Luke Henry Hossack, you have pleaded guilty to an indictment charging you with recklessly causing serious injury to Nicholas Best; with unlawfully fighting and making an affray; with recklessly causing injury to Luke Andrew Arthur and, fourthly, with recklessly causing injury to Joshua Anderson. All of the offences occurred in the early hours of 16 March 2014.
You have also admitted a number of prior convictions and court appearances going back to 2001. They include an offence of assault in company and an offence of affray, assault police going back to 2003/2004. There was a gap in your offending conduct between your appearance at the Ringwood Magistrates Court in July 2006 and your appearance at that same court on 4 September 2012 for driving under the influence of a drug. That gap is to some extent explained by the fact that in 2006 or thereabouts you were sent by your family to New Zealand to get away from your peer group and to improve your social behaviour. You had a number of court appearances in New Zealand during the period between 2007 and 2012 when you returned to Australia. They seem to be largely concerned with your excessive alcohol use. Certainly there were no offences of the seriousness of the kind that you exhibited in the period up to 2004 or in comparison with the offences for which I now have to sentence you.
The prosecution tendered and relied upon a summary of prosecution opening which was Exhibit A on the plea and that sets out succinctly the events of the evening of 15 March this year when you were out drinking with one of your brothers and your brother-in-law and another acquaintance. You consumed a large quantity of alcohol but you did so in circumstances where you knew that alcohol had a bad effect upon you. You admitted to the police that you were a "shocking drunk if I have had too much alcohol." So you knew when you went out on what seems to have been something of a bender that night that you were a shocking drunk. So it proved because at about 3 am after you left the Swan Hotel on the corner of Swan and Church Streets in Richmond there were a large group of people in the area congregating around fast food restaurants at that intersection. You were behaving in a boisterous manner, being abusive towards a number of people in the vicinity. You approached a group of males and you asked members of the group for a cigarette lighter. You were provided with one and you refused to give the lighter back when asked to do so. You attacked the first of your victims, Mr Nicholas Best. You lunged at him, pushing him with both hands causing him to stumble backwards. You then punched him to the head with a clenched fist, causing him to fall to the ground. As he lay on the ground you began kicking him to the head and lower back and continued to do so until restrained by your brother-in-law.
A Mr Johnson came to Mr Best's aid as he lay on the ground and you then attacked Mr Johnson, punching him twice to the face. Another witness was standing close by and not otherwise involved and you punched him twice, once in the ribs and once to the head. Mr Best apparently got to his feet, began walking away, and you apparently noticing that chased after him, caught up with him and threw punches at a number of unknown people on the way. You punched a Luke Hiselwood and he was able to block your punch. You then caught up with Mr Best and resumed punching him to the head. Those punches caused him again to fall to the footpath, striking his head as he did so and causing him to lose consciousness. A friend of Mr Best's, Mr Andrewarthur, came to his aid and, whilst he was crouching over Mr Best attempting to administer first aid, you turned your attention to him and punched him to the head and rendered him unconscious. Another friend of Mr Best and Mr Andrewarthur, Mr Anderson, went to their aid and you attacked him, punched him twice to the face whilst he was attempting to assist Mr Best. You were again restrained by your brother, you broke free again and were standing over Mr Best who was unconsciousness on the footpath. You then fled the scene.
You were arrested the following day and you were interviewed by the police. You admitted what you had done. You admitted essentially that you were the aggressor and you admitted that you were drunk and that you knew that you were a shocking drunk if you have had too much alcohol.
Mr Best lost consciousness and after he was taken to hospital it was discovered that he had a fractured skull, cerebral haemorrhages and swelling, a ruptured eardrum, spinal damage, bruising and swelling to the lower back. He is yet to regain his sense of smell and the indications are that he will not regain his sense of smell as a result of the damage to the frontal lobe of his brain. It seems that he will take some time to recover from the brain injuries and will not recover his sense of smell.
Mr Andrewarthur lost consciousness and had lacerations to his scalp and ear and cranial and facial bruising and concussion.
Mr Anderson suffered fractures to the nose with lacerations, bruising and swelling to the nose and facial cuts and abrasions.
Mr Hiselwood had a swelling to his hand as a result of the blocking of your punch to him.
Mr Sheehan had swelling to the head and face.
Mr Johnson had swelling to the head and face.
All in all this was a very ugly incident. The charge of affray is to encompass all of your conduct but also the assaults on other persons that are unknown and Mr Sheehan and Mr Johnson who were in the vicinity at the time and Mr Hiselwood. Clearly, and this was acknowledged by your counsel, this type of offending is prevalent and it is calculated to cause alarm and fear amongst those who are in the vicinity and witness this kind of conduct. The courts have indicated that deterrent sentences are necessary in order to deter people from behaving in that way.
Mr Best, Mr Andrewarthur and Mr Anderson each submitted victim impact statements. You will have had the opportunity of seeing those statements. They suffered physical injuries. They also clearly have suffered emotional effects which will be difficult for them to shake off. Mr Best will suffer the loss of sense of smell which will impact upon his enjoyment of life, upon his work and his well-being for the rest of his life. I am bound to take into account the effect of your conduct upon your victims and I hope that you will have had cause to dwell upon those effects and that the expressions of remorse that you have made to the police, to others, are genuine and will encompass the effects upon your victims.
Turning to matters personal to you, your counsel provided me with a written outline of plea submissions and chronology which is very helpful in setting out a number of aspects of your personal history, your offending history, your substance abuse and the bases upon which she urges me to impose a sentence that is not a crushing sentence. She also provided me with a report of Dr Cunningham, a psychologist, dated 1 September 2014 in which he describes you as a person of average intelligence, a person who has no mental illness as such although he identifies your need for treatment in relation to anger management. He acknowledges the substance abuse and the need for you to come to grips with that problem. When I say substance abuse I mean not only alcohol abuse but illicit drugs in which you have at least dabbled and worse than dabbled over a considerable period of time.
I was also provided with information about the efforts that you have made to educate yourself and engage with studies whilst you have been on remand at Port Phillip Prison. It seems you have made considerable efforts in that direction. I have also been provided with letters from your employer and a contractor who has been exposed to your work as a concreter and from your mother and also from your sister.
The effect of all of that material suggests to me that if you are able to deal with and conquer your alcohol problems and your drug abuse problems that you have a bright future. You are obviously a good worker, you are obviously able, you are intelligent and the period between 2006 and your offending conduct this year in which you have substantially stayed out of trouble of this kind at any rate would suggest that you are capable of leading an industrious and law-abiding life.
The circumstances which led to your offending on this night, it seems, had their origins in a disagreement that you had with your partner, the mother of your son. You, having separated from your partner a month or so earlier, were feeling upset when you went out that night and that may well have led you to overindulge to a greater extent than you might otherwise have done, particularly in the company of your brother and brother-in-law. You were, as I understand it, due to attend the third birthday party of your son and as a result of the disagreement with your partner, the mother of your child, your invitation to attend at that party was cancelled. That of course provides no excuse whatsoever for your behaviour, it is simply part of the background and the context in which this offending occurred. Your use of alcohol that night and the extent to which you were "hammered", to use your expression, again provides no excuse for your conduct. Indeed, it is an aggravating circumstance in the context of your awareness of the effects of alcohol upon you. Nothing excuses your conduct in the early hours of 16 March this year.
However, as I have indicated, you did express remorse to the police, you did admit what you had done, you indicated your willingness to plead guilty to the offences on this indictment at the earliest reasonable opportunity and you have pleaded guilty to these offences. All of those matters are very much in your favour. I am required by law to give you a discount of sentence for your plea of guilty. It reflects in my opinion a willingness to facilitate the administration of justice and it has saved the State the cost of a trial and perhaps most importantly has saved the victims and the witnesses to your conduct the emotional burden of having to come give evidence in the course of proceedings against you, all of which would have added to the ongoing emotional reactions to your conduct. Your plea of guilty is consistent with remorse and I accept that you are now in the cold light of day and sober, genuinely remorseful for your conduct.
It is conceded by your counsel that the only sentencing option is a sentence of immediate imprisonment. She urges me though to maintain a sense of proportion first of all in assessing the level of the penalties that must be imposed for each of the offences to which you have pleaded guilty. In respect of the offence of recklessly causing serious injury to Mr Best she urges me to take the view that although there was a serious injury without any doubt that there are many more serious cases of serious injury than this one. Indeed unfortunately that is the case, although that is not in any way to diminish the seriousness of the injuries that were inflicted upon Mr Best.
With respect to the injuries caused to Mr Andrewarthur and Mr Anderson, she submits that the injuries fall towards the lower end of the scale. I am not sure that that is true. It seems to me that these are still, of their kind, injuries of significance. They are not to be regarded as serious injuries and I do not sentence you for that offence because you are not charged with that offence and you have not pleaded guilty to that in relation to them. Nevertheless they are injuries of significance that seem to me do not put them at the low end of the scale of causing injury. I of course have to bear in mind that I am dealing with offences of recklessly causing serious injury and recklessly causing injury rather than the more serious offences of inflicting those injuries intentionally.
In relation to the affray charge I accept that it is not the most serious example of that offence. It was submitted on your behalf that there were no weapons used. There was only one offender, yourself, as opposed to a large group of offenders fighting and there was no premeditation. Your offending was spontaneous and the affray did not arise as a result of otherwise illegal activity. So in assessing the gravity of the offences I am urged to take into account all of those matters and that the offences all occurred within a very short space of time and as I say, no weapons were used. You are a big lad and no doubt your fists are formidable weapons when used in the way that they were. But there were no other weapons in the sense that Ms Turnbull was using that expression.
I take into account that you have what seems to me to be good prospects of rehabilitation provided you can come to grips with your alcohol and drug addiction problems. It is to be hoped that during the period of your incarceration you will take advantage of the facilities that are offered to you to rehabilitate yourself from substance abuse.
You will of course be deprived of the ability to act as a father to your young son during the period of your incarceration. I take that into account but I note that you are being visited at least by your former partner and by your son whilst in custody.
I am bound to impose sentences that adequately denounce the seriousness of your offending conduct, that punish you adequately for your offending, that deter you. Though there may have been a substantial gap in your serious offending conduct it is necessary for me to reflect on the fact that you have a prior conviction for affray and other offences of violence and that there is a need still to deter you from committing further offences of this kind. Importantly I am required to impose a sentence that has the capacity to deter others from behaving in the way that you behaved on this particular occasion.
All of those matters I have to balance against the need to facilitate your rehabilitation so far as I can consistent with my duty. Your counsel urges that upon me and invites me therefore to provide for an opportunity for a substantial period of time on parole during which it is hoped you may get further support in dealing with your alcohol problems. You certainly have your family support. They are here to support you today and I have no doubt that they will help you when you eventually finish your term of imprisonment and assist you with your continued rehabilitation at that stage of the process.
Luke Stewart Henry Hossack, I am now ready to impose sentence upon you. Would you please stand?
On Charge 1 of recklessly causing serious injury I convict you and sentence you to imprisonment for a period of four years.
On Charge 2 of unlawfully fighting and making an affray I convict you and sentence you to imprisonment for a period of 18 months.
On Charge 3 of recklessly causing injury I convict you and sentence you to imprisonment for a period of 15 months.
On Charge 4 of recklessly causing injury I convict you and sentence you to imprisonment for a period of 15 months.
I treat the sentence on Charge 1 as the base and order that six months of the sentence on Charge 2, three months of the sentence on Charge 4 and three months of the sentence on Charge 5 be served cumulatively upon one another and upon the sentence of four years on Charge 1, making a total effective sentence of five years' imprisonment. I order that you serve a period of three years and three months before you become eligible for parole.
But for your pleas of guilty to these offences I would have sentenced you to a total effective sentence of six years and eight months' imprisonment with a non-parole period of four years and six months.
Counsel, the pre-sentence detention, have you calculated that and agreed what the - - - ?
MR PATTON: 177 days, Your Honour.
HIS HONOUR: Do you agree with that - - - ?
MS TURBULL: Yes, Your Honour.
HIS HONOUR: Yes, thank you. I declare 177 days of pre-sentence detention as time to be reckoned as served upon the sentences that I have imposed and have deducted it administratively from the sentence that you will actually have to serve and I order that that fact be noted in the records of the court.
I make the order for disposal of property and the order for compensation in the sum of $300 to Nicholas Best and the order for the provision of a forensic sample in accordance with the drafts with which I have been provided. The order requiring you to provide a forensic sample is in the first instance for taking a sample, a scraping from the inside of your mouth. When you are requested to provide that sample by an authorised officer if you do so, all well and good and that is the end of the matter. If, however, you fail or refuse to provide a sample by scraping of the inside of your mouth the officer will be authorised to obtain a blood sample and may use reasonable force to obtain that sample. I am sure you will not put them to that trouble.
Any other orders?
MR PATTON: No, Your Honour.
HIS HONOUR: No, very well. Yes, thank you. You are both excused.