DPP v McCloskey-Sharp [2014] VSC 634

2 The charges arose out of a violent altercation between two groups of young people, which took place at Rye in the early hours of 31 December 2012, and which left one man dead and several others injured.

3 On Sunday 30 December 2012, you spent the evening with some friends, including your co-accused, Dylan Closter and Tyrone Russell. After having a few drinks at the caravan park where you were staying, you had dinner at the Rye Hotel, before spending time at the Rye carnival. After that, your group moved to an area near the Rye pier, where you were drinking together.

4 There were a number of groups of young people at the Rye foreshore that night. One of these groups included David Cassai and eight of his friends. They were strangers to you and your group.

5 The Cassai group had been celebrating a birthday at the Portsea Hotel. They had been drinking, and were in varying stages of intoxication. They left Portsea on a bus at 12.30 am, heading for Rosebud, where they were staying. However the bus only went as far as Rye, so they proposed to walk the rest of the way. Around 12.45 am, they started walking along Point Nepean Road, spreading out into smaller groups as they walked. They were on the other side of the road to your group.

6 As they walked along past the shops, one of the members of the Cassai group, Jesse Smith, removed a street sign from its bracket. He trotted along for a while, carrying the sign like a lance or spear, towards the front of his group; he was trying to be funny. Some of Mr Smith's friends asked him to put the sign down. Your friend, Dylan Closter, saw what Mr Smith was doing, and yelled at him to put the sign down. Mr Closter repeated his angry demand and, as he was doing so, began to walk across the road. Mr Smith eventually did put the sign down. At no stage did Mr Smith use, or threaten to use, the sign as a weapon directed at anybody.

7 By this stage, David Cassai and two of his friends, Andrew John and Vincent Tran, were walking three abreast along the footpath, bringing up the rear of their group. After crossing the road, Mr Closter walked towards them, deliberately shoving his shoulder into Mr Cassai. Both men stopped and a verbal exchange ensued, during which Mr Closter was aggressive. He advanced towards Mr Cassai and his two friends, who raised their hands up, palms facing outwards, in a conciliatory way, and urged Mr Closter to leave it alone.

8 Mr Closter continued to behave aggressively towards Mr Cassai, as he was backing away. He threw a number of punches at or towards Mr Cassai, and chased him over a short distance. Mr Cassai did not throw any punches at Mr Closter. Eventually one of the punches connected, causing Mr Cassai to stumble backwards onto the roadway.

9 Around this time, you and other friends, including Mr Russell, ran across the road to join in. Once you entered the fray, things unfolded quickly, violently and somewhat confusingly. While there are some differences in the accounts given by witnesses, CCTV footage from various security cameras captured much of the events.

10 As Mr Cassai got back up from the ground, his friend, Vasu Phillips, came in to help him, and Mr John stood between Mr Closter and Mr Cassai. Mr Closter punched Mr John to the head, causing him to fall to the ground. Mr Closter continued pursuing Mr Cassai. You and Mr Russell were close, bearing down on Messrs Cassai, John and Phillips, as they backed away.

11 Mr Closter threw another punch towards Mr Cassai. Mr Phillips was backing away, with his hands in the air, open palms out. He asked you what was going on, and you said you didn't know; so he turned away. As he turned away and moved towards where Mr Closter was still trying to hit Mr Cassai, you punched Mr Phillips forcefully to the side of the head with your right fist, causing a split above the eye. He was not facing you at the time you hit. This punch forms the basis of the charge of recklessly causing injury.

12 Two other members of the Cassai group, Julian Geldard and Jesse Smith, also ran back towards Mr Cassai and their other friends, once they became aware of what was happening. As Mr Geldard tried to break up a scuffle, Mr Russell punched him to the face, causing him to fall sideways on the road. Almost immediately thereafter, Mr Russell punched Mr Smith to the face, causing him to fall to the ground too.

13 Mr Closter continued to chase the retreating Mr Cassai, who had his hands up in a passive way. Mr Closter then struck Mr Cassai's head, causing him to fall backwards onto the ground, fracturing his skull, and suffering the traumatic brain injuries that led to his death later that day.

14 You and your friends then crossed the road towards the car park. Witnesses heard your group running and laughing, with someone yelling out "that's what we come here for".

15 You (accompanied by your mother and grandfather) and Mr Closter went together to the police early on 2 January 2013. You said you wanted to make a statement about the incident at Rye, after you had spoken to your solicitor. You came forward after some CCTV footage of the incident had been shown on television, and after two of your group had already been arrested and made statements to the police.

16 You gave the following account to the police. You had seen Mr Closter on the ground across the road, near the shops, with a few people around him; someone was trying to kick Mr Closter. He was "definitely in trouble." It was your instinct to go to the assistance of your friend, to make sure he was alright. You had got into a scuffle with a man on the road, but had no memory of what happened. You did not see how people ended up on the roadway. You did not remember striking anyone to the face. You were quite drunk at the time.

17 It is true that, at one stage, Mr Closter lost his balance and ended up on the ground, where Mr Cassai kicked at him in a defensive manner; but that happened after you and Mr Russell had already joined in the fight. Whether or not the picture was completely clear when you and others were some distance away, by the time you and Mr Russell had crossed the road and joined the fray, it must have been apparent that this was very much a one-sided fight, in which Mr Closter was the aggressor and members of the Cassai group were trying to calm the situation and retreat.

18 Even accepting that your recollection may have been affected to some extent by your intoxicated state at the time of the affray, your account to the police bore little relationship to what had actually happened, and very much sought to downplay the violence of you and your friends.

(a) Causing injury recklessly - 5 years' imprisonment;

21 Although it was spontaneous and of very short duration, this was nevertheless a serious affray, involving a violent, frightening and completely unprovoked attack by you and your friends on another group, in the middle of the night, on a public street, at a busy time of year. In the space of less than a minute, multiple punches had been thrown, one man was dying and five others were injured. This was very much a one-sided attack. The whole scene must have been a terrifying one to innocent onlookers. Your group's words and conduct as you left the scene would only have added to that terror.

22 A participant in an affray must take some share of the blame for the overall picture, not merely for their own acts. You have not been charged with homicide, and I am not sentencing you on the basis that you are responsible for causing Mr Cassai's death. But in considering the nature and seriousness of the affray, it is relevant to consider the nature and degree of violence by members of your group, including the fact that one person died and several others were injured as a result of that violence. These facts indicate that the affray was more serious than a minor melee.

23 The punch you threw at Mr Phillips was aimed directly at his head, despite the fact that he was looking away at the time. You hit him after you had indicated that you were no threat to him. He would have had no idea what was coming, and was therefore unable to defend himself in any way. It was a very cowardly act.

24 Although the exact amount of alcohol consumed by you that night is unknown, your actions that night were fuelled by too much alcohol. That may explain, but it does not excuse, your behaviour; that is particularly so given that alcohol has featured in previous acts of gratuitous violence by you.

25 It is an aggravating feature that you committed these offences while serving a suspended sentence for another offence.

26 Before I consider your personal circumstances, I want to say something of the impact your actions have had on others.

27 Victim impact statements have been provided by Mr Phillips and other victims of the affray. Mr Phillips' injury did not require stitching, but has left a small physical scar. The events of that night have also left Mr Phillips emotionally damaged, and have affected his work and studies.

28 Others victims of the affray have also struggled emotionally, trying to make sense of what happened that night; some have felt guilt or helplessness at being unable to prevent the events from occurring. The consequences of your punch, and the affray of which you were a part, have also brought great pain and sadness to the victims' families.

30 You were born in February 1988 in Australia, and raised in the Lilydale area. When you were a child, your father was a strict and controlling parent, who had his own problems with binge-drinking and anger management. Growing up, you were closer to your mother.

31 Your parents separated when you were 15, and you and your younger sister went to live with your mother. You found the separation difficult. It also meant a change from private to public schooling, where you socialised with a different crowd and began binge-drinking with your new friends. Nonetheless, you were a keen sportsman whilst at school, and worked part time in a pharmacy.

32 You left school during year 11, and went to work with you father as a bricklayer. Since then, you have worked hard in a number of jobs: in the construction industry, as a refrigeration engineer, and as a concreter. You started your own concreting business earlier this year.

33 Although you still live with your family, you have been in a relationship with your partner for just over 18 months, and are expecting a child together early in 2015.

34 On 15 August 2013, you were committed to stand trial on a number of charges. In respect of the current incident, you were charged with affray and intentionally or recklessly causing injury to Mr Phillips. You were also charged with affray and two charges of assault, in relation to another incident earlier the same evening.

35 Your trial on all of those charges was due to commence on 13 October 2014. On 4 September 2014, you offered to plead guilty to the current charges; that offer was accepted by the prosecution two weeks later.

36 You are entitled to a discount on the sentence to be imposed upon you in recognition of this plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has been spared the time and cost of a trial of these charges against you. The family and friends of Vasu Phillips and the other victims of the affray have been spared what would undoubtedly have been a very traumatic trial.

37 Your counsel argued that the court should effectively treat this as an early plea, on the basis that you have been trying to resolve the charges for some time. There is a dispute as to whether or not you made an offer to plead guilty to a single charge of affray in April 2013. It also seems that, at or around the time of the committal, you offered to plead guilty to a single charge of common assault. Even if such offers were made, they were not offers to plead to charges which reflected the full criminality of your offending. In the circumstances, I do not regard this as akin to an early plea.

38 At the committal, your then counsel chose not to cross-examine witnesses in relation to the Cassai incident, but only in relation to the offences alleged to have occurred earlier that same night. Your counsel urged me to conclude that this demonstrated remorse, and an acceptance of responsibility for the Cassai incident, as early as the committal. However, as the prosecutor pointed out, you pleaded not guilty to the current offences at the committal; the failure to cross-examine was equally consistent with a tactical decision not to cross-examine on what was the strongest part of the prosecution case.

39 Whist I do accept that you are now genuinely remorseful for what happened in the Cassai incident, there is no evidentiary basis for me to conclude that your remorse has been long-standing.

40 A large number of family, friends and former employers have provided positive references for you. They describe you as a hard and determined worker. Many of your referees speak of your passion for sport and dedication to your business. They describe you as polite, honest and family-oriented, and believe your offending is out of character.

41 However, this is not the first time you have engaged in gratuitous, alcohol-fuelled violence, in company with your friends.

42 In mid-2006, when you were 18, you and a friend were involved in an altercation with another group, in a public car park, in the early hours of the morning. A member of the other group made some disparaging remarks about your friend's car, which led to your friend punching him a number of times, before turning his attention to another victim. In July 2007, you pleaded to recklessly causing injury, on the basis that you had been acting pursuant to a joint criminal enterprise with your friend in the violence. You also pleaded guilty to causing criminal damage; this came about because you used a metal object to repeatedly hit another victim's car, causing damage to a large portion of it. You were fined without conviction on that occasion.

43 In October 2007, you and some friends engaged in a completely unprovoked attack on a couple who were walking home late one night. After verbally harassing them, you got out of the car in which you were travelling, got a metal pole from the boot, and hit the man four times, including twice to the head. He was pleading with you to just leave them alone, as all they were doing was walking home. After the victim fell to the ground from your blows, you and your friends drove off, leaving him lying there. You were charged with intentionally causing injury, unlawful assault and assault with a weapon. In May 2009, you were sentenced to 8 months' imprisonment, to be served by way of an intensive corrections order.

44 Your counsel pointed out that those violent offences were committed when you were only 18 or 19. But they bear a number of similar features to the current offences, which were committed when you were almost 25; you clearly had not matured and learned from your past experiences with the law.

45 In October 2011, you were sentenced to another intensive corrections order; this was in relation to some charges of using, possessing and trafficking various drugs. You breached that order, by missing some appointments and being late in providing documentation. In May 2012, you were convicted of failing to comply with the intensive corrections order, and were sentenced to 3 months' imprisonment, which was wholly suspended for 12 months. You committed the current offences during that suspended period.

46 Since mid-2013, you have attended 5 counselling sessions with an Anglicare alcohol counselling service, and almost 20 counselling sessions with Ms Julie Wouters, a psychologist with a focus on alcohol and drug problems. In her report, dated 10 October 2014, Ms Wouters describes your history of binge-drinking and drug abuse, which began in your mid-teens, and your attempts to deal with those problems. In your sessions with her, you have addressed substance abuse and anger management issues. She believes that you no longer have a drinking problem, because you have reported to her that you have a new approach towards drinking alcohol and rarely drink it now. Other family and friends have confirmed that you have reduced your alcohol consumption. Nevertheless, Ms Wouters recognises that there may still be some risk of you relapsing.

47 Given your history of violence and disregard for the law, there is still a need for specific deterrence in this case.

48 Apart from drinking less alcohol and attending counselling, since your arrest you have been in constant employment, done some voluntary work with the Salvation Army, and entered into your current relationship. You have not committed any further offences in the meantime. You also enjoy widespread support from your extended family. Provided you continue to refrain from excessive alcohol consumption, I accept that you do have reasonable prospects of rehabilitation.

49 The Court of Appeal has recently made clear that there is a particular need for general deterrence and denunciation in cases involving random street violence such as this.[1] Unpremeditated violence may be brief, but it can have profound and enduring consequences for all involved, as it has done in this instance. It is important that young men, in particular, realise that engaging in this kind of street violence will likely lead to substantial periods of imprisonment.

50 I am not satisfied that anything less than a term of immediate imprisonment is justified here.

51 On 2 October 2014, for the offences of manslaughter and affray, I sentenced Mr Closter to a total effective sentence of 9 years and 3 months' imprisonment, with a non-parole period of 6 years.[2]

52 On 2 December 2014, the Court of Appeal re-sentenced Mr Russell in respect of his role in these events as follows: 2 years 6 months' imprisonment for recklessly causing serious injury; 18 months for recklessly causing injury (with 3 months' cumulation) and 15 months for affray (with 3 months' cumulation). That resulted in a total effective sentence of 3 years' imprisonment, with a non-parole period of 1 year and 9 months.[3]

53 I agree with the parties that parity with Mr Closter's sentence is not particularly relevant in this case; the seriousness of the offence of manslaughter, and Mr Closter's role as the primary instigator of the violence, are significantly different from the situations of you and Mr Russell.

54 Parity with Mr Russell's sentence is of some importance. There are some differences between Mr Russell's offending and yours. Mr Russell hit two people in quick succession. He was a trained martial arts fighter and was sober throughout the offending; he would have been well aware of how hard he was punching both of his victims. But although you caused injury to only one victim, it was a serious instance of the offence; you punched Mr Phillips to the head while he was facing away from you, and after you had said words to indicate that you were no threat to him. The following matters also count against you from a parity point of view: you are older than Mr Russell,[4] have a more substantial prior criminal history, and were on a suspended sentence at the time of the offending.

55 Having regard to the fact that the offences occurred quickly, and as part of a single incident, it is appropriate that there be substantial concurrency between your two sentences.

56 Furthermore, although there is a difference between the specific legal elements for the two charges, there is the common factor of unlawful violence in a case such as this one. The same acts of violence which constitute recklessly causing injury also constitute a large part of the acts of unlawful violence creating the terror that is the essence of affray. There are some distinguishing features between the offences, which provide a warrant for some cumulation, but it must be limited, and care must be taken to avoid double punishment.

57 Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, for the offence of recklessly causing injury, I sentence you to 2 years' imprisonment.

58 For the offence of affray, I sentence you to 15 months' imprisonment. I order that 3 months of the sentence imposed for affray be accumulated on the sentence for causing injury recklessly.

59 That makes a total effective sentence of 2 years and 3 months' imprisonment.

60 I fix a period of 1 year and 5 months before you become eligible for parole.

61 I declare, pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to a total of 3 years' imprisonment, with a minimum non-parole period of 2 years.

62 I note that you have spent no time in custody for these offences.

[1] DPP v Russell [2014] VSCA 308.

[2] DPP v Closter [2014] VSC 484.

[3] DPP v Russell [2014] VSCA 308.

[4] Mr Russell was 21 at the time of offending.