DPP v Joseph [2017] VCC 194

4 You suddenly punched the victim to the left side of his face, in between his jaw and eye socket. The victim was knocked out immediately, his body went limp and he fell to the road. You walked away. You did not assist him in any way. The victim was taken to the Royal Melbourne Hospital to be treated. You were located by police approximately 15 minutes after the incident and taken to the police station to be interviewed.

5 The victim suffered several injuries. When the ambulance officers attended, he was bleeding from his right ear and mouth; he had bruising to the back of his head and was drowsy, agitated and had an altered conscious state. He remained in hospital for four days and was returned the follow day suffering from right-sided facial palsy. A summary of his injuries include:

• Left cerebral subdural haematoma with traumatic subarachnoid blood;

• Left frontal and temporal haemorrhagic contusion;

• Conductive hearing loss secondary to longitudinal fracture through the mastoid air cells extending through the anterior wall of the external auditory canal.

6 The victim in his impact statement details the physical, emotional and financial impact of the injuries. For several weeks after the assault, he was unable to work. He suffered pain and discomfort. He spent months with facial palsy, making it difficult to be in public or at work. Eleven months later, he told his doctor that although the physical injuries had largely resolved, he noticed that his balance was occasionally off, that he was dizzy intermittently and that he could develop a drooping right eyelid when tired. He still had some psychological issues related to his experience.

7 Clearly, this is a serious matter. You punched a man in the face for no reason. By your plea of guilty, you acknowledge your awareness that serious injury would probably result. I accept the punch was a spontaneous act and that you were alcohol affected. This does not excuse your behaviour in any way.

8 Indeed, it is the experience of this court that this form of mindless violence usually occurs when an offender has had too much to drink. This is the type of assault - one punch delivered to an unsuspecting victim's head - that has justifiably attracted much community comment in recent years. Everyone knows the harm that generally accompanies this form of assault. In cases of this type, general deterrence - that is the need to deter others from behaving in the way you behaved - is the paramount sentencing consideration. Denunciation and just punishment are also highly relevant sentencing considerations.

10 Prior to the commission of this offence you had a very limited criminal history. In 1997 and 1998, you appeared in the Magistrates' Court for relatively minor drug offences. In 2006, you received a good behaviour bond in the Magistrates' Court for offences of assault police and resist arrest. Your counsel said that this latter matter was alcohol-related offending. I attach no great weight to the prior matters. The offending is at a relatively low level and it is dated.

11 I was told that you are a proud Aboriginal man. Your father is a Wanghai man from Western Australia. He had a difficult life. He was brought from Western Australia to live in a home in West Heidelberg. He is a member of the stolen generation.

12 You have had a background of hardship and disadvantage. Your father had difficulties in his life that no doubt came from his experience of removal from his family. I was told that he was a drinker and he was at times violent towards your mother. On occasions, his behaviour required the police to attend your home.

13 Notwithstanding these difficulties, you managed to complete Year 12 at Princes Hill Secondary College. This was a commendable achievement given your home circumstances. As one of the Elders noted, it also occurred at a time when sadly, not many Aboriginal students were finishing secondary school.

14 It appears that one of the protective factors in your life was your skill as a footballer. As a younger man, you played representative football for the Victorian Aboriginal Football team. You did so on seven occasions. You twice captained the team.

15 After completing Year 12, you commenced studying printing and information technologies at RMIT. When you were 18 years old, your mother died. Your father left the family home. You discontinued your studies and took the responsibility for supporting your two sisters aged 12 and 16. This is very much to your credit.

16 You managed to obtain and complete an apprenticeship as a carpenter and for close on 18 years, you worked in that field or as a plasterer. You have a good work history. You last worked for Shane Humbke Plastering. Mr Humbke has provided a reference indicating that you worked for him for three years and that you had a "great work ethic" and had "shown exceptional leadership" in his team. You left his employment in 2016 when you broke your arm. You have not returned to work because you have prioritised dealing with your alcohol problem. I will say more about this shortly. However, Mr Humbke does say that he will guarantee employment for you in the future.

17 You have two children aged 18 and ten and although they do not live with you, you are actively involved in their lives. Your 18-year-old son is a good footballer and you support his aspirations to play at the highest level. You have assisted with the support of your niece Destiny who is now 16 years of age. You have also been involved in supporting Aboriginal youth camps.

18 As a younger man, you abused cannabis and you have had a significant problem with alcohol over many years. No psychological report has been provided but it is reasonable to conclude that your substance abuse issues are linked to your father's experiences and their complicated legacy within the family.

19 There is no doubt that alcohol has been a problem for you. If confirmation is required, it comes from your prior (and subsequent) appearances for drink driving. In 2005, you were convicted and fined at the Heidelberg Court for exceed .05. In October 2012, you were convicted and fined for a second drink driving offence. There are subsequent matters that I will refer to shortly.

21 This offence occurred on 21 February 2015. I was told that not long before this, you had begun to drink very heavily because of the breakdown of a significant relationship. This helps explain why a man without a history of serious violence should behave so badly on the night in question. Whilst this provides context for the offending it does not, as I said earlier, excuse the offending in any way.

22 To best understand your current personal circumstances, I will detail the chronology of events from early 2015 to today's date.

23 On 26 February 2015, you attended your local doctor seeking assistance for anxiety, drug and alcohol abuse and depression. Your doctor prepared a GP mental health care plan. It does not appear that anything of substance came from that.

24 On 19 June 2015, you were apprehended for drink driving and breaching an interlock condition.

25 On 20 December 2015, you were charged with further drink driving and driving offences. I was told these matters are listed for hearing in the Magistrates' Court on 3 April 2017.

26 In March 2016, you were dealt with in the Magistrates' Court for the offences that occurred on 19 June 2015. You were sentenced to a jail term of one month and orders were made against your licence. You appealed that decision.

27 During this time, the offence that is now before me was proceeding slowly through the Magistrates' Court. You were unrepresented for some time and the matter was eventually listed for a summary contested hearing. At some stage in the process, you obtained legal advice and the matter resolved.

28 On 20 October 2016, the case was adjourned to 5 December 2016 for a summary plea in the Koori Magistrates' Court. On that date, the Magistrate refused to exercise summary jurisdiction because of the seriousness of the charge and the matter came into this court. This explains why there has been some delay in the resolution of the matter.

29 In early September 2016, you attended both the Aboriginal Centre for Males and the Victorian Aboriginal Health Service seeking assistance. You also attended Uniting Care Re Gen and on 23 September, you were referred to their AOD Complex Counselling and Alcohol Considering Change Program.

30 On 28 November 2016, you appeared before me on an appeal from the decision of the Magistrates' Court of March 2016. I set aside the order of the magistrate and released you on a 12-month community corrections order with conditions including the need to undergo assessment and treatment for alcohol abuse.

31 On the plea hearing in the current matter, I was shown material that indicated you were progressing well on your community corrections order. You told the court during the sentencing conversation that you had not been drinking for four or five months. There is no independent evidence to corroborate that.

32 Mr Joseph, I have detailed this history because it confirms two things. First, you have a significant problem with alcohol. Second, although it is very early days, you have taken steps to deal with the problem and you are responding well on your community corrections order. Clearly, if you could remain alcohol free, you would be a good prospect for rehabilitation.

33 You are not normally a violent man and in so many ways, your progress through life has been impressive. Against the odds you became a good sportsman, completed Year 12, supported your sisters, completed an apprenticeship and worked hard. In addition, you are now in a new relationship and you and your partner plan to marry in the future. However, alcohol has been a powerful disruptor in your life and that problem has to be addressed if you are to avoid further appearances in court.

34 You will be given credit for the following matters. You entered a plea of guilty and you are genuinely remorseful. Your plea has saved the victim from the trauma of giving evidence. Your plea has saved the community the cost and expense associated with a criminal trial.

35 It is also the case that there has been some delay in the resolution of this matter. The delay is not, at least for some of its time, attributable to you. The fact that this matter has been hanging over your head for over two years is a matter to be taken into account. Of course, it is also true that you have not remained offence-free during this time.

36 You consented to the charge being heard in the County Koori Court. In doing so, you agreed to participate in a process that involves appearing before elders from the Koori community. The process is described as a "sentencing conversation". I give you credit for your participation in the Koori Court process. Participation in the process is not easy, indeed it is challenging. You participated strongly in the process and it was obvious that you do have genuine remorse for your offending.

37 This is a difficult sentencing exercise. Whilst there are important matters in mitigation, your offending is very serious. The victim suffered a serious injury and he is still suffering side effects from those injuries. The offence is a prevalent one and general deterrence is the paramount sentencing consideration.

38 Notwithstanding the strong material in mitigation, the seriousness of this offending requires me to impose a sentence of imprisonment. The matters in mitigation together with the fact that this will be your first sentence of imprisonment have influenced my decision about the length of the sentence and how it is to be served. Will you please stand, Mr Joseph?

39 Mr Joseph, you are convicted and sentenced to a term of nine months' imprisonment to be followed by a community corrections order of 21 months. The conditions of the community corrections order are that you be under supervision; that you attend treatment and rehabilitation for alcohol abuse; that you attend mental health treatment and rehabilitation; and that you attend programs to reduce reoffending.

40 Mr Joseph, had you pleaded not guilty and been found guilty after trial, I would have sentenced you to three years' imprisonment with a two-year minimum term.

41 I make the disposal order sought by the prosecution. You can be seated there for the moment.

42 MR ROPER: Excuse me, Your Honour, there is just a matter I would raise in relation to ancillary orders.

44 MR ROPER: Just in relation to - I do not know whether - I was not present on the last occasion, Your Honour. I just wanted to confirm whether there is an application for a forensic sample order made or sought, I should say.

45 HIS HONOUR: Not to my recollection. I will just check.

47 HIS HONOUR: No, I was advised of a disposal order being sought for the exhibits that were seized.

50 MR ROPER: This being a forensic sample offence, I would be seeking an order. I will just perhaps speak to my friend about this.

51 HIS HONOUR: Yes, I am happy for you to talk to Ms Dempsey about it.

52 MS DEMPSEY: Your Honour, I will need some time to take instructions. Clearly, this has not been raised before.

54 MR ROPER: Your Honour, could I ask the matter be stood down briefly just to make an enquiry about this?

56 MR ROPER: (Indistinct words) trouble (indistinct) trouble.

57 HIS HONOUR: I will leave the Bench for a short period of time.

59 HIS HONOUR: Ms Dempsey, you might need to talk to your client so I would ask that he not be taken downstairs but those who are here to support Mr Joseph cannot speak with him or have any contact with him.

62 MR ROPER: Thank you for that time, Your Honour. I just wanted to clarify whether it was appropriate in this case but in my submission, it is appropriate and I do make the application for a forensic sample order given that the offence of recklessly causing injury is a forensic sample offence and in my submission, Your Honour, the making of the order is warranted for the following reasons.

63 There is the seriousness of the offence here which Your Honour alluded to in your sentencing remarks. There is a prior criminal history and that in my submission, the granting of the order is in the public interest.

65 MS DEMPSEY: The application is not consented to, Your Honour. It is opposed, Your Honour. It is a matter for Your Honour. But my submissions would be that this is not a nature of this offending, Your Honour, in which DNA would necessarily have gone to the apprehension; that his history, Your Honour, is of one type and one type along. That is in relation to alcohol and drugs.

66 There is no allegations in relation to property or situation where perhaps DNA is more likely to have been of benefit. That he was not asked to provide a DNA sample. Your Honour, at his record of interview, it was not sought at that time by police in those circumstances. Your Honour, I submit that there is no public interest in relation to here.

67 It has obviously been spoken about in the sentencing remarks that with treatment, he is not likely to reoffend and would in fact be someone with a strong chance of rehabilitation. So in those circumstances, Your Honour, I would ask that no order is made.

68 HIS HONOUR: Yes. Thank you. Well, this is a very serious offence. It is a forensic sample offence and I do intend to make an order in this case. And I do so because firstly, the seriousness of the offending. Secondly, although I have discounted the prior history for the purpose of sentencing, there is in fact a prior matter in 2006 for assault police and resist arrest.

69 I have made comments about Mr Joseph's prospects if he were able to refrain from alcohol but that of course is an important rider and I did say that if he did not address the problem, he would inevitably have further appearances in court.

70 It is in the public interest to make an order in this case and I intend to do so. So Mr Joseph, I need to explain to you that - if you would stand please - that I am going to order that you undergo a procedure for the taking of a forensic sample.

71 The procedure will be what is called a buccal swab so the police officer or some other person of authority will attend upon you to take that sample. You must cooperate in the taking of the sample. I must warn you that if you do not cooperate in the taking of the sample, reasonable force can be used and indeed the sample that can then be obtained is a blood sample. So thank you, just take a seat there for the moment.

73 HIS HONOUR: Now, Ms Dempsey, Mr Joseph will have to sign the order which is now being prepared.

74 MS DEMPSEY: Yes, Your Honour. If I can perhaps attend my client - - -

75 HIS HONOUR: Yes, of course. Have you got the 464ZF orders?

76 MR ROPER: Yes, Your Honour. I have a draft order. Just needed to fill the date in, Your Honour.

77 HIS HONOUR: Mr Joseph can be removed. Thank you.