DPP v Potts and Ors

[2022] VCC 1825

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-01853

CR-19-01854

CR-19-01856

CR-19-01857

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRENT POTTS, PHILLIP O’DONNELL, JACK HOULDCROFT and JAKE MITCHELL

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	14 October 2022
DATE OF SENTENCE:	27 October 2022
CASE MAY BE CITED AS:	DPP v Potts and Ors
MEDIUM NEUTRAL CITATION:	[2022] VCC 1825

REASONS FOR SENTENCE

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Subject:   CRIMINAL LAW SENTENCE

Catchwords:             Assault emergency worker, intentionally causing injury and affray – Guilty pleas – Attack on police officers in the execution of their duties – Serious offending – Four offenders – Delay – Parity – Stable relationships and employment – Excellent rehabilitation prospects – Traumatic childhood of two accused – Boulton v The Queen applied

Legislation Cited: Sentencing Act 1991

Cases Cited:Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen (2014) 46 VR 308

Sentence: Total Effective Sentences of 15 months’ imprisonment with an 8-month non-parole period; Three months’ imprisonment with a 2-year community correction order; 2-year Community Corrections order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Livitsanos	Office of Public Prosecutions
For Accused Potts	Mr D. Sala	Theo Magazis & Associates
For Accused O’Donnell	Dr G. Boas	Emma Turnbull Lawyers
For Accused Houldcroft	Mr C. Terry	Sarah Pratt & Associates
For Accused Mitchell	Mr C. Mandy SC Mr S. Cooper	Melasecca Kelly and Zayler

HIS HONOUR:

1Trent Potts, Phillip O’Donnell, Jack Houldcroft and Jake Mitchell, you have each pleaded guilty before me to a charge of assaulting an emergency worker on duty and a charge of affray.

2Trent Potts you have also pleaded guilty to common assault and a further charge of assaulting an emergency worker on duty.

3Phillip O’Donnell you have also pleaded guilty to causing injury intentionally.

4For each of the offences of assaulting an emergency worker on duty, affray and common assault, the maximum penalty is five years imprisonment.  For the offence of causing injury intentionally the maximum penalty is 12 months imprisonment.

Circumstances of Offending

5The circumstances of your offending are set out in the summary of prosecution opening for plea dated 6 October 2022.

6In brief terms, on Saturday 23 February 2019 each of you were present at a birthday party for Trent Potts and his brother at a venue in Fitzroy Street St Kilda.

7Co-offender Jules Tobin was also present at the party as a DJ.  After the party, your group headed to a nightclub in St Kilda. Amongst your party was Kayla Potts. Kayla is your sister Mr Trent Potts, your partner and the mother of your children Mr Houldcroft, your cousin Mr O’Donnell and your friend Mr Mitchell.

8Around 3.00 am, the next morning, you were all on your way home. You Mr Potts instigated a verbal altercation with another person on Fitzroy Street. You shaped up to this person and ultimately kicked her in the groin region, that is the charge of common assault. Police were called and shortly after two police officers, S/C McKenzie and S/C Shepherd, arrived in response to the complaint.

9All of you were in the process of accessing a taxi to leave the area when police attended. S/C Shepherd asked you Mr Potts to come back onto the footpath so he could speak to you in relation to the assault. You stated ‘No, I’m going home.’ S/C McKenzie told you that you were not going home and to step onto the footpath.

10You, Mr O’Donnell, stated that you were taking Mr Potts home. S/C Shepherd told you that Mr Potts was required on the footpath but the rest of you were free to go. S/C Shepherd gestured for you not to approach and you complied with that non-verbal direction.

11S/C McKenzie had hold of your right elbow Mr Potts, in order to escort you onto the footpath, but you broke free and took off up Fitzroy Street, pursued by S/C Shepherd.

12You crossed Fitzroy Street. As you were crossing the tram tracks S/C Shepherd lost his footing and fell to the ground. You also fell, but resumed your feet and adopted a fighting stance toward the oncoming S/C McKenzie. S/C McKenzie wrapped his arms around your torso and took you to ground. You resisted, kicking and lashing out at S/C McKenzie. You struck McKenzie across the chest. Your assault on an S/C McKenzie commences at this point.

13S/C Shepherd arrived to assist and observed you swinging your arms and trying to pull away.

14Others of your group arrived at the scene. Amongst them were you Mr Houldcroft, Kayla Potts, and Jules Tobin. Thereafter you, Mr O’Donnell and Mr Mitchell arrived at the scene.

15I have had the benefit of viewing the video footage that was tendered on the pleas – Exhibits B, C and D. I have viewed it several times in fact. I can indicate that I have been able to identify all of the instances of grappling, striking and kicking that are described in the summary of prosecution opening within the tendered footage, and I sentence each of you on that basis.

16The relative criminality of each of you, and my assessment of the overall seriousness of the affray is also informed by the video and audio that was able to be captured within those exhibits.

17In brief terms, you Mr Potts were continuing to struggle with and assault S/C McKenzie, whilst S/C Shepherd was endeavouring to intervene.

18S/C Shepherd responded to the approach of you Mr Houldcroft and you backed away with your hands outstretched, palms outward in a non-aggressive manner. Kayla Potts grabbed at S/C McKenzie, seeking to hinder his attempts to subdue you Mr Potts. S/C McKenzie struck Ms Potts to the forehead with a Maglite torch. The contact made an audible ‘whack’ that was captured by the footage taken from the other side of the street. Kayla Potts went to ground and played no further part in the events. The summary of prosecution opening indicates that Ms Potts suffered a 1 cm cut and a small bruise around the affected area.

19The striking of Kayla Potts had an immediate effect upon you Mr Houldcroft. The footage reveals a female observer watching from across the street draw in breath quickly and exclaim ‘they hit a girl’ or words to that effect. I accept that it would have been a startling incident for you to witness Mr Houldcroft.

20The footage reveals you running and lunging at S/C McKenzie immediately after Ms Potts was struck. S/C Shepherd followed you and grappled with you from behind as you wrestled and attacked S/C McKenzie.

21This freed you up Mr Potts to continue your aggression towards McKenzie and Shepherd and you leant in while each officer was occupied with Mr Houldcroft. You appear to be grabbing and pulling at the officers while you leant in.

22You Mr O’Donnell arrived at the scene and joined what by this stage was an affray, with victims McKenzie and Shepherd locked in a struggle on the ground with Mr Houldcroft. You did so with vigour and apparent enthusiasm. You landed blows on your victims. You Mr O’Donnell dragged S/C Shepherd out of the cluster of bodies after he’d been rendered unconscious, assisted by you Mr Potts. You Mr Potts remained hovering around Mr O’Donnell whilst he viciously pounded S/C Shepherd’s head into the kerb.

23Your actions, Mr O’Donnell, in slamming S/C Shepherd’s head on the road in this way were completely shocking. Indeed, the horror of the bystanders at your actions is apparent from the footage. S/C Shepherd was unconscious during much of the ordeal at your hands. You also punched him twice as if the slamming of the head were not enough.

24Once you’d engaged in this horrific assault you Mr O’Donnell strode off, fists raised, looking for your next opportunity to assault police.

25You dealt further blows to S/C Shepherd’s face once he’d regained consciousness and got to his feet. Throughout the entire episode it was you Mr O’Donnell who threw and landed the most blows.

26The unbridled violence you displayed throughout the affray Mr O’Donnell was ‘off the charts’ when compared to your co-offenders. I make that point not to diminish their criminality, which involved a high degree of violence and the landing of blows, but to characterise your criminality.

27You Mr Potts were an active participant either by Mr O’Donnell’s side or nearby throughout the carnage.

28You Mr Mitchell arrived into the affray around the same time as Mr O’Donnell. You joined the initial cluster of bodies and you were very active in grappling and swinging your arms toward S/C Shepherd. You held S/C Shepherd and kicked him. You were an active and aggressive participant in the affray from that point forward.

29Mr Potts you were an active presence from the start of the affray up to the finish. Having started the fracas by assaulting Senior Constables McKenzie and Shepherd, having assisted O’Donnell drag S/C Shepherd and stand by whilst he slammed his head into the road, you then punched him yourself.

30You moved on looking for more violence and together with Mr O’Donnell joined the ongoing assault on S/C McKenzie that Mr Houldcroft was still embroiled in.

31You Mr O’Donnell were clearly still throwing significant blows at this point. Blows that were connecting.

32Mr Tobin had been present throughout yelling at police and joined in by kicking S/C McKenzie while he was down.

33It was an extremely ugly and violent affray. I try and avoid colourful or emotive language in sentencing remarks such as these but the following description is apt in your cases: During the affray you behaved like a pack of animals, you in particular Mr O’Donnell.

Injuries

34S/C Shepherd received multiple abrasions and bruises to the head, face and torso the details of which are set out at paragraph 59 of the Summary of Prosecution Opening. He also lost consciousness and received a ruptured bicep.

35The ruptured bicep is a serious injury from which he is likely to have a permanent 5-10% impairment in range of movement. This injury will impact on his career.

36It is unclear at what stage of this dynamic event S/C Shepherd suffered this injury. It is highly likely the injury was received while trying to defend himself or S/C McKenzie from the assaults during the affray.

37I cannot exclude as a reasonable possibility that the injury was occasioned during S/C Shepherd’s attempt to apprehend Mr Potts prior to the affray commencing.

38Therefore I cannot be satisfied beyond reasonable doubt that the bicep injury was a product of the affray. This finding in no way alters the objective seriousness of the affray. The dynamics of the affray were such that any number of serious injuries could have flowed from the actions of the accused men – including the rupture of S/C Shepherd’s bicep.

39Given what is apparent from the footage it is surprising that serious fractures were not occasioned. Were I satisfied to the requisite standard that the arm injury was incurred during the affray, it would not add much to my assessment of the objective seriousness of the affray. There are abundant indicia of the objective seriousness of the affray when one views and hears the footage and has regard to bruises and abrasions suffered by S/C Shepherd and S/C McKenzie and the loss of consciousness of S/C Shepherd.

40I note S/C McKenzie also received abrasions and bruises the details of which are set out at paragraph 65 of Exhibit A.

Victim Impact Statements

41The emotional, psychological and physical impact upon your victims is significant and longstanding.

42Each of them is deeply traumatised and affected by your disgraceful and shameful gang assault upon them. It has shaken their faith in the community and their confidence in doing their important jobs.

43The impacts are set out in Exhibits F and G and I take the victim impact statements into account.

Objective Gravity

44I’ll deal with the individual differences in criminality and culpability when I come to sentence each of you. An overview of the objective gravity of the breadth of the offending reveals a shameful and sickening attack that must be denounced by this Court.  I must also impose sentences that deter others from engaging in such violent attacks on police officers.

45Objectively, the assaults on emergency workers doing no more than performing their duties, and the ugly, disturbing and frightening affray, constitute very serious offending.

46The Courts view attacks on police members in the course of their duty as very serious offences. A safe and functioning society depends upon its police force. An attack upon a serving police officer is an attack upon society itself. Victoria Police members perform a critical role in keeping the Victorian community safe – their protection in performing that role must be at the forefront of my consideration.

47On another level, each of your victims was simply at his workplace trying to get through the Saturday night upholding the law, upholding the peace.  Each of you, in varying degrees, took an opportunity to disregard their authority and embark upon a brazen and cowardly group attack upon them. They were outnumbered 5 to 2 at one point. The confidence and willingness of each of you to resort to the use of your fists in the circumstances was truly shocking. It was clearly very frightening and disturbing for bystanders.

48It has had ongoing impacts upon your victims, on their well-being, enjoyment of life, and experience of their occupation.

49Parliament has made clear its intention in relation to assaults on emergency workers. I am guided by that intention and the maximum penalties involved.

50The footage taken by bystanders assists in my assessment of the tenor of the affray. Many people stopped in their tracks and watched in horror at what was unfolding. Others ran over to try and limit the assault on S/C Shepherd in particular.

51The level of violence was protracted and at its height deeply disturbing. Injuries were occasioned as set out in Exhibit A and herein. The impacts upon each victim are significant

52I accept that this was a very serious affray involving alcohol fuelled violence by a group of men against police officers who were at your mercy once they were overcome by your numbers and violence.

53It could hardly have been more public – in the middle of Fitzroy Street. This sort of street violence is of great concern to the community. The fact it was committed against police officers performing their duty adds to the objective gravity of the affray.

54Random street violence is a scourge on our society. Mob violence must be condemned. Otherwise law-abiding men out on the town intoxicated and belligerent need to understand that attacks and assaults on police will not be tolerated.

55General deterrence and denunciation have great significance in the sentencing exercise for each of you.

56I turn now to your personal circumstances and matters in mitigation commencing with you, Phillip O’Donnell.

Personal Circumstances and Matters in Mitigation

Phillip O’Donnell

57You Mr O’Donnell were born in October 1980, you are 42.  Detailed information about your childhood, your teenage years and the tragedy and trauma that has touched you throughout your adult years has been set out in your Counsel’s helpful outline of submissions, Exhibit 1 A, and in the report of Ms McDonald.  I won’t recite the detail herein. I accept that your childhood and developmental years were marked by dysfunction, disadvantage and exposure to family violence and alcohol abuse.

58Your father and stepfather were poor role models. Both were violent alcoholics who inflicted physical violence on your mother and you.  From around the age of 8 you were described as being the man of the house. The role of protector of your mother and younger brother was instilled in you at a young age. This circumstance has no doubt shaped you as an individual.

59You attended Aldercourt Primary School and then Monterey Secondary College in Frankston North. You enjoyed school and playing football and it was a refuge from the turmoil and stress at home.  You left school at 17, 3 months into year 12. You commenced work and you have worked ever since in the building and construction industry. You have been employed in the past as a Site Supervisor with S and J Formwork where you might supervise up to 50 workers on a site.

60You started your own business in 2015. You have an impressive work history and you have continued to improve your trade and technical qualifications over the years.  Your business ‘All Boxed Up Formwork’ has around 10 employees ordinarily. You have had four apprentices since 2015 and employed a number of carpenters and labourers.  Your work history and contribution as a small business operator and employer are very much to your credit. As I have touched upon you did not have the easiest start in life and you have had to deal with the legacy of a traumatic childhood.

61You have also experienced tragedy and trauma as an adult. I won’t set out all of the details and episodes of your exposures through adulthood in these reasons. They involve losses to suicide of people close to you and close to those in your care. The details of these losses are set out in Exhibit 1A at paragraphs 10-22.

62You have navigated your way through those experiences, and have managed to remain a figure of stability in your son’s life and your stepdaughter’s life. Your son and your stepdaughter lost their mother – your former partner Kirsty –in 2017.

63Your stepdaughter Sha-Arn had also lost her father to suicide when she was 5. She lost both grandparents to suicide. You raised her and her brother Tyler as your stepchildren along with your own son Kyl. In February 2016 you lost Tyler to the tragedy of suicide. Your stepdaughter Sha-Arn is battling drug addiction and you are doing your best to support her.

64Against the backdrop of tragedy I have referred to, you also lost a close cousin to suicide, and the reference of your uncle Wayne Allen indicates how that loss impacted upon you. Your estranged father also committed suicide in 2009.

65You also have a 12-year-old daughter from a previous relationship which lasted from 2007-2017. I was told that the stress of family and children contributed to the breakdown of that relationship.

66The cumulative effect of these tragedies is a significant factor in your life.  Your Counsel Dr Boas relies upon the psychological report of Ms McDonald, Exhibit 2A in support of his submission that limbs 1-4 of Verdins have application in your case.  

67He referred me in particular to Ms McDonald’s opinion at paragraph 4 of her report:

‘It is a given that Philip’s early background with his abusive father and his perceived need to protect his mother, played a part in the drive to be part of the assault. Philip believed that his cousin Kayla Potts was being attacked by the Police, and in his inebriated state, he leaped to her defence. He well knows that this was a stupid thing to do and he certainly wishes to atone for the assault. He will be pleading guilty.’

68I accept the relevance of Ms McDonald’s observations and opinion on this point to the sentencing exercise. I accept that you entered the fray after seeing your cousin Kayla Potts struck with the torch and that witnessing that occurrence would have angered you, and aroused feelings of protection and retribution. The traumatic background and childhood exposure to violence has no doubt played a role in the tenor of your response.

69The matters referred to by Ms McDonald go some way to explaining why you engaged in such unbridled and brutal violence. Your response was disgusting, disgraceful and shameful. A person with your responsibilities ought be very concerned at the level of violence and aggression you exhibited whilst inebriated.

70I do not accept the causative link between the mental impairments referred to in Ms McDonald’s report – depression and anxiety, with post-traumatic symptoms – and the offending in this instance.

71I am satisfied that your early exposure to trauma and family violence has been formative for you and has shaped your responses and behaviours over the years. I am satisfied that traumatic history is relevant to the criminal behaviour that is before me. The background that I have referred to provides a lens through which I can assess your subjective responsibility for the offending. Your subjective responsibility is reduced from what it might otherwise be absent those factors.

72I have received several strong testimonials as to your character.  I accept that your offending was out of character. I accept that you are deeply remorseful for your conduct.  You have a relevant prior matter which does not alter my view that your offending was out of character.

73You have pleaded guilty at an early stage – that is accepted by the prosecution.  You have accepted responsibility for your conduct from an early stage and have also accepted the inevitability of a jail term. You have not sought to quibble with that outcome by raising an exception to the mandatory provision.

74For the charge of intentionally causing injury to S/C Shepherd Parliament has set a mandatory minimum term of 6 months imprisonment. Whilst I have had regard to that provision, in practical terms it has not featured in my analysis once I concluded that a term in excess of 6 months was appropriate for your commission of the offence.

75Delay is a very significant factor in your case as it is for each of your co-accused. I will say more on the topic of delay below, however in your case I must point out that you have accepted the certainty of a jail term for several years. You had the prospect of a mandatory term of 5 years jail hanging over your head for several years, as I understand it, but the prospect of at least 6 months jail for close to 4 years. Throughout that period you have displayed the positive qualities and behaviour that you are known for. You have responded to your offending and the charges hanging over your head in an appropriate way and one which augurs well for your prospects of rehabilitation.  Three years and 8 months on bail provides a broad vista for an assessment of your contrition, remorse, character and rehabilitation.

76Parity with the matter of Tobin is not a consideration given the disparate offences and criminality. In your case I have taken into account parity and disparity with your other co-offenders so far as appropriate.

77In your case I have also received an affidavit from your solicitor stating that you and many of your family are not vaccinated against the COVID virus. These circumstances are going to have an impact upon your experience of custody – particularly in relation to family visits. It is unlikely you will even be allowed a box visit if your visitors are unvaccinated.  I have taken this hardship of custody factor into account in arriving at the sentence I will impose upon you.

Jack Houldcroft

78Mr Houldcroft you are 30 years of age, you were 27 at the time of the offences.  Kayla Potts is your partner and you have two children together aged 6 and 2.

79Like Mr O’Donnell you also had a traumatic childhood attended by family violence.  You were exposed to violence and the threat of violence from a young age.  I will not reproduce the detailed history set out in the report of Carla Ferrari herein but I accept that background and its relevance to your life’s circumstances and responses. It is relevant to some degree, in an explanatory sense, for your offending.

80I was told and I accept that you have had substance abuse issues in your late teenage years. You took steps to seek treatment and address those issues. You have had relapses but have managed to remain free from these issues for the past three years.

81Reliance was placed upon the report of psychologist Carla Ferrari, Exhibit 2B. I accept the matters contained within that report.

82In particular I accept the following set out at [116] of Exhibit 2B:

‘…Individuals with PTSD such as Mr Houldcroft are more likely than those without a trauma history, to respond to situations disproportionately due to neurobiological changes which contribute to issues with overarousal of the sympathetic nervous system, affecting inhibitory control of emotions. This is particularly relevant for Mr Houldcroft’s involvement in the offending.’

83I accept that your involvement in the offending occurred after your partner had been struck with the Maglite torch.  This places you in a unique position amongst your co-offenders. Your subjective culpability for the offending is assessed in light of these factors and the findings of Ms Ferrari. These findings of mine mitigate the sentence that would otherwise be imposed if these factors were absent.

84You have a strong work history as a roof plumber and roof tiler. I accept the testimonials as to your character. You have a relevant prior matter, which limits the degree of leniency I will extend to you, and also gives rise to careful consideration as to your prospects.

85Considering all of the circumstances before me I accept that your prospects of rehabilitation are strong.

86You have been on bail for almost four years in relation to these charges. You spent 11 days in custody prior to being admitted to bail.  During that long period of delay you have responded appropriately. You have had the prospect of a jail term hanging over your head for that period.  For a substantial part of the period of delay you have had the prospect of a mandatory term of five years imprisonment hanging over your head. That was due to charges of serious injury in circumstances of gross violence being pursued that are now abandoned.

87Your Counsel relies upon your plea of guilty - which is accepted by the prosecution as an early plea of guilty given the resolution of the matters. You are entitled to a significant utilitarian discount for that plea of guilty.

88Parity is also an important consideration in your case. One of your co-offenders – Mr Tobin – was sentenced in this Court in 2019 in relation to the same charges that you face. He was sentenced to a two-year CCO.

89My assessment of Mr Tobin’s assault and involvement in the affray is that it was more limited than your assault and involvement in the affray. Mr Tobin had no prior convictions or findings of guilt.

90Those differences aside, all other differences between your circumstances and those of Mr Tobin fall in your favour:

·Delay and the effects of delay

·Utilitarian value of the plea in the context of the pandemic

·Your connection to Kayla Potts and the relationship between you witnessing the striking of her and your response, in the context of formative factors arising from your background.

91Each of these are significant matters. Notwithstanding the significance of these matters, parity was dismissed by the prosecution as having any meaningful application in your case. The prosecution submissions on sentence were not nuanced as between you and your co-offenders. In each case a head sentence and a non-parole period was called for. I note that a jail term was also called for in Mr Tobin’s case. Notwithstanding that submission, the fact that a CCO was imposed in Mr Tobin’s case called for a careful consideration of parity in each of the matters before me.

92Given the maximum penalties available for each of the charges you face Mr Houldcroft, given the matters in mitigation available to you and accepted by the prosecution, not the least of which is a very significant delay, and given the application of the parity principle, I consider that the submission of a head sentence and non-parole period in your case is untenable.

93I have had you assessed for a Community Corrections Order. You have been assessed as suitable for an order.

Jake Mitchell

94I will now turn to Jake Mitchell.

95Jake Mitchell, you are 30 years of age. You have one prior matter which is not significant from a sentencing perspective where the matters before me are concerned.

96You also grew up in a dysfunctional family environment. Amongst other matters, both your parents battled heroin addiction. You were exposed to drug and alcohol abuse in childhood and associated violence. You have childhood memories of police arresting your father when he was intoxicated and violent. Your Counsel relies upon your childhood experiences and memories as context for your offending. I accept that your entry into the affray occurred after you saw and heard your friend Kayla Potts struck on the forehead with the torch.

97As I stated during your plea, it is to your great credit that despite the dysfunctional and disadvantaged upbringing experienced by you, you went your own way at the age of 16, and you have really made something of yourself since.

98You gained and completed a carpentry apprenticeship. After working as a qualified carpenter for some time subcontracting, you started your own construction company. You are currently studying to obtain your builder’s license.  You have been in a stable relationship for around 8 years. You and your partner purchased and renovated a home in Frankston in 2017.  You have been assessed as low risk of reoffending by psychologist Luke Armstrong. Mr Armstrong also opined as to the legacy of trauma you experience. I accept those findings.

99I have received a number of thoughtful and well written testimonials as to your character and high standing amongst your workmates and friends. These testimonials provide strong support for the proposition that your involvement in the affray and the assault was an aberration.  They provide strong support for my finding your prospects of rehabilitation to be excellent.

100I accept your Counsel’s submission that parity is an important consideration in your case. Your role in the affray and the assault you committed are commensurate with the offending pleaded to by Mr Tobin, although not identical. My assessment, based upon the footage and the summary, is that your objective criminality is slightly higher than Mr Tobin’s. Other similarities between Mr Tobin’s circumstances and yours are set out in your Counsel’s outline of submissions at paragraph [18].

101Of great significant in your case, as with the other cases before me today, is the very significant delay and its effects.  Your Counsel summed up in his excellent written submission:

‘He has been waiting for 3 ½ years for this disposition. For most of that time he was facing charges with likely gaol sentences. The media scrutiny has been intense, with both his name and his face on the nightly news at the time of the committal, and no doubt again at the plea. There remains a restraining order over the home he worked hard to buy, to satisfy a potential compensation order.’

And at [20];

‘Jake Mitchell has overcome great hardships in his life to achieve all he has. For three and a half years he has been dealing with the realisation that all of that achievement may have been thrown away by a drunken minute and a brain fade which was completely out of character.’

102Whilst I don’t accept that your involvement in the pack violence against police officers simply performing their duty could be described as a brain fade I do accept that the factor of delay is very significant in your case.

103The effects of delay are twofold:

a) You have had the prospect of a five-year mandatory jail term hanging over your head for a substantial period of the delay;

b) You have demonstrated good character and rehabilitation during the period.

104You have also pleaded guilty at an early opportunity. Given the issues of parity, delay and good character, and having regard to the maximum penalties applicable to your crimes, I had you assessed for a Community Corrections Order. Unsurprisingly you were assessed as suitable for an order.

Trent Potts

105Mr Potts you are also 30 years of age.

106You have no prior convictions or findings of guilt before the Court. I sentence you as a first offender.  I accept that you are otherwise of good character.

107You have grown up in a loving and close-knit family. You have two siblings, an older brother and your younger sister Kayla.  You grew up initially in Carrum Downs and Frankston North then moved to Langwarrin with your family when you were aged 7.  Your parents are in good health. Your father runs a concreting business and your older brother Luke runs that business with him. You are also a concreter, working full time, and often subcontract to your family’s firm.  You have been a good sportsman, playing football at a high level, with The Pines FC for several years and more recently with St Kilda City FC.

108I have received written testimonials as to your character, including a letter of support from your current partner.  You are an uncomplicated individual. A hard-working man who enjoys sport and keeping fit. You are appropriately remorseful.  All of these matters are supported by the succinct and helpful report of Mr Ian McKinnon, Psychologist. Mr McKinnon writes: ‘In my opinion, Mr Potts does not pose a significant risk of further violent (or otherwise serious) offending and he does not require rehabilitative treatment.’ Mr McKinnon went on to note your expression of remorse.  You also wrote a letter of apology to your victims which I accept was genuine.

109Your Counsel, Mr Sala, made very sensible and pragmatic submissions as to the disposition I should impose.  He relied heavily upon the principle of parsimony in the context of inordinate delay.  He relied upon the authority of Boulton and Ors v The Queen[1] for the proposition that the sentencing factors of general deterrence and community denunciation can be reflected in onerous Community Corrections Orders, even where serious offences are concerned. This is undoubtedly correct. Indeed CCOs are routinely imposed in respect of offences which carry significantly higher maximum terms than the offences you face.

[1]Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 32.

110Mr Sala relied upon your unblemished character and solid performance on bail for 3 years and eight months. It is an inordinate delay, and during that period you have not only shown the better side of yourself and got on with life, you have had the prospect of serious jail time hanging over your head.

111Like your co-offenders you have also felt the sting and the shame of the publicity and opprobrium surrounding this matter. The opprobrium and condemnation is appropriate given your shameful conduct, the public nature of it is also a form of punishment, and I take it into account in your case and the cases of your co-offenders.

112The delay in this case is a powerful mitigating factor for each of your co-offenders as well as for you Mr Potts.  The delay as I understand it is largely due to the prosecution adhering for some considerable time to charges which are no longer pursued. To put it kindly, the pursuit of serious injury charges in circumstances of gross violence, on the basis of the matters known to me, was ambitious.

113The arguments underpinning the sentencing dispositions advanced by the prosecution for the offences before me would have had stronger force if these pleas were taking place closer in time to the date of the offence.

114The phrase ‘justice delayed is justice denied’ has some application in this context, if not entirely apposite. General deterrence and denunciation are prominent sentencing considerations for the offences before me, but so too is delay, particularly a delay of this length, during which you and each of your co-offenders have been upstanding members of the community.

115I accept that you have excellent prospects of rehabilitation. I do not consider specific deterrence to be a factor of weight in your case.

116Your plea of guilty is not as early as the pleas of your co-offenders, although it is still worthy of significant utilitarian value.

117The breadth of your offending is greater than the offending of Houldcroft, Mitchell and Tobin. Your offending didn’t carry the level of brutality and aggression displayed by Mr O’Donnell, yet you were a willing participant from start to finish.  It was your drunken folly and aggressive behaviour which started the whole episode. You were already fighting with police when your sister made the ill-fated decision to intervene on your behalf.   At no point did you pause or cease your involvement in the affray. You were participating alongside Mr O’Donnell during some of the more serious aspects of the affray.  You stand to be sentenced for two separate offences of assaulting an emergency worker performing their duty.

118I have given careful consideration over the course of the past fortnight as to whether a lengthy and onerous CCO alone could meet the need to denounce your conduct and deter others from acting in similar way in relation to police officers doing nothing more than their job.

119It’s a difficult job, it is a job which the community relies heavily upon, and where appropriate the Courts have to send a strong message that conduct such as yours will not be tolerated.

120I have applied the principle of parsimony, but have reached the conclusion Mr Potts, in all the circumstances of your case, notwithstanding the powerful mitigation of significant delay, I have concluded that a short period of imprisonment in combination with a CCO is the appropriate disposition in order to give effect to general deterrence and denunciation.

Sentence

Trent Potts

121I’ll sentence you first.

122I am sentencing you to an aggregate term in respect of the offences on the indictment given they form part of a connected series of offences.

123On Charges 1-4 on Indictment K19495805.1 I sentence you to 3 months imprisonment in combination with a community corrections order of two years duration.

124You will be required to perform 180 hours of unpaid community work as a special condition of that order.

125You will also be subject to supervision.

126You are to be assessed for alcohol treatment and rehabilitation.

127You are to be assessed for offence specific programs.

128Were it not for your pleas of guilty I would have sentenced you to a total effective sentence of 6 months imprisonment followed by a 2-year CCO.

129Pursuant to s 18 Sentencing Act I declare that you have served 2 days pre-sentence detention in relation to this matter.

Philip O’Donnell

130Mr O’Donnell I sentence you as follows.

131On Charge 1, assaulting an emergency worker on duty you are sentenced to 6 months imprisonment.

132On Charge 2, intentionally causing injury to S/C Shepherd you are sentenced to 9 months imprisonment.

133On Charge 4, Affray you are sentenced to 6 months imprisonment.

134Three months of the sentence imposed on charge 1 and three months of the sentence imposed on charge 4 are to be served cumulatively upon each other and upon the sentence imposed on Charge 2.

135That makes a total effective sentence of 15 months imprisonment. I set a non-parole period of 8 months.

136I declare that pursuant to s 18 Sentencing Act 1991 that you have served 16 days of the sentence as pre-sentence detention.

137Pursuant to s 6AAA were it not for your pleas of guilty I would have sentenced you to a total effective sentence of 2 years imprisonment with a non-parole period of 15 months.

Jack Houldcroft

138Mr Houldcroft I am sentencing you to an aggregate sentence.

139In sentencing you I have also taken into account the 11 days you served on remand in relation to these matters.

140On charges 1 and 4 on indictment C1912479.1 you are to be sentenced to a 2-year CCO with the following special conditions:

141You are to perform 100 hours of unpaid community work.

142You are to be subject to supervision.

143You are to be assessed for drug and alcohol treatment and rehabilitation.

144You are to be assessed for offence specific programs to reduce reoffending.

145Were it not for your pleas of guilty I would have sentenced you to 3 months imprisonment in combination with a 2-year CCO.

Jake Mitchell

146I will also sentence you to an aggregate sentence.

147On charges 3 and 4 on indictment C1912479.2 you are to be sentenced to a 2-year CCO with the following special conditions.

148You are to perform 125 hours of unpaid community work.

149You are to be subject to supervision.

150You are to be assessed for drug and alcohol treatment and rehabilitation.

151You are to be assessed for offence specific programs to reduce reoffending.

152Were it not for your pleas of guilty I would have sentenced you to 3 months imprisonment in combination with a 2-year CCO.