DPP v King

[2006] VSC 464

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1580 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS

v

JUSTIN KING

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2006
DATE OF SENTENCE:	4 December 2006
CASE MAY BE CITED AS:	DPP v King
MEDIUM NEUTRAL CITATION:	[2006] VSC 464

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Criminal Law – Sentencing – Intentionally causing serious injury – Affray by fighting – One punch causing a fall – other participants punching and kicking the fallen victim into unconsciousness – Multiple mitigating considerations – Head sentence 4 years – non parole period of 1 year and 6 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M. Gamble S.C.	Office of Public Prosecutions
For the Accused	Mr D. Sexton	Leanne Warren & Associates

HIS HONOUR:

1. Justin King, you have pleaded guilty to one count of making an affray by fighting and one count of intentionally causing serious injury.  The events which gave rise to the two offences occurred at Dandenong on 13 May 2005.  A number of other people were charged with offences arising out of the same events.  Some have been sentenced.  Some are still awaiting trial.

1. On the night of 13 May 2005, you were with a group of friends at a bar in Dandenong called Zeine’s.  The group was celebrating the engagement of one young man in the group.  There had been quite a deal of drinking of alcohol by the others.  It seems that you had had only a little alcohol as was normal for you.  Trouble arose when two of the young men in your group left the bar to get something to eat.  While they were away from the bar, they encountered a group of three men and two women.  That group of five were walking home after a night of drinking.  The five included a Greg Harrison.  For no good reason, words and punches were exchanged between the twosome and some of the group of five.  In the scuffling, one of your two friends had his jacket pulled off.  Their shirts were also torn or pulled off.  After the scuffling, one of your friends used his mobile phone to call the group in the bar.  The other friend headed back to tell the group of the scuffle personally.  He did so in colourful terms, portraying what had occurred with your two friends as the blameless victims. He said that the two had been set upon, and that one had had his jacket stolen.  What was said amounted to a challenge to the loyalty of the group to revenge the wrongdoing.  The right response would have been to call the police.  You and your friends chose instead to act as a vigilante group.  You and your friends chose to take the law into your own hands.  That was your first mistake.

1. You were later to say to the police that your aim was to recover the jacket of your friend, but you also accepted that you were prepared to fight if necessary.   When you and your friends left the bar looking for Greg Harrison and his four friends, they had had not moved far.  Realising the pending trouble, they each promptly looked for a hiding place.  Four of them found a secure one.  Regrettably, Greg Harrison did not.  Before he was located, some of your friends, fuelled by alcohol, did some stupid things, including causing damage to property nearby.  You took no part in that.  However, you happened to be close to one friend who chanced upon the not-so–secure hiding place of Greg Harrison.  A chase of Greg Harrison by your friend ensued.  In that chase you were the next closest of your group.  Greg Harrison ran into a garden.  There, he found himself cornered.  There, your friend angrily challenged him.  An exchange of words followed.  You then made your second mistake.  In the context of all that followed, it was a crucial mistake, indeed a pivotal mistake.  Instead of choosing to allow the angry exchange of words to continue, you punched Greg Harrison to the jaw.  That punch caused him to fall to the ground.  He did not get to his feet again alive.

1. Once your punch had sent him to the ground, your friends set upon him, kicking him and punching him.  You did not physically take part in that kicking and punching.  But you made a further extremely serious mistake in remaining present while that attack continued.  Remaining present without protest was a form of encouragement in itself.  To your credit, you did after a time call on the others to desist.  When they had finished, Greg Harrison was left unconscious.  You then made a further mistake.  Neither you, nor any of the others, made a call for an ambulance to help him.  Some of the others set out to see if they could locate any of Greg Harrison’s friends. You sensibly chose not to do so.  Two of your friends later spoke of returning to where Greg Harrison had been left.  To your credit, you tried to dissuade them from doing any further harm.  Suffice to say that they did irreparable harm.  Their actions on that return brought about the injuries from which Greg Harrison died.  It goes without saying that you are not to be sentenced for what they did.

1. When the police were investigating these events, you co-operated with them to a significant degree.  I desist from saying totally.  Your account was such as to blame Greg Harrison for causing you to punch him.   That claim was not supported by evidence from any other source.

1. Intentionally causing serious injury is a serious offence.  It carries a maximum sentence of  20 years imprisonment.  As to several examples of sentences for the offence, I have reviewed what has recently been said by our Court of Appeal in a series of appeals, when increasing sentences seen to be unduly lenient.  In certain circumstances, although mistakes are made in a spilt-second, they can have disastrous consequences.  You were not responsible for the death of Greg Harrison.  But you are, with others, responsible for his having  been seriously injured and intentionally so injured.  You were the first to physically assault him.  He was then in a very vulnerable situation.  What you and the others did must be denounced.  Others must be deterred from taking the law into their own hands, from punching instead of talking, from encouraging even for a short time, the kind of physical brutality to which Greg Harrison was subjected.

1. I have read the five victim impact statements lodged with the Court.  Four deal with the consequences to them of the death of Greg Harrison.  The fifth comes from his sister, who had been with him until shortly before he was set upon. Her statement helps to bring home the depth of the adverse consequences of the behaviour for which you are to be sentenced.

1. I turn to your background.  You are 21 years of age.  You were born in March 1985.  You come from a law-abiding family.  You were reared and educated in an exemplary way.  You were an outstanding sportsman at school. You chose to leave school to start full-time work somewhat earlier than you needed to, but for sound reasons.  Since leaving school, you have finished most of an apprenticeship.  Your work has been exemplary.  You have continued to demonstrate outstanding ability on the cricket and football fields. You have chosen to avoid illegal drugs, cigarette smoking, and the excessive drinking of alcohol.  You have no prior convictions.  I have read the many letters of commendation placed before the court on the plea.  They supplemented some oral testimony that was full of commendation as to your character.  Indeed, almost the only reservation was that of the psychologist, Mr Cummins, when he focused on his concerns as to the impact upon you of serving time in prison because of a degree of dependence and relative immaturity.

1. I do accept that you are genuinely remorseful for your actions on the night in question. That remorse must be added to all the other factors that mitigate against a very long sentence.  I briefly repeat some of them. You are young.  You have pleaded guilty and at a relatively early stage.  You have no convictions of any kind.  You are otherwise obviously of good character. Your rehabilitation prospects are excellent.  The need to provide special deterrence is minimal.

1. Despite the length and strength of the mitigating factors, the objective seriousness of your actions on the night of 13 May 2005 cannot be overlooked. The need for denunciation and to provide general deterrence is high.  I must also apply the principle of parity.  The crucial character of your punch and the relative length of your encouraging presence are factors that mean that you must serve a significant prison sentence.  I propose to recognise the many mitigating factors by making the period of parole eligibility longer than normal.

1. I have signed the order as to the taking of a forensic sample which was sought and not opposed.  I am required to inform you that a member of the police force may use reasonable force to enable the forensic procedure to be conducted.

1. I declare 3 days of pre-sentence detention and direct that that be entered in the records.  On Count 3 of intentionally causing serious injury, I impose a sentence of 3 years.  On Count 2 of affray by fighting, I impose a sentence of 2 years, 1 year concurrent on Count 3.  The effective sentence is 4 years.  I fix a non-parole period of 1 year and 6 months.