R v Williams
[2004] VSC 100
•30 March 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1460 of 2003
| THE QUEEN |
| v |
| MICHAEL ALLEN WILLIAMS |
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JUDGE: | Williams J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March 2004 | |
DATE OF SENTENCE: | 30 March 2004 | |
CASE MAY BE CITED AS: | R v Williams | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 100 | |
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CRIMINAL LAW – Sentence – Intentionally causing serious injury – Punch causing loss of consciousness – Guilty plea – Subsequent death of victim – Imprisonment for maximum period of three years – Non-parole period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms S Pullen | Office of Public Prosecutions |
| For the Accused | Mr A Shwartz | Victoria Legal Aid |
HER HONOUR:
Michael Allen Williams you have pleaded guilty to one count of intentionally causing serious injury to Richard Thomas Higgins on 21 October 2002 at Traralgon.
The maximum penalty for your offence is 20 years' imprisonment under s 16 of the Crimes Act 1958. It was increased from September 1997 from 12½ years’ imprisonment.
You are 36 years old, having been born on 20 April 1967 at Traralgon in Victoria.
The circumstances of the offence
On 21 October 2002 you punched 32 year old Mr Higgins twice in the face, causing him to fall off a chair onto the floor and to become unconscious. Although Mr Higgins was found dead on the following morning, it was not alleged that your actions resulted in his death. Dr Matthew Lynch, the forensic pathologist, attributed Mr Higgins’ death to an acute right side at extradural haematoma following a fracture of the skull. It is very important to note that the prosecution did not attribute either the fracturing of Mr Higgins’ skull or the brain haemorrhage resulting in his death to your actions.
On 21 October 2002 you lived at 9 Taylor Crescent, Traralgon with your defacto wife, Ms Tania Allen, her three children from previous relationships and the child of your relationship, Tanisha Allen. You were unemployed at the time and had spent the day removing a tree stump from your property.
At approximately 6.30 pm Mr Higgins, an acquaintance of yours, arrived at your home with another acquaintance, Ms Amanda Hornsy, carrying a carton containing “stubbies” of beer. They had been drinking together in the neighbourhood before deciding to visit you. Neither had been at your home previously. Mr Higgins was affected by alcohol, slurring his words and staggering, when he arrived.
You talked and drank together for some at your kitchen table, whilst Ms Allen continued preparing the evening meal and came and went from the kitchen, attending to Tanisha.
The conversation was amicable, until Mr Higgins started swearing and saying derogatory things about Ms Hornsy's late partner and your friend, Mr Young, who had previously committed suicide. You took offence at Mr Higgins’ remarks. He referred to Mr Young as a “dog”, swore and abused Ms Hornsy and Ms Allen, referring to Ms Hornsy as a “scrag” at one point. You asked him to stop swearing and being abusive, but he did not do so.
Eventually Mr Higgins referred to Ms Allen, as a “slut”, speaking quietly, but loudly enough for you to hear him. He was sitting immediately to your left at the kitchen table and you hit him twice in the face with a closed fist whilst still sitting. He fell out of his chair sideways, landing on the kitchen floor and became unconscious. You told Mr Joblin, the forensic psychologist, that you could not tolerate your defacto spouse being abused in that way.
You picked Mr Higgins up from the floor, holding him under the arms, and dragged him out through the front door of your house. Whilst you were doing so, Ms Hornsy kicked him several times in different parts of his body. You turned him onto his side, so that he would not swallow his tongue, and left him lying, partly on the grass and partly on the path at the front of the house. You went back inside. Ms Hornsy then went in and out, spending some time with Mr Higgins. He regained consciousness and you later went out for about 10 minutes in your car to buy cigarettes.
After you left, Ms Hornsy was told that Mr Higgins had behaved inappropriately towards her daughter Jacqueline on a previous occasion. She was enraged and went outside to abuse Mr Higgins whom she hit about the legs with a baseball bat.
At about 9.00 pm, whilst you were still out, Karina Williams, your eldest daughter from a previous relationship, and her boyfriend, Shannon Edwards, helped Ms Hornsy take Mr Higgins to a friend’s house. He was unsteady and needed assistance. Mr Higgins was assisted to return to his own home at about 10.00 pm. He complained to his parents of general soreness and a headache. He vomited a number of times and was assisted to bed at about midnight by his mother, Mrs Elaine Higgins. Neither she nor her husband, Mr Ormond Higgins, realised the seriousness of his injuries or sought medical help for their son. He was found dead in bed on the following morning of 22 October 2002.
You became aware of Mr Higgins’ death at about 8.40 am on that day. You approached the police at his home and told them that you had been involved in a fight with him. You were arrested and later interviewed by the Homicide Squad when you described the offence of the evening before. You were charged with the murder of Mr Higgins and have spent approximately 17 months in custody facing the prospect of a trial for his murder.
In the meantime, Ms Hornsy has also died.
Your personal circumstances
A report dated 9 March 2004 from Mr Ian Joblin, a forensic psychologist, tendered in the course of the plea provided details of your personal circumstances, as did a reference from Mr Bryan Mitchell, a secondary teacher at Traralgon Secondary College and long time friend of your family. Mr Joblin had assessed you at the Port Phillip prison on 3 March 2004.
You come from a close family. You have one brother and two sisters with whom you have good relationships. Your intellectually disabled 40 year-old sister lives with your parents. Your other sister is 33 and married with three children. Your brother is aged 42 and studying to be a trade school teacher and works as an integration aide in a local school. He is married with three children. You have a close relationship with your mother who worked as a cleaner in schools. She has visited you regularly and remains very supportive of you. You also have a positive relationship with your father, a former jockey, who unfortunately suffers from ill-health. None of your family has been involved with police.
Mr Mitchell met your father when he worked as a cleaner at the college in the 1970s. He has been a regular visitor to your home. He described you as “a nice young kid with a great sense of humour, [who] was happy and seemed well adjusted”. He reported that you began to struggle with your school-work before dropping out at the age of 16, during year 10. You were unemployed and began drinking and smoking marijuana, making you difficult for your family to deal with. You worked from time to time and your behaviour would deteriorate during periods of unemployment.
Mr Joblin provided some details of your work history. He said that you worked locally at an abattoir and on council garbage trucks. You began an apprenticeship as a plasterer and worked as a self-employed plasterer for some time. Later you worked casually in factories, on scallop boats and with metal. You formed a relationship with a woman in Traralgon and your daughter Karina was born when you were 23 years old. The break up of that relationship caused you stress and pressure.
Over the last few years you had been somewhat unstable and had serious problems with alcohol and drugs. Mr Mitchell noticed that you were struggling with life and your difficulties with alcohol and drugs when he saw you during the 1990s. He said “That [you] had deteriorated physically and had lost the spark that made [you] an engaging youngster”. He said you now bore little resemblance to the young person he first met over 25 years ago.
Although Ms Allen gave evidence to the court on the plea describing you as more of a “social drinker” when you met in 2000, you told Mr Joblin that once you started drinking you had difficulty stopping. You said to him that you believed Ms Allen had been a positive influence and that you had reduced your drinking after forming your relationship with her.
You acknowledged using amphetamines and heroin in the past but denied that those drugs had been the source of any continuing difficulties, particularly since the commencement of your relationship with Ms Allen. You didn't deny continuing to use cannabis.
Mr Joblin noted that you had considerable attention from police for alcohol-related offences and trouble in your employment because of your drinking, but you had never had professional help in that regard. Mr Joblin reported that it did not seem that any medical, psychological or psychiatric attention would be necessary for you. However he recommended that you receive ongoing assistance for what he described as your problems with alcohol.
Mr Joblin said he would not consider you to be seriously limited in intellect. On the other hand, he said, that he was not of the opinion that you were above average. He did not think that intelligence or lack of it played any role in the offence. He said you were not psychotic and probably never had been. He concluded that you were simply an unsophisticated, uncomplicated person who placed a high value on friendships and family. He said you were gregarious and loyal and able to appreciate the strong values of family. He said you felt that Mr Higgins’ behaviour had been totally inappropriate and had violated the values you tried to uphold for your family.
Ms Allen gave evidence on your behalf in the course of the plea. She told the Court that you were a very good father to her children and your own. She said that you had never shown any violent tendencies during your relationship.
Mr Shwartz told the Court that you had been employed from time to time wherever possible in the economically difficult circumstances prevailing in your area. You worked most recently some three months before your offence. He said that your life had turned around after you met Ms Allen. You now live in a housing commission home and have no liabilities and no real assets.
Your prior criminal history
In February 1991, at the age of 23, you were convicted of two counts of causing serious injury intentionally and one count of theft at the County Court at Morwell. You were sentenced to a wholly suspended period of 12 months' imprisonment and a community based order, requiring 500 hours of community work, in relation to the charges of intentionally causing serious injury. You were fined $100 in relation to the theft.
The circumstances of the offences were that, with no agreed plan other than that to give them a “flogging”, you had gone with three others to visit people who had injured you on the previous day. You were armed with part of a shovel handle; one of your associates was armed with a shotgun and another with a crutch. You hit one of your male victims around the knee causing it to become swollen, although there was no indication that he sustained permanent injury. Mr Shwartz said that you had been given a lenient penalty because of your previously blameless character.
Ms Pullen for the prosecution noted that your 1991 convictions for intentionally causing serious injury result in you being considered a serious violent offender under s 6B of the Sentencing Act 1991. However she did not urge that I impose a sentence longer than that which is proportionate to the gravity of your offence considered in all its circumstances under s 6D(b) of the Act. Nevertheless she submitted that your 1991 convictions were relevant to your present prospects of rehabilitation. She said that your various appearances before courts included some disturbing indications of violence on your part
In 1994, 1995 and 1996 you were convicted at the Magistrates' Courts at Sale and Moe for driving offences and offences relating to drunkenness. In May 1997 you were convicted of aggravated burglary and sentenced to three months' imprisonment, two months of which were wholly suspended. In 1998 you were convicted of minor offences relating to drunkenness in a public place. In 1999 you were fined $1,000 at the Magistrates' Court at Moe after being convicted of making threats to kill your former partner and intentionally damaging property by throwing a stone at her car.
Mr Shwartz submitted that for five or six years you had lived an itinerant lifestyle involving the use of drugs and contact with the criminal justice system. He said that in 1999 you literally “woke up to yourself”. You decided that the previous nine years or so had been a waste and that your daughter Karina, needed you to change. Since then, he says, you have developed a strong relationship with Ms Allen and taken responsibility for your family and hers.
You were convicted at the Moe Magistrates' Court in January 2002 in relation to handling stolen goods. You were fined $250.00. Mr Shwartz urged the court to take the view that you had good prospects of rehabilitation in all the circumstances.
Victim Impact Statements
I have read a number of Victim Impact Statements made by Mr Higgins’ parents, his sister and his former partner, the mother of his six year old son. They speak movingly of the effects of his death upon their lives. They describe their grief and the suffering resulting from the knowledge of the circumstances in which they lost a son, brother, partner and father .
However it was emphasised by Ms Pullen that the prosecution does not allege that your acts caused Mr Higgins to die. You have pleaded guilty to punching him and injuring him by making him lose consciousness- not to having caused his death.
I make it clear that I take the Victim Impact Statements into account bearing in mind your plea in relation only to the charge of intentionally causing serious injury to Mr Higgins.
Submissions
Guilty plea
Mr Shwartz submitted that you pleaded guilty at the earliest opportunity to the present charge. He pointed out that you had been arrested and charged with the murder of Mr Higgins on 22 October 2002. You had remained in custody under the stress resulting from that charge and the prospect of being tried for murder in this Court for a period of some 17 months, before being able to agree to plead guilty to the lesser charge.
In accordance with s 5(2)(e) and the relevant authorities I have taken your guilty plea at this earliest opportunity into account when sentencing you here today.
Circumstances of the offence -Provocation
Mr Shwartz emphasised the provocative behaviour of Mr Higgins in the period leading up to you striking him. He acknowledged that you did not claim to be acting in self-defence, but urged the Court to give due consideration to all the circumstances. I have taken into account Mr Higgins’ behaviour and your attempts to restrain him from swearing and being abusive in your home where your children and other young people were present. I also take it into account that you were provoked by him having abused Ms Allen, your defacto wife, in particular.
The effect of incarceration on your family
Mr Shwartz urged the Court to take into account the effect your imprisonment had had on your family. Ms Pullen responded that the evidence did not establish that there was exceptional hardship in your case
Ms Allen gave evidence that her eldest daughter Jayde was living in a refuge in Bairnsdale, having left home since you were imprisoned. She had told her mother that she would return home if you did. Ms Allen also gave evidence that you had a good relationship with her sons with whom you went to the football each weekend. She said that she herself had not been coping very well with your absence. She said she had been very sick this year, but did not describe her illness. She said the children had been “pretty full on” and that she had had a lot to deal with.
It is inevitable that hardship will be caused to others as a result of the imprisonment of criminal offenders. The authorities establish that “exceptional” or “extreme” hardship must be shown before the Court will tailor its sentence to relieve the situation of other family members[1]. Whilst I acknowledge the difficulties faced by Ms Allen and your family whilst you are imprisoned, I am not satisfied in all the circumstances that the hardship to them is properly described as “extreme” or “exceptional” justifying a reduction in your sentence or non-parole period.
[1]Panuccio Unreported 4/5 1998 CA Vic per Winneke P.
I have taken into account all the submissions made on your behalf as well as those of the prosecution. In my view your sentence must punish you for your offence, deter you and others from committing the same or similar offences in the future, denounce the conduct you engaged in and at the same time assist your rehabilitation as permitted under s 5(1) of the Sentencing Act 1991.
I take into account that your attack was relatively spontaneous, to some extent provoked and did not involve the use of a weapon other than your fist. I take into account your immediate approach to police, your description of events when interviewed and your early plea of guilty in relation to this offence. However I also bear in mind your prior convictions and, in particular, your 1991 convictions for intentionally causing serious injury. These convictions unfortunately did not deter you from committing the offence for which I am sentencing you today and they reflect upon your moral culpability and your prospects of rehabilitation. They also show that you need to be deterred from such behaviour in the future[2]. Nevertheless there is evidence that you now have some stability in your life through your relationship with Ms Allen and commitment to your family. This stability should enhance your prospects of rehabilitation with the benefit of supervision if you are granted parole.
[2]R v O’Brien [1997] 2 VR 714 per Charles JA at 718.
The adverse effects of alcohol are also a feature in your history. I have taken it into account that Mr Joblin remarked that your current motivation to control your drinking would be tested when you were released and he was of the view that the longer you were subject to supervision by the Parole Board the better it would be for you in all the circumstances.
I note finally that although, tragically, your victim died, it was made clear by the prosecution that it was not alleged that your conduct caused his death. The serious injury you inflicted was said by Ms Pullen to be his loss of consciousness.
In all the circumstances, you are convicted and sentenced to imprisonment for a period of three years with a minimum non-parole period of 18 months. I direct that the period of 524 days during which you have been in custody be reckoned as a period of imprisonment already served under the sentence.
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