Director of Public Prosecutions v Walton

[2014] VCC 264

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

AT WODONGA
CRIMINAL JURISDICTION

CR-11-01671

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAOUL WALTON

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JUDGE:	HIS HONOUR JUDGE PUNSHON
WHERE HELD:	Wodonga
DATE OF HEARING:	5 March 2014
DATE OF SENTENCE:	6 March 2014
CASE MAY BE CITED AS:	DPP v Walton
MEDIUM NEUTRAL CITATION:	[2014] VCC 264

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr D. Price	Greg Duncan
For the Director of Public Prosecutions	Mr T. S. Lynch	OPP

1HIS HONOUR: 

2Raoul Levi Walton, you have pleaded guilty to one charge of recklessly causing serious injury. 

3Mr Lynch opened the circumstances relied upon by the prosecution by reading from a plea opening, which he tendered. 

4As I understood, there was no real dispute about these circumstances, however Ms Price, on your behalf, submitted that I should not be satisfied that a serrated edged knife found in a nearby backyard was the knife used by you. 

5As stated in discussion.  It does not seem to me to be a matter of much importance.  The critical matter is that you concede you had  knife when you entered the complainant's home, and that it was in your hand when you struck punches to the complainant, causing knife wounds. 

6The complainant suffered a laceration below the right eye, which was not a stab wound, and seven wounds from the knife.  These were to his left shoulder, chest wall, right arm and left forearm.  There were two wounds to the chest wall; one of which was deep, and each had the potential to be life threatening if deeper. 

7When you entered the house you argued with the complainant about supervision of his child, and the child of your then partner, who had been playing outside.  The complainant armed himself with a chef's knife when he saw a flicker of metal in your hand and realised it was a knife.  He was hoping to scare you. 

8By this stage, three other men had entered the house.  The complainant tried to get you and the others to leave and to scare you by presenting the knife.  He was soon rushed at and tried to defend himself.  It was at this stage that you started to throw punches at him, resulting in the injuries. 

9The identity of the other men is unknown to the prosecution.  I accept the submission of your counsel that their role is unclear. 

10Mr Lynch emphasised that you have provided no explanation for why you had a knife with you. 

11All of you left the premises.  The complainant had a neighbour call police and an ambulance. 

12You also received injuries, including slash-type wounds to your left forearm and left cheek. 

13You were interviewed but essentially made no comment. 

14A victim impact statement was tendered.  The complainant has suffered very considerably as a result of your attack.  His victim impact statement emphasises his psychological reaction. 

15I will make the disposal order and the order for the retention of a forensic sample, to which you have consented.  My reasons for the latter, it will appear in the order. 

16Your counsel conceded that your conduct is serious and that an immediate term of imprisonment is required.  She noted the considerable impact on the complainant and that the attack occurred in his own home. 

17The offending occurred just after midnight on New Year's Day 2011.  Accordingly, over three years has passed.  The trial was commenced in October 2012 but the jury had to be discharged and the trial was unable to recommence immediately because you were in police custody in New South Wales. 

18Attempts to resolve the matter have been attempted, as early as August 2011, with another close settlement in May last year.  Agreement was reached yesterday - it was the day before, I think, wasn't it?

19MR LYNCH:  The day before yesterday, Your Honour, yes.  The plea was heard yesterday.

20HIS HONOUR:   Agreement was reached the day before yesterday, just before the trial was about to begin. 

21No positive evidence of remorse was presented, however, your counsel argued that it has never been disputed that you were in the house and involved in the assault.  Until the day before yesterday, when a new indictment was filed over, a charge of aggravated burglary was on the indictment, as was the more serious charge of intentionally causing serious injury.  Your plea acknowledges your preparedness to accept responsibility for the crime to which you have pleaded, as your counsel noted. 

22Your plea acknowledges that when you struck the complainant with the knife in your hand, you foresaw the probability that you would cause serious injury, not just injury.  Of course, you must benefit from your plea of guilty.  It saves time, expense and the need for witnesses to give evidence in the proposed trial which was about to begin.  In particular, it was highly desirable to avoid the necessity of the complainant giving evidence. 

23Your counsel outlined your personal history and circumstances.  You are 30-years-old.You were born in New Zealand and are not an Australian citizen.  You are concerned that you may face deportation at some stage.  Action by the Department of Immigration, based on your character and criminal history, was taken in 2012.  Members of your family have attended court on most, if not all, occasions.  They are here in considerable numbers today.  Yesterday your parents, your partner and brother were present.  You enjoy close family support.  You have three siblings. 

24You moved to the Albury/Wodonga area when young.  Your parents separated when you were about six, and you alone went to live with your father for some time before returning to live with your mother, whom you continued to live with until recently obtaining accommodation with your partner.  You've shown a talent as a runner and sketcher.  You've had a limited education and you have worked in a variety of jobs.  Three letters of support were tendered.  They were from your 15-year-old sister, Chelsie; Helen Russell, who has known you for 20 years; and from John Rooney, an older gentleman. 

25You have an extensive criminal history in Victoria and New South Wales over the last decade.  You have prior convictions for assault and other violent conduct.  You have breached past supervisory orders, including suspended sentences.  You have been sentenced to terms of immediate imprisonment for violent offending.  You have been fined for having custody of an offensive implement in a public place. 

26Your counsel gave me some details concerning your prior history but said that for much of the previous cases you are unable to recall the details due to offending whilst intoxicated.  You were remanded when arrested for the current matter and spent over eight months in prison before being granted bail.  Certificates were tendered confirming rehabilitative courses you undertook in custody.  You have also acquired skills when in custody in New South Wales. 

27Your counsel said you accept that you still have alcohol abuse problems.  Although she was frank in conceding that you have not completely reformed in recent times, she submitted that you have nevertheless made progress. 

28You have a 12-year-old son who lives with his mother, Natasha McKay.  You have a three month child to Ms McKay and you see this child twice fortnightly.  You also have a young baby born on 20 February 2014, with your current partner.  This baby was born prematurely and has had birth complications, spending time in hospital.  The apartment you recently obtained with your partner, Jessie Cruickshank, who also has a young child, is the first home you have had away from your parents.  Four of you have been living in this apartment. 

29You are worried that Ms Cruickshank will struggle without you.  Fortunately, family support is available.  However, I accept that this will not prevent you worrying in custody, adding to the stress you will experience separated from your partner and children. 

30Given your history, I think I have to be guarded about your future prospects.  However, you are now 30 and have considerable family commitments. 

31It is possible for you to make the best of your time in prison and strengthen your rehabilitative potential.  I accept that you entered prison hopeful of being able to do this.  I was referred to the Sentencing Advisory Council sentencing snapshots for causing serious injury recklessly.  I was also referred to the JCV website, 'Overview of RCSI sentenced as the principal offence in the Court of Appeal’, and this morning I have discussed other matters with counsel. 

32No two cases are the same and I need to synthesise the factors in your case to identify what I think is the appropriate sentence.  The seriousness of the offending, including the number and nature of the wounds, the use of the knife, the impact of the injuries on the victim and your significant criminal history, are important matters.  Deterrence, both specific and general, are also important matters.  On the other hand, as I noted earlier, you are still only 30 and it is desirable to do what is permissible to encourage your rehabilitation. 

33Can I ask you to stand up please?  You will be convicted and sentenced to three years and six months imprisonment.  I fix two years and three months as the period you must serve before being eligible for release on parole.  You have served 251 days on pre-sentence detention.  This is to be reckoned as time already served on the sentence I have imposed. 

34Had you not pleaded guilty, I expect I would have sentenced you to about four years and six months imprisonment, and fixed a non-parole period of about three years and six months.

35MS PRICE:  May it please the court.

36MR LYNCH:  If Your Honour pleases. 

37HIS HONOUR:  I have signed those orders and I will hand them down, Mr Lynch. 

38MR LYNCH:  Thank you, Your Honour. 

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