he complies with that, that is the end of the matter, but if he fails to do that, the officer will be authorised to take a blood sample and may use reasonable force to do that.  Would you please explain that to him?

94      MR ROUBOS:  Yes, Your Honour.

95      HIS HONOUR:  Thank you.

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