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AT MELBOURNE
CRIMINAL JURISDICTION
CR 13-01825
DIRECTOR OF PUBLIC PROSECUTIONSv
JOEL DIAMOND
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JUDGE: / HER HONOUR JUDGE COHENWHERE HELD: / Melbourne
DATE OF HEARING: / Trial: 21 - 25, 28 – 31 July, 1, 4 –8 August 2014
Plea: 2 October 2014
DATE OF SENTENCE: / 6 October 2014
CASE MAY BE CITED AS: / DPP v Diamond
MEDIUM NEUTRAL CITATION: / [2014] VCC
REASONS FOR SENTENCE
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Subject: Sentencing; intentionally causing injury
Catchwords: Jury verdict; alternative charge; offer to plead to charge; disputed causation of injuries; offending on parole; relevant prior criminal record
Legislation Cited: Sentencing Act 1991
Cases Cited: Storey’s case (1996) 89 A Crim R 519; York v R [2014] VSCA 224; R v Verdins & Ors [2007] VSCA 102
Sentence: 14 months imprisonment, CCO, 305 days PSD
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APPEARANCES: / Counsel / SolicitorsFor the Director of Public Prosecutions / Mr M. Fisher / Office of Public Prosecutions
For the Offender / Ms K. Churchill / Turnbull Lawyers
VICTORIAN GOVERNMENT REPORTING SERVICE
7/436 Lonsdale Street, Melbourne - Telephone 9603 9134
HER HONOUR:
1 Joel Diamond, you have been found guilty by a jury of intentionally causing injury to Michael James. The maximum penalty for this offence is ten years' imprisonment. You also have admitted a considerable prior criminal record to which I shall refer later.
2 This charge arises out of events on 9 April 2013 at the Commercial Hotel Werribee. That evening your girlfriend, Sarah Ellis, and brother, Rhys Diamond, had been involved in both verbal and physical altercations with a regular patron of that hotel, Mr Michael James. They had both been ordered out of the premises. You were called by your girlfriend to come to the hotel and arrived some 15 to 20 minutes after those events. You say that you went there just to pick them up. They were waiting outside for you. Your girlfriend told you that Mr James had made derogatory remarks about her. Your brother told you he had been in a physical altercation, and he had a bleeding lip, and one or both of them described to you or pointed out Mr James.
3 At 6.32 pm, you entered the hotel by the Bridge Street doors into the area known as the Sports Bar, walked past Mr James who was sitting drinking at a table against one wall, and then went into the outdoor smoking area. You were followed there shortly afterwards by your girlfriend, and the two of you were shown in that area on CCTV. According to the evidence of the bar attendant, you were told to leave the premises, but she is not shown on the camera at that stage, so I am unsure whether she entered the smoking area, or told you to leave from the end of the bar. You then went through the door back into the Sports Bar. Seconds later, you committed the assault on Mr James which gives rise to this charge.
4 Your assault on Mr James was recorded on CCTV camera in that bar area, which to a great extent speaks for itself, and the incident was also the subject of eye-witness evidence in the trial. Mr James was sitting on a high bar chair, drinking a glass of beer, then put it on the table and bent down and forwards to pick up something from the floor. As his head was low, and his face towards the floor, you approached with some speed and took a deliberate kick at his head. Your shoe appears to have connected forcefully with his face, causing his head to jolt a little upwards and then he fell forwards face down to the floor where he remained motionless for almost ten seconds before he began to move his hand and then his arm.
5 Whilst he was still lying on the floor motionless, Sarah Ellis, who had followed you from the smoking area, also kicked Mr James' head. She had thongs on her feet and appeared to make contact with the back of his head.
6 Even after he moved his hand and then arm, Mr James remained face down and apparently stunned and injured on the floor for some more minutes until assisted first to sit up on the floor and eventually assisted up onto his chair. Long before he could sit up, you and Ms Ellis and your brother who had entered the Sports Bar during these events, all fled through the door to Bridge Street, followed by various bar patrons but you all left without being detained at that stage.
7 I must assess the objective seriousness of this offence and your subjective culpability. To do so in this case, I must make findings as to some disputed facts. In doing this, I have taken into account all of the evidence in the trial, and my own assessment of each piece of it. My findings must be consistent with the jury's verdict, namely to find you not guilty of intentionally or recklessly causing serious injury to Mr James, but guilty of intentionally causing him injury. In approaching these findings, I have followed the principles set out in Storey's case, (1996) 89 A Crim R 519. Specifically, to make a finding of fact which is necessary to sentencing and is adverse to you, I must be satisfied of that fact beyond reasonable doubt. To make a finding of fact in your favour or which is mitigatory, I must be satisfied of that fact on the balance of probabilities.
8 The first disputed fact is your purpose or intention in committing this offence.
9 I am satisfied on the balance of probabilities that your manner of assault on Mr James was opportunistic and spontaneous in that on seeing his lowered head, you saw the opportunity or perhaps could not resist the temptation, to treat his head like a football.
10 However, from the evidence at trial, I am satisfied beyond reasonable doubt that your purpose in entering the Commercial Hotel less than two minutes before that assault was to seek some type of retribution against Mr James, whether as “payback” or to “teach him a lesson” for or on behalf of your girlfriend and your brother. The reasons for my finding of that intent are as follows.
(i) You had no other apparent reason or purpose to enter the hotel at all. If your only purpose for going there was to pick up your brother and girlfriend, you did not need to enter the hotel as they were outside and had been ordered out and not to re-enter.
(ii) Your actions on entering the hotel were not consistent with any other purpose than staking out Mr James. When you entered, you did not go to the bar itself, make any enquiry, order a drink or dinner, go to play the machines, watch the races on television, or even use the toilets. You walked past Mr James, turning your head towards him as you did so, as shown on CCTV footage in exhibit 6. Then you went straight to the outdoor smoking area, where you did seem to smoke a cigarette, and soon afterwards were joined by Ms Ellis. If you had an immediate need to smoke, you could have done that outside the hotel without entering it at all.
(iii) You entered after first talking with your girlfriend and brother outside, but on your own with them watching from the doorway.
(iv) Ms Ellis entered soon afterwards and followed you into the smoking area despite having been excluded. You and she are then seen talking for barely a minute before you head back into the Sports Bar, and within seconds you approached and kicked Mr James.
(v) Your counsel submits that your kick was spontaneous and that you panicked and lashed out because you knew this was the man your brother had fought with, and you saw Mr James reaching down to the floor and thought he might be reaching for a weapon. The panic is said to be at least partly influenced by your having become very wary of other people since a home invasion in 2007 in which you had been stabbed. Not only is there no evidence to support the version that you anticipated Mr James might be reaching down for some sort of weapon, or to attack you, I am satisfied that that version can be excluded from being a reasonable possibility. Your demeanour as you walked into the hotel as seen in exhibit 6 is self-assured. You turned to look at him as you passed, and seemed to concede here that as you walked past him you knew he was the man that you had been told had assaulted your brother and insulted your girlfriend. However, there is nothing to indicate that Mr James knew you or your connection with either the man he had earlier fought or the young woman who had punched him. Further, you could have walked out of the hotel without going closer than a couple of metres from Mr James as he was bent over looking down at the floor. There is nothing in my view in that evidence that could support a reasonable possibility that you thought he was going to attack you.
11 For these reasons, I am satisfied that your purpose in entering the hotel was to take some action in retribution against Mr James. I accept that the manner of the assault was opportunistic as opposed to planned, because you could not have known that he would lower his head for you. Nevertheless, your action was callous, brutal and as your counsel conceded before the jury, cowardly. In my view, the circumstances put it quite high in the middle range of seriousness for offences of intentionally causing injury. It is saved from being at the high end because it did not involve a weapon. I also take into account that it was a single strike rather than repeated blows, but a single blow can be deadly in some circumstances, and there have recently even been changes in the law relating to sentencing when a single blow causes death. The result here was not nearly as serious as that, but a deliberate and apparently forceful kick at a man's vulnerably lowered head, connecting with his face, must be considered serious.
12 Mr Diamond, is there something wrong? Your head is down. I do not mind if you are not looking at me but are you able to concentrate on what I am saying?
13 OFFENDER: Yes, Your Honour.
14 MS CHURCHILL: Would Your Honour like me to approach my client?
15 HER HONOUR: Just to check, yes please.
16 MS CHURCHILL: Thank you, Your Honour. We're all right to continue, thank you, Your Honour.
17 HER HONOUR: I continue with the findings and matters I am taking into account in assessing the seriousness of the offending and the culpability of Mr Diamond.
18 An aggravating factor is that you were on parole at the time. You had been released less than three months earlier from a sentence for a variety of offences, including a charge of recklessly cause serious injury. Several offences breached a suspended sentence previously imposed, also for at least one offence involving violence or threat of it. Knowing that you were on parole ought to have been a very strong reason to pick up your brother and girlfriend and drive away. You ought to have realised that you should avoid bringing about situations where you might be tempted to act with violence. This was not a situation where you acted in the heat of the moment. You were not present for the earlier events, and there was nothing that had occurred between you and Mr James to provoke you. You could easily have avoided any such confrontation by simply not entering the hotel. Any insult to your girlfriend or fight involving your brother was well over before you arrived and they were safely, if unhappily, outside.
19 Next there remains dispute, as there was during the trial, as to which injuries your assault caused to Mr James and the extent of those injuries. Mr James was taken by ambulance to hospital after this incident, where several injuries to his face were found including those you were alleged to have caused, and he was kept overnight. However, overnight his condition deteriorated and some very serious abdominal injuries were found requiring surgery and leading to his being placed in an induced coma for some days. It was conceded that your kick was unlikely to have caused the abdominal injuries or the necessity for the coma, so none of those facts were made known to the jury.
20 The prosecution case at trial was that you caused him the following injuries- three facial fractures with which he was diagnosed, namely to the right inferior orbit (that is the base of the orbit where the eye sits), to the right medial pterygoid (that is a bone that is part of the skull,)and a left side nasal fracture, that you also caused him bruising and swelling around the right eye, (colloquially speaking a "black eye"), a right sub-conjunctival haemorrhage (meaning bleeding in the white of his right eye) and unconsciousness.
21 Although it is conceded on your behalf that an injury of some nature was caused by your kick, it is argued that the court cannot be satisfied beyond reasonable doubt which injury or injuries you caused because Mr James had been in a physical altercation with your brother about 20 minutes earlier, when punched by your brother and wrestling on the floor with him. Then he had been punched in the face once or twice by your girlfriend, and, further, after your kick she also kicked him in the head.
22 I am satisfied beyond reasonable doubt that your kick knocked Mr James unconscious, albeit for no more than ten seconds. I conclude this partly from my visual impression from the CCTV footage as what appears to be a forceful kick causing his head to jerk, and then he fell forwards to the floor without any protective action. That was also the impression - that is that he was knocked unconscious by your kick - of each of the witnesses who saw it occur. Mr Craig Murphy, the first to be asked about this, gave his reasons. He said the man looked like he was knocked out because he just fell without bracing himself and his chair went from under him and he just slumped and went on the floor and he was not moving. Although Dr Parkin, the forensic physician who was called by the prosecution to explain the injuries in this case, acknowledged that she could not say that Mr James definitely lost consciousness at that stage, as she was not present and did not examine him at the time, her opinion was - after watching the CCTV footage - that he was unconscious for some seconds. She based that on the apparent force of the kick, including the pendulum motion, and because Mr James' fall was what she called a "dead fall", that is without bracing himself with his arms or hands, and flat onto his face without trying to turn his face away.