DPP v Evans [2018] VCC 2154 (14 December 2018)

Last Updated: 2 January 2019

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT BAIRNSDALE

CRIMINAL JURISDICTION

CR 18-00508

DIRECTOR OF PUBLIC PROSECUTIONS
v
MATTHEW EVANS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Bairnsdale
DATE OF HEARING:
DATE OF SENTENCE:	14 December 2018
CASE MAY BE CITED AS:	DPP v Evans
MEDIUM NEUTRAL CITATION:	[2018] VCC 2154

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr I. Crisp	Thexton Lawyers

HIS HONOUR:

1. Matthew John Evans, you have pleaded guilty to one charge of intentionally causing serious injury. That crime carries a maximum penalty of 20 years' imprisonment. You pleaded guilty with admissions. Those admissions are of real importance. Despite your not contacting any emergency services or police after the events that occurred, you did ultimately make a confession to police which resulted in your successful prosecution. Without that confession, I think the prosecution would have a very difficult task indeed in securing your conviction.
2. Accordingly, I accept in your situation there is now at least appropriate remorse and you must of course get a very significant utilitarian benefit for that plea of guilty. You have no prior convictions that matter here and you have no subsequent matters as I understand them. There has been a delay obviously, the offending having occurred some years ago, but that was principally because you did not tell anybody and - but the fact of the matter is that that delay does assist you and has enabled you to show that you have certainly rehabilitated to that extent since the incident occurred and that you have continued on working and supporting your family.
3. Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes. That order having been made, I must advise you that should you refuse to provide such a sample police may use reasonable force to take it from you.
4. The Crown have tendered a very lengthy summary of the offending here and Mr Cordy very sensibly did it in a relatively dedacted way. The full details of course are in that exhibit and I will direct that that remain on the court file for anybody with a genuine interest. My summary will just be to get the gist of the matter and because I leave something out does not mean I regard it as unimportant. It is just simply to convey essentially what occurred in this situation, not each and every little detail of it.
5. In any event, you were 41 years old at the time of the offending. You are 47 years of age now. You had been living and in a relationship with a Patricia Evans for years. At the time of the offending, you had four children together. You had two children since. You were employed at the Buchan quarry at the time of the offending which is several kilometres north of the Buchan township. Up until now, you have continued to be employed at the Buchan quarry. The victim in the matter, Mr Andrew Roberts, was 51 years old at the time of the offending.
6. For a brief period at the end of 2012, Mr Roberts commenced a relationship with your wife. That apparently lasted for a number of months and, in the Crown opening at least, ended in January 2013.
7. At some stage in October 2012, you arrived home from work one day to see that your wife had moved out of the house with the children and that she had taken some of the furniture and white goods. You learnt that she had moved in with Mr Roberts but were unsure as to the status of the relationship at that time. Your wife told you initially that they were just friends. You remained supportive of your wife - she had custody of the children - and maintained contact with your children every day. You would visit them at the home of the victim in the matter whether he was home or not, and you also maintained regular contact with them by telephone.
8. The relationship between Mr Roberts and your wife continued and it became clear to you what the real situation was. When she told you that she was unwell, you took her to a doctor and she was diagnosed with herpes. That deeply disappointed and upset you, however, you continued to look after her and she was given medication for the treatment and you took her back home, back to the family home for a couple of days to assist in nursing her back to health. When her condition improved, she left and went back to Mr Roberts.
9. You subsequently learned from her that she was also pregnant to Mr Roberts and that due to the medication the baby would develop deformities. She had been advised by medical experts that a termination might be a consideration. Again, you tolerated this and though it disappointed and upset you, you remained supportive throughout that time despite the fact that your wife on any version was moving between your home and Mr Roberts' home with the children on a number of occasions.
10. I do not need to go into each and every incident that occurred after that, just simply that - we get to the - essentially the day of the offending. The victim was to start work at 5 o'clock in the morning. Only a limited number of people knew that including your wife. But in any event, on the morning of 22 January 2015, Mr Roberts arrived at work. Your wife had been driving behind him. She stated that she flashed her lights at him and continued driving towards your home where she arrived at about 4.55 am. The normal situation for Mr Roberts at work was that he would attend the work depot, unlock the date and park the car, sign on in the work register which he did this day at 5 o'clock, start the truck, do the pre-start check log on the truck and drive out of the yard, locking the gate behind him and then commence to travel to Bairnsdale. That process apparently took around ten to 15 minutes.
11. As I said, he signed on, he had loaded his Thermos and lunch esky into the work truck at which point he was severely assaulted and left lying on the ground unconscious or semi-conscious. He was found by a work colleague at approximately 6.25 am which must have been something in the order of an hour or so after the assault. That work colleague raised the alarm, a nurse attended and the victim was taken from Buchan to Nowa Nowa and then airlifted to The Royal Melbourne Hospital.
12. It is clear from the medical materials that the injuries that were inflicted were life threatening and there are lacerations to the forehead which of course bleeds very easily. And it must have been very obvious to you even at that hour of the morning that the man was seriously hurt. You made no attempt to ring an ambulance. You made no attempt to call the police or gain any assistance for him. It would be a pretty fair guess that had a work colleague not found him, he might well have actually died.
13. In any event, as where the matter stood, the victim had suffered what can only be described as extremely serious injuries in my view: multiple skull fractures including complex left frontal bone fracture, multiple complex depressed fractures in both bony eye sockets including the orbital roof, the inner and outer orbital walls, a fractured cheekbone, a fractured thin plate of the bone that separates the nasal cavity from the brain, a fracture to the temporal bone in the middle ear cavity, multiple nasal bone fractures, widening of the bone sutures on the side of the back of the head, a fractured sternum, multiple rib fractures, a fractured right femur with leg deformity, multiple brain injuries which caused confusion and memory loss, bleeds and collections to both sides of the brain, extradural haematoma and acute subdural haemorrhages, brain fluid leak, deep lacerations to the forehead, bleeding from the nostrils, swelling and blood collection around both eyes, teeth missing, upper chest and right shoulder bruising.
14. Medical reports were obtained in relation to those. A Dr Dia said that it was consistent with the victim having been struck with a large heavy object on multiple occasions and it clear that the force needed to fracture the sternum and the femur in particular would have been significant to severe.
15. I am sentencing on the basis that there were at least three blows and it may well have been more. I am well aware from an earlier life that fractures to the skull can occur in very strange ways, one blow can often cause a number of associated fractures so I am not going to buy into that. But what has to be said here is before we even deal with your record of interview that the assault on this man, with what everybody is now accepting was an iron bar, was indeed a savage one. It must have been obvious to you early on within this attack that the man was in serious trouble and as I have said, you simply left him there.
16. You denied all this for years. Eventually because of other matters that have been discovered by the police, you were arrested and charged. As I think I have already indicated, I think the evidence on which you were being held would be best described as flimsy but in any event, whilst in custody at about 8.30 am on 31 October 2017, you told custody officers that you would like to talk to the police. They then spoke to you - I read that record of interview - but you described to them that early on that morning you had snuck out of the house after Patricia had arrived home.
17. You went to the depot with the intention of telling the victim that Patricia - that is your wife - needed to sort out where the relationship stands. If they were going to become permanent, then she was only to return to the accused - to your home for the purpose of dropping off or picking up the children. You told police that you arrived at the gate of the depot, parked your car at the gate and approached the victim to have the conversation.
18. According to you, he was not interested in what you had to say and said, "Fuck you, cunt", raised his leg and kicked you under the ribs which caused you to fall back onto the tray of the truck. You then grabbed a heavy metal bar about three feet long and went to hit the victim across the left shoulder with it but he put up his arm to protect himself. You hit him across the chest with it, you hit him across the leg with it and clearly realised either at that time or later, that you had broken his leg.
19. You denied hitting him in the head with the bar or in any way at all and could not explain why there was such severe head injuries to the victim. As I have said, from a previous life, one blow can do a lot of that damage to a head but I have no doubt in this sentencing process that there was at least one very severe blow to the head resulting in very serious and long term injuries to Mr Roberts. Where the bar came from, no one seems to know. You say you picked it up, whether it was in your ute or whether you took it there with the purpose of doing this or whether it just happened to be there, we will never know. But the fact of the matter is that you did pick it up and you did use it. And you did use it, as I have said, savagely.
20. In this particular situation with the lead-up to it all, as far as you are concerned, I am prepared to accept that you had been tolerating a degree of conduct which must have been exasperating for you and that is in no way being critical of

    Mr Roberts. You had been very tolerant. You had supported your wife through great difficulties in what must have been emotional turmoil. As your counsel clearly pointed out, you were able to survive that. You showed no propensity towards violence and it was at this moment in time - whatever happened, I do not necessarily accept what you said in your record of interview - that at that truck at 5 or so o'clock in the morning you snapped. Essentially, in your vernacular, "you'd had enough." What occurred is what occurred. And you cannot take that back and I have indicated my views as to what occurred immediately afterwards.

21. The injuries can be read out in that form and they have an impact upon listening to them. Mr Roberts read out his victim impact statement in court and he read out very succinctly, if I may say so, the dreadful consequences that this attack has had on him. I am not going to read it all out again. He has already done that. But I think it is important that it be understood by anybody reading these remarks what dreadful consequences there have been for that man. He pointed out that throughout his life he had always been a full-time and hard worker. He said he was physically fit and strong and always worked long hours to provide for his family. He loved working and loved working outdoors. He cannot do that anymore. He said, "I will never work again. I have lost the ability to provide for myself and my family. This was life-changing for me."
22. He said his leg injury has severely restricted his mobility. He is in constant pain and has to have medication if he is to travel any distance either by foot or by car. There is a deformity to the leg, as I understand it, and indeed he moves at least here on crutches. He is not allowed to drive except with a driving instructor which means he never drives so he says he is confined to his house. As he said, he is a prisoner in his own home. He lives on a small farming property at Buchan South and the injuries have taken away his capacity to perform the basic farming duties. He cannot even fix his own fences or kill his own meat.
23. I have no doubt that the man has worked all his life. That is a very serious set of consequences, let alone what I am about to read out next. He is 56 years of age and if it follows the pattern of the normal lifespan of a Australian male, he is going to have to be living with this for a long time.
24. In terms of rehabilitation, in terms of ultimate consequences, obviously the future speaks for itself but he is certainly in the situation where he believes he is stuck with what has happened to him forever. He says, "These injuries I will have to cope with and endure for the rest of my life." He says that as a result of the fractured skull and head injuries, he has a brain injury which is - he describes - a TBI. That may well be so. He is certain he has had personality change, on his description, as a result of all this. He lives in constant fear of being assaulted again. He has put in sensor lights, hidden cameras and he gets concerned about being attacked again.
25. He says he is emotionally drained and frustrated having to deal with the WorkCover insurance company. I make no comment about that. But as a consequence of this - something that will be ongoing, I would have thought, for Mr Roberts.
26. The financial burden, he has described, as a result of all this is immense. It means that at the age of 56, a hardworking independent man has now become dependent. He is in pain. He has had difficulty with his WorkCover the entire time and always has financial concerns. That is just a summary of what he had to say and what I have read in the other material but they are dreadful, I suppose, consequences for man who is now dependent and lost essentially the basic things in life that he enjoyed doing. That is one part of the sentencing process in the charge of intentionally causing serious injury. It is an important one.
27. I then turn to matters personal to you. As I indicated to counsel, it is almost like dealing with some of the culpable drivings we have to deal with.
28. You, until this occurred, had effectively as an adult led an exemplary life. You had always worked. I am not going to go through your childhood. That does not really matter much anymore. You have never shown a propensity to violence. You have always looked after your family and you have been a very responsibly member of the community. Before me, I have a report from Dr Sullivan who is well-known to me and I have many references on your behalf and many certificates as to the courses that you have gone through. I accept that, as I indicated, you had an exemplary life before this occurred and an exemplary life afterwards.
29. You are a hard worker and I have got references from earlier employers as well. You are in the situation where you are the sole provider for your wife, who you are apparently reconciled with, and six children. I accept that it will be much harder undergoing a significant gaol sentence as you must because of that - that you will have to spend your time in gaol concerned about children, about missing out on their milestones and just about concern for their well-being, you not being there to assist them. I accept that that is a significant punishment for any man in your situation.
30. As again, as was pointed out by your counsel, you have no propensity for violence. Your references show that you are clearly honest. You have been associated with various sporting clubs, been a member of the CFA for years. All these factors, which in a country community are so important, you have participated in and contributed to.
31. In your younger days, you had had mental health issues but they have got nothing to do with this. I look to the report, as it was pointed out to by your counsel from Dr Sullivan, and he describes you as having at the time of this occurring a mood disorder which he said was clinically significant which was causally associated with the alleged offence. He said, I think, at the time of the alleged offence, "His capacity to think clearly and make calm and rational choices was likely to have been significantly reduced as was his judgment. There is no indication of disinhibition, impairment of knowledge of wrongdoing or of obscuring of the intent of the offences as alleged."
32. In other words, I don't take the view that Verdins applies in this situation. I do not think it gets to that level, other than a sense of a harder time in gaol. What I do take into account is that insofar as that mood disorder at that time is concerned, it is hardly surprising that a man undergoing the process that you were undergoing in your marital circumstances would not be depressed. I think that your conduct while absolutely reprehensible at least is fitted into a context and that is of benefit to you in the sentencing process.
33. I do not think there is any need for me to go much further into what Dr Sullivan had to say. It basically fits in with what everybody says - other than this probably ten minutes of utter madness, you have led an exemplary life.
34. Your prospects for rehabilitation have to be regarded, I think, as excellent and the risk of you reoffending, I would regard, as very low. All those mitigatory factors have then to be balanced against your conduct in savagely attacking a man with an iron bar, leaving him to an extent brain damaged, physically incapacitated and with a - essentially from his point of view - ruined life. That is a very difficult task and I have discussed it with counsel in general terms the average or current sentencing practice insofar as this offence is concerned, not that that is in any way binding and each has to be looked at very much in its own set of circumstances. This is one with very serious consequences balanced against very powerful mitigatory material.
35. In the end, I have decided that because of the reason of general deterrence - specific deterrence does not matter so much - denunciation and appropriate punishment and also regarding community protection as not being a massive - sorry, I take that back - as not being a significant part of this sentencing process, you are sentenced as follows.
36. On the charge of intentionally causing serious injury, sentenced to imprisonment for a period of five years and six months.
37. In your particular set of circumstances, because of your very good prospects for rehabilitation and because of your conduct since and prior to the offending occurring, I think it is a circumstance where you should be given the opportunity of parole at a time earlier than would have otherwise been the case and therefore, I direct that you serve a period of two years and nine months before becoming eligible for parole.
38. I direct that 21 days be reckoned as having been served under this sentence.
39. Just so you and your family and others understand the significance of the plea of guilty in this matter, had you fought this out or endeavoured to fight this out on some self-defence basis or something along those lines and been convicted by a jury and then being sentenced by me, I would have given you nine years with a minimum term of six.
40. Are there any other orders I have to make?
41. COUNSEL: No.
42. HIS HONOUR: No. Yes. Thanks, gentlemen. Yes, thanks gents.