R v Roberts
[2006] VSC 236
•5 July 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1564 of 2005
| THE QUEEN |
| v |
| THOMAS ROBERTS |
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JUDGE: | EAMES JA | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 19-23, 26-29 June 2006 | |
DATE OF SENTENCE: | 5 July 2006 | |
CASE MAY BE CITED AS: | R v Thomas Roberts | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 236 | |
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CRIMINAL LAW – Sentence – Causing injury recklessly – Minor injury – Sentence three months’ imprisonment wholly suspended for 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Jones | Mr S. Carisbrooke Solicitor for Public Prosecutions |
| For the Accused | Mr S. Gardner | Galbally & O’Bryan |
HIS HONOUR:
Thomas Roberts, you have been found guilty by verdict of a jury of causing injury recklessly, an offence which carries a maximum sentence of imprisonment of five years. The offence occurred at Rosebud on 5 December 2004 when you assaulted Joshua Di Pietro in the early hours of the morning at a service station. You had spent the evening in the company of two young friends one of whom, Matthew Graham, was then aged 16 years. Graham looked up to you as a big brother who looked after his interests. At the time of this offence you were aged 23 years. Di Pietro came to the service station with two friends to purchase food, as had you. An argument developed between Di Pietro and Graham because some 12 months earlier Graham had been assaulted by Di Pietro in a fight, from which he received a bloodied nose. It is clear from the evidence which the jury heard, and I have no doubt accepted, that Graham set about baiting Di Pietro and was in large measure the instigator of the fight which subsequently arose. Having taunted Di Pietro about the previous fight, Di Pietro indicated his willingness to fight Graham again, when Di Pietro walked to the place where you had been sitting minding your own business at which point you intervened. The jury accepted, however, that your intervention was not for the purpose of defending Matthew Graham but that you took the role of aggressor and it is clear on the evidence that you threw the first punch to the face of Di Pietro, who reeled backwards, whereupon you followed him and wrestled him to the ground. This offence is constituted by the single punch thrown by you, which caused a cut lip which bled. It was an injury of very little significance and required no further treatment.
Following that incident you departed from the service station with Graham and your other friend Narracott but were then followed by Di Pietro and one of his friends and it is plain that Di Pietro was angry and was determined to go on with the fight with you. He ignored entreaties by his friend that he cool down and forget about it. Instead he followed you on foot over a considerable distance of more than a kilometre until inevitably a very serious fight arose in which Di Pietro was stabbed by you using a Stanley knife which Narracott carried in his fishing bag that he had with him. At the time he was stabbed a number of people who could be regarded as being in Di Pietro’s camp had arrived in a motor vehicle and the whole situation had escalated to such an alarming extent that it caused fear amongst neighbours in the suburban streets who heard the sounds of violent confrontation. One of those neighbours said the people in the car had weapons like sticks. You have been acquitted of all charges arising out of that second incident but the fact that it arose serves as a good indicator of why minor altercations have the capacity to grow into major offences and why reasonable people should not engage in physical confrontation at all.
You have admitted prior convictions which are significant, but which on close examination are not in each instance particularly serious examples of the offence. On 27 February 2002 at Portland Magistrates’ Court you were released on a community based order for 12 months with respect to offences of theft, destruction of property and a series of street offences. On 27 March 2002 at Portland you were fined on an offence of being on premises without lawful excuse and on 26 June 2002 at Portland you were fined on a count of theft. More importantly, at Moonee Ponds Magistrates’ Court on 17 July 2002 you were convicted of causing injury recklessly, an offence which arose when you became involved in a street fight and kneed your victim in the groin. You were sentenced to pay a fine, without conviction, of $500. On 15 January 2003 you were sentenced to one month’s imprisonment wholly suspended for a period of 12 months for an offence of causing injury intentionally. On that occasion you had been in the company of Matthew Graham, yet again, and Graham had become involved in a fight in which you intervened and punched another person. The similarity of that to the offence with which you have just been convicted is quite stark. You were not dealt with for breaching that suspended sentence although I note that you were dealt with for failing to comply with a Community Based Order, no doubt by virtue of the convictions that arose subsequently on 8 October 2003. You were fined $250 for breach of the Community Based Order.
The fact that you have been given non-custodial orders on past occasions is an important factor in consideration of the appropriate sentence in this case.
On the face of it, those prior convictions would well justify an immediate sentence of imprisonment notwithstanding the low level of violence that was involved in this offence and in those prior offences. There are, however, a number of factors which are pleaded in mitigation of sentence.
Your mother gave evidence before me and I found her to be an impressive witness, patently genuine and a very reliable reporter of events. Your mother and father, together with your sister, attended every day of your trial. Your mother said that from childhood it was apparent that you had trouble concentrating and had difficulty in learning. At school you could not cope and they referred you to a psychiatrist who in turn referred you to a child psychiatrist at the age of 12 where you were put on the drug Ritalin. You found that drug oppressive because it made you slow and depressed and you put on a lot of weight. You remained at school until aged 14 but then left and obtained work. You were subsequently diagnosed to suffer attention deficit hyperactivity disorder. Your mother said that over the years it was apparent that you could never remember things and that you became extremely hyperactive if you had sugar or preservatives, including soft drinks and junk food. The events of this night occurred after you had drunk 10 cans of bourbon and coke, the latter probably being as big a factor in your conduct as the alcohol component.
You had been a very good worker over the years. You obtained employment in Portland but your employer, who was a builder and who had employed you since 2001, took his own life in 2004. That event had a great impact on you, not only by virtue of the fact that your employment came to an end, but also emotionally. You were in a relationship with a young woman and the two of you returned to Melbourne and lived with your parents in Doveton. Your partner brought the relationship to an end some two weeks before this offence occurred. Your mother said, and I accept, that you were extremely depressed by that event. You travelled to Rosebud to visit Matthew Graham who was a friend that you had known since Portland.
The death of your employer together with the loss of employment produced significant depression on your part. A report from Dr Ronald Korman tendered on your behalf records that you had consulted with him since September 2004 seeking assistance with respect to a buprenorphine opioid replacement program. You had been addicted to serapax and valium but Dr Korman reported that when you first saw him you had abstained from illicit opioids for some four months. Thereafter for another eight months you maintained the program, but Dr Korman reported that you suffered a range of health problems including hepatitis C, marked anxiety, insomnia, diarrhoea and vomiting, depression, migraine, recurrent pharyngitis and you were also suffering a work-related injury. You were treated with an antidepressant drug, which Dr Korman reported produced a marked improvement in your depressive symptoms. He considered that you were very stable with respect to the buprenorphine program and he considered your prognosis was good with respect to your anxiety-related conditions and substance issues. He reported that your major anxiety was this court case. He said that you showed strong motivation and were in a position to come off the antidepressant medication once the court case was resolved.
As I have said, your employment history was a good one and at the time of this offence you had been in employment for some 12 months with a firm at Seaford. You were dismissed from your job in about March or April of 2005 after your employer learned that you were facing trial for serious violent offences on all but one count for which you have now been acquitted. Since losing that job you have had only casual work, but it is to your credit that you have tried hard to obtain work and taken it whenever the employment office has been able to provide it. You have available work in Western Australia where a friend of the family, a person of mature years, can provide employment for you in the mining industry. This is a job that you are very keen to take and your parents are also anxious that you do so.
Your prior convictions troubled me but I have come to the conclusion that having regard to the low level violence and to the circumstances in which the offence occurred upon which you have been convicted, it is not inappropriate to give you one further chance. You are very fortunate to have an extremely supportive family. Your parents are decent people and you have caused them a lot of pain. I hope you take the opportunity I am giving you, not only for your own sake, but for theirs too.
You will be sentenced to three months’ imprisonment with the whole of that sentence to be suspended for a period of 12 months. The purpose behind that order, is that I am giving you an opportunity to avoid imprisonment and I encourage you to to seize the opportunity by avoiding coming before the Court again. Whilst it is an opportunity that you should grasp, there is a sting in it, in that if you fail to grasp this opportunity and you are convicted anywhere, that is, whether inside Victoria or outside Victoria, of any offence which carries a term of imprisonment as a punishment, even if you are not in fact sentenced to imprisonment, during the operational period of this sentence, then it is probable that you will be ordered to serve the whole of the suspended sentence of imprisonment. There are many very minor offences that carry a sentence of imprisonment as a possible penalty. It is important for you to appreciate this order applies to offences which are committed outside Victoria. If, as seems likely, you will travel to Western Australia for employment, do not think that you are outside the grasp of this Court.
I make an order that pursuant to s.464ZFB(1) of the Crimes Act 1958, the forensic sample and related material previously obtained pursuant to your informed consent be retained. This order is made by virtue of the relevance of your prior convictions and as being justified in the public interest. It is also made on the basis that you consent to the order.
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