Director of Public Prosecutions v Young

[2016] VCC 362

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-15-01904

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMIE ROBERT YOUNG

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2016
DATE OF SENTENCE:	19 February 2016
CASE MAY BE CITED AS:	DPP v Young
MEDIUM NEUTRAL CITATION:	[2016] VCC 362

REASONS FOR SENTENCE
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Sentence:

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hughan
For the Offender	Mr C. D'Alessandro

HER HONOUR:  Mr Young, remain seated.  I am going to read through my reasons for sentence.  Ultimately I am going to sentence you to a period of imprisonment to be followed by a community correction order if you consent to the community correction order being made.  If you do not consent, then I will have to restructure the sentence.  When it comes to the end of my reasons, I will explain the order that I propose in terms of the CCO and Mr D'Alessandro can come with the documentation and go through it with you just to make sure that you understand and then I will ask you if you consent or you do not consent. 

1Jamie Robert Young, you have pleaded guilty to one charge of recklessly causing serious injury, Charge 1, and one charge of recklessly causing injury, Charge 2.  You have also pleaded guilty to summary Charge 6 of assaulting an emergency worker on duty.  The maximum penalty for recklessly causing serious injury is 15 years' imprisonment.  The maximum penalty for recklessly causing injury is five years' imprisonment.  The maximum penalty for assaulting an emergency worker on duty is six months' imprisonment. 

2The prosecution made application pursuant to s.89DD of the Sentencing Act 1991 for an alcohol exclusion order. The making of that order was not opposed.

3The circumstances of your offending are set out in the Summary of Prosecution Opening which was tendered as Exhibit A.  CCTV footage of the incident was also played.  The disk of that footage was tendered as Exhibit H. 

4In brief, the circumstances are as follows.  In the early hours of Sunday 19 July 2015 you, Mr Ashley West and Mr Gavin Sim were at the Traralgon Saloon Bar.  You were there separately and apparently not previously known to each other.  At about 3.50 am a verbal argument developed between you and Mr West.  You went close to Mr West and began pushing at him.  Mr West hit you near your right eye with a bottle causing a cut and bleeding.  Another unidentified person intervened to break up the dispute.  You moved away from Mr West who moved to an area near where Mr Sim was sitting waiting for a lift home.  The unidentified man appeared to be trying to calm you down.  You then suddenly swiftly went over to Mr West.  You threw a stubbie glass bottle which hit Mr Sim in the groin area injuring his penis (Charge 2, recklessly causing injury). 

5You then pulled a struggling Mr West across the floor.  While you were doing that you bit on Mr West's right ear and bit off a large part of the rear portion of his ear (Charge 1, recklessly causing serious injury).  Crowd controllers intervened.  You left the building but tried to re‑enter through the rear security door asking to be let in.  You said, "Let me in, I'm going to kill him".  The security manager told you to leave and you did. 

6A short time later police officers found you nearby.  You seemed to be angry and were approaching other people in the street in an aggressive manner.  Constable Winchester stood in front of you to prevent any further altercation.  You pushed him to the chest causing him to loose balance (Summary Charge 6), assaulting an emergency worker on duty.  OC spray was deployed with minimal effect.  After a short chase you stopped and were arrested. 

7It is clear from the material provided that both you and Mr West were heavily intoxicated and I accept that neither you has a recall of these events. 

8Mr West received medical attention.  Hospital doctors were not able to reattach his ear.  He will need several surgeries to reconstruct his ear.  He also suffered bruising to his eye and lip. 

9Mr Sim suffered an injury to his penis due to a cut and bleeding.  The injury led to difficulties for him urinating and pain on urination.  No long‑term effects have been suffered by him. 

10A Victim Impact Statement from Mr West was tendered as Exhibit F.  The statement was read by Mr West's wife.  In that statement Mr West describes the immediate and long‑term physical effects of the injury including nerve damage to his ear.  Mr West says he gets pain if his ear gets cold which requires him to wear hats at various times.  He says he has to wear earmuffs at work all the time which causes pain and discomfort.  He describes difficulties with physical activities because any sudden head movement can lead to pain.  He has had associated neck and headache problems.  Mr West has had one episode of surgery and multiple check‑up visits.  To reconstruct his ear with grafts will require multiple operations over two years. 

11Mr West says he finds it emotionally difficult going out in public as people look at his ear.  He feels anger and frustration and concern for the impact of this incident and the injury to him on his wife and family.  Mr West says he was unable to work for three and a half months and the loss of income together with costs of treatment has had a negative financial impact on him.  Mr West said he remains nervous in a social setting and especially feels uncomfortable being out at night. 

12In sentencing you I have taken into account your personal circumstances.  I derive those circumstances from what was said on your behalf by your counsel and information provided in a report from Mr David Bruce, psychologist, dated 30 January 2016, Exhibit 1.  A bundle of references was also tendered as Exhibit 2. 

13You are now 26 years old.  You grew up in Morwell.  You had a difficult and disrupted childhood.  Your parents separated when you were five.  Tragically your mother died of cancer when you were seven years old.  You lived with your older brothers for a time and then went to live with your father who was a violent alcoholic.  You left school after Year 10.  You were employed in the building industry and then began an apprenticeship as a boilermaker.  When you were about 16 you began drinking alcohol and then became engaged in regular binge drinking of alcohol.  When you were about 20 you started using drugs.  When you were 21 you moved away from your father and lived with a friend. 

14In 2011 you were sentenced to a term of imprisonment for drug‑related offending.  At that time you had support from your then girlfriend and her mother.  In 2013 you married your wife with whom you had been together for three years.  You and she have two young children.  After you were released from prison in 2012 you made efforts towards rehabilitation but then relapsed into binge drinking and drug use.  As a result of your behaviour you and your wife are separated but she remains generally supportive of you. 

15The references provided from your wife and her mother are impressive.  They do not shy away from describing the bad decisions you have made whilst under the influence of drugs or alcohol but they also describe your good qualities as a partner, father and son‑in‑law.  You have resumed your apprenticeship and your work colleagues describe you in very positive terms.  It appears from your wife's reference that you have made efforts to engage in counselling and to continue your apprenticeship and to stay away from negative influences.  She is understandably concerned that a further term of imprisonment would have a negative impact on these efforts. 

16It is Mr Bruce's opinion that you are stable in your resolve to cease drug and alcohol use and to resume your relationship with your wife and your children.  Mr Bruce's opinion is that your offending is alcohol and drug related.  He says that there is minimal risk of you reoffending if you remain free of substance abuse.  Mr Bruce describes your prospects of rehabilitation as being "very promising".  He says that this can be concluded from improvements in your relationship and the continuation of your apprenticeship. 

17You have admitted a significant prior criminal history.  That criminal history appears to be largely drug‑related.  In December 2011 you received a sentence of imprisonment of 21 months with a non‑parole period of ten months for aggravated burglary when you had in your possession an offensive weapon.  Your counsel said that that offending occurred in the context of you seeking to retrieve a jet ski that you thought had been wrongly taken from you. 

18In December 2011 you were also sentenced in respect of failing to comply with an intensive correction order which had earlier been imposed for drug offences and drug related offending.  You were required to serve the unexpired portion of 155 days.  On that occasion you were also sentenced to an aggregate term of imprisonment of 18 months with a non‑parole period of 12 months then set for offences including assaulting police, driving offences and drug offences. 

19In November 2014 you were convicted and placed on a community correction order of 24 months for offences of criminal damage, stalking and threat to inflict serious injury.  Your counsel said that these offences occurred in respect of your wife. 

20In sentencing submissions your counsel said that you have no recall of the circumstances due to your intoxication but that you have expressed shame in respect of this offending.  Your counsel asked that it be taken into account that the injury to Mr West occurred in the context of you being hit with a bottle when you were cut and bleeding.  Your counsel drew attention to your efforts to rehabilitate since this episode.  He referred to you continuing to work and trying to re‑establish your relationship.  He said that you have had no alcohol in the last three months and have had three sessions with a drug and alcohol counsellor. 

21Your counsel addressed your prior criminal history which he submitted was not of the same level of seriousness as the offences for which I am sentencing you.  He said you have family support and that your relative youth ought be taken into account.  Your counsel also relied in mitigation on your plea of guilty.  He asked that your background of a very difficult childhood and drug and alcohol use in the context of the difficult circumstances caused by your father should be taken into account. 

22Your counsel submitted that the appropriate sentence would be a community correction order or a combination of imprisonment with a community correction order.  The prosecutor in sentencing submissions submitted that any sentence other than a sentence of imprisonment with a non‑parole period would be inappropriate because of the seriousness of the offending and that the offending had occurred whilst you were on a community correction order. 

23The prosecutor has submitted that it was also relevant that you had previously breached an intensive correction order.  The prosecutor stressed the need for general deterrence and also the sentencing purposes of justice punishment and denunciation. 

24Jamie Young, it is clear that you engaged in serious offending.  You engaged in violent and aggressive behaviour whilst intoxicated.  The courts have frequently expressed their concern about the prevalence of alcohol‑fuelled violence.  You were very drunk and very angry.  Two victims were injured and a police officer assaulted.  Mr Sim was caught up in a situation which had nothing to do with him.  You were reckless in your conduct with a bottle which is a potentially dangerous weapon.  Mr Sim suffered a very unpleasant injury which has fortunately now resolved.  Mr West suffered a serious injury with ongoing and permanent consequences for him. 

25CCTV footage shown demonstrates that whatever the cause of the disputation between you and Mr West, you physically engaged with him and then he hit you with the bottle.  That action injured you and was an escalation in the level of violence.  I accept that Mr West's actions shocked and angered you and it was in that context and in the context of your very high level of intoxication that you re-engaged with him.  It is clear from the footage that you did have an opportunity to walk away but you did not do so.  In the struggle that was then instigated by you, you viciously and deliberately bit into his ear and continued that bite despite his struggle.  Your actions involved a high level of recklessness.  You have pleaded guilty on the basis that you foresaw the probability of serious injury resulting.  I accept that you may not have foreseen the likelihood or probability that Mr West would lose such a significant portion of his ear.  The injury that Mr West suffered is clearly serious, although not an injury not at the high end of serious injury as now defined. 

26General deterrence is a very important sentencing consideration.  The message must go out that engaging in physical violence whilst intoxicated and causing injury will be severely punished.  That may have some impact in discouraging others from similar offending.  Your behaviour must be denounced and appropriately punished. 

27General deterrence is also a very significant sentencing consideration on the summary charge involving the assault on the police officer.  You continued your drunken and aggressive behaviour outside the venue.  The police officer was trying to do his job.  You did not accept that, but assaulted him as well.  The community must understand that emergency service workers, whether they are police officers or other emergency workers, must be allowed to go about their business without fear of being assaulted. 

28Specific deterrence must also be given weight in sentencing you.  I accept that you are remorseful and ashamed.  I accept that you have particularly in recent months engaged in counselling.  It is significant that you have resumed your apprenticeship and tried to improve your relationship with your wife.  You have support from her and her family.  I note the positive comments in the references about your behaviour when you are sober. 

29It is concerning that this offending occurred whilst you were on a community correction order, but I note that generally you have been complying with the current order. 

30It is also of significance that in the past you have breached an intensive correction order.  It is clear that you have relapsed at various times into drug and alcohol use.  It is very concerning that after your release from custody in 2012 you made positive efforts but then relapsed again and offended against your partner which resulted in the community correction order being imposed that you are currently now serving.  Despite those relapses I consider that you do have reasonable prospects of rehabilitation, but I also consider that you do need to understand that you will receive harsher penalties if you reoffend again.  That is why specific deterrence must be given weight in sentencing you. 

31I consider that a community correction order alone would not be sufficiently punitive to meet the level required in this case for denunciation, just punishment, general deterrence and specific deterrence. 

32A number of factors operate in mitigation of sentence.  You have pleaded guilty at the earliest opportunity.  I accept that your plea of guilty is an indication of your remorse and acceptance of responsibility.  Your early plea of guilty has had considerable utilitarian value in reducing the costs, time and trauma associated with these proceedings.  You are entitled to a significant discount for that plea of guilty. 

33You are relatively young.  Your rehabilitation remains an important sentencing consideration.  It is clear that your offending is related to issues with drugs and alcohol with alcohol being a very significant issue for you.  Your rehabilitation is in the interests of both yourself and the community.  Your reasonable prospects of rehabilitation should be encouraged. 

34It is clear from Mr Bruce's report that there are connections between your drug and alcohol problems and your difficulties in childhood and adolescence.  Those issues are likely to require significant and ongoing counselling and supervision.  A community correction order would provide for supervision and ongoing counselling as well as other programs to address your offending behaviour. 

35The Court of Appeal in R v Boulton [2014] VSCA 342 and cases following that decision has stressed the application of the principle of parsimony in sentencing as well as the rehabilitative and punitive aspects of a community correction order. I have considered that case and subsequent cases such as Baldwin v R [2015] VSCA 299, Graeske v The Queen [2015] VSCA 229 and Deng‑Mabior v The Queen [2015] VSCA 179. I do not accept the prosecution position that a combination of imprisonment and a community correction order is outside the sentencing range or inappropriate for your offending or in these circumstances. Such sentences have been imposed for offending involving serious injuries and where offenders have had a prior criminal history involving violence or breaches of non‑custodial orders. It is an aggravating feature that this offending occurred while you were on a community correction order which was intended to provide you with an opportunity to engage in rehabilitation in the community but I do not consider that precludes from you consideration for a further community correction order. A community correction order would be supportive of your rehabilitation and it would deal with punitive considerations and supervisions for a significant period of time.

36There is an added factor in this case in that I will be making an alcohol exclusion order.  You have pleaded guilty to two relevant offences.  I am satisfied on the balance of probabilities that the required conditions have been met in that I am satisfied on the balance of probabilities that at the time of the offences you were intoxicated.  Your intoxication significantly contributed to the commission of the offences and you have not been the subject of a previous alcohol exclusion order.  That order will impose significant restrictions on you for a period of two years after your release from imprisonment.  There is a punitive aspect to such an order.  It will also require you to seek a variation if you wish to attend any particular event which is covered by that order.  Those restrictions should assist you in your efforts to reduce or eliminate your alcohol consumption, having to stay away from people who have a negative influence on you.  It is an offence to contravene the order with a potential penalty of imprisonment available. 

37You have been assessed as suitable for a community correction order.  The report I received notes your satisfactory compliance with the current order apart from the reoffending.  A combination of imprisonment and a community correction order would, in my view, adequately meet the sentencing objective of just punishment, denunciation, general deterrence and specific deterrence and would provide for continuing supervision and monitoring of your rehabilitation over a significant period. 

38I propose to impose an aggregate sentence of imprisonment in respect of charges 1 and 2 as both offences occurred during one incident and were closely connected.  Both are similar in that you acted angrily and aggressively whilst intoxicated.  One sentence in respect of both offences will appropriately reflect your criminality on this occasion. 

39In respect of summary Charge 6 I consider the sentence of imprisonment is warranted, particularly for the purposes of denunciation and general deterrence as well as just punishment.  In the circumstances of this case I consider that a relatively short and concurrent sentence of imprisonment would be appropriate. 

40The community correction order that I propose to impose if you consent would have conditions in addition to the mandatory condition of supervision, assessment and treatment for drugs and alcohol, assessment and treatment for mental health issues and assessment for programs to reduce reoffending.  In view of the term of imprisonment that I propose to impose I do not propose to include work hours in the community correction order.  It is to be hoped that on your release you will be able to resume full‑time employment and I do not wish to impose an order that would impede that. 

41The other essential condition of a community correction order is that you must not reoffend.  If you reoffend during the period of a community correction order you will be brought back before me for resentencing and you can be re‑sentenced in respect of these offences. 

42I would ask Mr D'Alessandro to go with my associate and go through the draft order that I have made in respect of the community correction order.  I will then ask you whether you do or do not consent to that order being made.  I do intend to impose a sentence of imprisonment.  I will announce what that is, but it is not an insignificant term of imprisonment. 

43I will also ask Mr D'Alessandro to take you through the document which explains about the alcohol exclusion order because you will be asked to sign a document saying that you understand the effect of that order.  I will just leave the Bench and be outside the court while Mr D'Alessandro does that.  Thank you. 

44(Short adjournment.)

45HER HONOUR:  Would you stand, Mr Young. 

46Mr Young, do you consent to a community correction order being made in the terms set out? 

47OFFENDER:  Yes, Your Honour. 

48HER HONOUR:  Thank you. 

49Jamie Young, on charges 1 and 2 I sentence you to an aggregate term of imprisonment of 15 months.  That term of imprisonment is to be followed by a community correction order for two years in the terms that have been set out. 

50I also make the alcohol exclusion order. 

51In respect of those two charges, on summary Charge 6 you are convicted and sentenced to one months' imprisonment to be served concurrently with the other term of imprisonment. 

52But for your plea of guilty I would have sentenced you to a term of imprisonment of three years and six months with a non‑parole period of two years and three months.  Thank you.  Take your seat. 

53Thank you Mr Hughan, thank you Mr D'Alessandro.  Is there anything of a technical nature that I've left out that I need to deal with that you can see? 

54MR HUGHAN:  No, Your Honour.  I think Your Honour has covered everything. 

55HER HONOUR:  If there is anything, please get in touch with me as soon as possible. 

56Mr D'Alessandro, from your point of view is there anything I've left out ‑ ‑ ‑

57MR D'ALESSANDRO:  No, Your Honour.

58HER HONOUR:  ‑ ‑ ‑ or need to deal with? 

59MR D'ALESSANDRO:  That's all very clear.  Thank you.

60HER HONOUR:  Thank you very much.  And I do hope that Mr West's injuries are dealt with satisfactorily at some point. 

61Mr Young, I do hope I don't see you again in breach of your community correction order.  I do consider that as a young man you have prospects for rehabilitation.  You have family support, potentially a good relationship with your children.  You should think about those matters in the next 15 months particularly.  Thank you. 

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