Director of Public Prosecutions v Winton
[2016] VCC 1390
•16 September 2016
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00257
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL WINTON |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 26 August 2016 and 8 September 2016 | |
DATE OF SENTENCE: | 16 September 2016 | |
CASE MAY BE CITED AS: | DPP v Winton | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1390 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr K.J. Doyle | OPP |
| For the Accused | Mr P. McGrath | Criminal Lawyers Geelong |
HER HONOUR:
1 On 1 August last year you, Daniel Winton, were at the Barwon Club Hotel where a friend of yours was celebrating his 21st birthday. According to what you told the police, by 11.30 you had had so much to drink you could not detail it all. Also present at the birthday celebration was Isabella Kreuzer. According to what she later told the police, she too was very drunk by then. So drunk she could not recall her role in the events that unfolded and which bring you before the court. According to a testimonial provided on your behalf by her mother, Isabella Kreuzer was your girlfriend or partner at the time.
2 Also present at the hotel, but with a group separate from the 21st birthday party group, was Graham Moodie.
3 At about 11.30 pm you went to the men's toilet. Mr Moodie was standing at the urinal, and Isabella Kreuzer was also there, berating him. According to what you told police, there was some verbal exchange between you and Mr Moodie. You told police you could not remember what was said, save for the fact he was “giving you cheek” when you walked in “about a blond girl or something”. It would appear that after you had urinated, and readjusted your clothing, but whilst, as the evidence reveals, Mr Moodie still had his pants undone and his penis out, you punched him to the face, a single blow hard enough to cause multiple fractures to his nose, cheekbones and jaw. You also fractured one or more of his teeth. As a result, he fell backwards, and struck his head on the floor, fracturing his skull, which in turn caused him to suffer a significant subdural haemorrhage. Having punched him, you just walked out.
4 As you left, you passed another of the 21st birthday party group, a young woman who had seen Ms Kreuzer berating Mr Moodie at the urinal and tried to remove her. The door to the men's toilet was open, and from where she was standing, she could see Mr Moodie lying on the floor. He was unconscious and in a pool of blood. She immediately went his aid.
5 You told police that Mr Moodie was still standing when you left. Given the observations of the woman who saw you leave and saw Mr Moodie unconscious on the floor, already in a pool of blood, the nature and extent of Mr Moodie’s injuries, and the manner in which they were caused, namely by a blow to the face of sufficient force to cause those facial fractures, and for him to fall flat on his back, striking the back of his head on the floor with sufficient force to break his skull and cause the subdural haemorrhage, I find that highly unlikely.
6 Mr Moodie was gravely injured. He suffered what was described in the agreed summary as a large bleed to the right side of his brain, a significant traumatic brain injury, as well as the fractures that I have detailed.
7 He was taken to Geelong hospital and airlifted to the Alfred. He required surgery to remove part of his skull to relieve the pressure on his brain from the bleed. His family were told he had only a 50% chance of survival. He spent 12 days in intensive care. He eventually progressed to the Acquired Brain Injury post-acute care unit, and by 28 October last year, three months after the assault, he was finally able to return to Geelong and to begin rehabilitation with the head injury and multi trauma team at the Barwon Health McKellar centre.
8 He has no memory of being punched or of the events leading up to you punching him and leaving him for dead. He has a significant post traumatic amnesia.
9 Coming back to the events of that night; having punched Mr Moodie and left the toilet, you re-joined your friends, had another drink, and left the hotel shortly afterwards. According to what you told the police, you were aware before you left the hotel that police and ambulance had arrived at the hotel, but when interviewed you professed to be unaware that they had arrived to render assistance to your victim. You were arrested at your home two days later. Ms Kreuzer was also present when you were arrested. By then, it would appear, there had been some publicity about the assault and the gravity of the victim’s injuries. It would appear you were not unaware of the fact that the police were looking for you.
10 When questioned by the police, you were less than frank about Isabelle Kreuzer. You said "no comment" when asked who the young woman who was with you at your home when you were arrested. When interviewed, you made what I would describe as partial admissions. You did not tell the police Isabelle Kreuzer was the person arguing with Mr Moodie. When asked at the start of the interview to give your account of what had happened, you simply described her as “a female having a go at a male” who you saw as you approached the toilet. As if she, as well as Mr Moodie was a stranger to you. When it was put to you that Ms Kreuzer was the person at home with you when you were arrested, and the person who was berating Mr Moodie, you alternated between saying, "no comment" denying any knowledge of her involvement with Mr Moodie before you hit him, and asserting that you could not remember the events of the night, because of the amount that you had had to drink.
11 So far as the lead up to you hitting Mr Moodie, in addition to you saying he gave you cheek when you entered, you said that you felt intimidated because he was bigger and older than you. When asked what he was doing to make you feel threatened, you said “nothing intentionally, like, just the way his characteristics were coming across, the person, like, the whole body language of it was”.
12 You told the police you took a step back and Mr Moodie took a step forward, and that he was coming toward you when you punched him. You said the punch was not a hard one, and that, given the injury to your knuckle, you thought you had split his lip.
13 There is no evidence, apart from your account in interview to support your version of events. If there is any objective evidence it is not supportive of your version. I find your account and interview, whilst containing some admissions, to be less than frank and complete. The force of that single punch which you described as not a hard one, was sufficient to cause multiple fractures to Mr Moodie’s face in the area of his jaw and cheekbones and to break his teeth.
14 In my view, your description of the force of the punch clearly seeks to minimise your actions and your responsibility. I have already referred to your lack of frankness about the identity and role of Ms Kreuzer, and to your contradictory assertions about not knowing what she was berating Mr Moodie about, and your professed lack of recollection because of the amount you had had to drink.
15 As the depositions reveal, Ms Kreuzer had taken it on herself to berate Mr Moodie because she believed that he had made unwelcome advances to her friend, who was part of the 21st birthday party group that you and Ms Kreuzer were also part of. You were unable to articulate anything Mr Moodie said or did to make you feel he was about to hit you, saying you just thought he was going to or that you were having difficulty remembering because of the amount you had had to drink. You maintained that he had taken a step toward you as you took a step back and that was when you hit him. I must say, it seems highly unlikely that he raised his fists to you. Although you told the police that you had finished urinating and done up your fly before you hit him, Mr Moodie, on the other hand, as I have noted, still had his pants undone and his penis out when he fell, indicating, as the police put to you, that he was urinating or adjusting his dress when he was hit.
16 You described the blow as a straight punch. You said you thought you had hit him in the teeth, because you cut your knuckle. You maintained not only that you did not use much force in the punch, but that he was still standing, and in fact had taken a step forward as you left. Two days later when arrested and interviewed, the cut to your knuckle was clearly visible, and your hand was swollen.
17 Despite the gravity of the injuries suffered by Mr Moodie, the prosecution ultimately accepted a plea of guilty to a charge of Intentionally Cause Injury. Therefore, I must sentence you on the basis that, although you in caused serious, life threatening injury to Mr Moodie and have left him with lifelong disabilities as a result, that the prosecution accepted there was an issue as to whether you intended, or foresaw, serious injury. Therefore, the plea to intentionally cause injury is on the basis that you intended to cause injury but not serious injury.
18 Although when interviewed, you said you believed you were acting in self-defence, the plea was put and accepted on the basis that the belief was not based on reasonable grounds. Having read the depositions, the basis advanced for your belief it was necessary to act as you did to defend yourself is very thin indeed.
19 What you relied on is in effect a history of having been bullied and assaulted as a child or young adolescent by your mother’s partner, and the effect of your level of intoxication, not any overt verbal or physical threats emanating from Mr Moodie.
20 As the evidence reveals, and as I have referred to already, he was at the urinal, and had not even adjusted his dress. Any fear of being attacked by him was in your mind, not as a result of his conduct. It was, therefore, as the prosecution summary asserts with what I would call masterly understatement, an unreasonable belief.
21 I do not accept Mr McGrath's submission that I must sentence you on the basis you took a step back and Mr Moodie took a step forward and was coming toward you as you punched him. These are mitigatory matters where you bear the onus of establishing that was the case on the balance of probabilities and, as I indicated in the course of the plea hearing, the evidence does not permit me to make an affirmative finding that was the case. Nor, for that matter, does it permit me to make an affirmative finding that was not the case beyond reasonable doubt as I would have to were I to take it into account adversely to you.
22 Absent any evidence supportive of your account that you gave in the recorded interview and from bar table assertions, I am left in a position where I cannot make a finding about the circumstances in which you came to land the blow adverse to you or in your favour. I gave Mr McGrath notice of this view and an opportunity to consider his position. Having had the opportunity to consider his position and seek instructions, he advised on the return of the plea that he would not be calling you or putting any other evidence before me to support your instructions.
23 I sentence you therefore on the basis that you struck Mr Moodie once, a punch to the face of such force as to cause the facial injuries I have referred to and the swelling to your hand and injury to your knuckles seen two days later, intending to cause him injury as a result and that as a consequence, although unintended by you, he fell causing the injuries to the skull and brain to which I have referred.
24 Apart from the fact that you came across him when he was being berated by your partner and was in a state where it was unlikely he raised his arms to you, I can make no finding as to what led you to make the decision to strike him as you did. There is no evidence he offered any provocation or did anything to cause you this subjective fear that you identified that he would hit you. Any belief that you had that it was necessary to act as you did in self-defence is entirely subjective and unreasonable.
25 As I said in the course of the plea, it is a result of medical science, proximity to high quality emergency care, and good fortune, rather than any conduct on your part, that has you facing this charge of causing injury, and not a coward’s punch manslaughter charge.
26 Mr Moodie has made significant progress since the doctors gave him a 50 per cent chance of recovery or survival. He has been able to return to live in the home he lived in, to the relationship he was in and to resume much of his previous life. However, he will never be the same person he was before, either physically or cognitively, and he has and continues to suffer considerable psychological distress. Although he has been able to return to his employment as a tiler he has not been able to work full time to concentrate to the level that he used to or to be able to run and manage his business as he used to. That is likely to be a permanent deficit. He has suffered considerable financial hardship as a result. Unlike people who are injured in motor vehicle or industrial accidents, the absence of automatic compensation for people injured in attacks such as this means that the financial loss that he has suffered as a result of his inability to work for so long and therefore to derive any income and the diminished capacity to work now is, and will continue to be, significant. It is not the subject of any compensation from any common fund.
27 Many of the medical and rehabilitative services that he has had to engage have also had to be funded by him or to be provided to him from the often meagre resources of the state provision to people through the healthcare system.
28 The effect on Mr Moodie and on his partner, his father and his extended family has been considerable. Very powerful and moving victim impact statements were provided. Mr Moodie provided in fact three victim impact statements. One relatively shortly after the events when his prognosis was far from clear and he was still struggling physically, cognitively and psychologically from the consequences of the blow. The later two have shown the progress that he has made physically and cognitively but his psychological suffering has continued and is acute.
29 I have read them all in full a number of times. I have read those of his family as well. I am not going to detail them here because some of what he details is very personal and intimate. I am told that you have read each of them and have taken them to heart and so it is not necessary for sentencing purposes to make you again aware of the consequences upon this man. But he will never be the same again and that is something he has got to live with and something you also must live with.
30 The combination of the circumstances of the assault itself, your conduct in walking out and leaving Mr Moodie in the manner you did, the extent of the injuries suffered by Mr Moodie and the life changing consequences for him make this, in my view a very serious example of this offence of intentionally causing injury.
31 You did not know Mr Moodie. You assert you did not know what had led to Ms Kreuzer taking it on herself to berate him. Whether that is true or not I need not resolve for the purpose of sentencing. There is no warrant for a drunken youth to launch an unprovoked attack on a stranger. If indeed it were the case that you were buying into someone else's argument, either ignorant of what had led to the argument, or at best armed with a partial, in both senses of the word, understanding of what it had been, that would have been no mitigator. There is no warrant for someone to be so drunk that they can form an unreasonable belief they may be about to be attacked, and respond to that unreasonable belief with such force as to break a person’s jaw and to have the other consequences flow from that. There is simply no warrant for resort to aggression or violence in the circumstances that you did that night.
32 The sentence therefore must mark the community’s abhorrence for drunken violence of this type. This type of offence is commonly committed by young men who have had far too much to drink, and who respond or initiate conduct aggressively.
33 It is clear therefore that subject to considerations personal to you, denunciation deterrence and just punishment loom large in the sentencing mix.
34 You were 21 at the time of this offending and you are now 22. Following what appeared to be a difficult separation between your parents when you were six, your childhood thereafter seemed to be marked by considerable difficulty.
35 From what I am told, you had limited contact with you father during the early years after the separation, during your primary and early secondary school years. You remained with your mother who became the primary carer for you and your two brothers, and by the age of 13 you were using cannabis regularly. It would appear that you were helping yourself to some of her stash initially. By your early to mid-teens your mother had re partnered. I was told that she and her new partner were both heavy drinkers and that the exposure to a combination of cannabis, alcohol, your own cannabis use and your lack of engagement at school made things particularly difficult.
36 Your mother's second relationship came to an end when you were about 17 or 18 after, I am told you stood up to her partner when he threatened you. Some time in your mid to later teens you began to spend more time with your father, and it would appear were subjected to two very different family lives. By contrast to the way you described your time with your mother, you describe your father as strict, obsessive compulsive, and a person who worked hard and long in his job as a sales representative.
37 You left school at the end of Year 10. It would appear that you were not particularly well engaged at school or interested in schooling. You began an apprenticeship. By then, you were using other drugs, and by 2010 you had escalated to adding to the cocktail of various drugs – ice. Not surprisingly, your drug use interfered with your employment, and your relationships. You started, as I understand it, two apprenticeships but did not complete or did not complete with the one employer. Although you had what appeared to be a steady history of employment, some jobs were relatively short term. That seems again to be a product of your behaviour and your drug use.
38 By 2013, you appreciated that you needed help and you sought assistance from headspace in Geelong. You managed, I am told, to give up your ice us and to significantly reduce your other drug abuse. By the time of this assault, you were living with your father, were in a relationship with Ms Kreuzer, you had been taken under her mother’s wing and you maintained a relationship with your mother. You had started, and completed a painting apprenticeship and you had stable employment as a painter with Barwon Health. You had even managed to save some money. As Mr McGrath put it, you were probably at the most stable you had been in your life.
39 Your life has been on hold to some extent since you were charged. I was told that you were stood down from your employment as a result of being charged and within a relatively short time of being charged Ms Kreuzer was sufficiently concerned about you to advise you to seek professional help. You accepted her advice, consulted a GP, were referred to a counsellor and engaged in counselling. Apart from one episode of ice use, you appear not to have returned to heavy drug use. You obtained casual employment and have done well enough to be offered more permanent employment once you can make plans for your future. Although you and Ms Kreuzer are no longer in a relationship, I am told you remain on good terms and you continue to remain on good terms with her mother who continues to provide you with support. She, along with both of your parents and Ms Kreuzer were at court to support you.
40 A report from the psychologist, Dr Cunningham was provided. He diagnosed you as having autism spectrum disorder or having symptoms consistent with it. That diagnosis appears to have been made on the basis of differential scores achieved in your processing speed and non-verbal reasoning using the WAIS-IV test tool for intellectual functioning.
41 Dr Cunningham said that is consistent with the presence of autism spectrum disorder and he gained confirmation for that diagnosis from your reported history of difficulties with early schooling and fitting in with your peers. However, he does not link the offending behaviour to the existence of autism spectrum disorder. So far as its effect on sentencing is concerned, he said that you have social, moral and emotional regulation impairments which would make you vulnerable to abuse and manipulation in a prison environment.
42 He does not set out the basis for the finding that you have social, moral and emotional regulation deficits or link it directly to his diagnosis of autism spectrum disorder or achieving test results consistent with such a diagnosis. In those circumstances, I am not satisfied that any limb of Verdins is enlivened by reason of the reference to autism spectrum disorder, or symptoms consistent with it.
43 Despite the seriousness of the offence, there are clearly a significant number of matters counting in your favour. You are young, you were 21 at the time and only 22 now. You have no previous convictions and you have not been charged with or dealt with for any offences committed since being charged with this. You have a supportive family. Your plea of guilty was made at a relatively early stage. You have that good history of employment despite the difficulties of engagement with school and your youthful history of drug abuse and you have shown a considerable steadiness of purpose in overcoming the difficulties in your upbringing and that early history of substance abuse. You have not returned to significant substance abuse with this hanging over your head. Again, that shows a steadiness of purpose and a capacity to overcome adversity and to stick to a plan to improve yourself.
44 These matters are significant but they must be balanced against the seriousness of the offence. Although the consequences were unintended and unforeseen the circumstances that I have detailed do make it as I have said, a serious example of an offence of this type.
45 Despite your youth and those matters that count in your favour, I consider the needs of general deterrence, just punishment and denunciation require the imposition of a sentence with a significant component of imprisonment. But for your youth and those other mitigatory factors that I have identified I would not have considered a sentence, even a combination sentence with a term of immediate imprisonment of two years or less sufficient to mark the gravity of the offending but, by reason of your youth and those other positive matters in your favour, I consider that a combination sentence is not only open but is the appropriate disposition in the circumstances.
46 I therefore propose to sentence you to a terms of imprisonment which will give you a definite release date followed by a period of release in the community on a community correction order. I do not consider it necessary to impose a head sentence with a non-parole period and I consider that your rehabilitative needs can be best served by the imposition of a fixed release date and the conditions of a community correction order.
47 In addition to the sentence under community correction order, I propose also to make a forensic sample order under s.464ZF of the Crimes Act - - -
48 MR DOYLE: It's a retention - -
49 HER HONOUR: Sorry, a retention order in relation to the forensic sample. I consider that the nature and circumstances of the offending sufficient to justify that and I also consider it appropriate to make an alcohol exclusion order as applied for under s.89DD of the Sentencing Act. I take into account also the fact that you have been under some form of alcohol exclusion since the commission of the offence by reason of some sort of notice that was served upon you and that you have not apparently returned to licenced premises and have significantly moderated your drinking. It is clear, however, that alcohol played a significant part in the offending and it is appropriate therefore to make the alcohol exclusion order.
50 Could you now please stand, Daniel Winton? On the one charge of intentionally cause injury to which you have pleaded guilty, you are convicted. You are sentenced to be imprisoned for a period of 18 months followed by a community correction order for a period of 18 months. The conditions of that community corrections order are these: First, there are core conditions of a community correction order. They are that you must not commit another offence for which you could be imprisoned during the time the order is in force; that you must comply with any obligation or requirement prescribed by Regulation 17 of the sentencing regulations. That means you must not be impaired by drugs or alcohol when attending for any appointments under your order and you must submit to testing if directed to do so. You must report to and receive visits from the Secretary or delegate, you must report to the community corrections centre within two clear working days of the order starting. That will be the Geelong Community Correctional Services Centre at the State Government Offices, Level 5, 30A Little Malop Street, Geelong.
51 You must let a community corrections officer know within two clear working days of your changing your address or job. You must not leave Victoria without first getting permission to do so from the Secretary or delegate and you must obey all lawful instructions from and directions of the Secretary or delegate.
52 In addition to these mandatory terms I impose the following conditions: You must be under the supervision of a community corrections officer for a period of 18 months. You must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager.
53 You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the regional manager. You must undergo any mental health assessment and treatment and that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager.
54 You must participate in programs and all courses that address factors relating to the offending as directed by the regional manager, specifically anger management programs.
55 Do you understand the effect and conditions of the community corrections order?
56 OFFENDER: Yes, Your Honour.
57 HER HONOUR: And do you consent to it being made?
58 OFFENDER: Yes.
59 HER HONOUR: Thank you. I will ask Mr McGrath to take that down to you and have you sign it. I also make the alcohol exclusion order under s.89(DE) of the Sentencing Act. The order will last for two years, will commence upon your release from custody and the mandatory conditions that apply to it are these: That you must not enter any licenced premises, characterised as a nightclub, bar, restaurant, café, reception centre or function centre. You must not enter or remain in the location of any major event. You must not enter or remain in a bar area of any licenced premises and you must not consume or attempt to consume any liquor in licenced premises. And I do that on the grounds set out in the order.
60 You must also sign that alcohol exclusion order acknowledging that you understand the effect and the conditions and again, I will ask Mr McGrath to have you sign those.
61 MR DOYLE: Your Honour, with respect to the forensic sample. It is now automatic because the sample was taken at the record of interview, it's an indictable offence. Your Honour actually doesn't need to make an order.
62 HER HONOUR: Thank you.
63 MR McGRATH: They've been signed, Your Honour.
64 HER HONOUR: Thank you, Mr McGrath. I have countersigned both of those. Orders I have pronounced reflect what I intended to do.
65 MR DOYLE: Yes, Your Honour. 6AAA, Your Honour.
66 HER HONOUR: Thank you. Pursuant to s.6AAA I declare that but for your plea of guilty I would have sentenced you to a terms of imprisonment of four years and fixed a non-parole period of two years. Would you remove Mr Winton, please?
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