Director of Public Prosecutions v Young

[2024] VCC 1750

IN THE COUNTY COURT OF VICTORIA

AT BENDIGO

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. 24-00871

DIRECTOR OF PUBLIC PROSECUTIONS

v

WAYNE YOUNG

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JUDGE:	HER HONOUR JUDGE CARLIN
WHERE HELD:	Bendigo
DATE OF HEARING:	28 October 2024
DATE OF SENTENCE:	1 November 2024
CASE MAY BE CITED AS:	DPP v YOUNG
MEDIUM NEUTRAL CITATION:	[2024] VCC 1750

REASONS FOR SENTENCE
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Subject:Criminal law

Catchwords:              Plea of guilty – assault causing injury – reckless conduct endanger serious injury – kick to the head while victim was unconscious on the ground – family violence – alcohol use – general and specific deterrence

Legislation Cited:      Sentencing Act 1991

Cases Cited:

Sentence:                  Aggregate sentence of 4 months imprisonment, followed by a 12 month Community Corrections Order.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr N. Barron	JS Law

HER HONOUR:

Introduction[1]

[1] Summary based on the agreed facts set out in the Summary of Prosecution Opening and marked as Exhibit A.

1.Wayne Young, just after 8pm on Saturday 16 December 2023 you assaulted your 29-year-old son, Beau, on the pavement outside the Barclay Hotel in View Street, Bendigo.  The two of you had been drinking together at the Rifle Hotel in View Street and got into an argument.  You left the hotel first and Beau followed. 

2.CCTV from the Barclay Hotel shows Beau shoving you and then you removing your shirt and cap and essentially shaping up to him.  Beau shoved you again with open hands and then the two of you circled each other yelling abuse. Beau then pointed his finger at you, and you punched him with a closed fist to his head knocking him to the ground unconscious. 

3.Instead of leaving it at that you then forcefully kicked the unconscious Beau in the head at least twice.  It is obvious from the CCTV footage that you were in an absolute rage. You paused at one point to put your shirt back on, but then violently kicked him two more times, although it is not obvious from the video where those two kicks landed.  You then looked at your phone for a while and seem to be yelling at Beau to 'get up' before you kicked him again, not so violently that time.  You then did the same thing, looked at your phone and kicked him for a final time, albeit more in a prodding type motion.

4.The whole incident from your punch to the final kick was about two minutes. 

5.The police and paramedics arrived promptly.  I was played the Body Worn Camera footage from the police.  It would be fair to say that at that time, when Beau was still unconscious on the ground, you were defiant and not remorseful.  Despite telling police you had had about a dozen heavies, you denied being drunk to your daughter, who had arrived at the scene.  You appeared unconcerned about the fact your son was still unconscious on the footpath, instead blaming him for having tried to hit you, and displaying an entitlement to have acted as you did, given that he was your son.  You said several times 'never hit your old man'.

6.When the police pointed out that Beau was incapacitated you described him as 'just being a fuckwit'.

7.Beau was transported to the hospital by the paramedics and essentially woke up on the way.  The doctor who examined him identified no specific injuries, other than a head injury and possible concussion.  She noted a shoe print on his right forehead and fresh blood in his beard, but could not see any obvious source.  She saw a further shoe imprint on his anterior abdominal wall.  She also noted that he appeared heavily intoxicated by alcohol.

8.You were arrested and taken back to Bendigo Police Station where you were interviewed commencing at 1.06 am.  You described drinking eight or nine pints at the Rifle, getting into an argument which escalated, Beau pushing and shoving you, you then hitting him to the ground, and you then kicking him in the side and stomach.  You said your punch was open handed, which it was not, and said you could not remember kicking him in the head.  When shown photographs of Beau lying on the ground you said he seemed '[p]assed out or knocked out’ and 'I stomped on his head by the look of him'.

9.You were charged following the interview and originally pleaded guilty before a Magistrate on 5 March 2024.  However, upon hearing the summary the Magistrate considered the matter too serious, and it was uplifted to the committal stream.  You were committed to this court on 29 May 2024 and pleaded guilty before me on 28 October 2024 to one charge of intentionally cause injury, which relates to the punch, and one charge of reckless conduct endanger serious injury which relates to your kicking of the unconscious Beau. 

10.A plea on your behalf was conducted before me on that day with your counsel, Mr Barron, arguing that the matter could be dealt with by way of a Community Corrections Order and the prosecutor, Mr Cordy, submitting that a term of imprisonment was warranted.    

11.In determining your sentence, I am required to have regard to a variety of factors which I will shortly outline.  Some tend towards leniency, and some point the other way.  No one factor automatically prevails over any other.  Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.

Your personal circumstances

12.Turning to your personal circumstances first.  They were outlined in the defence submissions, as well as reference letters from your employer, and from your son and victim, Beau.  Beau made a statement of no complaint to the police and has obviously forgiven you.

13.You are a 54-year-old Aboriginal man.

14.You grew up in Mildura as the youngest of six children. Your father was as an aggressive man who was often excluded from the family home. Your mother was your primary carer, and she ensured that you and your siblings were looked after, sent to school and fed.  Despite this, you spent periods of time in the care of the State and came into contact with the criminal justice system at a young age for property related offences.

15.As an adult you were dealt with by the Magistrates Court on several occasions between 1990 and 1995. Since then, you appear to have turned your life around and stayed out of trouble until the current offending. 

16.In 1998 you moved to Bendigo and started working at a foundry, now owned by Derwent Industries. You have been working there continuously since then and have worked your way up to the position of afternoon shift site manager.

17.You married your wife Belinda in 1998. You have three children together who are aged 32, 30 and 24. You also have a stepson who currently resides with you.  Your children are all gainfully employed and now have families of their own.  According to Beau, you always played an active role in the lives of your children and do the same for your grandchildren. 

18.Your wife, Belinda, has a chronic health condition that has prevented her from working.  She does not have a licence and relies on you to transport her to and from her medical appointments.  You are the sole provider for your household.

19.In 2006 you were injured at work when molten metal splashed into your eye. You have limited use of that eye and will apparently lose vision in it entirely.  You have Type 2 diabetes and have had two heart attacks since the age of 40. You receive regular treatment through Bendigo & District Aboriginal Corporation and are on medication for heart disease, diabetes and cholesterol.

20.You began smoking at age nine and have been a heavy drinker for much of your life. You say you significantly reduced your alcohol consumption after your first heart attack and quit smoking after your second.

21.Your son, Beau, says that this offending was very out of character for you and that you have apologised to him on multiple occasions. He says that you are working on becoming a better person and believes that you have made progress towards ensuring nothing like it ever happens again.

Objective gravity of your offending and moral culpability

22.The objective gravity of the offending and the moral culpability of the offender are critical to determining any sentence.  The maximum penalties of your offences reflect their inherent seriousness, being 10 years for causing injury intentionally and 5 years for reckless conduct endangering serious injury. 

23.In your case the most serious of your offending was not the punch, although that was serious enough, it was your repeated kicking of Beau to the head and other parts of his body when he was on the ground unconscious.  There was simply no excuse for it.  The fact you are his father and maybe felt that he had disrespected you, did not give you the right to assault him, as you surely recognise now.  Similarly, the fact, which I accept despite your denials on the night, that you were intoxicated is no excuse, nor it is a mitigating factor.  It is however some explanation, and I accept that it clouded your appreciation of the gravity of the situation.   

Current sentencing practices

24.To promote consistency of approach in sentencing, particularly, the application of relevant principles, I am required to have regard to current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both.  There is a wide disparity of sentences imposed for your two offences reflective of the very wide disparity in circumstances and seriousness of the offences.  I was not referred to any comparable cases by either party, but suffice to say that terms of imprisonment are frequently, but not always, imposed.  

Plea of guilty, co-operation and remorse

25.You are entitled to a significant discount in your sentence for the fact you pleaded guilty and did so at a very early stage.  In so doing you facilitated the course of justice and took legal responsibility for your crimes.  You have also spared your victim and witnesses the ordeal of coming to court to give evidence.  I am also satisfied that your plea of guilty is accompanied by remorse as Beau says in his reference that you have apologised to him on numerous occasions, as I have already mentioned.

26.In that regard I accept that the attitude you displayed during the Body Worn Camera footage was affected by your intoxication and not reflective of your attitude when sober or your current attitude indeed.

Your character and risk of reoffending

27.I am not too concerned with your criminal history which is dated. Indeed, it is to your credit that you turned your life around in your 20s, stopped offending, had a family and have been continuously employed. 

28.However, it is obvious that alcohol is a continuing problem for you and unless you can get it under control there is a risk that you may do something like what happened on this night, again. 

29.That said, considering your age, I consider your prospects of rehabilitation to be reasonable to good. 

Family hardship

30.I accept and take into account that imprisonment will be a hardship for your wife and may, perversely, also adversely financially impact your victim Beau or others of your children.  However, the law is clear that unless the level of hardship is exceptional, and I do not find that it is, I can only give this matter minimal weight.  

The burden of imprisonment

31.In deciding your sentence, I must consider how a term of imprisonment would be likely to impact you. I accept that you will worry about your wife, but that is not unusual.  I also accept that your health is not great, but there is no reason for me to conclude you will not receive adequate care in prison, even if it is not as good as you may currently be getting under the auspices of BDAC. 

Purposes of sentencing

32.I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation, and protection of the community.  A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required.

33.Further, the total effective sentence must not offend the principle of totality, meaning you must not be punished any more than is proportionate and appropriate to your overall criminality. 

34.I have had you assessed for a Community Corrections Order and you have been found suitable and indicated your consent.  The central issue for me is whether to impose that on its own or in combination with a term of imprisonment. 

35.I have already set out in full the matters in your favour and against, in the course of these reasons.  There is no need to repeat them.  After weighing these competing considerations, I have concluded that all the relevant sentencing purposes cannot be met in your case simply by the imposition of a Community Corrections Order.  

36.Alcohol fuelled violence on public streets is too common and your offending is just too serious not to impose a term of imprisonment.  There is a need to denounce your behaviour and deter others from acting in the same way.  People should know that if they behave as you did on this night they will go to prison.  There is also a need to specifically deter you from doing anything similar again. 

Sentence

37.Because the offences are founded on the same facts and are part of a series of offences of similar character, I am imposing an aggregate sentence on the two offences.  Mr Young, if you could stand up please.

38.I convict and sentence you on the two charges to an aggregate term of imprisonment of four months.  I also sentence you on the two charges to a single Community Corrections Order which will start upon your release from prison. 

39.The order will last for one year. 

40.You are to report to the Bendigo Community Correctional Services office within two working days after the commencement of the order, so after your release from prison you must report.

41.The order is subject to mandatory conditions.  All corrections orders have these conditions. 

·You must not commit another offence during the period of the order, that is 12 months from when it starts.

·You must comply with any obligations or requirements. 

·You must report to and receive visits from the Secretary, report to the Community Corrections Centre within two clear working days of the order commencing. 

·As I have already said, you must let a Community Corrections Officer know within two clear working days of you changing your address or job. 

·You must not leave Victoria without first getting permission to do so from the Secretary. 

·You must obey all lawful instructions and directions from the Secretary.

42.So those are conditions that apply to all orders.

43.There are some special conditions for you.  The first one is:

·Unpaid community work.  You must perform 100 hours of unpaid community work over a period of 12 months as directed by the Regional Manager.

·You are to be under the supervision of a Corrections Officer for that period of 12 months. 

·The last two are treatment and rehabilitation.  You must under undergo assessment and treatment, including testing, for alcohol abuse or dependency, as directed; and

·You must participate in programs and/or courses that address factors relating to the offending, as directed.

44.Now any time that you spend doing any rehabilitation will come off the 100 hours, so if you spend 25 hours, for example, doing courses or rehabilitation in the way of alcohol assessment or treatment, that will come off the 100 hours.  You will only have to do 100 less that. 

45.You need to know that if you do not comply with the Corrections Order that is an offence in itself.  You will be charged with not complying with it, and also it means that you can be resentenced on these two charges and if that happens, it is certainly a real possibility that you may get more gaol time.  So it is very important that you comply with the order. 

46.So the sentence basically is four months followed by a 12 month Community Corrections Order.  Do you understand everything that I have said?  Yes.  I understand it is very difficult for you and your family - I can see that your daughter is upset - to go into prison, but as I have said, I have determined it is necessary and no sentence other than a term of imprisonment can meet all the sentencing principles.

47.I will get him to sign the Corrections Order when he is in the cells, but I will sign it now and I will pass it down for you to have a look at. 

48.Pursuant to section 6AAA of the Sentencing Act I declare that if you had not pleaded guilty to these offences and been found guilty by a jury, I would have imposed an aggregate term of imprisonment of 18 months with a non-parole period of 12 months.

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