R v Dyer
[2014] VCC 848
•5 June 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-02319
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
JOSEPH DYER
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 June 2014 | |
DATE OF SENTENCE: | 5 June 2014 | |
CASE MAY BE CITED AS: | R v Dyer | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 848 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Burnside | OPP Victoria |
| For the Accused | Mr C. Nikakis | Haines & Polites |
HIS HONOUR:
1 Joseph Dyer, you have pleaded guilty to one charge of common assault.
2 The prosecutor, Ms Burnside, opened the circumstances of the offending by reading from a written summary, which was tendered.
3 In short, on 30 April 2012, after a verbal altercation with the complainant you punched him to the face with your right fist. This occurred in a car park at Eastland. The complainant fell backwards, struck his head against a pole and was rendered unconscious. You ran off.
4 The complainant told police he had been playing around with a friend and that he considered the injuries to be accidental. The complainant’s skull was fractured but there is no suggestion of any ongoing injury. The complainant refused to make a victim impact statement.
5 The police were unlikely to have pursued the matter until the complainant claimed victim compensation, provoking an investigation that resulted in you being charged with causing serious injury.
6 At committal the complainant was uncooperative and you were committed for trial on the basis of imagery from a camera.
7 The matter was ultimately resolved close to trial. The prosecution accepts that you did not intend to cause the complainant’s ensuing injuries and that it was unable to prove you were reckless concerning injury. Hence the resolution.
8 You must benefit from your plea of guilty. It has utilitarian benefits even though it came relatively late. I also accept, as your counsel, Mr Nikakis, submitted that your plea involved accepting responsibility in circumstances where you might ultimately have been found not guilty, particularly given the complainant’s lack of cooperation.
9 Mr Nikakis sketched some background information. He relied upon a recent report from Arbias. You have significant mental state impairments, particularly with verbal learning, memory and abstract reasoning. It is highly likely that your cognitive difficulties represent a permanent acquired brain injury (ABI).
10 You acted impulsively during the assault. However, when assessed you displayed only mild difficulties with impulsivity. On the other hand, you did demonstrate a concrete thinking style and the assessor thought you would likely have difficulty generating alternative solutions to problems particularly in an emotional context.
11 You have a very substantial criminal history. However, although you have a prior history for violence you have no assault history for the past decade or so.
12 Your counsel noted your limited education. After leaving school you worked with your father whose drinking habits adversely influenced you to drink at a young age. You made considerable employment progress between the ages of 23 and 30 in the construction industry obtaining various qualifications.
13 Mr Nikakis said in 2001 you stopped work because of a shoulder injury. Around the same time your father died and you ‘went off the rails’ abusing drugs and alcohol.
14 Your mother, who has medical problems, and your de facto partner attended court to support you.
15 You assist your mother with her health issues although you are not formally her carer.
16 You have a number of health issues yourself including a pending hernia operation.
17 You are currently not using drugs and have been drug free for some months.
18 If you return to abusing drugs and alcohol then obviously the risk of further offending is high. However, you have not offended since the current matter and have nothing pending.
19 At first, Mr Nikakis submitted I should impose imprisonment for the current offending but wholly suspend this sentence.
20 Whilst Ms Burnside agreed that this was within range, she submitted that the better course might be to have you assessed for release on a community corrections order. Given the relevant sentencing considerations, paying particular attention to the circumstances of your case, including deterrent requirements, she suggested that a CCO would meet these objectives and was likely to better facilitate your rehabilitation.
21 This submission made sense to me and Mr Nikakis also supported it as an option.
22 Accordingly, I had you assessed. You were found suitable, having had considerable experience with Corrections in the past. I propose to convict you and release you on a community correction order for a period of 12 months.
23 The conditions I will impose are: First, that you be under supervision; and secondly, that you receive treatment and rehabilitation, in particular that you be assessed and undertake treatment, including testing for drugs and that you be assessed and undergo treatment, including testing for alcohol. Thirdly, I impose a condition that you undergo mental health assessment and frequent as recommended.
24 We will prepare that document and have you sign it.
25 Anything I have overlooked that you can - - -
26 MS BURNSIDE: Only s.6AAA, Your Honour.
27 HIS HONOUR: I don't have to do that, do I, if it's a CCO.
28 MS BURNSIDE: That's so, yes, Your Honour.
29 HIS HONOUR: Thankfully. Always thankfully. It is one of the most artificial things I think we do.
30 Perhaps I should add that if you breach the order, then it is highly likely that you will be required to serve time in prison.
31 Would counsel just check for me, and would you have your client sign the document?
32 You can come out of the dock, Mr Dyer, and sit behind your counsel.
33 (Community Corrections order signed and acknowledged.)
34 We will get you a copy of that. The document indicates where you are to report and the time within which you are required to report.
35 MR NIKAKIS: There's an appointment already made in the - and I have got a copy of that document.
36 HIS HONOUR: Thanks.
37 MR NIKAKIS: The assessment.
38 HIS HONOUR: All right, thanks very much. Thank you both for your help.
39 MS BYURNSIDE: Thank you, Your Honour.
40 MR NIKAKIS: Thank you, Your Honour.
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