Director of Public Prosecutions v Wilford

[2018] VCC 608

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02442

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRYCE WILFORD

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	26 April 2018
DATE OF SENTENCE:	3 May 2018
CASE MAY BE CITED AS:	DPP v Wilford
MEDIUM NEUTRAL CITATION:	[2018] VCC 608

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S Ballek	OPP
For the Accused	Mr H Rattray	Balmer & Associates

Pages 1 - 10

 

 

HIS HONOUR:

Introduction 

1. Bryce Aaron Wilford you have pleaded guilty to 1 charge of causing serious injury contrary to s 16 of the Crimes Act 1958 which carries a maximum penalty of 20 years imprisonment.

2. You have also pleaded guilty to 2 related summary charges: 

   · Charge 7 - failing without reasonable cause to appear in accordance with your undertaking of bail contrary to s 30(1) of the Bail Act 1977, which carries a maximum penalty of 2 years imprisonment; and

   · Charge 5 - unlawful assault contrary to s 23 of the Summary Offences Act 1966, which carries a maximum penalty of 15 penalty units or 3 months imprisonment.

3. You have also admitted your prior criminal record.

Circumstances of the offending

1. A prosecution opening was tendered on the plea which may be summarised as follows:

2. On 11 January 2013, Christopher Hickford, then aged 30, was at the Westernport Hotel in Hastings, socialising with friends. Around midnight, he and a number of his friends left the hotel walking a short distance to King Street, Hastings. They were standing near a bus stop when they became aware of you verbally abusing a female, Taleasha Snell, then aged 17, calling her a ‘fucking slut’ and a ‘whore’. 

3. As the group was standing nearby watching the altercation, you moved towards one of Mr Hickford's friends, Sam Kerans, and grabbed a bottle from his hand. Ms Snell tried to grab the bottle to give it back but you pushed her away and she fell on the road.  She got back up and as she did so you threw the bottle on the road between her feet causing it to smash. You then walked towards Mr Kerans and threw some punches at him. Ms Snell again tried to intervene however you abused her, pushed her away twice and then hit her to the back of the head. It is these facts that constitute summary charge 5, the unlawful assault of Taleasha Snell.

4. Seeing what you had just done, Mr Hickford walked towards you and told you to ‘chill out’ and ‘lay off the girl’. In response, you picked up the broken bottle from the road, drew your arm back and threw it forcefully into Mr Hickford's face from a distance of 2 to 3 feet. The broken bottle struck Mr Hickford's face causing lacerations. Blood immediately began to flow from the wounds. Mr Hickford put his hands up to his face. You then punched Mr Hickford numerous times to the face. He could not see or defend himself as blood was flowing from the cuts on his forehead into his eyes. Mr Hickford begged you to stop and said to you ‘Stop, stop, I’ve got kids’. It is these facts that constitute charge 1, causing injury intentionally.

5. Ms Snell attempted to intervene again by pushing you away and telling you to stop.  She helped Mr Hickford across the road to a bus shelter and sat next to him. She tried to tend to his injuries but was unable to stop the blood flow. 

6. A minute or so later you came over to the bus stop and began goading
   Mr Hickford, challenging him to get up and fight. Ms Snell stood up and tried to push you away. Eventually she was able to move you away from the area. She walked with you around the corner and you both jumped over a fence into residential property. You were later picked up by some friends. 

7. Police officers on routine patrol in the area were flagged down by people assisting Mr Hickford. The officers observed him to still be bleeding profusely from the head and arranged for an ambulance to attend. Mr Hickford was taken to Frankston Hospital for medical treatment. 

8. Mr Hickford sustained a number of injuries to his head and eye area as a result of the incident. He underwent surgery for lacerations to his forehead, scalp, left eyebrow area, corner of his eye and cheek. He was in extreme pain for a number of days following the surgery. Nine days after the surgery he had 63 external stitches removed from his face which caused him further pain.

9. Mr Hickford was off work for 4 to 6 weeks and continued to suffer headaches, numbness and short term memory loss. In the longer term he has sustained facial scarring which makes him self-conscious. He has a 7 to 8 cm scar on his forehead and a 3 cm scar above his left eye. He continues to experience short-term memory loss and sensitivity to his face.

Arrest and interview

1. On Monday, 16 January 2013, police rang you on your mobile phone and arranged for you to attend at the Hastings police station for interview. You attended and made a no comment interview. You were charged and bailed. 

2. On 16 April 2013, the first committal mention date, you failed to appear and a warrant was issued. This relates to summary charge 7, fail to answer bail. 

3. It was not until 11 September 2017 that you were arrested and remanded in Queensland. On 13 September 2017, you were extradited to Victoria. Following a request by defence for further medical evidence in relation to
   Mr Hickford, you entered a plea of guilty on 1 December 2017 at the Magistrates Court.

Objective seriousness of the offence

1. The facts of this case are regrettably all too familiar. The offence occurred on a public street where you, under the influence of a mix of alcohol and methylamphetamine, attacked an innocent person. You were clearly in some kind of verbal altercation with
   Ms Snell and you were angry. You had assaulted her by pushing her and hitting her to the back of the head. All Mr Hickford did was to respond to you hitting Ms Snell. Further, he did not physically threaten you and you had no cause to react the way you did.  Thus the attack on Mr Hickford was in my view, entirely unprovoked. 

2. Mr Ballek, who appeared on behalf of the Director of Public Prosecutions, submitted that the fact that you bent down and picked up the broken bottle also suggests that your reaction to Mr Hickford was not merely spontaneous but involved a moment of planning.

3. Mr Rattray who appeared on your behalf, submitted that while it is conceded that an offence of intentionally cause serious injury is a serious offence by definition, he submitted that in all the circumstances the offence before the court falls into the lower end of the middle range for offences of this kind.

4. The injuries caused to Mr Hickford amounted to very serious cuts to his face that have left scars. He is fortunate that the broken glass did not penetrate his eye. Further it is clear by the comments he made at the time you were assaulting him he was in great fear. 

5. In my view, the fact that this was an entirely unprovoked attack, that you picked up a broken bottle and thrust it towards the victim’s face at close range causing serious cuts and bruises, and then continued to punch the victim in the face, can only define this example of a glassing offence, as very serious.

Victim Impact Statement 

1. A victim impact statement was prepared by Mr Hickford and was read by the prosecutor on the plea. He speaks of the physical injuries and their ongoing effect. He has numb spots in certain parts of his head and a hypersensitivity on his forehead. He speaks of the effect of the scars he now has on his face in his everyday life.  For example, when meeting new people or at work where he is constantly questioned about what happened to him. As such, each time he is asked, he has to relive the incident. 

2. Unsurprisingly he is nervous when in large crowds to the point where he does not enjoy his social life and ends up leaving events early as a result.

Personal circumstances

1. You are now 26 years of age. You were 21 at the time of the offence. You were born in Frankston and you have never met your father. Your mother was killed in a car accident when you were three years of age. You have an older brother. You were raised by your maternal grandparents and you have maintained a close relationship with them. 

2. You attended six different primary schools because your grandparents moved house frequently. You always made friends easily at school although you were the victim of bullying on occasion. You were suspended once after a fight with a fellow student who made a comment about your deceased mother. 

3. You attended Westernport Secondary College. You describe yourself as an average student. You completed year 10 and left school at age 16.

4. After leaving school you worked at Bowens Timber and Hardware for 12 months to get an idea of different trades and how they worked in order to help you decide what you might be involved in. After completing a level three certificate in retail you decided to become a concreter because you were physically fit and the job paid well. You worked for 12 months as a concreter until age 18. At that time you inherited $70,000 from your deceased mother's superannuation. 

5. With the money that you inherited you bought yourself a car and your brother a motorbike however you also spent much of that money on alcohol, drugs and gambling.  In hindsight you concede that in that period of ages 18 to 21 you behaved recklessly. 

6. Despite your increasingly reckless lifestyle you continued to work in the concreting trade installing ceiling insulation as part of the federal government scheme. Between the ages of 19 and 21 you worked for a labour hire company working five days a week as a casual labourer for various companies. Approximately four months prior to the commission of this offence, you obtained work on the Peninsula Link freeway project.  It was challenging work where you were working under bridges suspended on sailing gear however, you were ultimately dismissed from that job as a result of a car accident where you were charged with various driving offences. 

7. The driving offences occurred about a month prior to the assault on Mr Hickford. You were involved in a car accident with your partner Taleasha Snell who was sitting on your lap driving the car. She lost control of the vehicle and hit a pole. Four occupants of the car were taken to hospital. You were charged with offences arising from the accident and, as you had absconded in relation to this offence, you also did not appear to resolve those offences which are still pending in the Magistrates Court.

8. Following being charged with the assault on Mr Hickford, you absconded and travelled around Australia for about six months with Ms Snell and her father. Ultimately, you arrived in Bundaberg in Queensland and obtained work as a concreter. By the time you had arrived in Queensland, Ms Snell was six weeks pregnant with your son. 

9. Ms Snell has been your first and only serious relationship. You met at a party at her house about three months prior to the assault on Mr Hickford. You have remained together and now have a four-year-old son. However the relationship has been strained. As you have been in custody in Victoria, Ms Snell remains in Queensland and has entered into another relationship. As a consequence of the difficulties that have arisen with Ms Snell and her lifestyle choices, her mother Tiana Landsberg is currently caring for your son in Tasmania

10. You have had an ongoing battle with alcohol and drugs. You began to smoke cannabis at age 15 and did so between the ages of 15 and 21. You drank heavily at parties every weekend in that same period. You have used methylamphetamine or ice regularly from ages 18 to 21 although you never regarded yourself as being addicted to the drug. What is clear is that on this particular night when you assaulted Mr Hickford, you were under the influence of a combination of alcohol and methylamphetamine. It was submitted that following the assault and during your trip around Australia with Ms Snell and her father, your methylamphetamine use increased. Ms Snell’s father was also an addict and using through that period.

11. What seems to have occurred since you ultimately settled in Bundaberg and your son was born, is that you have been drug free for about four years. You settled down with your partner Ms Snell and have enjoyed a normal family life in Queensland. You have worked full-time and supported your family. 

12. Tendered on the plea was a bundle of references which support the submission made on your behalf that in the last four years you have turned your life around and that the person who committed this offence is simply a different person now. The references speak of your commitment to your son and your partner and observe you to be responsible, hard-working and respectful to your family and to those friends that have written the references on your behalf. Further support for that submission is evidenced by the fact that there has been no further offending in the time that you have been out of the jurisdiction.

13. In all the circumstances I accept that despite your absconding initially, the evidence suggests that you have turned your life around in the intervening period.

Sentencing considerations

1. As outlined above, this offence is a serious offence. This was an offence committed in a public street where you, under the influence of methylamphetamine and alcohol caused a very serious injury to an innocent person. As such, general deterrence must assume prominence in the sentencing consideration. In the circumstances, denunciation of your conduct and just punishment are also of relevance – so much was conceded by your counsel. Specific deterrence must also play a part in the sentencing consideration as you have a prior conviction for an assault related matter. However, I accept that because of the evidence of your rehabilitation over the past four years, less weight should be given to specific deterrence in this instance.

2. Mr Ballek pointed to the authorities of Winch v The Queen[1] and DPP v Gerrard,[2] both of which are glassing cases. The notable difference between those two cases is that Winch involved a charge of recklessly causing serious injury and Gerrard involved a charge of intentionally causing serious injury. Mr Ballek distinguished Gerrard from the present circumstances in that in Gerrard, the offence was provoked by a prior violent assault and further, the main feature influencing the sentence in that case was the finding of very exceptional circumstances in relation to family hardship. Nonetheless, in Gerrard, Neave JA noted:

   "An attack which was to some extent premeditated and involved the use of a very dangerous weapon by a drunken offender would normally require the imposition of an immediate term of imprisonment on the respondent in the order of four or five years."[3]

   [1]Winch v The Queen [2010] VSCA 141.

   [2]DPP v Gerrard [2011] VSCA 200.

   [3]Ibid [48].

3. Your plea of guilty was entered at committal mention stage and I accept that in terms of the criminal process, it can be considered as an early plea. That said, you absconded for more than four years before the matter could be resolved which ironically, has provided you with evidence of a sustained period of rehabilitation. Your plea of guilty does still however facilitate the course of justice and in cases such as this, it saves the victim the trauma of having to relive the event through the court process.

4. I am satisfied that over and above your plea of guilty, you have expressed genuine remorse towards the victim in this case. This is reflected in the psychological report prepared by Stephen Gault that was tendered on the plea and in the tendered references. 

5. You were only 21 at the time of this offence and you are now 26. In the years that you were in Queensland it seems you have matured, you have remained drug free and you have demonstrated that you can be a contributing member of the community.  Significantly, you now have a child. I heard evidence from the grandmother of that child, Ms Lansberg, that you are a devoted and responsible father. In short, you are a different person now to what you were when these offences occurred. 

6. In terms of your rehabilitation, as noted, while it is regrettable that you failed to answer your bail, the intervening years have provided evidence of your own efforts to change your life. While prospects of rehabilitation always involve a degree of speculation, in my view in all the circumstances, I assess your prospects as very good. It would seem however, that your relationship with Ms Snell, the mother of your child, is an unresolved issue. It was submitted that despite the previous stability of your relationship, in recent times she has reverted to drug use. It is self evident that if you also were to revert to a lifestyle of drugs and excessive alcohol use, your prospects would change. I am satisfied that you have enough insight to avoid that risk, particularly with your commitment to remaining a responsible father to your child.

Sentence 

1. Mr Wilford please stand.

2. Bryce Aaron Wilford, on charge 1 – causing serious injury intentionally, you are convicted and sentenced to 3 years imprisonment. 

3. In relation to summary charge 5 - unlawful assault, you are convicted and sentenced to 2 months imprisonment. 

4. In relation to summary charge 7 - failing without reasonable cause to appear in accordance with your undertaking of bail, you are convicted and sentenced to 1 month imprisonment. 

5. The sentences on the summary charges will be wholly concurrent with the sentence on charge 1. 

6. I direct that you serve 21 months imprisonment before becoming eligible for parole. 

7. Pursuant to s 18 of the Sentencing Act 1991, I declare that 234 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

8. Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 4 years with a non-parole period of 3 years.

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