R v Greatorex
[2015] VCC 1568
•30 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00523
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEXANDER GREATOREX |
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JUDGE: | HER HONOUR JUDGE LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 November 2015 | |
DATE OF SENTENCE: | 30 November 2015 | |
CASE MAY BE CITED AS: | R v Greatorex | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1568 | |
REASONS FOR SENTENCE
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Subject: Recklessly cause serious injury
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Parkes | Vaille Anscombe Acting Solicitor for Public Prosecutions |
| For the Accused | Mr Dunn QC | Pica Criminal Lawyers |
HER HONOUR:
1 Alexander John Greatorex, you have pleaded guilty to one charge of causing serious injury recklessly. The maximum penalty for this offence is 15 years' imprisonment.
2 At about 5 pm on Saturday 4 October 2014, Stephen Gill (Gill) attended Sandringham Hotel on the corner of Bay Road and Beach Road Sandringham. You were accompanied by your friends Ian Heywood (Heywood) and Ryan Collet (Collet). While Gill was at the hotel, he met up with some other friends.
3 You attended the hotel with a group of your friends at about 7.05 pm. During the evening, Gill was playing pool with Collet. You and two other males approached Gill and Collet and asked if you could play a game with them. At that time, you and Gill were not known to each other.
4 Gill and Collett then played against you and one of your friends. Heywood was standing nearby. During the game friendly words were exchanged between the four men. Heywood observed that ‘…everyone had been giving everyone a bit of light hearted banter whilst playing pool.’ At this stage, Gill had had about six standard drinks and was “tipsy”.
5 At about 8 pm, the game was close and towards the end you missed a shot. Gill was sitting next to Heywood watching. Gill laughed and told Heywood that he thought you were going to “choke”. Gill then went to rise to his feet and leant in towards you in order to grab the pool cue from you. All of a sudden you held the pool cue with both hands, raised it over your right shoulder and struck Gill to his left eye with the butt of the pool cue, penetrating his eye. Gill observed that you “..pushed forward with the cue with all [your] force, [you] hit [him] as hard as [you] could”. Collett observed that you “…did this as hard as [you] could…” and that the blow caused Gill to be forced backwards a couple of metres into the glass wall at the back of the hotel. Gill was in shock and bleeding from his eye.
6 You dropped the pool cue and walked out of the hotel through the front entrance to the Sports Bar. You were followed by your friends.
7 The aftermath of the offence was captured on CCTV cameras located at the hotel.
8 Police and an ambulance were contacted and attended the scene. Gill was assisted by hotel staff and his friends. Gill were taken to the Sandringham Hospital where he was examined and treated. Gill suffered the following injuries:
· Severe pain, bleeding and bruising to his left eye;
· Fractures to the orbit of his left eye and left hand side of his nose;
· A laceration underneath his left eye requiring suturing; and
· Blurred vision.
9 On 17 October 2014, Gill underwent surgery at The Alfred Hospital to repair the fractures, including the insertion of a titanium plate.
10 On 17 October 2014, police attended your home and you were arrested. You were taken to the Bayside Police Station where you were interviewed. You gave “no comment’ answers when the allegations were put to you.
11 You offered to plead guilty to this offence on 4 December 2014. The offer was rejected and a Committal Hearing proceeded on 26 March 2014. A trial was listed for hearing on 9 November 2014.The plea offer was re-considered and accepted on 6 November 2015.
12 The facts in this case are very serious. Your behaviour was violent and shocking and indicates a lack of self-control.
13 The victim of the crime has suffered very considerably. There is a victim impact statement in this matter. The victim stated that he subsequently underwent surgery and that two titanium plates were inserted in his eye socket to help heal the fractures and to stop his eye from sinking inwards. The assault left him badly shaken and as a result he is very nervous, lacks confidence about going out at night and has rarely been out since the incident which is nearly a year ago. As a result of his injuries he was not allowed to go to the gym which he normally attended daily until his eye had healed totally. He has lost 9 kilograms in weight from the worry and stress. The doctors have suggested that he might not fully recover the feeling in the left side of his face and may still suffer some double vision first thing in the morning even though this has improved. I accept that the victim suffered considerably and continues to suffer in the manner described in that statement as a result of your actions.
14 As has been pointed out by your counsel, there are however some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. Further, I take it into account in your favour that you intimated early your intention to plead guilty to this charge.
15 Two reports by Dr Matthew Barth psychologist have been tendered. He reported that you have expressed remorse for your behaviour. You told him:
"When I get angry I get physically violent. I hate it. I’m sorry I put him (the victim) in this situation, I’m ashamed. I can’t control my anger and I want to change."
16 You have also expressed your remorse and regret for your behaviour to your friends Martin Wright[1], Simon Brinkman[2], Michael Cooke[3], Luke Bennett[4], Troy Allen[5], Jacqueline Gomes (the director of your employer Webbing Industries Australia)[6], Annie McMahon[7], Edward McDermott[8], Diarmuid O’Malley[9], Ele Shahine[10] and to the father of one of your school friends, Mr Tony Trood.
[1] Exhibit 6.
[2] Exhibit 7.
[3] Exhibit 8.
[4] Exhibit 9.
[5] Exhibit 10.
[6] Exhibit 12.
[7] Exhibit 13.
[8] Exhibit 14.
[9] Exhibit 15.
[10] Exhibit 16
17 I also take into account in your favour that you have paid the sum of $4000 to Gill to make good his loss of wages.
18 I accept that you are remorseful and that your plea indicates remorse for your actions.
19 I have been told something of your personal history and your circumstances. You were born on 25 August 1989 and are 26 years old. At the time of the offence you were 25 years old.
20 Your parents married in 1986. You are the middle child of three children. Your father was as an officer in the army and then became a successful businessman manufacturing webbing. You described your childhood as mainly enjoyable although you often witnessed your parents arguing. Your parents separated in March 2014 but your father continues to reside with his separated wife.
21 You attended St Leonard’s College. You were good at sport but an average student. You completed year 12 with a relatively poor TER score. After you finished school, you attended a pre-apprenticeship course at Homesglen TAFE for three months in 2008. You started but did not complete a Diploma in Building/Construction. In 2009 you commenced an apprenticeship as a carpenter with a builder who was a friend of your father. You worked a five and a half day week for a number of years. You completed your apprenticeship.
22 You saved your apprenticeship wage to buy a house. In 2013, your close school friend was drowned in Western Australia. Your friend was very popular and his death had a great impact on you and your friends. Your second cousin was killed while crossing the road in Malvern.
23 You decided to travel and quit your job. You spent the money you had saved for the house. You returned to live at home in 2014 and obtained employment with your father. You played soccer and went binge drinking on weekends. You have been working hard in your father’s business for the past year. You have a strong work ethic.
24 You have been binge drinking since you were 15 years old. You have also used amphetamines, ecstasy, cocaine and cannabis socially in your late teenage years and early twenties. You said that your use of drugs never became compulsive or addictive.
25 Your binge drinking became more regular after you turned 18 and you would consume approximately 15-20 standard drinks on a Saturday night. You regularly consumed alcohol until you vomited. You had difficulty recalling your behaviour when intoxicated.
26 You did not consume alcohol during the week and your alcohol use has never interfered with your performance or commitment at work.
27 Since March of this year, you have engaged very well in alcohol-related education and counselling. You were abstinent from alcohol from May of this year until a two week period in September when you engaged in binge drinking. You have been abstinent from alcohol since September. You have changed your habits about frequenting hotels.
28 In 2009, when you were 20 years old, you were involved in a fight at a Sandringham City Soccer Club function at the Bentleigh Club in Bentleigh. You were aggressive because the victim had said that you had a “shocking hair cut.” You punched the victim, using your right hand in a clenched fist in his left eye. As you punched the victim you said “fight”. You struck the victim to the left ear. You swung the victim around and pushed him face down onto a table. You held the victim by the left arm behind his back and punched him to the right side of his torso several times using your right hand in a clenched fist. As a result of the assault, the victim sustained a black left eye, a sore left ear, soreness to the head, soreness to his stomach and bruising to the right hand side of his torso. You appeared at the Moorabbin Magistrates' Court on 6 April 2010. The matter was adjourned to 6 April 2011 and you were ordered to pay $750 to the Southport Community Housing Group. You attended a two-hour session with an alcohol counsellor and had some discussions about altering your behaviour.
29 Evidence has been led on your behalf. I have heard from Antony David Trood, barrister. He has known your family for 19 years as you live within walking distance from his home. You went to school with his son. He said that you came to see him in early October last year. You told him that you had hit another patron with a pool cue at the Sandringham Hotel. Mr Trood referred you to a solicitor. Mr Trood has spoken to you over the last 12 months. He said that you had changed your behaviour significantly. He said that in the past you had been drinking far too much and had a problem with your temper. He said that you had reduced your drinking but that you had not been totally abstinent. He said that you have benefitted from the strategies recommended by Dr Barth to control your temper. He said that you were loyal and generous. He spoke about your work ethic and said that you have worked since you left school. He said that you regret the injury you have caused and are acutely aware that you have let yourself and your family down.
30 Two reports by Dr Barth dated 19 March 2015[11] and 6 November 2015[12] respectively were tendered. In his opinion you are an immature and insecure young man who is in need of counselling, assistance and guidance. In his report dated 6 November 2015 Dr Barth stated:
"Mr Greatorex has responded well to psychological treatment. When I re-assessed him in November 2015, his depressive symptoms had reduced and his level of functioning in his daily life had improved. Mr Greatorex continued to report ongoing anxiety-related symptoms in relation to his upcoming plea hearing; however the severity of these symptoms were now within normal limits for an individual in his situation. In short, Mr Greatorex does not currently meet criteria for any psychological disorder. Nevertheless, when considering his history of emotional difficulties and the stress associated with his legal matters, it is recommended that he continue engagement with appropriate psychological treatment for the medium term."
[11] Exhibit 3.
[12] Exhibit 4.
31 Your counsel did not seek to rely on the principles set out in R v. Verdins.[13]
[13](1997) 16 VR 269.
32 Thirteen references were produced in support of the plea in mitigation. The references speak of the changes you have made in your personal life since the event by consulting a psychologist and abstaining from drinking alcohol[14] and that you are a hard-working young man[15].
[14]Exhibits 7, 8, 9, 11, 14, 15, 16 and 17.
[15]Exhibits 10 and 12.
33 The references by Wesley Faulkner[16] and Martin Wright[17] also refer to your dedication to the sport of soccer and that you have demonstrated your commitment to the sport by playing in the first team of the Brighton Soccer Club and by coaching and mentoring the Brighton Soccer Club’s under 12 team.
[16]Exhibit 5.
[17]Exhibit 6.
34 You have been in no further trouble since this matter. You are a member of the State Emergency Service where you are a volunteer. You are working in your father’s business.
35 I am, on balance, satisfied that the chances of your rehabilitation are reasonable provided that you are able to abstain from the excessive consumption of alcohol.
36 On 18 November 2015 you presented at the Sandringham Emergency Hospital with symptoms indicative of Glandular Fever. No blood tests were taken on that day. On 19 November 2015, you presented for further treatment upon your general practitioner, Dr Doran Gaddie. You felt unwell, were lethargic, had fever and sweats and complained of a very sore throat. On that day, Dr Gaddie made a tentative diagnosis of glandular fever and ordered a blood test as well as prescribing Prednisolone and penicillin. The blood test confirmed the diagnosis of glandular fever. You were reviewed by Dr Gaddie on 23 November 2015. At that consultation, Dr Gaddie noted that you had significantly improved. Your throat was no longer sore and you were able to converse without pain “Examination revealed a normal looking pharynx and your tonsillitis had resolved.” You were afebrile.
37 Dr Gaddie stated that in his opinion, you would be fit to attend court on Monday 30 November 2015. In his report, dated 25 November 2015, Dr Gaddie stated:
"Glandular Fever is a disease with variable degrees of severity and chronicity. Initial recovery could be complicated by a recurrence. Individuals are advised to avoid strenuous exercise and excessive stress if possible during the recovery phase. Physical and mental stress can weaken the immune system and lead to a recurrence.
Glandular Fever can also be complicated by a ruptured spleen as the spleen is inflamed during the illness. This risk decreases with recovery.
Mr Greatorex has been advised to be careful not to over-exert himself in the next six weeks to minimise the risk of recurrence and potential complications.
As increased stress is a potential factor in recurrence of Glandular Fever, given his current situation, Mr Greatorex is at higher risk of relapse. Glandular Fever has a variable infectious period and has been documented in saliva of some patients a year after their acute illness. Should he relapse, Mr Greatorex would need to be isolated and obtain further medication attention."
38 The defence submitted that your illness will affect the way in which you serve any term of imprisonment, if imposed, to the extent that the serving of that term of imprisonment would be more onerous than would ordinarily be the case. The defence submitted that if you relapse and are isolated from other people, that would mean a reduction in some of the privileges and opportunities ordinarily afforded to prisoners, such as the opportunity to participate in work programs, education and other shared activities. The defence referred to Smith[18] and submitted that any gaol sentence that may be imposed will expose you to the risk of an adverse effect on your health.
[18] (1987) 27 A Crim R 315, 317 per King CJ.
39 The prosecution submitted that this case can be distinguished from Smith, where the appellant had been diagnosed with AIDS. Fresh medical evidence on appeal was found to be sufficient to demonstrate that there was a substantial risk that a further period of imprisonment would cause deterioration in the appellant's condition. The Court allowed the appeal and reduced the non-parole period.
40 The prosecution submitted that Glandular Fever is a common disease. Corrections Victoria have the ability to deal with unwell prisoners who suffer from a wide variety of medical conditions ranging from minor ailments to terminal illnesses. This would include making the necessary arrangements to ensure that the risks of recurrence and potential complications associated with the accused's illness are minimised whilst in custody.
41 In Smith[19], King CJ stated:
"How far should the new information about the appellant's health affect the matter? The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill-health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services Authorities to provide appropriate care and treatment for sick prisoners. Generally speaking, ill-health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."
[19] Ibid, 317.
42 The defence did not contend that there is a risk that imprisonment will have a “gravely adverse” effect on your health. I do, however, take into account in your favour that the fact that you are suffering from Glandular Fever may make imprisonment more burdensome for you than for a person of ordinary health.
Circumstances of the offending
43 Your counsel submitted that the pool cue was handed from one person to another. One ball was left on the table. You lent over the table and missed the remaining black ball. Gill was right behind you and rising out of his seat. From the time you missed the ball to turning around, you made a split second decision to jab him with the cue. The defence submitted that the force was moderate and the injury was just below the eye. The bones are very thin.
44 The defence referred to the evidence given by Doctor Vachara Niumsawatt, the plastic surgery registrar at the Alfred Hospital, at the committal:
Being quite thin, then, you don’t need a lot of force to cause that sort of cracking?...Ah, correct.
Moderate to mild force would do it?..Ah, would be moderate force, a mild force usually doesn’t normally crack it.
Was there any associated damage with the eye?...Nope, ah, he was seen by the ophthalmologist – for my understanding, he has been, and it was clear. And from what I can examine of the eye there was nothing associated.[20]
When re-examined , Dr Niumsawatt was asked:
You were asked about level of force, and I think you conceded an injury such as this could result from moderate force, is that …?....Correct.
Could it also result from severe force?...It can, yes.[21]
[20] Depositions p 3.
[21] Depositions p 5.
45 Both sides agree that you raised the pool cue above your right shoulder and struck Gill to his left eye with the butt of the pool cue.
46 The defence submitted that the assault was unplanned and spontaneous. You had been playing soccer that day. You drank at the soccer club and then went to the hotel. Why did you do it? The reason is that you had a petulant reaction to not sinking the black ball and lost your temper.
47 In Winch v R[22] the Court of Appeal stated:
The characteristic of spontaneity does not detract from the obvious dangerousness of the act, or the seriousness of the offence. Where there is premeditation, or deliberate preparation of the weapon, this should be treated as a circumstance of aggravation.
[22] (2010) 27 VR 658
48 Your counsel referred to the statement by the Court of Appeal in Boulton & Ors v R[23] that the availability of the Community Correction Order has “changed the sentencing landscape”. He referred to the following paragraphs:
[23] [2014] VSCA 342(Boulton)
103The challenge for sentencing courts in the early years of the CCO regime will be to re-examine the conventional wisdom about the types of offending which ordinarily attract a term of imprisonment. For reasons which follow, such a re-examination is essential if the CCO is to fulfil its potential as a sentencing option, in accordance with the legislature’s clearly-expressed intention.
106On any view, this [imprisonment] is severe punishment. As the New South Wales Court of Criminal Appeal said in Mainwaring v the Queen:[24]
Any period of imprisonment must be understood for what it is: onerous, unpleasant, oppressive and burdensome. It is, as it should be, the last available punitive resort in any civilised system of criminal justice. Public discussions about the need to deter crime by the imposition of heavier sentences are not always obviously, or at least apparently, informed by an appreciation of the significance of full-time incarceration upon men and women who receive such sentences.
111Axiomatically, imprisonment is a sentence of last resort. As s5(4) of the Act makes clear, such a sentence must not be imposed unless the court considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
112Given the adverse features of imprisonment to which we have referred, the conclusion that imprisonment is the only appropriate punishment amounts to a conclusion that the retributive and deterrent purposes of punishment must take precedence. Put another way, it is a conclusion that the offender’s “just deserts” for the offence in question require imprisonment, even though the court is well aware that the time spent in prison is likely to be unproductive, or counter-productive, for the offender and hence for the community.
113 The availability of the CCO dramatically changes the sentencing landscape. The sentencing court can now choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and deterrence.
114The CCO option offers the court something which no term of imprisonment can offer, namely, the ability to impose a sentence which demands of the offender that he/she take personal responsibility for self-managed and self-control and (depending on the conditions) that he/she pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places. The CCO also enables the offender to maintain the continuity of personal and family relationships, and to benefit from the support they provide.
115In short, the CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent on him/her. On this analysis, if defence counsel submits that a CCO would be appropriate, it is no answer for a prosecutor (or a judge) to say, ‘How could a CCO be appropriate given that an offence of this seriousness has always received imprisonment?’ As we have endeavoured to explain, that question should mark the beginning not the end, of the court’s consideration.
[24] [2009] NSWCCA 207, [71].
49 Your counsel referred to the following test referred to in paragraph 121 of Boulton:
The sentencing court should ask itself a question along the following lines:
Given that a CCO could be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence, or the offender, which requires the conclusion that imprisonment, with all of disadvantages, is the only option?
50 Your counsel conceded that the majority of people dealt with by the Courts for recklessly causing serious injury have been dealt with by way of a custodial sentence. Your counsel submitted that the position has changed after the guideline judgment in Boulton. Your counsel referred to DPP v Maxfield[25].
[25] [2015] VSCA 95 (Maxfield).
51 In Maxfield the respondent had been sentenced to a 12 month Community Correction Order following a plea of guilty to one count of intentionally causing serious injury. Ms Maxfield suffered from an intellectual disability, ongoing psychological distress, post-trauma related symptoms and high social vulnerability. The Court of Appeal resentenced Ms Maxfield to a Community Correction Order for three years. The Court of Appeal stated that Ms Maxfield’s intellectual disability was of particular relevance to the sentencing exercise.[26]
[26] Ibid [36].
52 Your counsel also referred to DPP v Kemp[27]. In that case Mr Kemp stabbed the victim 27 times with a knife. Your counsel submitted that you did not hit the man more than once. The incident in your case took one and a half seconds.
[27] [2015] VSCA 108 (Kemp).
53 The prosecutor referred to Raveche v The Queen[28]. The appellant pleaded guilty to one charge of affray and one charge of recklessly causing serious injury. The appellant was sentenced to an aggregate sentence of three years and eight months.Your counsel submitted that the facts in that case are different because the appellant kicked a defenceless man lying on the ground and then stomped on his head. His conduct was reprehensible and cowardly. The appellant relied on Boulton in support of the proposition that for a young offender a Community Correction Order was a suitable vehicle for balancing the competing sentencing considerations of punishment and rehabilitation. The Court of Appeal agreed with the Judge’s assessment that a Community Correction Order was not an appropriate sentencing option in the appellant’s circumstances and that an immediate term of imprisonment was required.
[28] [2015] VSCA 99.
54 Your counsel referred to Graeske v The Queen[29]. In that case the appellant pleaded guilty to one count of recklessly causing serious injury for an offence committed during the course of an amateur football match. The appellant repeatedly punched the victim and kneed him to the face. The appellant was 23 years old. The offence was committed when the appellant was 21 years old. The appellant suffered from a depressive disorder and an associated generalised anxiety disorder. The Court of Appeal referred to s.44(1) of the Sentencing Act 1991 and sentenced the appellant to a term of imprisonment of one year with a Community Correction Order of three years commencing upon his release.
[29] [2015] VSCA 229 (Graeske).
55 In Ellis v The Queen[30] the appellant pleaded guilty to one charge of recklessly causing serious injury and was sentenced to two years six months’ imprisonment with a non-parole period of one year and three months. The offence occurred at a Werribee hotel when the appellant was 19 years old. The appellant kicked the victim in the head forcefully with her right foot. The victim suffered multiple head and facial injuries. The Court of Appeal refused the appellant’s application for leave to appeal.
[30] [2015] VSCA 21.
56 The prosecutor referred to Director of Public Prosecutions v Russell[31] and Mogoai v The Queen and Alexander v The Queen[32]and submitted that the imposition of a term of imprisonment is appropriate in cases involving unprovoked violence in public places.
[31] [2014] VSCA 308 (Russell).
[32] [2014] VSCA 219 (Mogoai).
57 Your counsel submitted that you were a youthful offender at the time you committed this offence and that youth is a time of stupidity and wrong decisions.
58 In Mogoai the Court of Appeal dismissed an appeal by two men who were 21 years old when the offences were committed and 23 at the time of the appeal against sentences imposed for Recklessly Cause Serious Injury of two years and five months. Both appellants relied on their youth and submitted that a young offender should not be sent to an adult prison if such a disposition could be avoided. Redlich and Priest JJA said:
So much may be accepted. But the charge of recklessly causing serious injury in the present case was a serious example of a serious offence, which had significant physical and psychological ramifications for the victim. Thus the appellants’ youth, and their prospects of rehabilitation, must to some extent be subjugated to other sentencing considerations, such as general deterrence. As Winneke ACJ said in Wright, youth and rehabilitation must take a ‘back seat’ to specific and general deterrence ‘where crimes of wanton and unprovoked viciousness are involved’, particularly where the perpetrator has been given previous chances. The kind of offending that the appellants engaged in is, sadly, so prevalent, that general deterrence, specific deterrence and denunciation must be given prominence.
59 Your counsel submitted that the incident in this case was unplanned, spontaneous and took one and a half seconds. You did not hit the man more than once. It was not continued which is different from other cases where people have gone to somebody’s home and stabbed them 27 times or continued to fight or punch somebody who is unconscious or kicked them when they are on the ground. He submitted that you have misbehaved in the past but not like this. He said that you have attempted to right the wrong and that the community will benefit if the Court imposes a Community Correction Order.
60 The prosecution’s position is that an immediate term of imprisonment is called for. As to whether it is combined with a Community Correction Order is a matter for me. The prosecutor submitted that this was serious offending, violent and unprovoked. It was committed on a stranger and involved the use of a weapon. It was committed in a public place in the presence of a number of patrons who were going about their business on a Saturday night.
61 In Director of Public Prosecutions v Cook[33] the Court of Appeal dealt with a serious example alcohol-fuelled violence in a hotel. The offender pleaded guilty to intentionally causing serious injury. Chernov JA said this about general deterrence.[34]
… [E]ven absent clear motive for the offence…the principle [of general deterrence] would, nevertheless, continue to be of considerable importance in this case given that its primary rationale is to deter others from engaging in like offending conduct. Violence in the context of physical fights and assaults at or near places like hotels, bars and clubs seems to have become more prevalent in the community in recent times and I consider that it is important that those who propose to engage in such conduct…should be made aware through the sentencing process that courts will not treat such conduct lightly, but will, in the appropriate case, impose condign punishment on the offender. The enjoyment and relaxation of those attending such venues should not be marred by such incidents.
In the same case, Eames JA said:[35]
Unexplained, unprovoked, violence of this character occurring in a hotel towards an innocent and unsuspecting member of the public is conduct which demands considerable weight to be given to general deterrence.
[33] (2004) VSCA 11
[34] At 585.
[35] At 588 [26].
62 In Winch v The Queen[36] Maxwell P and Redlich JA stated:
It is important to recall that RCSI is a very serious offence. It carries a maximum penalty of 15 years. An examination of the elements of the offence reveals why this is so. First, the offence involves the causing of serious injury to the victim. Secondly, the mental element of the offence – recklessness- means that the offender has consciously disregarded a known risk.
The offence of RCSI is only committed if the offender foresaw the probability that his/her action would cause serious injury to the victim, and went ahead regardless of that probability. This is not mere carelessness, where the offender fails to appreciate the risk of injury. This is conscious disregard of a risk of serious injury which the offender knows to exist.
[36] (2010) 27 VR 658 (Winch)
63 Your counsel submitted that Gill’s injury falls at the lower end of the scale of serious injury. Having considered the whole of the evidence and the submissions made by counsel, it is my view that the injury falls at the moderate range of seriousness for this offence. The victim impact statement speaks about the effect on the victim. A metal plate was inserted and the victim continues to suffer ongoing physical symptoms. His victim impact statement makes clear the profound psychological effect the assault has had upon him.
64 As well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I am called upon by the Sentencing Act 1991 to manifest the community's denunciation of your conduct and generally to impose a just punishment.
65 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I have had regard to your history in assessing the need for specific deterrence. Whilst I accept that you have taken steps to address the causes of your offending behaviour, the prior offence was committed in similar circumstances in the evening on licenced premises where you had lost your temper and assaulted someone.
66 Your counsel submitted that this is a case where it was open to the Court to order a Community Correction Order attaching an alcohol exclusion condition, and a condition restraining you from entering or remaining in licensed premises which would include the Sandringham Hotel. You did not persist in fighting anybody else in the hotel. You left. You are remorseful and have taken steps towards rehabilitation. You want to be a better person and the community will benefit if you are given the opportunity to rehabilitate yourself within the community.
67 This is serious offending. It was violent and unprovoked. It was committed on a stranger. It involved the use of a billiard cue. It was committed in a public place in the presence of a number of patrons. The victim impact statement speaks of the significant effects it has had on the victim. His facial bones were fractured and a metal plate was inserted and there are ongoing issues.
68 I accept the prosecutor’s submission that the mitigating influence of your relative youth, your remorse and the need to facilitate your rehabilitation, has to yield to considerations of general deterrence and denunciation.
69 I have considered s.5(4C) of the Sentencing Act 1991. Having given the matter a great deal of thought and notwithstanding the matters advanced in mitigation, a term of actual imprisonment is required. In my judgment the imposition of a Community Correction Order in this case would not give sufficient effect to the principles of general deterrence, the community's denunciation of your conduct and the need to impose a just punishment.
70 I propose to order that you serve a term of imprisonment for a period of 15 months to be followed by a community correction order for a period of two years.
71 As you know, I have sought and received a pre-sentence report in this matter. That report indicates that you are considered a suitable candidate for a Community Correction Order.
72 I am only able to make such an order if you consent to my taking such a course. So that you are in a position to make an informed decision in the matter, I should tell you something about the course I propose.
73 First, the length of the order will be two years.
Every community correction order, including the one I propose in this case, contains certain core conditions. They are:
1You must not commit another offence punishable by imprisonment during the period of the order.
2.You must comply with any obligation or requirement prescribed by the regulations.
3.You must report to, or receive visits from, the Secretary during the period of the order.
4You must report to the Moorabbin Community Correction Centre within two working days from the completion of the term of imprisonment.
5.You must notify the Secretary of any change of address or employment within two clear working days after the change.
6.You must not leave Victoria except with the permission of the Secretary.
7.You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
74 The conditions that apply in addition to the mandatory terms are:
1.You must perform 200 hours of unpaid work over a period of 24 months as directed by the Regional Manager.
2.You must be under the supervision of a Community Corrections Officer for a period of 24 months.
3.You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional manager
4.You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager.
5.You must undergo programs that address factors related to your offending behaviour.
6.You must not enter or remain in any licensed premises characterised as a hotel, nightclub, bar, reception centre or function centre.
75 You must realize that if you breach the order you should expect to be brought back to court and dealt with for such breach. You should expect to be imprisoned, perhaps be fined and perhaps other sorts of orders would be made if that occurs.
76 My proposal is, then, to record convictions in relation to Charge 1 and sentence you to a term of imprisonment of 15 months to be followed by a Community Correction Order for a period of two years. Do you consent to the making of such an order?
77 Do you want to consult with Mr Greatorex?
78 MR PICA: Prior to obtaining my client's instructions, Your Honour, can I be heard with respect to one condition concerning licensed premises?
79 HER HONOUR: Yes, you may.
80 MR PICA: That is the condition that relates to function centres. In the event that there is a family engagement, wedding or something like that.
81 HER HONOUR: I was seeking to cover the soccer club type events.
82 MR PICA: I was wondering if the function centre, that condition solely could have a rider or exclusion to it that said unless in the company of a parent.
83 HER HONOUR: Yes.
84 MR PICA: And if Your Honour wanted to further specify with respect to a family engagement, a family or close - I am not sure about the wording, but if somebody gets married or something like that. I will approach.
85 HER HONOUR: Or function centre unless in the company of a parent with respect to a family function.
86 MR PICA: Thank you, Your Honour.
87 HER HONOUR: Thank you.
88 MR PICA: Family related function?
89 HER HONOUR: Family related function.
90 MR PICA: That might extend it.
91 HER HONOUR: Yes, thank you.
92 MR PICA: Thank you, Your Honour.
93 HER HONOUR: Apparently the form provides that you can only put it in this way, can only attend a function centre in the company of a parent with respect to a family function.
94 MR PICA: Thank you. The accused man consents, Your Honour.
95 HER HONOUR: Thank you.
96 I propose to record a conviction on Charge 1 and sentence you to a term of imprisonment of 15 months. I will also impose a Community Correction Order that commences upon your release from custody for a period of two years.
97 I make an order pursuant to s.464ZF that you provide a sample of your saliva. I am required by law to say to you that those charged with taking that sample are authorised to use such force as may be necessary to effect the taking of the sample.
98 The exception, Mr Pica, is contained in p.2.
99 MR PICA: Thank you, Your Honour. Might I just - - -
100 HER HONOUR: Yes.
101 MR PICA: Thank you, Your Honour. Will I have the accused sign that now?
102 HER HONOUR: Yes, please.
103 MR PICA: Thank you.
104 HER HONOUR: There is one, it also requires a signature of Mr Greatorex on the first page.
105 MR PICA: I beg your pardon.
106 HER HONOUR: Section 6AAA of the Sentencing Act 1991 requires me to state the sentence that I would have imposed but for the plea of guilty. Your plea has saved time, expense, and the need for witnesses to give evidence, and is reflective of remorse. But for your plea of guilty, I would have sentenced you to a term of imprisonment of three years. I would have directed that you serve a period of two years being eligible for parole.
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