Director of Public Prosecutions v Wright

[2019] VCC 435

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR 16-02307

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE ANTHONY WRIGHT

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	29 March 2019
DATE OF SENTENCE:	29 March 2019
CASE MAY BE CITED AS:	DPP v Wright
MEDIUM NEUTRAL CITATION:	[2019] VCC 435

REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – intentionally cause injury, criminal damage, threat to kill – no prior criminal history.

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr R. Pirrie	John Cain, Solicitor for Public Prosecutions
For the Accused	Mr N. Papas, QC	Griffin Lawyers

HER HONOUR:

1Shane Anthony Wright, you have pleaded guilty before me on indictment to three charges.  Charge 1, causing injury intentionally to Mario Montalto.  Charge 2, destroying property being a Samsung mobile phone belonging to
Mario Montalto and Charge 3, threat to kill involving Mario Montalto.  Each of those charges are serious and that is reflected in the maximum penalty prescribed by law and that is ten years imprisonment. 

2I will now sentence you on the basis of the summary of prosecution opening that was read today. I am not going to refer to it in full detail, but I will just briefly refer to the circumstances of the offending.

3The matter involved you attending an automotive workshop known as B&M Automotive, at 39B Mollison Street, Broadford at about 10.20 am on
Thursday, 23 June 2016.  At that time, you were accompanied by your father, Anthony Wright.  Mario Montalto is the operator of that business and was present in the workshop that day, together with his employee, a mechanic Lawrence Omran.

4Mario Montalto was assaulted by you and the attack was sufficiently violent for Montalto to bleed profusely from a large scalp laceration and he sustained a left nasal bone fracture and a right occipital scalp laceration. 

5I do not propose to describe in full detail the lead up incidents and the background to this matter, other than to say you and Mr Montalto had been friends and associates for many years.  Previously, he had allowed you access to his workshop, so that you could work on any of your vehicles and you had a licence to attend and use the workshop.

6Between 21 June 2016 and 23 June, there were incidents that took place, including a series of text messages and calls between Montalto and you and his partner, Ms Grass from whom he was estranged, concerning the breakdown of their partnership and what was happening in terms of negotiating arrangements. 

7It is not really clear to me why it is that you became involved, but I note that your father's vehicles had been the subject of some vandalism on the night of 22 to 23 June 2016 and that concerned an unknown person pouring what appeared to be brake fluid over two cars and puncturing three tyres on one car,  four tyres on a second car and two tyres of a motorbike. The perpetrator or perpetrators left a note which read, "Your son is a dead cunt" and "dog cunt".

8The police investigations have not connected Mario Montalto with the incident that occurred at your father's premises. There was a separate incident that occurred at Mr Montalto's estranged partner's home on 21 June 2016, which also involved an unknown person pouring a fluid into her car, damaging some paintwork and three of her four tyres were also punctured.

9Suffice to say, the perception was that you considered that Mario Montalto was responsible for those actions, notwithstanding nothing has connected him with either of those vandalism incidents.  It is also the fact that as at 23 June 2016, Montalto held a belief or suspicion that you were involved in the breakdown of his relationship with Ms Grass, which you deny.

10As a consequence of all those misunderstandings, you attended the workshop. Your attendance was described as a “joint invasion” in the opening. 

11You were present with your father Anthony Wright and committed the assault that has been described comprehensively.  It was observed by Lawrence Omran, the worker, that you had something in the shape of a knuckle duster in one hand. 

12Whilst the background and circumstances leading to the incident in the automotive shop does provide an explanation as to why you and your father were present and why you behaved in the manner in which you did, it no way excuses your behaviour. 

13There was, in my view, a degree of planning, given that you both attended in company and that you both were engaged in the assaults that took place as described in the opening. 

14Your vigilante actions are to be condemned and on behalf of the community, I formally denounce your behaviour.  It is deserving of stern punishment. 

15It is a serious example, in my view, of the offence of intentionally causing injury, but I accept the submissions made, that the injuries suffered mean that this offence can be placed in the mid-range for this sort of serious offending. 

16The incident involving the microwaving of the mobile phone, in my view, was immature and unnecessary and in relation to the threats to kill, I accept the submission made by your counsel, Mr Papas, that it was part and parcel of the events concerning the intentionally causing injury charge.  But nonetheless, it is also separate offending and it is deserving of punishment.

17The victim has suffered very greatly, both physically, emotionally, socially and financially and you heard this morning, the details of that when the prosecutor read out the victim impact statement. 

18Ordinarily, a term of imprisonment to be served would be considered as an appropriate punishment for this sort of serious offending.  However, having regard to all the mitigating features highlighted by Mr Papas, on your behalf, I have ultimately concluded that all the relevant principles of sentencing can be achieved by the imposition of a Community Correction Order which is punitive in nature.

19Your personal history and background is essentially unremarkable.  You are one of two siblings.  You have an older brother who is two years older than you.  You grew up in and around the Wallan and Kilmore areas.  You completed Year 11, in about 2004, at Broadford Secondary School and then joined the army at age 18 and spent the next four years working in the Australian Army. You were a former corps of transport solider.

20It is evident from reading the reference provided in relation to your service that you undertook your training and attended to your time in the army diligently.  Ultimately, you left because you wanted to seek better paid employment. 

21You were discharged from the army in about November 2010 and following that, you took on driving fulltime.  You obtained specialist licences to enable you to drive trucks, B doubles and road trains and you have worked in Queensland as well as other places in Australia.

22You returned to Victoria in January 2013.  The relationship that you had with a long term partner, Kate, broke down. You have recently returned to live with your parents in Broadford.  You are currently employed fulltime as a fuel tank driver with Ron Finemore Transport.  Your work involves rolling shifts and you work up to 70 hours per week.

23Your character has been attested to by a number of referees. I have read the references from Kevin Rodda, Katherine Shelton, Andrijana Talevska and Steven Brouff, all of which demonstrates that you do have a general reputation in the community as a non-violent or aggressive person and also that you are a hardworking person, who is held in high regard and generally is a person of good character.  I have taken that into account on your behalf.  I accept that this is conduct that is out of character.

24I have taken into account the mitigating features highlighted by Mr Papas.  Firstly, the plea of guilty.  I do accept that it was entered at an early stage, notwithstanding the actual chronology of this matter.  There was an offer made in September 2016 that you would plead guilty to the charges that are the subject of the filed over indictment.  I consider that the plea has real utility.  You have spared the expense and unnecessary inconvenience of a trial.  By your plea, you have acknowledged your wrongdoing and you have facilitated justice.  Your sentence will be discounted accordingly.  I accept that it is evidence of some remorse.

25You are a 31 year old person who has previously led an otherwise blameless life.  You do not have any prior criminal history and there are no subsequent charges pending and I have taken that into consideration on your behalf. 

26You have completed an anger management course on 13 October 2017 at the Melbourne Counselling Centre and having regard to the steps that you have taken, to address your offending behaviour and your attitude currently, I consider that you do have good prospects for rehabilitation.

27In terms of the future, I am confident, therefore, that there is little likelihood of reoffending in a like manner.  That is consistent with the assessment this morning that has been conducted by Ms Keem who says in her report that you have been assessed as a low risk of general reoffending.  She also noted that you openly acknowledged to her that your offending conduct was socially unacceptable and out of character.

28I have had you assessed as to your suitability for a Community Correction Order and you have been found suitable with the recommendation that there be unpaid community work and that that be the only condition recommended in an attempt to not over service you and increase your risk of reoffending, as well as giving consideration to the fact that you have already completed the Anger Management Program.

29The sentencing objectives of general deterrence, denunciation and protection of the community are prominent in this sentencing process, having regard to the unprovoked attack on Mr Montalto and the consequences that have flowed, despite your good character.  Specific deterrence also has a role to play, although I consider it is moderated, having regard to your post offence conduct and your having undertaken the counselling successfully.

30While I think it is unlikely that you will commit this sort of offending again, you do still need to be deterred from acting irresponsibly and criminally when in a state of anger. 

31Mr Papas on your behalf submitted I should impose a Community Correction Order in respect to Charge 1, the intentionally cause injury charge and Charge 3, threat to kill charge and a fine in respect to
Charge 2, criminal damage charge and I agree with that submission having regard to my view of Charge 2 is that it was simply an immature and foolish act on your behalf. 

32Mr Pirrie, the prosecutor, submitted that such a sentence without a period of immediate custody was within the range of dispositions open to the court.

33In formulating a just sentence, I must balance all of the sentencing principles. I have had regard to the guideline judgment of Boulton v R[1], known colloquially as Boulton.  That decision acknowledges the availability of Community Correction Orders has dramatically changed the sentencing landscape in this state. I consider this is a case where all the purposes for which sentence is to be imposed, can be achieved through the imposition of a Community Correction Order. I have further had regard to what was said in Boulton, where the Court of Appeal said "A Community Correction Order may be suitable, even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment"[2].

[1] [2014] VSCA 342.

[2] Ibid [131].

34I am satisfied that yours is a case where all the sentencing principles can be achieved in the imposition of a disposition that I have already described to you.  You have indicated your consent to the order and also the fact that you understand the order and also the consequences of a breach of such an order.

35The sentence that is being imposed does reflect condemnation by the court of your appalling behaviour.  It is important that it must also be of such a severity so as to serve as a lesson to others who might be minded to engage in this sort of offending in the future.  The courts do need to send clear messages to the community that people who engage in confrontational assaults, do receive stern punishment and that is reflected in the community work component of your order.

36In terms of the formal court orders, I make the following orders-:  in respect to Charges 1 and 3, you will be convicted and ordered to serve a Community Correction Order of two years duration, with 200 hours of community work and that is subject to the core conditions that I have already described to you.

37In respect to the criminal damage charge 2, you will be convicted and fined $500. 

38I make the following order pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to one year's imprisonment to be followed by a Community Correction Order in the same terms.

39I make the order sought in respect to the taking of a forensic sample pursuant to s.464ZF.  I note that it was not consented to, but I consider having regard to the seriousness of the offending that it is in the public interest to make that order.

40What that means is you will have to attend a police station at some stage and provide them with a sample, what is called a buccal sample.  You will be given a little cotton bud to put inside your mouth to rub on the side of your mouth and provided you do that, you have complied with the order.  But I do have to say to you if you do not comply, they can use reasonable force and take the sample by way of a blood sample.  So do you understand that?

41OFFENDER:  I understand, Your Honour, but I do believe they already have this.

42HER HONOUR:  Well ‑ ‑ ‑

43OFFENDER:  I'm happy to comply and do it again, Your Honour, I just ‑ ‑ ‑

44HER HONOUR:  Yes, all right.

45OFFENDER:  ‑ ‑ ‑ don't want to ‑ ‑ ‑

46HER HONOUR:  Well I'm not aware of that, so - sometimes they do it in the course of investigation, but then the sample gets destroyed I am told.

47OFFENDER:  They did actually do it when I was arrested, that's why.

48HER HONOUR:  Yes, so it maybe that that has happened here.

49MR PAPAS:  Might he be permitted to leave ‑ ‑ ‑

50HER HONOUR:  ‑ ‑ ‑ client to sign.

51MR PAPAS:  ‑ ‑ ‑ the dock?

52HER HONOUR:  Yes.  Have you got a pen?

53MR PAPAS:  I have.

54HER HONOUR:  Good.

55MR PAPAS:  Might my client ‑ ‑ ‑

56HER HONOUR:  Yes, yes he can stay there.  The fine situation is that the fine is now referred to the Director Fines Victoria for collection and management under the Fines Reforms Act 2014.  And so I assume correspondence will be sent ‑ ‑ ‑

57MR PAPAS:  I'll discuss that with my client.  He'll get a letter to that address and no doubt he'll deal with that.

58HER HONOUR:  Yes.  Have we updated his address details on the system?

59MR PAPAS:  I think it's a parent's address, it should be.

60HER HONOUR:  Yes.

61MR PAPAS:  At hundred and ‑ ‑ ‑

62TIPSTAFF:  Forty.

63MR PAPAS:  ‑ ‑ ‑ forty - yes.

64HER HONOUR:  Yes, so he'll get a letter to that effect.  All right, well that concludes this matter.  So again, thank you both for all your attention to this matter.  It is good to get it finalised finally.  Everyone can move on with their lives. 

65MR PAPAS:  Please Your Honour.

66HER HONOUR:  We'll see you on Monday Mr Pirrie.

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