R v Warren and Warren
[2013] VCC 741
•5 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT WODONGA
CRIMINAL DIVISION
CR-12-02304
CR-12-02303
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| JAMES IAN WARREN and BROCK MATTHEW WARREN |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Wodonga and Melbourne | |
DATE OF HEARING: | 29 May and 3 June 2013 | |
DATE OF SENTENCE: | 5 June 2013 | |
CASE MAY BE CITED AS: | R v Warren and Warren | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 741 | |
REASONS FOR SENTENCE
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Subject: Recklessly causing serious injury and affray
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: Aggregate sentence of 16 months with 6 months non-parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Pirrie | |
| For Accused James Warren For Accused Brock Warren | Ms D. Price Mr J. Kantor |
HIS HONOUR:
1 James Ian Warren and Brock Matthew Warren you have each pleaded guilty to one charge of recklessly causing serious injury and one charge of affray.
2 It was submitted on behalf of each of you individually that imprisonment was not required and that I should release each of you on Community Corrections Orders. It is my view that imprisonment is the appropriate penalty in each of your cases.
3 The prosecutor, Mr Pirrie, opened the circumstances of the offending and a copy of the written ‘Summary of Prosecution Opening’ was tendered. This was an agreed statement of facts on which I was asked to sentence each of you.
4 I will not repeat the details but will have an electronic version of the Summary attached to these reasons for sentence. You are brothers and engaged in an attack on two victims. Benjamin Prendergast and Luke Wooten, outside a house in Wodonga at which a party had been held on the evening of Saturday night, 17 September 2011. The fight seems to have occurred after Prendergast’s girlfriend complained about you, James Warren, being rude to her at the party. Prendergast, who had left the party temporarily, was in a bad mood when he left and became angry and upset when his girlfriend called him to complain and his conduct caused you, Brock Warren, to ask if he had any problem and yell at him when he passed you in the street on his way back to the party.
5 The gravamen of the allegations against you, James Warren, concerns an assault on Benjamin Prendergast. You punched him to the head, more than once, knocking him to the ground where you both wrestled and you bit his ear. He was knocked unconscious during which time you kicked him in the face.
6 The gravamen of the allegations against you, Brock Warren, concerns striking Luke Wooten to the back of the head when he attempted to break up the fight between your brother and Prendergast. He lost consciousness briefly. He then stood up and you struck him to the back of the head with a metal object. He again lost consciousness.
7 Lisa Dalton, the girlfriend of Prendergast referred to earlier, intervened to protect the head of her unconscious boyfriend. She was bitten on the cheek at one stage. Her 12-year-old son was present during the fight.
8 Both victims attended hospital. Wooten had two lacerations to the head measuring 8cm and 6cm requiring a total 14 staples. Prendergast, who suffered trauma and swelling to the head, a facial hematoma graphically depicted in photographs, a bite wound to the ear and brain haemorrhaging, was flown to Melbourne where he remained at St Vincent’s Hospital for about 5 days.
9 MS PRICE: Your Honour, one small point. As I understand it the boy, Jaelyn, arrived at the conclusion of the affray and then - - -
10 HIS HONOUR: So he is present when the affray was taking place but only at the end of it or do you say it was after it was complete?
11 MS PRICE: Yes and then he went to the aid of Ben Prendergast who was at that time lying unconscious on the ground.
12 HIS HONOUR: Yes, very well.
13 No victim impact statements were tendered.
14 I must say, I have assumed from all of that, Mr Pirrie, I should make clear I think that it is not being suggested here that there was some significant residual injury suffered by either of the victims. There is no evidence - - -
15 MR PIRRIE: There's no evidence of it, Your Honour.
16 HIS HONOUR: Very well, thank you.
17 MR PIRRIE: Residual injury, yes.
18 HIS HONOUR: That is right. The injuries obviously were very substantial - - -
19 MR PIRRIE: Yes. No I just didn’t quite hear Your Honour - - -
20 HIS HONOUR: - - - in particular to Mr Prendergast. Normally there would be victim impact statements where one can make an assessment of any residual injuries but in this case sometimes people recover completely. In this case there is simply no evidence.
21 MR PIRRIE: There is reference in his statement to - what he suffered but beyond that there's no evidence.
22 HIS HONOUR: What I am focusing on is the - - -
23 MR PIRRIE: There's no evidence of any long term situation.
24 HIS HONOUR: Yes, very well, thank you.
25 Brock Warren, you denied any involvement in the incident when police interviewed you later the next day, Sunday.
26 James Warren, you voluntarily attended the police station on 21 September. You made limited admissions. Your counsel submitted that you were doing your best with your limited recollection of what occurred due to your intoxication.
27 Each of you consented to me making orders for the retention of forensic samples. I will make the orders. My reasons will appear in the written Orders.
28 Ms Price appeared for you, James Warren. She said that the offending occurred at the lowest ebb of your life. However, she emphasised your rehabilitative progress subsequently.
29 You have just turned 30. She described your difficult upbringing. Your parents separated when you were 5 and you suffered neglect and exposure to drug abuse whilst in the ‘care’ of your mother, living in various areas in Victoria. At times you had to care for your brother Brock who is about 3 ½ years younger than you. You did your best to help at home despite feeling that your brother was the favourite. Your mother physically abused you.
30 When aged 11 your mother’s health declined and so you went to live with your father and his partner and your half sister in Echuca. You returned to your mother for about 6 months. At this time she was living in North Eastern Victoria having moved there from Gippsland. You stopped going to school.
31 Your father assisted you to obtain an apprenticeship and you became a qualified butcher and small goods manufacturer. You worked in your father’s butcher’s shop and were well regarded.
32 You worked hard and saved money and by the age of 18 you were able to put a deposit on your own home near Echuca. The qualification as a small goods manufacturer is a specialist qualification, requiring specialist schooling and training. You formed a relationship with your current partner with whom you have now been together for about 11 ½ years. She is 9 years older than you and has 4 children from a previous relationship. You have two additional children together now aged 9 and 3 ½.
33 Your counsel outlined your commendable work history leading up to the early part of 2011 when you moved to Wodonga.
34 However, your circumstances declined in 2009. The first blow you suffered was your partner’s ill health. In 2009 she suffered a second heart attack and was hospitalised for a month requiring the insertion of a stent. In 2010 she was involved in a car accident. It was a single car drink/drive crash and she suffered neck injuries. The Department of Human Services removed your two children whilst you and your partner were living in Melbourne and the children were placed with your mother, where they remained for 6 months. The core of your and your partner’s problems was drugs and alcohol and you were told the children would not be returned until these issues were addressed. You and your partner decided to live separately. Your partner lived in Wodonga to be near the children and you lived in Leitchville, in northern Victoria.
35 MS PRICE: One small matter, Your Honour. They didn’t live in Melbourne; she was hospitalised in Melbourne.
36 HIS HONOUR: Very well, thank you.
37 You undertook drug and alcohol courses as well as anger management courses for about 6 months in 2010. You then joined your partner in Wodonga and the children were returned. Unfortunately, after returning to Wodonga you relapsed into cannabis use.
38 As at February 2011 you were living in Wodonga as was your partner, your mother and your brother. However, having no employment you were unable to meet the mortgage payments on your Leitchville home and the bank foreclosed in August 2011.
39 Accordingly, you were at your lowest ebb and it was in this setting that you committed the current offences.
40 You have a criminal history. Much of it reflects drug abuse. You have spent a little short of a month in prison for failing to pay fines but otherwise have not been sentenced to immediate imprisonment. You have received short wholly suspended sentences of imprisonment in 2001 and 2005. It is significant that you have no prior history for violence.
41 Your circumstances remained bleak until about February/March 2012 when you recognised the need to re-establish yourself. You moved to Queensland to be with your father who had moved there in 2006. You were able to get employment and are now regarded as an outstanding employee. You were able to fund your partner to join you along with your two joint children and one of her children. Of the remaining three, one is with the child’s father and the other two are adult. You have established a small circle of friends in Queensland. You do not use alcohol to excess. You are drug free and have not been in any trouble with police in Queensland. Your father has a mechanics shop in Queensland and you have been assisting him in the hope that you can obtain experience and qualifications as a mechanic. You have also been pursuing qualifications in the construction industry.
42 A body of character material was tendered. It attests to the high regard in which you are held as well as confirming your remorse and victim empathy.
43 Your current employer wrote that you were an outstanding and valued employee as well as noting your remorse and the out of character nature of the current offending.
44 Your father confirmed a number of matters emphasised by your counsel and noted that you were deeply sorry for your offending. Your stepmother also wrote very well of you. She noted your past problems with drugs but confirmed your current stable rehabilitative progress and remorse. In short, both your father and stepmother are confident that you are currently heading very much in the right direction. One referee spoke of your role as a mentor for his son. It is clear that you must have many very admirable qualities. It is very much to your credit that you have been able to overcome adversity in your childhood, in your late 20’s and then to do so again more recently. I accept that you have made the best of your circumstances during the passage of time since the offending and that your current prospects are very good. It is difficult to understand why you engaged in such a violent attack as you did on your victim.
45 Your partner is still unwell. Limited finance made it impossible for her to come to Victoria for these proceedings to support you physically.
46 Imprisonment will be difficult. Visits would be limited at best given the family lives near Gladstone and of course you will have the additional worry of their welfare being separated by such a distance.
47 You must benefit from your pleas of guilty. Formal pleas were entered in December 2012 and you indicated your willingness to plead to the current charges in September 2012 but the offer was rejected. There were attempts to resolve the case earlier in the year also. Witnesses were not called at the committal. I accept that you wanted to avoid a contested trial, that your pleas of guilty reflect remorse and should be given considerable weight.
48 Your counsel submitted that it would be open to release you on a Community Corrections Order. She noted that such an option was intended to apply in cases where offenders were at real risk of imprisonment but had not yet reached the stage when immediate imprisonment was required. The introduction of Community Corrections Orders was expected to reduce the numbers of people actually imprisoned.
49 It was submitted that if necessary you would remain in Victoria, at least to complete any unpaid community work component of the order. Intensive compliance conditions was also an option, it was argued.
50 Plea submissions in Wodonga were adjourned part heard on Wednesday 29 May and resumed on Monday 3 June in Melbourne. Your counsel called your father to confirm that you are drug free and have been so since joining him in Queensland in April 2012. I accept the evidence given by your father.
51 Your counsel made submissions concerning the hardship your family will suffer on imprisonment. These submissions focused on your partner’s fragile mental and physical health. A letter from your partner was tendered. It outlined the impact on the family if you were not present to support them. I accept the submissions made by your counsel that your family will suffer exceptional hardship as a result of your imprisonment.
52 Your family would also suffer if you had to remain in Victoria to meet the obligations of a Community Corrections Order, however, the extent of the hardship would not be as great as imprisonment will produce.
53 Ms Price argued that the fact of exceptional hardship may justify a lesser penalty being imposed on you compared to your brother.
54 There is much in your favour. However, the offending is very serious. I accept that it was out of character and that it occurred when life was bleak for you. I also accept that you have made excellent progress since the offending and currently have a commendable, stable life in Queensland. You have many people who support you and think highly of you.
55 Despite the strong factors in mitigation as noted I consider only imprisonment is appropriate.
56 Mr Kantor appeared for you, Brock Warren.
57 You were supported in court by your mother, father, your partner and younger brother. You live with your mother and brother in Wodonga.
58 Your counsel emphasised your aboriginal heritage and the importance of it to you. Your mother is actively engaged in aboriginal community activities, culture and ceremony. She gave evidence that you are also very committed to these pursuits and dedicated to keeping your culture alive and assisting the next generation. Both you and your mother are traditional owners of land and your mother welcomes others to country. She said you are being trained to take over cultural responsibilities and that you “walk beside” her as part of this training.
59 You will be 27 in November this year and were about 6 months when your parents separated. If 6 months is accurate then your brother would have been slightly than I have been told. You have a large number of family members in locations close to the Murray River. Your early life was spent around Echuca and Cohuna with your mother and her parents but you continued to see your father regularly. When aged about 10 you moved to Wodonga with your mother. You spent time working with your father in his butcher shop but unlike your brother you did not go into the family business. You also did farm work with your father. You began an apprenticeship in 2003 in panel beating and spray painting. This took you to Lakes Entrance where you lived with grandparents, however you returned to live with your mother later that year and did not finish the apprenticeship.
60 You did begin a relationship whilst in Lakes Entrance which lasted for 7 ½ years.
61 After returning to Wodonga you readily found work and later, in 2004, began but did not complete a printing apprenticeship. You worked with Aboriginal organisations and other organisations to assist with the maintenance of significant Aboriginal sites. You began another apprenticeship in 2006 as a fitter and turner.
62 In mid-2007 your grandfather died and this affected you badly.
63 Your counsel emphasised the various jobs you had from mid-2006 until mid-2007 to support the submission that you have demonstrated an excellent application to work. I accept this. Additionally, you pursued further education. In 2007 you completed Year 10 with a view to joining the Army, however, your partner opposed this and you did not pursue this career. In 2009 you did entrance exams to enable you to do a bachelor of applied science in environment and recreation. You were offered a place at Charles Sturt University. The break down of your relationship and the return of your partner to Lakes Entrance meant you did not commence this course. You deferred the place and it is currently still open. You are concerned about whether the current charges might affect this opportunity as well as other employment prospects.
64 After the break up of your relationship you were depressed and did little before obtaining employment with Visy Board in November 2010.
65 You then planned to join your father in Queensland but changed your mind and decided to remain in Victoria, having formed a new relationship which you have maintained. As previously notes, this partner, who has a child almost 5, attended court to support you.
66 Having decided to stay, you again you were able to obtain work but inclement weather meant you had to seek casual work. Once again you thought of going to Queensland to join your father and brother, however, your brother returned to Victoria in April 2011. Both of you planned to return to Queensland around the time of the current offending and as a result you stayed in Wodonga. An additional reason for remaining was to support your mother whose health had declined in 2011.
67 You now want to obtain work in motor sports or undertake a mechanical apprenticeship.
68 Much of your time since the offending has been spent in the educational and cultural pursuits previously mentioned.
69 As noted above your mother gave evidence. A bundle of medical records were tendered. She has fragile health. In particular she has a degenerative condition of the spine. She suffers pain and may have to undergo surgery in the near future. She is clearly proud of your dedication to community responsibilities and your own pride in your heritage. She said you are a role model for your younger brother. No submission based on exceptional family hardship was made, however, your mother said you were a great help to her and that you provide each other with much support. Obviously, the sooner you can return to your family and continue the positive progress you have been making, the better.
70 Other evidence was called from Sharon Jenkins a family violence worker. She described you as a kind and caring person and was surprised that you would be involved in the current offending. She confirmed your commitment to Aboriginal culture, education and welfare and noted that you and your family have been traumatised by the current proceedings. Karen McMillan, an Aboriginal liaison officer with the Adult Mental Health Service, also confirmed that you and your mother are highly regarded by your community.
71 References from Matthew Burke OAM, the Chief Executive Officer of the Mungabareena Aboriginal Corporation and Joy Kelly, a local Koori Justice Worker with the same organisation were tendered. Ms Kelly found you to be polite, reliable and caring and thought the charges out of character. She confirmed your support for your mother including taking her to dialysis and other doctors appointments.
72 You have a prior criminal history including a conviction for intentionally causing injury. However, this was long ago when you were still under 18. However, once again it is difficult to understand why you acted as violently as you did on the night of the offending.
73 Like your brother you must benefit from your pleas of guilty. They have utilitarian benefits for the administration of justice and I accept that they also reflect remorse.
74 I accept that both you and your brother have very good rehabilitation prospects.
75 Over 20 months have passed since the offending. Whatever the explanation that is too long in my view. The pressure and stress on both of you has been very considerable. Your counsel said that your life, Brock Warren, had been virtually on hold.
76 You have both made the best of this time to ensure stability and the avoidance of trouble.
77 Nevertheless, as with your brother I consider that only immediate imprisonment is appropriate.
78 There was some discussion whether I should differentiate between the penalties imposed on each of you. There are differences however I consider that the same sentence should be imposed on each of you.
79 I am conscious of the need to avoid double punishment. I reminded myself of the comments in R v Ty; R v Tat [2004] VSCA 45 at paragraph 30 that whilst the distinguishing features of the two offences, in that case intentionally causing serious injury and affray, provide a warrant for some cumulation, it must be necessarily be limited and care must be taken to avoid double punishment.
80 I think it is appropriate to impose an aggregate sentence on each of you.
81 REVISION NOTE: I seem to have not read the following two paragraphs from my draft written reasons. This seems to be an oversight.
82 The prosecution submitted that only immediate imprisonment was open. Mr Pirrie advised that his sentencing instructions were that a sentence of between 12 and 18 months for the charge of recklessly causing serious injury should be imposed and that a sentence of about 6 months for the charge of affray should be imposed. Modest accumulation was appropriate. He made no submission concerning the non-parole period.
83 Mr Pirrie emphasised and summarised the serious nature of the offending each of you engaged in and the consequences for the victims.
84 As I noted in discussion, I have had real difficulty identifying precisely what sentence I should impose. The photographs of the victims are distressing to view and serve as a clear reminder of the serious consequences of your actions.
85 However, because I am uncertain precisely where within a small range the sentence should fall, and I am speaking of the range that I have identified as appropriate, not the range submitted by the prosecution, I consider it proper to impose a sentence that falls at the bottom of that range.
86 You will both be convicted on each charge and I sentence each of you to a total effective sentence of 16 months' imprisonment.
87 I fix 6 months as the period each of you must serve before being eligible for release on parole. This is a very modest non-parole period. However, I consider it justified in the current case. I have fixed this short non-parole period to serve a number of purposes including rewarding and encouraging your individual rehabilitative efforts. It is intended to minimise the hardship to your family, James Warren, as well as providing the opportunity for both of you to return to your families in the shortest time permissible and pursue your rehabilitation in the community.
88 Had you not pleaded guilty then in each of your cases I expect I would have imposed a sentence of at least 2 years' imprisonment and fixed a non-parole period of at least 15 months.
89 Anything that counsel need to tell me?
90 COUNSEL: No, Your Honour.
91 HIS HONOUR: Very well, I will leave the Bench.
92 MS PRICE: May it please the court.
93 HIS HONOUR: I am afraid the accused will have to go into custody immediately.
(See Summary of Prosecution Opening attached.)
- - -
Indictment No. C1208276
Court Reference: CR-12-02303 & 02304
IN THE COUNTY COURT OF VICTORIA
AT WODONGA
CRIMINAL JURISDICTION
IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009
- AND -
| THE DIRECTOR OF PUBLIC PROSECUTIONS v. JAMES IAN WARREN & BROCK MATTHEW WARREN |
| Date of document: | 21 May 2013 |
| Filed on behalf of: | The Director of Public Prosecutions |
| Prepared by: CRAIG HYLAND Solicitor for Public Prosecutions | Solicitor’s code: 7539 |
Summary of offences
- On the night of Saturday the 17th of September, 2011 Debbie GENRICH was having a barbeque at her house at 11 Warsaw Crescent, Wodonga. During the evening the two co-offenders Brock and James WARREN attended the party as their mum who resided at number 5 Warsaw Crescent was also there. Also at the party was Lisa DALTON with her 12 year old son Jaylan. Lisa DALTON was the girlfriend of the victim Benjamin PENDERGAST.
- That night PENDERGAST was out having drinks with the second victim, Luke WOOTEN. They had had some beers and watched the footy at another mate’s house, and had then gone for a few beers at the Biraleee Pub, then later at Elgin’s Hotel.
- At about 11pm Debbi GENRICH and BROCK WARREN left GENRICH’s house and went to Elgin’s Hotel to get some cigarettes. There they ran into WOOTEN and PENDERGAST. GENRICH knew PENDERGAST through DALTON and Brock and WOOTEN knew each other. They all returned to Debbie GENRICH’s place. They were all intoxicated.
- Throughout the night Lisa DALTON and PENDERGAST had been messaging each other.
- As the group were walking back to the party, DALTON messaged PENDERGAST then they had a phone conversation in which they discussed her wanting to leave the barbeque as there was a guy there being rude to her and the kids. She was referring to JAMES WARREN.[1]
[1]Statement of Lisa Jane DALTON dated 18/09/11, p. 40 HUB
- Upon hearing this, PENDERGAST who was already in a bad mood, became angry and upset. He started walking faster and caught up to BROCK WARREN and WOOTEN who were walking ahead. BROCK WARREN turned around as PENDERGAST approached and asked him if he had a problem. PENDERGAST ignored him and he and WOOTEN walked ahead. Debbi GENRICH witnessed BROCK WARREN was yelling at WOOTEN.[2]
[2]Statement of Debbie Marie GENRICH dated 18/09/11, p. 33 -34 HUB
- GENRICH and BROCK WARREN then started walking together. As they were walking BROCK was very worked up and yelling at LUKE WOOTEN.[3]
[3]Statement of Debbie Marie GENRICH dated 06/10/11, p. 1
- GENRICH and BROCK WARREN took a short cut up a laneway, leaving WOOTEN and PENDERGAST walking up High Street.
- GENRICH and BROCK WARREN arrived back at Warsaw Crescent ahead of WOOTEN and PENDERGAST. When they got there JAMES WARREN was out the front of his mother’s house at 5 Warsaw Crescent. GENRICH went inside and BROCK joined his brother JAMES out the front of the house.
- PENDERGAST and WOOTEN arrived shortly thereafter. PENDERGAST and JAMES WARREN were both in an agitated state. Word’s were exchanged. Though it is unclear who said what to whom, ultimately PENDERGAST, WOOTEN and the WARREN brothers ended up arguing in the street.[4]
[4]Statement of Debbie Marie GENRICH dated 18/09/11, p. 34 HUB
- JAMES WARREN advanced on PENDERGAST and punched him in the head. JAMES WARREN then continued punching PENDERGAST to the head.[5] The punches knocked PENDERGAST to the ground there was then a wrestle on the ground during which JAMES WARREN bit PENDERGAST’s ear. PRENDERGAST was knocked unconscious.(Charge 1)
[5]Statement of Luke James WOOTEN dated 19/09/11, p. 31 HUB
- WOOTEN then went over to break up the fight and was struck by BROCK WARREN in the back of the head. He lost consciousness briefly.[6]
[6]Ibid
- WOOTEN awoke and saw PENDERGAST lying unconscious on the ground. He then saw JAMES WARREN kick the unconscious PENDERGAST in in the face.[7] (Charge 1)
[7]Ibid
- By this stage Lisa DALTON and her son Jaylan and exited the premises amidst the commotion and found PENDERGAST prostrate and unconscious. DALTON knelt down over PENDERGAST. She observed 2 persons continue to punch and possibly kick the unconscious PENDERGAST whilst Lisa DALTON tried to protect his head. She could not say who these persons were.[8]
[8]Statement of Lisa Jane DALTON dated 18/09/11, p. 42 HUB
- WOOTEN then stood up and was struck in the back of the head with a metal object by BROCK WARREN. He again lost consciousness.[9] (Charge 2)
[9]Ibid
- When WOOTEN came to, he jumped up and ran to his ex-partner’s house. He believed PENDERGAST was dead based on what he’d seen. As he ran away, BROCK WARREN was heard to scream after him, “Get back here Luke.”[10]
[10]Statement of Sharna Lee GUILLIAMSE dated 26/09/11, p. 49 HUB
- Two independent neighbours also heard one of the co-offenders yell, “I’m going to eat you” during the incident.[11]
[11]Statement of Nicole BEACH-STATION dated 26/09/11, p. 47 HUB & Statement of Jeff Reid BUTTERS dated 26/09/11, p. 51 HUB
- At some point Lisa DALTON was bitten on the cheek by someone. She also sustained bruising and her hair was pulled.[12]
[12]Ibid
- At about this time Debbi GENRICH had exited the premises to observe Jaylan knelt over and cradling his mum’s unconscious partner PENDERGAST. Lisa DALTON was hysterical and Debbie GENRICH thought PENDERGAST was dying.[13]
[13]Statement of Debbie Marie GENRICH dated 18/09/11, p. 35 HUB
- By this stage BROCK WARREN had gone his mother’s house and JAMES WARREN went to his girl-friends house.
- GENRICH phoned 000. Police and paramedics arrived at about 1.05am.
- After preliminary treatment at the scene DALTON and PENDERGAST were taken by ambulance to the Wodonga Hospital.
- Upon arrival at Wodonga Hospital PENDERGAST was assessed as suffering from the following injuries:
a)Blunt trauma and swelling to the head;
b)A facial hematoma with one eye unable to be opened.
c)Bleeding and soft tissue damage to the outer ear – likely a human bite wound; and
d)Brain hemorrhaging.[14]
[14]Statement of Dr. Neha KHADE dated 08/12/11, p. 58 HUB
- DALTON was seen at the Wodonga Hospital. She had a minor abrasion to her right cheek. There was no other acute injury. She had a tetanus shot. She had bruising to her left thigh and hip area.[15]
[15]Statement of Dr. Neha KHADE dated 08/12/11, p. 56 HUB
- WOOTEN was driven by his ex to the Wodonga Hospital that night and was assessed at about 2.17am as having two lacerations of the head about 8cms and 6cms in length. About 5mls of bleeding occurred during treatment, which consisted of a total of 14 staples.[16]
[16]Statement of Dr. Remona PUNGUTAN dated 26/11/11, p. 60 HUB
- The next day PENDERGAST had to be flown to St. Vincent’s Hospital in Melbourne. He was held there from the 18th until the 23rd September until he was able to pass a three day memory test.[17]
[17]Statement of Benjamin Ryan PENDERGAST dated 21/10/11, p. 29 HUB
- Following the altercation and upon arrival at the scene, police member GRIMMETT attended at the WARREN’s house at number 5. Brock was there and denied any involvement in the incident. James was not there.[18]
[18]Statement of Christopher John GRIMMETT dated 23/12/11, p. 54 HUB
- At about 3.20pm the following day police returned to 5 Warsaw Crescent and Brock WARREN was arrested. He was transported to the Wodonga Police Station where a recorded interview was conducted. During the course of the interview Brock WARREN made the following significant representations:
a)He stated that when they were walking back to GENRICH’s, PENDERGAST had kept pulling him aside and asking him if he had a problem and if he wanted to fight him and that he had kept responding to PENDERGAST that he didn’t have a problem with him.[19]
[19]Record of Interview of Brock Matthew WARREN dated 19/09/11, q&a. 80
b)He said that as he was walking with GENRICH, WOOTEN and PENDERGAST had been yelling out stuff at he and her.[20]
[20]Ibid
c)He said that when he’d gotten back to Warsaw Crescent he didn’t see James.[21]
[21]Ibid
d)He said that he’d avoided WOOTEN and PENDERGAST when they got back to Warsaw Crescent as he didn’t want any trouble.[22]
[22]Ibid
e)He said he’d seen WOOTEN and PENDERGAST get in a fight with another bloke and that this other bloke was laying some heavy punches into PENDERGAST.[23]
[23]Ibid
f)He said that he’d then got in to his car and driven to his sister in-laws to see if his brother was there but that everyone there was asleep so he’d come back to find police and paramedics at the scene.[24]
[24]Ibid
g)He said he’d next seen his brother at his sister in-laws place the following morning and that they’d taken the kids out.[25]
[25]Record of Interview of Brock Matthew WARREN dated 19/09/11, q&a. 134
h)He denied that he had thrown any punches or kicks in the incident or knowing who else might have been involved.[26]
[26]Record of Interview of Brock Matthew WARREN dated 19/09/11, q&a. 261 – 262 & 267
- Police received information that James WARREN was at a residence of his girlfriend at 7 Beardmore Street in Wodonga. They attended there at about 6pm on Sunday and were told by James’ girlfriend that he was away in Leitchville.[27]
[27]Statement of Brendan ROCHE dated 30/12/11, p. 65 HUB
- On the morning of Wednesday the 21st of September, JAMES WARREN attended the Wodonga Police Station voluntarily. A recorded interview was then conducted. During the course of the interview James WARREN made the following significant representations:
a)He said that whilst his brother and GENRICH had been out getting cigarettes he’d had a verbal altercation with DALTON about something she thought he’d said to one of the children;[28]
[28]Record of Interview of James Ian WARREN dated 21/09/11, q&a. 21
b)He said he’d gone back to his mum’s house then saw his brother coming back with two blokes behind him mouthing off and even telling him that they were going to get him,
c)He said that when they returned there were another two people walking down on the other side of the street;
d)He said, he’d told them to leave his brother alone and then one of them had said “that’s my missus in there” then grabbed him.[29]
[29]Record of Interview of James Ian WARREN dated 21/09/11, q&a. 21
e)He said he and the other guy had fallen on the road then he got hit in the ear, then he’d hit the guy twice, then someone jumped on his back and they’d fallen to the ground, started to get back up and been dragged down again. He said someone had dragged that bloke off of him and he got up but was spear-tackled down again. He said he got back up again and saw someone had the first guy on the other side of the road. He said he’d then ran home.[30]
[30]Record of Interview of James Ian WARREN dated 21/09/11, q&a. 21
f)He said he didn’t know who the person was that he saw punching the first guy.[31]
[31]Record of Interview of James Ian WARREN dated 21/09/11, q&a. 167 - 170
g)He denied throwing anymore than two punches or kicking anyone.[32]
[32]Record of Interview of James Ian WARREN dated 21/09/11, q&a. 186 - 188
h)He admitted biting someone who was on top of him at one point.[33]
[33]Record of Interview of James Ian WARREN dated 21/09/11, q&a. 224 - 225
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