Director of Public Prosecutions v Volkmer
[2013] VCC 1893
•22 November 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT GEELONG
CRIMINAL DIVISION
Case No. CR-13-00140
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL NOEL VOLKMER |
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JUDGE: | HIS HONOUR JUDGE PARSONS | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 7, 8, 11, 12, 13, 22 November 2013 | |
DATE OF SENTENCE: | 22 November 2013 | |
CASE MAY BE CITED AS: | DPP v Volkmer | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1893 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P.L. Bourke | DPP |
| For the Accused | Mr M.W. Brugman | M. Brugman & Solicitors |
HIS HONOUR:
1 You can remain seated, Mr Volkmer. You, Daniel Volkmer, have been convicted after trial of one charge of intentionally causing serious injury.
2 This crime arises out of circumstances which were fully explored during your trial.
3 In very broad compass, it turns upon the injuries you and another fellow prisoner by the name of Mills, who is now deceased, inflicted on a fellow prisoner, whose name was Leslie Alfred Camilleri.
4 You and your co-accused, Mr Mills, apparently agreed to attack Mr Camilleri with frozen drink bottles. You did so for reasons associated with the fact that you regarded Mr Camilleri as an inappropriate person to be sharing those particular prison cells with you, and possibly for other reasons that you suggested in your recorded interview and in conversation with your wife, which was recorded.
5 You and your co-accused attacked Camilleri with the frozen drink bottles as a result of which he sustained significant injuries including a brief loss of consciousness, a fracture above his left eye, a significant open head wound and a large bruise to the left eye. All these are very graphically set out in the various photographic exhibits that were tendered on the trial.
6 Mr Camilleri made a Victim Impact Statement in which he described the significance of his injuries and the fact that he still suffers headaches as a consequence and that he has also suffered significant financial difficulties as a result given the nature of his income as a prisoner serving two life sentences.
7 Of course, you were apprehended very quickly after this matter and chose to plead not guilty.
8 You were incarcerated, in what are described, as onerous circumstances and I shall return to that matter.
9 Your trial began in Geelong before me on 7 November and proceeded to verdict.
10 After some difficulties you appeared by means of a video before me for plea on 20 November. Mr Toal initialled applied to adjourn the plea, however at your insistence, the plea was heard on that day with you attending by means of the video screen.
11 As part of your plea Mr Toal called your partner, of now some four years, Katrina Spehr. You have two children with her, Scarlett, aged 18 months and Indigo, who is nearly three and a half.
12 I understand each of them has a degenerative eye disease, or at least, affliction, which is a cause of significant concern to you and their mother.
13 It is clear that Ms Spehr says the children think very highly of you and the difficulty is that, while she lives in Warrnambool with her mother and the two children and has no licence, it is very difficult for her to visit you in gaol. Apparently you have no other visitors and she has been there very infrequently in the recent past. She certainly said, as far as she is concerned, that you treat her very well.
14 With respect to your personal circumstances, Mr Toal told me you are aged 31 and that your mother and father both died when you were very young, your father dying when you were aged ten or 11 of a heart attack, and your mother dying two years later of cancer when you were about 12 or 13.
15 Until you were aged 14 you stayed with family friends with your older brother and younger sister but apparently your younger sister was adopted by another family and you have had little contact with either of them over the last decade or so.
16 You left school at the age of 14 having attended Dromana Tech and then you worked variously as a labourer and in supermarkets before you undertook a carpentry apprenticeship and you completed that after the four years.
17 You then left Victoria to travel to Queensland. It was in Queensland that you began your first track riding endeavours. Since then you returned to Geelong and undertook various labouring jobs with occasional periods of time in gaol to which I will return.
18 In due course, having met an ex-jockey whilst in gaol, on his advice after you completed your gaol term, you went to live in Warrnambool and it is there where, of course, you began your relationship with Ms Spehr and had your two children..
19 Also at that time you began regular track work as a jockey and undertook other work as it became available to you particularly utilising your carpentry skills from time to time.
20 Of course, what measures your life more accurately is the time you have spent in and around the courts in your short 31 years. It is apparent, that given your early disastrous life as a consequence of the death of your parents at the tender age of 11 to 14, you began taking alcohol and drugs to excess and I understand that you began smoking cannabis from the age of 12 and that you would drink beer and wine and spirits from that age as well. Since then you have been a continuous drug and alcohol user moving from cannabis to ecstasy and amphetamines which you used quite extensively. I understand your drug and alcohol use has diminished somewhat since you began your relationship with Ms Spehr.
21 Turning to the sadly impressive list of your prior convictions I note that you were before the courts in Queensland in 2002 until you were before the Melbourne Magistrates' Court in 2004 and 2005 in respect of which Community-based Orders were made for a range of different offences.
22 On 21 June 2005 you seemed to have been ordered to prison although this was fully suspended for various assault police, resist police and acts of damage and theft.
23 Most significantly, you were before the Melbourne County Court on 12 August 2005 for the offence of intentionally causing serious injury in respect of which you were sentenced to five years imprisonment with a non-parole period of three years.
24 Your counsel, Mr Toal, informed me that in fact for reasons concerned with problems whilst you were serving that sentence there was no parole period ever served by you and you served the entirety of that five year sentence. It was during that period of time that you met the person I have referred to earlier who suggested, on your realise, that you live in Warrnambool and work there as a jockey.
25 I understand as a consequence therefore that you were presumably, in about 2009, began residence in Warrnambool which is when you met your partner.
26 Unfortunately, I see that in the Warrnambool Magistrates' Court on 30 June 2010 you were before that court for recklessly causing injury and offences of affray as well as a range of other offences which are fully set out in your record of prior convictions.
27 You were sentenced to an aggregate term of 12 months although nine months of that was suspended for a period of 24 months.
28 Again, on 2 November 2011 there were breach proceedings with respect to that and that suspended sentence was wholly restored and you were dealt with for a number of other offences including failure to answer bail, burglary, theft, shop theft, escaping, resisting police, possessing ecstasy and possessing cannabis, as a result of which it seems, you were sentenced to a total effective sentence of 15 months imprisonment.
29 It was during that sentence on 24 November 2011 that you committed this offence. On 25 January 2013 you were bailed on this offence, however, you were returned to custody on 23 August 2013 as the consequences of another, apparently unrelated matter, which is before the Magistrates' Court.
30 I understand it is agreed that you have served pre-sentence detention in respect of this matter and for no other matter for a period of 92 days not including this day.
31 I further understand that you have served a significant portion of the time in gaol, certainly in recent times, in the Banksia Unit, which is known by the people there as "The Slot". That means that you are locked down for 23 hours a day and you are denied any luxuries. It was after you had been transferred from that unit into Grevillea Unit that this incident occurred.
32 As a consequence of your actions you were returned to the Banksia Unit and again suffered the rigours of that form of incarceration and apparently you have been held there for the past 15 months. You have very restricted visitation rights and of course only occasional phone access and your movements are very closely monitored.
33 No reports have been tendered in this matter and I was informed by Mr Toal that it was not your desire to have those matters canvassed before me.
34 Further, I sought to locate the earlier sentence in this court when you were sentenced to the five years with a three year non-parole period, but I have been unsuccessful in that regard and know no further information about that sentence.
35 I was told with respect to your prospects for the future that you are concerned about the medical condition of your children and you are hoping to, as it was put to me, "survive gaol" and make as good a fist of it as you can on your eventual release.
36 Clearly, I am concerned with your prospects of rehabilitation, and although one can never give up hope of your eventual rehabilitation, there is precious little before me to suggest that there is any great likelihood of that.
37 However, in fixing an appropriate sentence, I must seek to maximise such chances of your rehabilitation as there may be and I do recall in one of the telephone conversations with your partner you had told her of the fact that you had ceased taking drugs, and notwithstanding it was boring, you seemed determine to keep your resolve with respect to that matter,.
38 With respect to your particular role in the offending I have, of course, had the advantage of watching the video evidence of the lead-up to the assault. I also had the advantage of the various phone calls that you made to your partner, both before and after the assault, and of course the answers you made to the police in the recorded interview.
39 Mr Toal says your instructions remain, as you instructed him at the trial, that is, that you did in fact not commit the assault but rather took the blame for someone who did in order, apparently, to avoid naming that person. The jury rejected this explanation in a very short time and of course one can readily understand why, particularly in view of the admissions you made, both in the recorded interview and in the conversations with your partner.
40 As well as those matters personal to you, to which I have referred including the question of rehabilitation, I must take into account such matters as deterrence and especially general deterrence, which is of considerable importance in a case such as this, involving as it does, the requirement of preserving order and peace within the gaol system.
41 Clearly, assaults of this kind cannot be tolerated, whatever the reason or self justification that is proffered. There is simply no room in the prison system for persons to take it upon themselves to mete out justice, they believe is appropriate to the particular circumstances, they believe to exist. It cannot be condoned and strikes at the very heart of the authority's ability to control the very difficult environment that exists in our prison system from time to time and particularly at present given the chronic overcrowding in the prison system.
42 There has been some significant delay in the matter coming before me as a trial and I have no doubt that there is some appropriate concession to be made in a sentence, given the anxiety that you have suffered knowing of this eventual trial and the inevitability of a prison sentence, that would follow your conviction.
43 I do not think it can be said, in the circumstances, that you have utilised the passing of that time to effect your rehabilitation in any meaningful way, nevertheless, you do get some sentencing credit for the fact of the inevitable anxiety that has been attendant on the passing of that time prior to you taking your trial.
44 Yes, if you would stand please, Mr Volkmer.
45 This is, without doubt, a very serious offence and in all the circumstances I have no alternative to the imposition of a custodial sentence and you are convicted and sentenced as follows.
46 On Charge 1, eight years imprisonment.
47 That results in an effective sentence of eight years.
48 I direct that you serve a minimum term of six years before becoming eligible for parole.
49 As prescribed by s.18(4) of the Sentencing Act I declare that the period of time that you have already spent in custody is 92 days and I direct that such be noted in the records of the court.
50 Anything further, gentlemen?
51 MR BOURKE: No, Your Honour.
52 MR BRUGMAN: No, Your Honour.
53 HIS HONOUR: Yes, thank you, Officer, if you could take Mr Volkmer.
54 (Prisoner removed.)
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