Director of Public Prosecutions v Whittingslow
[2014] VCC 1128
•17 July 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL DIVISION
Case No. CR-13-02443
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DYLAN WHITTINGSLOW |
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JUDGE: | HIS HONOUR JUDGE GRANT | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 11 July 2014 | |
DATE OF SENTENCE: | 17 July 2014 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2014] VCC 1128 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Bourke | OPP |
| For the Accused | Mr C Pearson | Mike Wardell |
HIS HONOUR:
1 Mr Whittingslow you have pleaded guilty to one charge of recklessly causing serious injury. The maximum penalty for recklessly causing serious injury is 15 years imprisonment.
2 The prosecutor presented a summary of your offending. It is not my intention to repeat that summary. It will be attached to these remarks as Exhibit “A”.
3 Briefly, in the early hours of the morning on 30 March 2013, you and a friend came across the victim and his friend (Mr Philp) at a bus shelter on Albert Street Sebastopol. This was a chance meeting. There had been some “bad blood” between you and the victim. Some months earlier you had threatened him.
4 You approached the victim and went to shake his hand. You punched the victim to the chin with a closed left fist. You hit him with such force that he fell backwards onto the concrete footpath. His head made a loud sound when it hit the ground. You stood over him and said “I’ve been searching for you for so many years and I’ve finally found you.” Your friend said you should leave and Mr Philp heard you say, “I think I’ve killed him”. You left the scene.
5 The victim was taken to the Alfred Hospital by air. He was in a coma for three days. A CT scan revealed a subdural haematoma with evidence of resultant compression to the brain and a fracture to the skull over the left temple. Clearly, the victim suffered a serious head injury.
6 The victim has provided a victim impact statement together with a report from the assistant principal of his former school and extracts from various medical reports. The victim’s mother has also provided a victim impact statement.
7 This material indicates that the offending has had a significant impact on the victim and his family.
8 Immediately after the assault, the victim’s mother had to deal with the worry and distress associated with the possibility that her son may die. She then had to deal with the issues associated with the long-term impacts of a brain injury on her son’s life. Understandably, she describes her experience as “a parent’s worst nightmare”. She has also suffered considerable financial expense in assisting her son in his recovery.
9 I am aware that your parents and one of your sisters attended court to support you, you should try and imagine how they would have felt if it was you who had been the victim of this assault, and sustained the injuries that you caused to Mr Johnston.
10 Ms Johnston’s statement describes how her son seems to have lost his motivation and focus. His attention span is very short and he is easily frustrated. He has lost his sense of danger and his personal hygiene has suffered. In short, he is not the same as he was.
11 Mr Johnston confirms that he has had problems sleeping and he has been having nightmares. He has problems concentrating and gets distracted easily. He was unable to work with his grandfather during the school holidays after this incident, and his schooling suffered enormously. On this latter point, a letter of 19 June 2013 from the victim’s assistant principal says this, “Nick has suffered a dramatic change of character since the accident (sic). He had been a committed and studious person that completed all work. Now he struggles to maintain focus, can become agitated and finds it very difficult to maintain concentration. This means his ability to complete work has been dramatically reduced. The school has had to make considerable special allowances for Nick to enable him to be productive at school".
12 A report from Ballarat Health Services confirms that Mr Johnston suffered a traumatic brain injury. Cognitive tests found his main difficulties are in divided attention and working memory. He has also had some more minor difficulties with visuospatial skills and verbal abstract reasoning. Noted behavioural changes include the making of inappropriate comments and impulsivity.
13 Mr Whittingslow, this is yet another case of a young man in an unprovoked way punching a person hard to the face, knocking him to the ground and causing a serious, life changing injury to the victim. I accept you did not intend to cause such an injury; nonetheless you acted with the knowledge that serious injury would probably occur. In cases of this type, general deterrence is an important and a central sentencing consideration. It is also important for me to appropriately denounce and punish your criminal behaviour.
14 You have admitted a relevant prior court appearance. On 23 February 2013, some five weeks before this incident, you appeared at the Ballarat Magistrates’ Court for offences that included being drunk, assaulting police and resisting arrest. You were fined without conviction. It appears that the court appearance had no deterrent effect. After your apprehension on the current charges, you were remanded in custody for four days before being released on bail.
15 I have also been advised that on 21 April 2013, that is three weeks after this incident, you were arrested by police and charged with possess a weapon and affray. You were remanded in custody and entered a plea in the Magistrates’ Court on 23 April 2013. You were released on a 12 months community corrections order.
16 Given this history, specific deterrence has some relevance to sentencing.
17 Your counsel stated that alcohol was a factor in all the offending. I do not doubt that this is true.
18 I note that there has been no further offending since April 2013, and that you successfully completed the Community Corrections Order. These are matters in your favour and are relevant to the issue of your rehabilitation.
19 Your counsel Mr Pearson raised a number of matters in mitigation. I deal with each in turn.
20 Early plea of guilty – you will be given credit for your early plea of guilty. You were initially charged with intentionally cause serious injury. Discussions occurred on the day of the committal and the matter resolved on the basis of a plea to the current charge. No witnesses were required to give evidence. I am satisfied that it is an early plea of guilty. I am satisfied that your plea is indicative of remorse and has utilitarian benefit.
21 Youth - you are still a young man. You are 19 years old. At the time of the offence, you were 18 years old. The law has always recognised the importance of the principle of rehabilitation in sentencing the young offender. In this case, where you have a limited history of violence, the principle is highly relevant. However, the seriousness of the offence means that appropriate weight must also be given to principles of general deterrence, denunciation and punishment.
22 Prospects for rehabilitation – I do find that you are a good prospect for rehabilitation. You have a limited history. All your offending occurred after your 18th birthday and before your 19th birthday. There has been no further offending since 21 April 2013. You have completed a community corrections order. You have strong family support. You are a good sportsman, playing football for the Talbot Football Club. You are in a stable relationship and you have been working. Providing you stay clear of the problems you have had in the past with alcohol, you are a good prospect for rehabilitation.
23 Sentencing Considerations – Mr Whittingslow, the offending in this case is serious with significant adverse repercussions for the victim and his mother. The seriousness of the offence must be recognised by the making of a custodial order. However, your age, your plea of guilty, your limited history, your strong family support and your good prospects for rehabilitation are factors, in combination, that speak towards an order of three years or less. This is important because a youth justice centre order is only available in such a case. I confirm that I regard you as a good prospect for rehabilitation and pursuant to s. 32 of the Sentencing Act 1991, I have had you assessed as to your suitability to undergo a sentence of youth detention. The assessment is favourable. Mr Whittingslow would you stand please.
24 Sentence – Mr Whittingslow on the charge on indictment, you will be convicted and sentenced to be detained in a youth justice centre for two years.
25 I make a declaration that you have served 13 days by way of pre-sentence detention.
26 Had you been found guilty of this matter after trial, I would not have imposed a sentence of youth detention. I would have imposed a sentence of three years and three months imprisonment with a minimum before being eligible for release on parole of two years.
27 I make an order for retention of the forensic sample. You can be seated there for the moment. Is there anything else gentlemen?
28 MR BOURKE: No, thank you Your Honour.
29 MR PEARSON: No Your Honour.
30 HIS HONOUR: Thank you, the prisoner can be removed.
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