R v Jones
[2013] VSC 515
•4 October 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0176 of 2012
| THE QUEEN |
| v |
| RYAN IAN JONES |
---
JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 12, 13, 15, 16, 19, 22 August 2013 | |
DATE OF SENTENCE: | 4 October 2013 | |
CASE MAY BE CITED AS: | R v Jones | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 515 | |
---
CRIMINAL LAW – Sentencing – Affray – Accused a member of group which spontaneously chased and assaulted an armed man who started a fight – Accused repeatedly kicked and struck victim – Guilty plea – Youthful offender – Some prior convictions – Prospects of rehabilitation – Parity with co-offenders – Totality – Sentence of 1 year and 3 months’ imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D Piekusis | Office of Public Prosecutions |
| For the Accused | Mr P Billings | C D Traill Lawyers |
HER HONOUR:
Ryan Jones, you have pleaded guilty to one count of affray. It is now my duty to sentence you for that offence.
On the evening of 10 February 2012, you were at a house in McMillan Court, Horsham, where a 15th birthday party was underway. Shortly after 9.45pm that evening, Benjamin McLeod pulled up at the front of that house and got out of the car. He had been drinking heavily, and was in an angry and emotional state. He was brandishing a section of a pool cue, which he had brought from his home. He was calling out for Shane Campbell, one of the other guests at the party, who he knew. He was making verbally aggressive comments and striking the front fence with the pool cue. You and some others were standing in the front yard, as Mr McLeod did this. Mr McLeod was not known to you.
Shane Willshire, who lived at the house, came through the front door and saw Mr McLeod brandishing the pool cue. Shane Willshire armed himself with an aboriginal wooden hunting stick, called a bundi. Together with his brother, Gavin Willshire, and another guest, Christian Pickering, Shane Willshire approached Mr McLeod at the fence and told him to leave. Mr Pickering raised a glass beer bottle towards Mr McLeod, in an attempt to persuade him to leave.
Mr McLeod reached into the side of his pants and removed a hunting knife, which he displayed. Mr McLeod then swung the pool cue and struck Gavin Willshire across the side of the face, causing him to fall to the ground.
Nicole McEwen, the driver of the car in which Mr McLeod had been travelling, approached Mr McLeod and tried to pull him away from the fence. He shrugged her off, causing her to fall to the ground.
Shane Campbell came outside and, together with the Willshire brothers and Mr Pickering, he left the front yard and started advancing towards Mr McLeod. Seeing the men coming towards him, Mr McLeod began to back away, down the street.
Matthew Lovett, another guest at the party, armed himself with a garden stake; the two of you then joined the other men in their advance on Mr McLeod.
Mr Pickering tried to punch Mr McLeod, but missed and fell to the ground, cutting his hand in the process.
Mr McLeod then turned and ran away from the group. You and the others continued running after him, for about 50 metres, until Mr Campbell tackled Mr McLeod and punched his jaw. Mr Lovett struck Mr McLeod’s back with the garden stake. You and the others in the group caught up and began assaulting Mr McLeod, who fell to the ground. Mr McLeod lay on the ground, with his arms up, trying to protect his head and body, as members of the group continued to assault him.
For your part, you stood over Mr McLeod, and repeatedly kicked and punched him as he lay, defenceless, on the ground.
You and most of the group then fled the scene in different directions.
Mr McLeod died from the injuries he sustained in the attack, which included multiple blunt force injuries to his head and face, as well as to his abdomen, chest and upper and lower limbs. You are no longer being prosecuted for playing any part in causing Mr McLeod’s death.
When interviewed by the police, you denied having any involvement at all in the incident. That is a position which you maintained throughout this proceeding, up until the time that the plea was accepted.
The maximum sentence for the offence of affray is 5 years’ imprisonment.
Your actions occurred in the context of a spontaneously occurring affray, which started when Mr McLeod arrived at Shane Willshire’s home in an intoxicated and highly agitated state, and behaved aggressively towards your friends. Mr McLeod was brandishing weapons and making threats, and he undoubtedly struck the first blow against another person.
Nevertheless, the incident quickly turned into a group attack upon a man who was effectively rendered defenceless by the group. It took place over a period of some minutes, and involved the use of crude, but effective, weapons by some members of the group. It is a serious example of the common law offence of affray.
I have read the victim impact statement made by Donna Sims, Mr McLeod’s mother. The circumstances surrounding the death of her son have, quite understandably, caused her great distress, and affected others in the family. To the extent that her distress can be attributed to your offending on the charge of affray, I take it into account. However, you are not being sentenced for the death of Mr McLeod.
You were born in March 1991. You did not know your biological father. You were removed from your mother’s care when you were 3, because of her substance abuse. From then, until you returned to live with your mother when you were 16, you lived in various foster placements, including with some other family members.
In your early teens, you started using cannabis on a regular basis, and engaging in petty offending, including stealing. You have also experimented with a wide range of other illegal drugs, as well as abusing prescription drugs. You started drinking alcohol when you were about 15, and engage in occasional binge drinking.
For a period of time, you attended a special school for children with behavioural or learning difficulties. You did not complete high school. In 2006 or 2007, you undertook a 12 month full time course in hospitality at William Angliss College.
Although you have had occasional employment in the hospitality industry, it seems that your ability to hold down a job has been seriously damaged by your drug and alcohol abuse.
In a report dated 19 August 2013, Dr Danny Sullivan, consultant psychiatrist, noted that you had informed him that, at the age of 4, you were diagnosed with attention deficit hyperactivity disorder, for which you were treated with various medications. You also told him you had been diagnosed more recently with bipolar affective disorder, although Dr Sullivan expressed some doubts about the accuracy of that diagnosis. No further information has been provided to the court about either of those diagnoses. However, it is not suggested that either of those conditions played any role in your offending, or are in any other way relevant for sentencing purposes.
Dr Sullivan said you appeared to be of average intellect, and there is no indication of psychotic illness, cognitive impairment or other significant mental disorder.
You told Dr Sullivan that, at the time of the offence, you had smoked large amounts of cannabis, drunk alcohol and may have taken some quietiapine (a sedative antipsychotic mediation). He believes your involvement in this incident was most likely attributable to disinhibition and aggression associated with alcohol, rather than any mood disorder.
Although he believes you would benefit from working with a psychologist, to address your problems with mood regulation, given your immaturity and lack of direction, Dr Sullivan believes that if mandated to attend such treatment, you may be truculent and disinterested.
Between September 2004 (when you were 13) and April 2009 (when you were 18), you appeared before the Children’s Court on nine separate occasions, mostly for offences involving burglary, theft or criminal damage. Your first appearance in an adult court was in April 2012, when you were 20. You do not have any prior convictions for offences of violence.
On 3 October 2012, you were sentenced in the Melbourne Magistrates’ Court to a total of 6 months’ imprisonment for a large number of offences, which included affray and recklessly causing injury, as well as various property and drug trafficking offences. Those offences took place on multiple occasions throughout 2011. You have completed that term of imprisonment, since you were arrested for the present offence. I have taken that sentence into account in considering the principle of totality.
You were almost 21 at the time of the offence. You are now 22 years old. Your age is a relevant consideration in sentencing you. In the case of youthful offenders, such as you, rehabilitation is usually regarded as far more important than general deterrence. Rehabilitation benefits the community as well as the offender. Even when an offender has previously been imprisoned, a shorter period of imprisonment may be justified than would ordinarily be the case. Of course, those principles are not immutable, and due regard must be had in each case to other relevant matters, including the seriousness of the offence.
In Dr Sullivan’s opinion, if you are able to address your substance use problems and gain employment, you have reasonable rehabilitation prospects. If you do not do so, he assesses your rehabilitation prospects as “poor”. I agree with his assessment in that regard.
You are very fortunate to enjoy the support of Kevin Broadribb, a respectable member of the community, who has four adult sons of his own. Mr Broadribb first met you in 2008, when he was volunteering with the White Lion Mentor Program and you were being held at the Parkville youth justice facility. Mr Broadribb has acted as your formal, and then informal, mentor since then. He has gone to remarkable lengths to maintain a positive relationship with you, and has tried to assist you to stop abusing drugs and alcohol. He has been your only regular visitor, since you have been in prison. He has offered to assist you in finding employment and accommodation in Melbourne, once you are released from custody.
I strongly suggest that you not waste the opportunities that Mr Broadribb has offered you. If you return to Horsham, and your old friends and way of life, you are likely to find yourself back in prison before too long.
Whilst there is some risk of you behaving aggressively in the future, the need for specific deterrence in this case is not as important as the need to promote your rehabilitation, particularly having regard to your age.
There is also a need for an element of punishment and denunciation in any sentence.
You, Mr Pickering, Mr Campbell and Mr Lovett were initially committed to stand trial on charges of murder.[1] Your joint trial for murder was fixed to commence in early August 2013. In July 2013, Mr Pickering and Mr Campbell each pleaded guilty to one count of affray. In late July 2013, Mr Lovett pleaded guilty to one count of manslaughter, an offence to which he had first offered to plead guilty at the first directions hearing after the committal, in February of this year.
[1]Although Shane and Gavin Willshire were also charged by police, they were not committed to stand trial.
After four days of preliminary arguments in your murder trial, on 19 August 2013, you pleaded guilty to a single count of affray.
You are entitled to a discount on the sentence to be imposed upon you in recognition of your plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a murder trial. However, it is not an early plea.
Apart from any remorse which is implicit in the plea itself, there is no suggestion that you have demonstrated any real remorse for what you have done. On the contrary, you have persisted until very recently with the lie that you were not even present when the affray occurred.
I turn to consider questions of parity with the two of your co-offenders who also pleaded guilty to a single charge of affray.
As far as the affray itself was concerned, although Mr Pickering and Mr Campbell were the first to run after Mr McLeod, you and Mr Lovett joined in the pursuit almost immediately thereafter. In sentencing Mr Pickering, T Forrest J said that he “threw a few punches” while Mr McLeod was still standing, then cut his hand and retired from the affray before the final brutal onslaught. His Honour described Mr Pickering’s role as “considerably less active” than the other participants. His Honour found that Mr Campbell’s involvement consisted of a single punch to Mr McLeod’s jaw. On the other hand, you have admitted to repeatedly kicking and punching Mr McLeod as he lay, defenceless, on the ground.
Mr Pickering was 26 years old. He had numerous prior convictions, including for recklessly causing injury, assault and affray. However, he also had a reasonable work history and a stable relationship with his partner and children. The sentencing judge regarded him as having reasonable prospects of rehabilitation.
Mr Campbell was not a youthful offender, and had a long history of prior convictions, including for offences of violence. However, the sentencing judge described him as someone who had “travelled a hard road”, in part due to his aboriginal heritage, the circumstances of his upbringing, and symptoms of post traumatic stress disorder. Mr Campbell participated in the affray during the operational period of a suspended sentence, and also had some unserved time from earlier offences which needed to be taken into account in sentencing him.
On 8 July 2013, Mr Pickering was sentenced to a term of imprisonment of 1 year and 4 months,[2] and on 12 July 2013, Mr Campbell was sentenced to 1 year and 5 months’ imprisonment.[3] Having regard to the periods that each of them had already spent in custody,[4] they were released immediately.
[2]R v Pickering [2013] VSC 353 (T Forrest J).
[3]R v Campbell [2013] VSC 348 (T Forrest J).
[4]513 days in the case of Mr Pickering, and 518 days in the case of Mr Campbell.
Balancing as best I am able the competing considerations laid down in the Sentencing Act1991, and having regard to the matters I have just discussed, for the offence of affray, I sentence you to imprisonment of 1 year and 3 months.
I declare, pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to 2 years’ imprisonment, with a minimum non-parole period of 18 months.
Further, I declare that the period to be reckoned as already served under this sentence is 419 days, not including today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.
0