R v Ritchie
[2008] VCC 10
•19 September 2008
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BAIRNSDALE
CRIMINAL DIVISION
CR-08-00257
| THE QUEEN |
| v |
| DONALD RITCHIE LEROY HAYES |
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JUDGE: | Her Honour Judge Morrish | |
WHERE HELD: | Bairnsdale | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 19 September 2008 | |
CASE MAY BE CITED AS: | R v Ritchie & Ors | |
MEDIUM NEUTRAL CITATION: | [2008] VCC 1869 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. O'Doherty | |
| For the Accused Ritchie For the Accused Hayes | Mr J. Sullivan Mr D. Ewert |
HER HONOUR:
1 Donald John Ritchie, you are to be sentenced in respect of one count of affray, Count 1, one count of recklessly causing serious injury, Count 3, and one count of recklessly causing injury, Count 5, as contained in Presentment No. W01647919, contrary to common law and sections 70 and 80 of the Crimes Criminal (Criminal Trials) Act.
2 The matter was listed for trial to commence on 11 September 2008. On that day your counsel, Mr S. Robertson made application for a sentence indication pursuant to s.23A of the Crimes (Criminal Trials) Act.
3 I entertained the application and indicated that if you pleaded guilty to these charges you would not be likely to receive an immediately servable custodial sentence. I gave that indication because the prosecution supported it, and having consulted the victims and the informant, and taking into account principles of parity. I shall return to these topics later.
4 Following the indication you pleaded guilty to these charges and the Crown has accepted your plea to these charges in full satisfaction of all of the counts on the presentment. Prior to this the Crown alleged one count of intentionally causing serious injury, which was Count 2. Count 3 was the alternative count to that count, and one count of intentionally causing injury, Count 4, and Count 5 was the alternative to that count. The presentment was amended to strike out Counts 2 and 4.
5 Leroy Troy Hayes, you are to be sentenced in respect of one count of affray, Count 1, one count of intentionally causing serious injury, Count 2. One count of recklessly causing injury, Count 3, and one count of theft, Count 4, contrary to common law and s.16, 18 and 74 of the Crimes Act, as contained in the Presentment No. W01363085.
6 You pleaded guilty when arraigned before me on 17 September 2008. These two cases were heard together by consent because they are based on the same facts.
7 The maximum applicable penalties are: affray, 5 years imprisonment; intentionally causing serious injury, 20 years' imprisonment; recklessly causing serious injury, 15 years' imprisonment; recklessly cause injury, 5 years' imprisonment; and theft, 10 years' imprisonment.
Circumstances of the offences:
8 The facts were opened by the learned prosecutor, Mr O'Doherty, in accordance with the summary that was tendered as Exhibit A.
9 On Australia Day 2007, at approximately 11.30 p.m. Luke Johnson and Sarah Herrera, Justin Daly and Kim Royce, who were visiting Lakes Entrance on holiday were walking across the footbridge from the bridge. As Johnson and Herrera, Daly and Royce approached the traffic lights on the esplanade they observed a large number of aboriginal youths, including the two of you, Leroy Hayes and Donald Ritchie, together with Dion Baxter, Nathan Hayes, Joseph So, Robert Harrison and Peter Moffat attempting to destroy a phone box.
10 Johnson, Herrera, Daly and Royce ignored your group and continued to walk in a northerly direction, across the esplanade and into Myer Street. But as they reached the footpath at the intersection of the esplanade in Myer Street, they were confronted by your group, you, Leroy, Hayes, and you, Donald Ritchie and also co-offenders, and Baxter were pounding your chests with your fists, as you walked towards Johnson, Herrera, Daly and Royce. You were yelling out, "White folks, white sluts, white cunts, you want to have a go."
11 Johnson stopped walking and turned to your group and said, "That's my fiancée you're calling a slut." Herrera said, "Leave us alone, we are on holiday."
12 Both of you, Leroy Hayes and you, Donald Ritchie, together with Baxter, walked up to Johnson and began to push him around. You, Leroy Hayes, then threw a punch at Johnson, but this punch missed, and Johnson then punched you, Leroy Hayes to the face, and you fell to the ground.
13 Baxter and you, Donald Ritchie, then rushed at Johnson and began to throw punches which caused Johnson to fall to the ground. The other aboriginal youths who had been on the other side of the esplanade then ran over to the scene. The two of you, Ritchie and Hayes, together with Baxter, So and Moffat and Nathan Hayes, started to kick and punch Johnson to the head and body whilst he was laying on the ground, and the remaining aboriginal youths created a ring around the victim and your group, watching the assault.
14 At some stage during this vicious assault, Johnson was knocked unconscious and was lying motionless, on the ground. Nevertheless, the assault continued. You, Leroy Hayes, repeatedly kicked Johnson to the head and body, and repeatedly jumped, with both feet off the ground and onto his legs.
15 Herrera then ran at and jumped on your back, Leroy Hayes, in an attempt to stop you from assaulting Johnson, but you threw her over your shoulder. When she landed on the ground you, Leroy Hayes, attempted to punch Herrera in the face. This punch missed her face, but hit her on the shoulder, causing her to fall backwards.
16 Herrera feared for Johnson as a result of the sustained assault, so she threw herself over him in an attempt to shield him from you both and from the other members of your group. Not even this action deterred your group, who continued to kick Johnson. Herrera was also kicked by you.
17 While Johnson was down, you, Leroy Hayes, reached down and took hold of a gold necklace that was around his neck. You ripped it from his neck, and put it in your pocket. That is the subject of Count 4, theft.
18 Soon after, a security guard who was standing over near the footbridge and who saw part of the assault, ran over to the scene and yelled for you to stop the assault, just as two police vehicles were driving south along Myer Street. Your group then fled.
19 Police spoke to Johnson and Herrera who were treated by ambulance paramedics at the scene. But fearing your group would return, they ran to their motel with Daly and Royce.
Johnson's injuries:
20 As a result of this assault, Johnson received numerous injuries to his face and body, including multiple bruises to the face and body, a large subconjunctival haematoma to the left eye, an haematoma to the right eardrum, a fracture to the left cheekbone, a fracture to the left zygoma, the eye socket, and the impairment, meaning a loss of his short term memory.
21 His injuries are depicted in Exhibit D. You, Leroy Hayes, caused serious injury, intentionally, Count 2, in your presentment. You, Donald Ritchie, acted recklessly, Count 3 in your presentment.
Herrera's injuries:
22 As a result of being assaulted, Herrera received injuries, including a two inch burn on the outside of her right arm, bruising and swelling to her head, a large bruise to the elbow area of her right arm, a red mark on and soreness of the neck, soreness on both sides of her ribs, and sore buttocks.
23 Her injuries are depicted in Exhibit E. You each acted recklessly. Count 3 in your presentment, Hayes, and Count 5 in your presentment, Ritchie.
The impact of your offending on the victims:
24 Victim impact statements were tendered, together with other materials, setting out the impact your offending has had on each of the victims.
25 Luke Johnson, victim impact statement, Exhibit B, and report of Gary McMullen, psychologist, dated 16 September 2007, Exhibit B1. "Mr Johnson has suffered great physical pain, as well as significant stress, see Exhibit B, paragraph 5. He has been diagnosed as suffering from chronic post-traumatic stress disorder. Even with this treatment, it is likely he will suffer residual anxiety in situations that remind him of the assault. It is also unlikely that he will feel comfortable in returning to Lakes Entrance any time soon. See Exhibit B1, p. 5.
26 Sarah Herrera, victim impact statement, made 22 August 2008, Exhibit C. Report of Gary McMullen, psychologist, dated 26 November 2007, Exhibit C1, and report of Marcus Disken, chiropractor, Exhibit C2.
27 In her victim impact statement, Ms Herrera says, "I was petrified during the attack as I was convinced that my fiancé had been killed or permanently disabled. The prospect of needing to testify is very daunting. My memory often fails me and I feel that my outlook on life is now more negative. I hate the fact that I find it difficult to go out at night, as fear always has me expecting the worst." Exhibit C, paragraph 5.
28 Ms Herrera has also been diagnosed as suffering from chronic post-traumatic stress disorder. Although treatment will assist in her recovery, it is likely she will remain vulnerable, and may have a relatively more serious reaction to any future trauma. See Exhibit C1, p. 6.
Gravity of the offences:
Affray
29 Affray is an offence against public safety and its seriousness can vary enormously. It is a collective offence, and the acts of individual participants cannot be taken in isolation. In assessing the gravity of the offence, I must take into account the overall circumstances of the affray, the role you each played in it, the level of planning involved, the location of the affray, whether weapons were used, the impact on any victims, and the motivation for the affray, such as any act of revenge. Turning to each of these factors:
Circumstances of the affray:
30 I have already referred to the circumstances of the affray noting the number of persons involved in and affected by the affray. I accept these to be the accurate facts. I have noted the number of persons involved in and affected by the affray.
Your role in the affray:
31 Both of you were principal participants. Your conduct, Leroy Hayes, was the most violent, and you were the only one who intended to ultimately cause serious injury to Johnson.
The level of planning involved:
32
I accept there was little planning or premeditation. Your group started the conflict by abusive language and you, Leroy Hayes, threw the first punch.
I accept that matters got somewhat out of hand and escalated fairly quickly. The affray and assaults were spontaneous responses, committed in the heat of the moment, but they were cowardly and brutal acts. They only stopped when the security guard intervened, and the police arrived.
Location of the affray:
33 As I have previously said, the affray occurred in a public place, and had the capacity to cause fear in many members of the public.
Whether weapons were used:
34 No weapons were used.
The impact on any victims:
35 I have referred to the victims who were both physically and emotionally injured as a result of the affray and also as a result of the physical attacks.
Motivation for the affray:
36 The affray, as I have said, erupted spontaneously.
Gravity of the offence of intentionally cause serious injury:
37
As was said in the DPP v Lawrence [2004] 10 VR 125 at paragraph 21,
"The maximum penalty fixed by parliament shows how intrinsically serious the offence is considered to be on behalf of the community."
38 As appellate courts have said, this type of offending will ordinarily call for the imposition of an immediate custodial sentence.
Aggravating features:
39 There are several aggravating features present in your case, Leroy Hayes:
1. You were the original aggressor.
2. Your attack was unprovoked
3. The attack was committed in company. See DPP v Whiteside (2000) 114 A Crim R 234 at paragraphs [23] and [24]. In fact, your group greatly outnumbered the victims who had little chance of protecting themselves against you.
4. In this cowardly and vicious attack, you callously struck and kicked Johnson while he lay defenceless and unconscious on the ground.
5. You continued to attack Johnson even after his fiancée, Sarah Herrera, threw herself over him in an attempt to protect him from you.
6. After disabling your victim you caused the further indignity of stealing his valuable gold necklace as he lay defenceless.
Gravity of recklessly cause serious injury:
40 The offence of recklessly causing serious injury is also serious, but covers a wide range of conduct. In assessing the overall gravity of the offence I must take into account matters such as the degree of recklessness involved. Whether weapons were used, the severity of the injuries caused, and their impact on the victim, and whether the conduct was premeditated, spontaneous or an over reaction to a perceived threat.
41 I have already made findings as to all but one of these matters. As to the degree of recklessness, I find that your conduct, Donald Ritchie, must be regarded as inherently reckless, taking into account the fact that you knew that Mr Johnson was outnumbered, and many of you were attacking him at the same time. You also kicked him.
42 Having said that, however, it must not be forgotten that the consequences of your conduct, Donald Ritchie, were not actually intended.
43 As was said in R v Boxtel [1994] 2 VR 98 at pages 103 to 104, "It is of great importance not to allow the effects of an unintended catastrophe to “swamp” all other considerations."
44 Ordinarily, in such cases, principles of general deterrence, specific deterrence, just punishment, denunciation and protection of the community are important sentencing considerations.
Avoidance of double punishment:
45 In sentencing both of you for the crimes you each face, I must be careful to avoid double punishment. This arises because the injuries were caused whilst you participated in the affray.
46 In R v Ly & Ors (2004) VSCA 45, a case involving charges of affray and intentionally causing serious injury, the Court of Appeal stated at paragraph [30], “The substantive acts of unlawful violence which attract the penalty for intentionally causing serious injury constitute a large measure of the acts of unlawful violence creating the terror which is the essence of the offence of affray. Whilst the distinguishing features of the two offences provide a warrant for some cumulation it must be necessarily be limited and care must be taken to avoid double punishment.”
DONALD RITCHIE
47 I now turn to the plea in mitigation on your behalf, Donald Ritchie. Your counsel, Mr Robertson, identified a number of factors which he submitted combined to justify a more lenient approach when sentencing you.
48 He, nevertheless, conceded the gravity of your offending and that principles of general and specific deterrence are important sentencing considerations.
49 The mitigating factors advanced on your behalf are:
(1) your personal circumstances, history and background;
(2) you pleaded guilty;
(3) you are remorseful for your conduct;
(4) your youth;
(5) your prospects for rehabilitation;
(6) principles of parity;
(7) the victim's attitude;
(8) the informant's attitude;
(9) the Crown's attitude; and
(10) the binding effect of the sentence indication that
I gave.
1. Personal circumstances, history and background
50 You are now aged 20 and were aged 18 at the time of the offences. Your personal history is well set out in the report of Deborah Smith, psychologist, dated 15 September 2008, Exhibit DR1.
51 You are the second eldest of six children. Your parents separated and you have lived with your mother and for a time with your aunt. You were educated at Bairnsdale Secondary College, but failed to complete Year 9 because you were expelled for fighting with other children.
52 Your education was compromised because you suffered from ADHD which was diagnosed when you were aged eight.
53 You were prescribed dexamphetamine which you took, but it made you drowsy and adversely affected your capacity to interact with others.
54 By the age of 15, your mother had weaned you off the medication which resulted in a return of your symptoms, which also compromised your capacity to interact appropriately with others.
55 After leaving school, you worked for a few months on the CDP program at the local aboriginal co-op. After that, a job was arranged for you at the Bairnsdale race track, but you were fired because you got drunk at work on Melbourne Cup Day.
56 You now receive a youth allowance, but are seeking employment through Work Ways.
57 As to your drinking habits, you started using alcohol when you were aged 15. You are a binge drinker, drinking heavily on weekends. You now appreciate the nexus between your drinking and your antisocial behaviour. Ms Smith points out your intellectual capacity is somewhat limited. She estimates your IQ would be in the vicinity of 70, which is in the intellectually disabled range, and this is an important factor to be taken into account when assessing your moral culpability.
58 You have admitted to two prior convictions, recorded at the Magistrate's Court at Orbost on 30 November 2006, when you were fined $500 on two charges of unlawful assault. This was only two months before you committed these offences.
2.Guilty plea
59 As I said before, on the day that this matter was to commence as a trial, and whilst a jury panel were waiting outside the door of the court, your counsel sought a sentence indication. It was only after I gave the indication that if you pleaded guilty to Counts 1, 3 and 5, based on the information given to me, you would not be likely to receive an immediately servable custodial sentence. But you pleaded guilty to those charges.
60 Nevertheless, you have pleaded guilty and you are entitled to have that fact taken into account in your favour. Although your plea was not entered at the earliest opportunity, a guilty plea, no matter why or when it is entered, must almost always attract a sentencing discount.
61 In assessing the weight to be given to your plea, I take into account the following matters. The timing of your plea. You are entitled to a statutory discount because of your plea. I accept your plea evidence as some level of remorse. You have avoided the cost of a trial, and more significantly spared the victims and other witnesses the inconvenience, embarrassment and ordeal of giving evidence at trial.
62 This is particularly significant in the case of Ms Herrera who, as I have said, noted in her victim impact statement, "The prospect of needing to testify is very daunting."
63 There is social utility involved in your guilty plea, and by taking this course I accept that you have facilitated the course of justice.
3.Remorse
64
I am satisfied that you are remorseful for your conduct. In this regard I accept the opinion of Ms Smith who noted in her report, "Donald has expressed remorse at what he had done. Initially, he said he did not know why he did it. Just joined in and was drunk. Although not that drunk. He acknowledges that he was the eldest person in the group, but does not see himself as a leader. Given his demeanour in the interview and his inability to focus or concentrate, I believe he is probably right in this assessment.
He takes responsibility for what he did." See p. 3, Exhibit DR1.
65 I also accept the sworn evidence of your cousin, Wilfred James Carter, program manager of Work Ways, a not for profit employment agency. He too says that you are remorseful and that you appreciate the consequences of your conduct.
4.Your youth
66 Because you are aged 20, you are considered, at law, to be a young offender.
67 In Mills [1998] 4 VR 235, at 241, Batt JA referred to 3 important considerations when sentencing youthful offenders:
“(i) Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
(ii) In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
(iii) A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s5(4) of the Sentencing Act 1991.)”
68 In your case, Ms Smith has noted that prison would be detrimental for you, and that you would be a vulnerable prisoner. She considers you are young enough to be retrieved and have sufficient supports to enhance your chances of rehabilitation.
69 She also considers that unless you are helped to deal with your alcohol use, you pose a significant risk of re-offending. In fact, she goes so far as to say that if helped you will not pose significant risk to the community. But if left without help you will probably start a cycle of offending and re-offending. See p.4 Exhibit DR1.
5. Prospects for rehabilitation.
70 I am satisfied that your prospects for rehabilitation are reasonably good, provided you accept supervision, support and participate in programs designed at reducing your chances of re-offending.
71 I accept the evidence of both Ms Smith, as contained in her report, and the sworn evidence of Mr Carter, who said you had learnt your lesson. He is prepared to actually participate in your supervision and help find you employment. He will also help supervise any programs to deal with your alcohol problems.
6. Principles of parity.
72 I have referred to the fact that a number of you participated in these offences. Exhibit F is a bundle of certified extracts, showing the dispositions imposed on your co-offenders, all of whom, bar Leroy Hayes, of course who is here, were dealt with in the Children's Court at Bairnsdale on 11 June 2008. They all pleaded not guilty to the charges. Harrison was acquitted.
73 In the cases of Dion Baxter, Joseph So, Nathan Hayes and Peter Moffatt, the charges of affray, recklessly cause serious injury and recklessly cause injury, were found proven.
74 Without conviction they were each released on a youth supervision order for a period of four months in respect of all charges. All co-offenders except Baxter had no prior histories.
75 Although great care must be exercised in applying principles of parity where co-offenders have been sentenced in the Children's Court, I am nevertheless entitled to take into account those principles.
76 It is, of course, to be recognised that a supervision order, as can be made in the Children's Court, is not an available sentencing option in your case. See R v Evans [2003] VSCA 223.
77 On the other hand, you were all very close in age, and I do have the power to impose a Community-based Order which has a large supervisory component attached to it.
78 I also note that you have pleaded guilty to precisely the same charges as those co-offenders.
7.Attitude of the victims.
79 Both victims were informed of the plea offer, the proposed sentence indication and the Crown's attitude to sentence in your case. The Crown's position is that all sentencing options are open. The victims have agreed that this is an appropriate response.
80 As was pointed out in the case of Palu (2000) 134 A Crim R 174 at [37]:
" The attitude of the victim cannot be allowed to interfere with a proper exercise of the sentencing discretion. This is so whether the attitude expressed is one of vengeance or of forgiveness: R v Glen (NSWCCA, unreported, 19 December 1994). Sentencing proceedings are not a private matter between the victim and the offender, not even to the extent that the determination of the appropriate punishment may involve meting out retribution for the wrong suffered by the victim. A serious crime is a wrong committed against the community at large and the community is itself entitled to retribution. In particular, crimes of violence committed in public are an affront to the peace and good order of the community and require deterrent sentences: Henderson (NSWCCA, unreported, 5 November 1997). Matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment, the purpose of which is to protect the public, not to mollify the victim. "
81 However, material suggesting that the victim has forgiven the offender may indicate that the effects of the offence have not been long lasting.
82 In Skura [2004] VSCA 53, Smith JA observed at [48],
"Evidence that the victim has forgiven the offender may indicate that the effects of the offence had not been long-lasting. It may mean that psychological and mental suffering must be very much less in the circumstances. Accordingly, some mitigation must be seen in that one factor."
83 Although limited weight can be given to the attitude of the victims, I do take the matter into account in your case.
8 & 9. Attitude of the informant and the Crown's attitude to sentence.
84 I have pointed out that the Crown's position is that all sentencing options are open. This is an important concession. And it influenced my decision, both to entertain the application for a sentence indication, and the actual indication that I gave. I wish to confirm that I consider the Crown's attitude was entirely proper.
10.The binding effect of the sentence indication.
85
Because you pleaded guilty at the first opportunity following the sentence indication and because there was proper and full disclosure during that hearing, I am bound by the sentence indication that I gave.
See s.23A(6).
Disposition sought.
86 Your counsel has submitted that in all the circumstances you should be released on a Community-based Order. As you know I have requested a report to assess your suitability for such a disposition. The report indicates that you are a suitable candidate for such an order.
87 In sentencing you, I must consider which punishment is just, whether it will deter you or others from re-offending, and the best way to protect the community around you. These things matter. But because you are young, I must weigh them up against giving you the opportunity to learn from your mistakes, and with help, solve the problems that you face.
88 If you do make the most of any opportunity that I give you, that will afford an important community protection, as well as help you to lead a law abiding life.
The sentences to be imposed.
89 I accept that it is appropriate to release you on a Community-based Order in respect of all charges. 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 that I propose.
1. The length of the order will be two years. Every Community-based Order including the one that I propose in this case, contains certain core conditions. They are, one, you must not commit another offence, punishable by imprisonment during the period of the order.
2. You must report to the Bairnsdale Community Corrections Office within two working days from the commencement of the order. That is within two working days from today.
3. You must report to and receive visits from a Community Corrections Officer.
4. You must notify the Community Corrections Centre of any change in your address or job within two working days of such change.
5. You must not leave Victoria except with the permission of an officer at the Community Correction Centre while the order is in force.
6. You must obey all lawful instructions and directions of Community Corrections Officers.
90 In your case, I propose adding further special or program conditions. They are as follows.
1. That you perform 100 hours of unpaid community work during the next one year.
2. That you be under the supervision of a Community Correction Officer during the period that the order is in force.
3. That you attend for educational or other programs as directed by the regional manager for 12 months.
4. That you undergo assessment and treatment for alcohol or drug addiction, or submit to medical, psychological or psychiatric assessment and treatment, as is directed.
5. That you submit to testing for alcohol or drug use, as directed.
6. That you undergo assessment for programs to reduce re-offending and participate in such programs as directed by the Community Corrections Officer.
91 Do you understand the terms and conditions?
92 PRISONER: Yes.
93 HER HONOUR: All right. Now the only remaining matter relates to whether or not a conviction should be recorded. I have not heard any submissions as to whether or not the order should be with or without conviction. Mr Sullivan?
94 MR SULLIVAN: Your Honour, I submit that it ought be without conviction, based on penalties imposed on the co-offenders. The Crown has conceded that my client's involvement was of the same level as the four persons who were found guilty and sentenced in the Children's Court. They were dealt with without conviction, and I would urge Your Honour that having regard to the factors in the Sentencing Act regarding his future prospects of employment and so on, that to avoid a conviction on this occasion would be important in regard to those matters. I think it is s.6, Your Honour. I do not have - - -
95 HER HONOUR: Section 8.
96 MR SULLIVAN: Section 8, sorry.
97 HER HONOUR: But he already has two prior convictions for violence, and he was fined. It does not say whether that was with or without conviction.
98 MR SULLIVAN: No. It does not say on the (indistinct) that I have seen.
99 HER HONOUR: Can I have the further presentment please? I think it just says fined. It just says "Was sentenced to pay a fine of $500 on each charge." I do not know whether I should assume because it was a fine and it does not say "Without conviction" that it was a conviction. I do not know whether I am entitled to make that assumption. Perhaps I need to call on the Crown for further particulars.
100 Mr O'Doherty, first, can you help me with whether or not the fines for his prior convictions only two months before this were, in fact, fines with or without conviction?
101 MR O'DOHERTY: I cannot answer that question, Your Honour. Were they matters dealt with in the Children's Court?
102 HER HONOUR: No. They were in the Magistrate's Court at Orbost. Adult court fines.
103 MR O'DOHERTY: We will be able to find that out for you, Your Honour, from here in a minute.
104 HER HONOUR: Thank you, very much. Then perhaps I should defer the question of whether or not there was a conviction on that occasion, or just a moment - - -
105 MR SULLIVAN: The only other matter I would indicate, Your Honour, if I could ask Your Honour to consider that one of the other co-accused did have a prior conviction too, and was given a without conviction penalty in the Children's Court.
106 HER HONOUR: Only Baxter had a prior matter for what was described a behavioural matter.
107 MR SULLIVAN: I understand that.
108 MR O'DOHERTY: They were with conviction, Your Honour, both of them.
109 HER HONOUR: With conviction?
110 MR O'DOHERTY: Yes.
111 HER HONOUR: Thank you. Mr Sullivan, do you accept the record that, in fact, those prior matters were with conviction?
112 MR SULLIVAN: If I have indication from the other end of the Bar table is to that effect, then I am not in a position to say other than that that must be correct, Your Honour.
113 HER HONOUR: Thank you, very much, Mr Sullivan. Mr O'Doherty, have you anything to say on the question of conviction or non conviction?
114 MR O'DOHERTY: In light of the fact that there are prior convictions, Your Honour, we would submit that there ought to be a conviction in this case, Your Honour.
115 HER HONOUR: All right. Anything you wish to say in reply?
116 MR SULLIVAN: No, Your Honour.
117 HER HONOUR: I have been asked not to record a conviction in this case. Among the matters I must consider in the exercise of my discretion on this subject are, the nature of the offence, your character and past history, the impact of the recording of a conviction on your economic or social wellbeing or on your employment prospects.
118 I take into account that your co-offenders did not have prior - sorry, did not have convictions recorded, and that Baxter had a prior matter, for what was described as a behavioural matter, although the other co-offenders had no prior convictions.
119 You already have two prior convictions and these were recorded only two months before you participated in these offences, and those prior convictions relate to violence. I therefore consider it is appropriate to record a conviction.
120 My proposal is then to record a conviction and release you on a Community-based Order containing all of the conditions that I have mentioned.
121 I am obliged by law to warn you, and you must understand that if you breach such an order, you should expect to be brought back to court and be dealt with in respect of that breach. That means you will be brought back in front of me.
122 It may be that you would be sent to prison as a result. In the circumstances, I ask you again, do you consent to the making of the order, including all of those terms and conditions?
123 PRISONER: Yes.
124 HER HONOUR: All right. Very well. The order can be prepared in the terms that I have indicated. By virtue of s.6AAA of the Sentencing Act, a recent enactment, I am required to state the sentence and non parole period, if any, that would have been imposed in respect of the offences, but for the plea of guilty.
125 Pursuant to s.6AAA and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea, the sentences I would have imposed are as follows.
126 On Count 1, affray, you would have been convicted and sentenced to six months' imprisonment.
127 On Count 3, recklessly cause serious injury, you would have been convicted and sentenced to 12 months imprisonment.
128 On Count 5, recklessly cause injury, you would have been convicted and sentenced to nine months imprisonment.
129 On the question of cumulation I would have directed that two months of each of the sentences imposed on Counts 1 and 5, both inclusive, be served cumulatively with the sentence imposed on Count 3, the base count, and with each other.
130 The total effective sentence would therefore have been 16 months imprisonment.
131 I would have directed that you serve a minimum of six months' imprisonment before becoming eligible for parole.
132 I direct pursuant to s.6AAA that the sentences that would have been imposed, but for the plea of guilty be noted in the court's records.
LEROY HAYES
133 I now turn to the plea in mitigation made on your behalf, Leroy Hayes. Your counsel, Mr Ewert, conceded the gravity of your offending and that the only appropriate disposition for the violent offences is the imposition of a term of imprisonment. Nevertheless, he submitted that it would be appropriate to permit you to serve any such terms by way of intensive correction in the community.
134 The factors he relied upon in mitigation of penalty are:
1. Your personal circumstances, history and background.
2. You pleaded guilty.
3. You are remorseful for your conduct.
4. Your youth.
5. Your prospects for rehabilitation.
6. Delay.
7. Principles of parity.
1. Personal circumstances, history and background.
135 Your personal history as set out in the report of David Bruce, forensic psychologist, dated 12 August 2008, Exhibit LH2. You were raised by your mother and step-father in Lakes Entrance. You have never met your father. It appears you had a happy and stable home life, although your mother and step-father were heavy drinkers.
136 You commenced, but did not complete Year 10. After leaving school you started working on a farm, and thereafter, did a variety of labouring jobs.
137 You now live in Yarragon and have a responsible, full-time job on a large dairy farm.
138 You have admitted to five prior non conviction matters from three court appearances between 10 October 2002 and 13 July 2006.
139 Significantly, you have previously been released on a good behaviour bond for two charges of causing injury, recklessly, Children's Court,10 October 2002. And also a bond for a charge of theft, Children's Court, 13 July 2006.
2. Guilty plea.
140 At committal, this matter proceeded by way of straight hand up brief, and you reserved your plea. It is accepted by the Crown that you indicated your intention to plead guilty at the first opportunity.
141 I accept that you have never really sought to test or challenge the Crown case. No witness has ever been required to give evidence against you. Importantly, the victims have been spared the ordeal of giving evidence.
142 When interviewed by police you made comprehensive admissions, although you did try to minimise your role. However, you have always accepted that you committed the physical acts, the subject of the charges.
143 I am satisfied, in all the circumstances, that you indicated your intention to plead guilty to these charges at the first reasonable opportunity.
144 In determining the weight to be given to your plea of guilty, I take into account the following factors; the timing of your plea. You are entitled to a statutory discount because of your plea. I accept that your plea is indicative of your true remorse. You have avoided the cost and inconvenience of a trial. You have spared witnesses the inconvenience, embarrassment and ordeal of giving evidence, both at committal and at trial.
145 I have already referred to the distress that Ms Herrera expressed at the prospect of giving evidence.
146 Your plea is consistent with your co-operation with the police, evidenced in the record of interview. There is (indistinct) social utility involved in your guilty plea, and by taking this course I accept that you have facilitated the course of justice.
147 3.Remorse.
148 I accept that you are remorseful for your conduct. In this regard, I accept the opinion expressed by Mr Bruce that although you had little recall of the incident, you did express remorse about your part in it.
149 You also expressed shame to Mr Bruce, but having a prior conviction for violent offending, the addition to the current offences, creates a most unflattering record for you. See p. 2, Exhibit LH2.
4.Youth
150 You are aged 20, and you too are considered at law to be a young offender. As such, principles of rehabilitation are a dominant, if not, primary objective of sentencing.
151 I will not repeat the remarks I made when sentencing Donald Ritchie.
5. Prospects for rehabilitation.
152 I am satisfied that your prospects for rehabilitation are good. I accept that you were adversely affected by alcohol when you committed these crimes, and that since then you have taken very positive steps towards overcoming what is clearly a drinking problem.
153 I accept the evidence set out in the report of Wayne Atkinson, counsellor of La Trobe Community Health, dated 20 August 2008, Exhibit LH1.
154 That report indicates that you now recognise that for you, alcohol use is associated with risk taking behaviours, diminished insight, and consequences that are incompatible with the life you want to lead.
155 You have significantly reduced your alcohol consumption, have disassociated yourself from your former peers and have steady full-time employment. You have made significant progress and both Mr Atkinson and Mr Bruce recommend that you be given a disposition that contains a supervisory element.
6. Delay.
156 As your counsel has pointed out, and it is not disputed by the Crown, there has been some delay between the commission of the offences and the charges being brought against you - between the commission of the offences and the hearing.
157 None of the delay is attributable to you. Not only have you had the stress of these proceedings hanging over your head in the time since your arrest, but in that time you have wisely taken steps towards your rehabilitation.
158 In R v Micei (1997) 94 ACR 327 at p. 330, Tadgell JA stated,
" There is no doubt that proper sentencing principles dictate that undue delay in the disposition of a charge should work in favour of a prisoner being sentenced. The remarks of Sir Laurence Street in R v Todd (1982) 2 NSWLR 517 at p.519 and p.520 have not infrequently been adopted by this court upon the point. Again, the remarks to a similar effect of the Court of Criminal Appeal in R v Kane [1974] VR 759, at 767 have not infrequently been applied. Most particularly is the matter of delay between the commission of offence and the imposition of a sentence for it to be taken into account when rehabilitation is a real prospect; and it is no less so when the person to be dealt with has been at large and has ordered his affairs during the period of the delay with a view to reorganizing his life.”
159 In R v Carmody [2006] VSCA 139, at [16] and [17], particularly at [16], Chernov JA said,
"The courts have recognised that such delay which, as here, cannot be attributed to the offender, constitutes a powerful mitigating factor at a number of levels … First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her."
160 In addition to the positive steps that you have taken towards your rehabilitation, you have demonstrated a capacity to stay out of further trouble. I accept you have been of good behaviour in the period of delay, and that you are entitled to have this fact taken into account.
161 In my view, this fact further supports the finding that your prospects of rehabilitation are good.
7. Principles of parity.
162 I have already referred to this topic when dealing with Donald Ritchie. I do note that you face a much more serious charge than any of your co-offenders. That is obviously the intentionally causing serious injury.
163 But you are the only one who indicated an intention to plead guilty at the first opportunity.
164 I also note that both you and Donald Ritchie have been charged with affray and recklessly cause injury, and that although you are equally culpable of those offences, your respective counsel have sought different dispositions. This is no doubt because of the differing personal circumstances and the totality of offending.
165 Also your counsel has wisely sought a disposition that properly seeks to achieve a balance between principles of general and specific deterrence, denunciation, condemnation, just punishment and protection of the community, on the one hand, and factors personal to you, including your prospects of rehabilitation on the other.
Disposition sought.
166 In all the circumstances your counsel submits this is an appropriate case to permit you to serve any term of imprisonment by way of intensive correction order in the community.
The Crown's attitude to penalty.
167 Mr O'Doherty submitted that the only appropriate penalty in relation to the intentionally cause serious injury charge is an immediate term of imprisonment.
168 In sentencing you, I must consider many things; general and specific deterrence, denunciation, just punishment and the community's safety.
169 However, the opportunity to rehabilitate a young offender may outweigh these considerations. Your rehabilitation will afford a community protection.
Sentences to be imposed.
170 On Counts 1, 2 and 3, your counsel properly concedes that gaol is the only appropriate disposition. On those counts I have no alternative, but to impose terms of imprisonment.
171 On Count 1, affray, you are convicted and sentenced to four months imprisonment.
172 On Count 2, intentionally causing serious injury, you are convicted and sentenced to ten months' imprisonment.
173 On Count 3, recklessly cause injury, you are convicted and sentenced to six months imprisonment.
174 I think it is appropriate to order some cumulation and your counsel concedes this is proper. I therefore direct that one month of each of the sentences imposed on Counts 1 and 3 be served cumulatively with the sentence imposed on Count 2, the base count, and with each other.
175 That results in a total effective sentence of 12 months' imprisonment.
176 As I said your counsel urged that this term of imprisonment be served by way of intensive correction in the community. As you know I have sought and received a pre-sentence report in this matter and the report indicates that you are considered a suitable candidate for an Intensive Correction Order.
177 I am only able to make such an order, which I do propose to make, 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 that I propose.
178 The length of the order will be 12 months. Every Intensive Correction Order including the one I propose in this case contains certain core conditions. They are:
1. You must not commit another offence, punishable by imprisonment during the period of the order.
2. You must report to the relevant Community Correction Centre. I think it is Bairnsdale.
179 Is that right, Mrs Shamray?
180 ASSOCIATE: Yes, it is, Your Honour.
181 HER HONOUR: Thank you. That is the Bairnsdale Community Corrections Centre within two working days from the commencement of the order. That is two working days from now.
3. You must report to or receive visits from a Community Corrections Officer at least twice during each week that the order is enforced.
4. You must attend as directed for 12 hours per week during the period of the order to perform unpaid community work for at least eight of those hours, and also undergo such counselling or treatment for your psychological, psychiatric, drug, alcohol problem as is directed.
5. You must notify the Community Correction Centre of any change in your address or job within two working days of any such change.
6. You must not leave Victoria except with the permission of an officer at the Community Correction Centre while the order is in force.
7. You must obey all lawful instructions and directions of Community Corrections Officers.
182 You must realise that if you breach the order you should expect to be brought back to the court. That is, you will be brought back in front of me, and you will be dealt with for the breach.
183 You should expect to be imprisoned, perhaps be fined, and perhaps other sorts of orders would be made if that occurs.
184 My proposal is to record a conviction and order that you serve a term of imprisonment by way of Intensive Correction Order, the details of which I have just explained to you.
185 First, do you understand the order?
186 PRISONER: Yes (indistinct).
187 HER HONOUR: All right. Do you consent? Do you agree to the making of the order?
188 PRISONER: Yes.
189 HER HONOUR: On Count 4, the count of theft, I do have an alternative to imprisonment. You are convicted and fined $750. Is time needed to pay the fine?
190 COUNSEL: I seek a stay of a month, Your Honour.
191 HER HONOUR: One month. Very well. One month stay on payment of the fine.
192 By virtue of the recent enactment of s.6AAA of the Sentencing Act I am required to state the sentence and non parole period, if any, that would have been imposed in respect of the offences, but for the plea of guilty. Therefore, pursuant to s.6AAA and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea, the sentences I would have imposed are as follows.
193 On Count 1, affray, you would have been convicted and sentenced to six months imprisonment.
194 On Count 2, intentionally causing serious injury, you would have been convicted and sentenced to 15 months imprisonment.
195 On Count 3, recklessly cause injury, you would have been convicted and sentenced to nine months imprisonment.
196 On Count 4, the theft charge, you would have been fined and so no s.6AAA statement is necessary.
197 On the question of cumulation, I would have directed that two months of each of the sentences imposed on Counts 1 and 3 be served cumulatively with the sentence imposed on Count 2, the base count, and with each other.
198 The total effective sentence would therefore have been 19 months imprisonment.
199 I would have directed that you serve a minimum of nine months imprisonment before becoming eligible for parole.
200 I direct, pursuant to s.6AAA that the sentences that would have been imposed, but for the plea of guilty, be noted in the court's records.
Ancillary orders.
201 In your case, the Crown seeks a s.464ZF order for the taking of a forensic sample.
202 I will deal with that before we deal with the necessary paperwork for each of the other orders.
203 COUNSEL: Thank you, Your Honour.
204 HER HONOUR: Thank you.
205 You have consented to the making of such an order. I consider it is appropriate to make such an order. I propose that the order will be a saliva sample and not a - it will be a saliva sample and in the event that there is no consent to that, then a blood sample can be taken.
206 Pursuant to s.464ZF(2) of the Crimes Act 1958 I order that you, Leroy Troy Hayes, undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with subdivision 30A of part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database.
207 I further order that for the purposes of undergoing the said procedure, that you report to the officer in charge of the Bairnsdale Police Station at 155 Nicholson Street Bairnsdale during the period of four weeks, commencing 14 days after the day of sentence, or once any instituted conviction for the forensic sample offence is upheld, whichever is the later.
208 Having considered the seriousness of the circumstances of the forensic sample offence, I am satisfied that in all the circumstances the making of the order is justified for the following reasons.
209 The seriousness of the circumstances of the offending warrant the order. The prior convictions of the respondent are such as to warrant the making of the order. The order is by consent and the granting of the order is in the public interest.
210 Leroy Troy Hayes, I must inform you if at the time of request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample. I also inform you that police may use reasonable force to enable the forensic procedure to be conducted. Do you understand?
211 PRISONER: (Indistinct).
212 HER HONOUR: Is there any reason why these gentlemen cannot step out of the dock and ready to sign the necessary paperwork?
213 COUNSEL: No, Your Honour.
214 HER HONOUR: Thank you. Are there any other matters in relation to this case?
215 COUNSEL: No, Your Honour.
216 COUNSEL: No, Your Honour.
217
HER HONOUR: I would like to take this opportunity to thank the prosecution team first for a very smooth running of a circuit.
Mr O'Doherty, I thank you very much for all the assistance that you have given to me, but also to all the accused, appellants and all parties who have appeared in court, you have acted with great honour and dignity, and I think have enabled the proper administration of justice to flow.
218 In this regard I know you have been very ably assisted by Mr Cecil and Mr Paton. So I thank you very much for your assistance.
219 COUNSEL: Thank you, Your Honour for those kind words and we extend our gratitude and thanks to Your Honour for the way in which the circuit has been conducted. It cannot run smoothly unless we have all parties co-operating and I thank my colleagues, as well, Your Honour, for their assistance in the conduct of the circuit. But may I make special mention to your staff, Ms Shamray and Mr Long. They have both helped us immensely, not only from the prosecution's point of view, but I know from the to-ing and fro-ing that has been going on amongst the practitioners here, appearing each day, that they have also been of great assistance to the defence lawyers and indeed, from time to time, the defendants and other witnesses as we have come here. We are very much indebted to them, Your Honour. Thank you.
220 HER HONOUR: Thank you. I also wish to thank the local practitioners and I hope, Mr Sullivan, you will be able to pass on my gratitude. Again, circuit can only flow effectively if there is co-operation from all quarters. It cannot be under estimated that the local practitioners have co-operated completely in their response to the registrar, to my staff, to the prosecutor and, of course, to me, and to counsel that you have all briefed.
221 We have gotten through every thing in the list, and we have even helped out other courts, and that can only have happened with the co-operation of everybody. So I thank you, Mr Sullivan, if you would pass on those remarks to your colleagues.
222 MR SULLIVAN: On behalf of the profession I would like to thank Your Honour and staff for the way the circuit has been conducted, and for the dignity that people have been treated with who have come into your court, ma'am. I pass on my thanks for that on behalf of the accused people who were amongst the most important people who come here, and thank both you and your staff for the way that has been carried out.
223 HER HONOUR: Thank you, very much. I also wish to pay special thanks to my staff who have put in enormously long hours. It is probably not appreciated that they are here well before court starts and well after it finishes, and often that is for the convenience of counsel and the practitioners. So I thank them. And I also thank registry staff who have also co-operated enormously and made the circuit run very well.
224 There have been no other business for this circuit?
225 COUNSEL: No further business, Your Honour.
226 HER HONOUR: I will see you all in April.
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