Director of Public Prosecution v Hermiz, Verigos and Workman
[2023] VCC 1643
•11 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-23-00200
Indictment No. N11652541.1A
Case No. CR-23-00202
Indictment No. N116595745
Case No. CR-23-00699
Indictment No. P10330762
Case No. CR-23-00197
Indictment No. N11589271
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBBIE HURMIZ |
| and |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GABRIEL VERIGOS |
| and |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRISTAN WORKMAN |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 2 August 2023 (Hurmiz and Verigos) | |
DATE OF SENTENCE: | 11 September 2023 | |
CASE MAY BE CITED AS: | Director of Public Prosecution v Hermiz, Verigos and Workman | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1643 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords:
Legislation Cited: Crimes Act 1958; Firearms Act 1996
Cases Cited:R v Mills [1998] 4 VR 235; Ryan v R (2001) 206 CLR 267; R v Williscroft, West, Woodley & Robinson [1975] VR 292; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; DPP v Jabbour [2023] VSCA 204; Boulton v The Queen [2014] VSCA 342
Sentence: Three years and eight months (44 months) imprisonment, with a non-parole period of 28 months and disqualification from driving for 12 months (Hurmiz)
36 months imprisonment, with a non-parole period of 21 months and disqualification from driving for 24 months (Verigos)
36 days imprisonment, declared as having been served, a community corrections order of three years and a fine of $400 (Workman)
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | S Tan M Roper (Workman) | Solicitor for the Office of Public Prosecutions |
| For the Offender Hurmiz | S Tovey | Theo Magazis & Associates |
| For the Offender Verigos | S Coulson | Nelson Brown Legal |
| For the Offender Workman | M Sturges | Angus Cameron Lawyers |
HIS HONOUR:
1These reasons concern pleas of guilty entered by the three offenders to various charges on indictment and related summary offences. I will set out the relevant background factual matters first. This is because the accepted factual matters significantly overlap in relation to the offending. I will then come to deal with the circumstances of each individual offender separately.
2By way of brief background, most relevant to the indictments before the Court on 5 May 2021 you, Gabriel Verigos (“Verigos”), had your learner’s permit cancelled and were disqualified from driving for twelve months. You were then accused of a number of unrelated matters and were bailed from the Heidelberg Magistrates’ Court on 17 January 2022 to return on 24 May 2022. Part of the bail conditions were that you not drive a motor vehicle.
27 March 2022
3The first relevant incident occurred on 27 March 2022, when, at approximately 7.00am, Verigos was driving, while disqualified, a red Holden station wagon along Derby Street, Pascoe Vale. It was said at the plea that, at this time, Verigos was affected by methylamphetamine. At the intersection between Derby Street and Gaffney Street, Verigos drove through a red traffic signal and collided with a silver Holden Colorado being driven by Mr Donate Rettore. The collision was of such force that it pushed Mr Rettore’s vehicle into a traffic pole at the corner of Derby Street. The traffic light fell over. It struck the roof of a café. Both vehicles were unable to be driven further. Verigos got out of the car, made no attempts to check on the other driver or exchange any details, or wait for police. Verigos left the scene on foot. Mr Rettore was trapped inside the vehicle. He had to be cut free. He was urgently transferred to hospital and had extensive internal injuries. He was artificially ventilated for over a week. His injuries were described as life threatening and could easily have resulted in death.
4Verigos was arrested, made a “no comment” interview and was released pending summons. None of the above incidents involved the accused, Robbie Hurmiz (“Hurmiz”), or the accused, Tristan Workman (“Workman”).
5At this time, Verigos was a prospect of the outlaw motorcycle gang known by the name “the Mongols”. You, Hurmiz, were a patched member of that gang. You, Workman, knew Hurmiz as a source of drugs. Workman and Verigos had limited, or no, knowledge of each other prior to the relevant events which occurred from 19 July onwards.
6Proceeding chronologically.
7By way of background material received during your plea, Workman, I record that you had been in a long-term relationship with Tanisha Wills (“Wills”). You had a child together. Subsequent to this, however, Workman and Wills broke up. Wills then had a sexual relationship with a friend of Workman’s by the name of Sebastian Arico (“Arico”). Wills added Arico on her Facebook page. This became known to Workman who became upset with Arico.
19 July 2022
8On 19 July 2022, Wills contacted Arico via Snapchat, discussing Workman and her breakup with him. Later that afternoon, Workman contacted a friend of Arico’s via social media in an attempt to identify where Arico was living at that time. Subsequently, that friend contacted Arico to tell him that Workman was attempting to locate him.
9Shortly after this, Workman used an alias to contact Arico via social media. That alias was known to Arico. In that message, Workman stated to Arico, “I’ll let one off so ya know im there ya crumb swear on my nans grave cunt imma put one in ya see ya soon boy xxx”.
20 July 2022
10The next day, 20 July 2022, Arico received a message from another friend and they agreed to meet at 28 Nivea Terrace, South Morang, in the afternoon, with another friend. Meanwhile, earlier that morning, Workman arrived at Hurmiz’s home address in Kalkallo. Shortly afterwards, Verigos, arrived at Hurmiz’s home address, driving a silver Toyota hatchback bearing false plates. Verigos, parked the silver Toyota hatchback in front of the white Toyota Kluger which was in the driveway. Workman, then changed the front and rear registration plates of the white Toyota Kluger from its true registration to false registration plates. Workman wore gloves to change the plates.
11At approximately 1.37pm, Workman exited the house, shortly followed by Hurmiz and Verigos. Hurmiz, wore black and white Mongol’s clothing underneath a green hooded jacket, black pants and brown work boots. All three of you jumped into the Toyota Kluger and departed. Hurmiz, was driving. Verigos, was seated in the front passenger seat and Workman was seated in the rear passenger-side seat. Shortly after leaving, you Hurmiz, took a photograph on your mobile phone of the centre console of the Toyota Kluger. It displayed, in open view, a handgun, a sawn-off firearm and a white facemask.
12At approximately 2.31pm, the Toyota Kluger, with Hurmiz, Verigos and Workman, arrived in Nivea Terrace, South Morang. At approximately 2.39pm, Arico drove his vehicle, a gold 2002 Ford XR6 sedan into Nivea Terrace. Arico slowed down and stopped his vehicle. He parked in the vicinity of 28 Nivea Terrace. At approximately 2.41pm, Arico exited the driver’s seat of his vehicle. At this point, Hurmiz drove the white Toyota Kluger at speed towards Arico and pulled up side by side with Arico’s vehicle.
13At this point, the accuseds’ vehicle was pointing one way along Nivea Terrace in the middle of the road and Arico’s vehicle was parked on the left-hand edge. There was a small distance between the Kluger’s driver’s side door and Arico’s driver’s side door. Arico observed Hurmiz and the front passenger, Verigos, to be wearing white facemasks. Hurmiz produced a firearm and pointed it at Arico. Arico quickly re-entered his vehicle and attempted to start his vehicle using his car keys. Workman, wearing a black neck gator, pulled onto his face to conceal his identity, exited the rear driver’s side seat of the white Toyota Kluger and opened Arico’s side door. Workman, said, “I told ya I would get ya, I told ya I would get ya”. Arico identified this person to be Workman, based on build and voice. Workman, attempted to pull Arico from his vehicle, but Arico pushed him away and a struggle occurred. Arico continued to attempt to start his vehicle during the struggle. At this point, Verigos, exited the Toyota Kluger from the front passenger-side door, holding a sawn-off firearm with both hands. Verigos walked towards Workman and Arico. At that time, while seated in the front driver’s-side seat, Hurmiz, fired two shots from a firearm towards Arico’s vehicle. One shot impacted the driver’s-side mirror of Arico’s vehicle, travelled through the driver’s-side window and impacted the steering-wheel column, where Arico sat in the driver’s seat, narrowly missing Arico. It is not known where the second shot impacted. Workman, sustained a graze to the cheek from a discharged bullet. Immediately after the shots, Arico fled from his vehicle and ran towards a wide median strip between Nivea Terrace and The Lakes Boulevard. Verigos, got back into the Kluger’s front-passenger seat. Workman leaned into the driver’s seat area of Arico’s vehicle. At this point, Arico ran back towards his vehicle and grabbed Workman in a headlock. There was a struggle between Workman and Arico. Verigos, exited the front-passenger seat of the Toyota Kluger again, still in possession of the sawn-off firearm. Verigos, approached Arico from behind and struck Arico to the head. Arico fell to the ground, releasing Workman, from the headlock. At this point, Workman and Verigos, repeatedly assaulted Arico by punching, kicking and stomping him while he was on the ground. This occurred on the roadway at the rear of Arico’s vehicle and lasted for fifteen seconds. Arico managed to get to his feet and walked toward the wide median strip located between Nivea Terrace and The Lakes Boulevard. Arico took a few steps back toward the rear of his vehicle and Workman swung a screwdriver at Arico a number of times, slashing his trackpants. Workman yelled “[c]ome on, come on” and called Arico “a bitch”. Verigos, walked towards Arico, holding the sawn-off firearm and pointed it at Arico. Arico began yelling out that he was going to call the police. Verigos returned to the front seat of the Toyota Kluger. During this time, Hurmiz, while still seated in the driver’s seat of the Kluger, was aiming a firearm at Arico and was attempting to cock and further discharge the firearm. Workman, used the screwdriver to slash the tyres of Arico’s vehicle, causing the tyres to be destroyed. At approximately 2.43pm, Workman, re-entered the rear-passenger seat of the Toyota Kluger on the driver’s side and approximately thirty seconds later the white Toyota Kluger drove away. The incident described above can be seen in two pieces of video footage captured by CCTV, and also mobile phone, both tendered on the plea.
14Later that day, CCTV footage showed the Toyota Kluger arriving at Hurmiz’s property. Workman then changed the false plates to the vehicle’s true registration plates. During this time, Workman wore his neck gator over his face. Hurmiz carried the handgun and sawn-off firearm into the garage and premises. Verigos carried the white facemasks into the premises.
15Examination of the scene on Nivea Terrace by ballistics experts revealed two spent ammunition casings on the roadway outside Arico’s vehicle, three live ammunition rounds on the roadway outside Arico’s vehicle, and one fired bullet inside Arico’s vehicle in the driver’s footwell. Arico was assessed by attending Ambulance Victoria paramedics at the scene, but did not attend hospital for any treatment. Arico provided a statement to police.
21 July 2022
16Turning to the next incident relevant to the pleas. On Thursday, 21 July between 7.30pm and 8.40pm, a white 2013 Porsche Cayenne station wagon (“the Porsche”), was stolen from a residential address at 45 Glencairn Avenue in Brighton East. It was identified that a lone unknown offender had gained entry to the premises via a door, ransacked the premises and located multiple sets of car keys, including keys to the Porsche and then stole the vehicle.
17On Tuesday, 26 July 2022, Hurmiz, drove the Porsche. On Wednesday, 27 July 2022, Hurmiz drove the Porsche to the Port Melbourne Mongols Outlaw Motorcycle Gang clubhouse in Port Melbourne.
29 July 2022
18On Friday, 29 July, between 2.00am and 4.00am, Verigos, drove the Porsche. At around this time, Verigos was observed in High Street, Thornbury, next to the parked Porsche. Upon seeing the police, Verigos, got into the Porsche and took off at a dangerous rate of speed on High Street. At approximately 4.02am, police were patrolling near Gilbert and Oakover Road, Preston. At this time, they observed the Porsche abandoned on the side of the road after being involved in a collision. The vehicle was hung up on a power pole support cable, left running in reverse gear, and the left-hand front wheel completely removed from the assembly as a result of the collision. A check of the vehicle identified it as the stolen vehicle. On 29 July 2022 at 4.12am, Verigos, used his phone to send three SMS messages to Joel Brown as follows:
“a. ‘911’
b. ‘I got into a challenge I smashed it bro’
c. I left my bum bag everything.”
19A search of the vehicle located a Calvin Klein wallet containing identification cards, bankcards and personal cards in the name of Verigos, as well as two zip-lock bags containing methylamphetamine.
20I will now come to deal with each of the accused.
In the matter of Robbie Hurmiz
21You, Hurmiz, were charged on indictment and pleaded guilty with the following matters:
Charge 1 – armed with criminal intent contrary to s32B(2) of the Crimes Act1958, which has a maximum penalty of five years;
Charge 2 – common assault contrary to common law, maximum penalty of five years;
Charge 3 – discharging a firearm at a vehicle with reckless disregard for safety, contrary to s131A(1) of the Firearms Act 1996, maximum penalty 20 years;
Charge 4 – theft, contrary to s74(1) of the Crimes Act, maximum penalty 10 years, with potential disqualification from holding a licence.
22There was consent that related summary offences could be dealt with by this court and guilty pleas were entered in respect of each of them. These were:
Charge 15 – unlicensed driving, six months or six penalty units;
Charge 16 – committing an indictable offence whilst on bail, the maximum penalty being three months or 30 penalty units;
Charge 66 – fraudulent use of number plates, the maximum penalty being 6 months imprisonment or 60 penalty units.
Arrest and interview
23On Wednesday, 3 August, Hurmiz, was arrested by a Special Operations Group in Mickleham. He was taken into custody and provided a “no comment” interview. He was charged and remanded into custody.
Prior criminal history
24Mr Hurmiz, you have a limited list of prior matters. This commences in February 2021, with a theft of a motor vehicle charge and possession of cocaine. With conviction, there was a fine entered and a disqualification of licence. Then, in February 2023, there were numerous charges in relation to deal with property suspected of being proceeds of crime, possession of cannabis, possession of ammunition without a permit, failure to comply with a direction to assist, driving whilst disqualified and a traffic light infringement. As a result of this there was a disqualification for six months. This is relevant, in the sense that the driving of the Porsche occurred while unlicensed.
25In relation to the driving offences in relation to the Porsche, while they occurred while you were on bail and disqualified, they are not overly-serious matters.
Nature and gravity of the offending
26The offending by you, Hurmiz, on the accepted factual summary, is serious. This is for the following reasons. All three of you met at your home. It appears that the guns came from your house. All three got into your car and you acted as the driver. While the enterprise you were engaged in seemed primarily stoked by the desire of Workman to confront Arico, you, Hurmiz, took an active role in this, using your house as the meeting place, your car, and also guns coming from your home being placed into that car. Furthermore, you allowed the plates on the car to be changed by others to conceal its true identity. Having done that, you then drove all three of you to Nivea Terrace to lie in wait for the arrival of Arico. You, Hurmiz, donned a mask to conceal your identity. It was you who drove the vehicle up next to Arico’s vehicle when it arrived. Most importantly, you brandished weapons from the side of the vehicle. You took the deliberate decision to fire and discharged at least two shots in close proximity to Arico and also Workman. It is true that you are charged with a reckless disregard for the safety of the victim, as opposed to actual intent to harm. However, it is an example of brazen, reckless behaviour, with potentially dire consequences, to discharge a firearm, not once, but twice, in such close proximity to both Arico and Workman. I also take into account that this was in broad daylight in a suburban street of Melbourne. It was terrifying behaviour. To arrive at the end point of those matters required a series of deliberate decisions over a period of time. I consider your moral culpability to be high.
Victim Impact Statement
27There was no Victim Impact Statement from Arico in this case. However I can readily infer from the circumstances of what I have just described that to be the target of such actions would be terrifying.
Personal circumstances
28Mr Hurmiz, you were born on 30 September 1998 in war-torn Iraq as one of five children. At this time, you spoke no English. It was said that, during the period when you lived in Iraq, your environment was highly destabilised and you were exposed to a series of horrific events at a very young age, including gun fights and bombings. Ultimately, your family came to Australia when you were seven. You spoke no English. You settled in Broadmeadows and your father immediately began working. While you went to the local primary school, your lack of English was telling. You made it into high school, you were struggling and ultimately left in Year 8, after being expelled due to behavioural issues. Obviously, I consider this to be a highly-disrupted educational path and a very difficult one for a young person.
29You began working, as no other school would accept you. You worked in traffic control and then also worked in flooring for a period. You worked in various mechanical shops and did panel beating, but did not find long-time work. As commented above, there have been issues with drugs, namely cannabis, which you began using at around the age of sixteen, and also cocaine.
30You have some association with the Mongols motorcycle club, being a patched member. However, on the facts in the summary, there is no relationship between the activities of that club and the offending relating to the events of 20 July or 27 July.
31While you come to this court, having accepted the offending at age twenty-three, you are now aged twenty-four. While you are not a young offender for the purposes of sentencing, your age classifies you as a youthful one.[1]
[1]R v Mills [1998] 4 VR 235 at [24]
Matters in mitigation
32There are four matters really put as mitigatory in your case. The first is your early plea of guilty. It is accepted that it was made at a reasonably early opportunity and entitles you to a substantial sentencing discount. That point was not cavilled with by the prosecutor. As part of that, because you have spent some part of your incarceration during the COVID period, a further discount by reason of the principles in Worboyes v The Queen[2] applies.
[2][2021] VSCA 169
33Secondly, your youth. As I have touched on above, you are considered a youthful offender. This is an important factor, I consider, given your lack of substantial prior history. In combination, this suggests that rehabilitation is a strong factor in the sentencing synthesis.
34The third factor is your background of disadvantage. Such a background of disadvantage does not automatically reduce the sentence.[3] It does not, I consider, reduce your moral culpability for the offending. There was no psychiatric material presented on the plea which would explain why the behaviour occurred by reason of this background.
[3]See Sentencing 3rd Ed, Fox and Frieberg at paragraph [4.105]
35Fourth matters as to your character and prospects were introduced. The following material was tendered:
(a) Exhibit D5 – Bundle of character references comprising:
(i)character reference of Ava Hurmiz dated 5 August 2023;
(ii)character reference of Joseph Hurmiz dated 5 August 2023; and
(iii)character reference of Dr Michael Mortimer dated 4 August 2023
I have read and considered that material.
Prospects for rehabilitation
36No material was presented on the plea which dealt specifically with your rehabilitative prospects. There was a broad submission that, due to your youth and lack of priors, you were reclaimable from a path of criminality. There was no evidence of any courses that you had done while in prison or intended to do. Further, while it was accepted that you needed to deal with your drug issues, no material was put before the Court as to how this was proposed to be done. Presumably, this would be a function of parole.
Sentencing principles
37I have had regard to all of the principles in the Sentencing Act s 5 in all 3 matters. In this case, deterrence assumes some importance. This is first specific deterrence, due to the fact you have a limited past history and you are a youthful offender. Second there is also the general deterrence factor, which is that the community must understand that brazen acts, such as the one committed by you, will not be tolerated. In part, the Court must also express its denunciation for such actions.[4] Punishment also plays a role, though this plays a much more minor role given your youth. I have touched above on your rehabilitative prospects. It is not always the case that rehabilitation must be subservient to deterrence.[5] Here, as I have set out, this is an important matter. You have strong family support. This is important in respect of your rehabilitative prospects, you are young and have a limited past history of offending. I give full weight to these prospects though moderated given the lack of any formal submissions as to what form this rehabilitative process will take. I accept that your early guilty plea is an expression of some remorse. It was submitted that the principle of totality should not result in a sentence which operates to crush you, and remove any hope. I accept that, particularly in light of your age, and your lack of substantial prior criminal history.
[4]Ryan v R (2001) 206 CLR 267 at paragraphs [118]-[120]
[5]R v Williscroft, West, Woodley & Robinson [1975] VR 292 at [303]-[304]
38While parity for like offending is a principle I have regard to, I consider that I must balance this against the principle of totality having regard to the individual circumstances of each of the offenders. In your case then while you share charges of being armed with intent and common assault with Mr Verigos relating to the incident of 20 July 2022, you have the very significant charge of discharging a weapon but less of a history of offending. Hence there are substantial matters that lead to different total effective sentences and non parole periods.
39Balancing those matters, I will sentence you to a period of imprisonment of three years and eight months (44 months), with a non-parole period of 28 months.
CHARGE
OFFENCE
MAX
SENTENCE
CUMULATION
Charge 1
Armed with criminal intent
5 years
600 penalty units
6 months
3 months
Charge 2
Common assault
5 years
600 penalty units
6 months
3 months
Charge 3
Discharging a firearm at vehicle with reckless disregard for safety
15 years
1800 penalty units
36 months
Base sentence
36 months
Charge 4
Theft
10 years
1200 penalty units
Disqualification of licence
6 months
0 months
Charge 16 RSO
Commit indictable offence on bail
3 months
30 penalty units
2 months
2 months
Charge 15 RSO
Unlicensed driving
6 months
60 penalty units
3 months
0 months
Charge 66 RSO
Fraudulent use of registration label
2 months
10 penalty units
1 months
0 months
A total effective sentence of 3 years and 8 months (44 months) with a non-parole period of 28 months
40But for early pleas of guilty pursuant to s6AAA, I would have sentenced you to 62 months, with a non-parole period of 41 months.
41I will make orders disqualifying you from driving for 12 months.
42I declare 406 days of pre-sentence detention including today.
Sentencing remarks in respect of Gabriel Verigos
43Mr Verigos, you have pleaded guilty to the following charges on Indictment P10330762:
Charge 1 – dangerous driving causing serious injury, maximum penalty of five years or 600 penalty units.
Charge 2 – failure to render assistance, maximum penalty of ten years or 1200 penalty units.
44There was consent that related summary offences could be dealt with by this court and guilty pleas were entered in respect of each of them. These were:
Related Summary Charge 8 – failure to give your name and address at the scene, maximum penalty eight months or 80 penalty units.
Related Summary Charge 9 – driving while disqualified, maximum penalty two years or 240 penalty units.
Related Summary Charge 11 – breach bail condition of not driving, maximum penalty three months or 3 penalty units.
Related Summary Charge 12 – commit indictable offence on bail, maximum penalty three months and 30 penalty units.
45In relation to Indictment No. N11695745, you have pleaded guilty to the following charges:
Charge 1 – being a prohibited person possessing a firearm, maximum penalty of ten years or 1200 penalty units.
Charge 2 – being armed with a firearm with criminal intent, maximum penalty five years.
Charge 3 – common law assault, maximum penalty five years.
Charge 4 – theft, maximum penalty ten years and potential for disqualification from driving a motor vehicle.
Charge 5 – possess a drug of dependence, maximum penalty one year or 30 penalty units.
46There was consent that related summary offences could be dealt with by this court and guilty pleas were entered in respect of each of them. These were:
Related Summary Offence Charge 5 – drive at a speed dangerous, maximum penalty of twelve months or 120 penalty units.
Related Summary Offence Charge 7 – drive while disqualified, maximum penalty of two years or 240 penalty units.
Related Summary Offence Charge 15 – use a fraudulent registration label, maximum penalty of two months or 10 penalty units.
Prior Criminal History
47You have an extensive criminal history, despite your young age. From 2020 at least you have numerous offences relating to theft of motor vehicle, possess methylamphetamine, deal with stolen goods and possess weapons. Initially you were given probation periods without conviction. Matters continued to occur during 2021 which led to further court appearances for similar offending. You were sentenced in May 2021 for committing indictable offences while on bail, property crime and driving while disqualified. You were dealt with without conviction and given a period of probation. Despite this you committed further offending in the latter part of 2021 while on probation. The offending on 27 March 2022, which occurs in Indictment No. P10330762 then occurred. It is somewhat unclear, but it then appears that you committed further offending on 4 May 2022 being the theft of a motor vehicle, drive while disqualified and other offending for which you were remanded. You spent 53 days in custody while awaiting sentence. In June 2022 you were sentenced to time served and put onto a Community Corrections Order (“CCO”) for 12 months. You were on that CCO at the time of the offending on 20 July 2022.
Circumstances of offending
48I have set out above the circumstances of the offending taken from the summary. There was one particular area of dispute in relation to the offending on 27 March 2022, which occurs in Indictment No. P10330762, which is the motor vehicle collision. It was submitted by the prosecution that, in determining the objective seriousness of the offending, it was open to the Court to find that you had used methylamphetamine prior to driving. In your counsel’s submissions tendered on the plea, at paragraph 7(c), she submitted that the offending did not occur as a result of the influence of drugs or alcohol. Specifically, she cited Bausch v R.[6] By reason of that decision there needs to be proof beyond reasonable doubt that drugs in your system adversely affected your capacity to drive the car. On this point, I note you made no admissions in your record of interview.
[6][2019] VSCA 235
49However, tendered on your behalf was a report of Mr Jeffrey Cummins, a forensic psychologist, dated 30 June 2023. He recorded the following at page 3 of that report:
“Concerning [your] offending of 27/3/2022 when [you were] driving a vehicle which was involved in a collision in Pascoe Vale, [you] stated – ‘Well I would've been under the influence of Ice - I fell asleep at the wheel. When I realised I'd been involved in this accident, well the adrenaline took over and I panicked and I left the scene. I accept I didn’t help the person who was trapped in the car. In fact, I don't know whether I realised the person was trapped in the car.’ … .”
50I note this was a recording made by Mr Cummins. It has been in no way verified by you. I am not able to say that it is an accurate statement by him. Though, of course, your counsel tendered Mr Cummins’ report in total, and sought to rely on it without in any way addressing the accuracy of this statement. I am reluctant to accept this piece of evidence on which to base a finding beyond reasonable doubt that you were using methylamphetamine and that it adversely affected your driving ability at the time of the accident. This is because it was not put and tested. Overall I accept your Counsel’s submission on this point.
The nature and gravity of the offending of 27 March 2022
51Having resolved that, I turn back to consider the nature and gravity of the offending. In this regard, I consider the offending to be a serious example of the offence. This is because the incident occurred on a major thoroughfare at the beginning of the day. People were on their way to work. You fell asleep at the wheel and proceeded into an intersection. You made no attempt to stop or take evasive action. At that time, you were, disqualified from driving, were on bail, and actively contravening a bail condition of not to drive. These are aggravating factors.
52Of course, your behaviour caused a major collision with an ordinary citizen going about their normal day. The impact was violent and sudden. It left the victim with serious life-threatening injuries, which required the removal of his spleen, major internal organ damage and the requirement to be ventilated for over five days. Not only has he undergone one round of life-saving surgery, but, also has had further surgery of a major nature performed. His rehabilitation continues. The accident also had other consequences, which was significant damage to a pole which fell onto a local café. The potential for more widespread damage is apparent. You then were able to exit your car, but took no action to either render assistance to the victim or to stay and provide details to police. I consider your moral culpability for this event to be high given the deliberate decisions taken to disobey bail conditions and place yourself in that situation at that time. Once in that situation you acted callously and selfishly, thinking only of the potential consequences to yourself.
Arrest and interview
53You were arrested on 4 May 2022.
The nature and gravity of the offending of 20 July 2022.
54I consider this to be serious offending with high moral culpability for the following reasons. It was premeditated: (i) you attended at the home of Mr Hurmiz, (ii) the car having its plates changed, (iii) masks and weapons being loaded into the vehicle and (iv) the vehicle then being driven to a position in Nivea Terrace. At that point, the vehicle, and its occupants, await the arrival of Arico with intent. Your identification was concealed under the masks and the registration of the vehicle had obviously been changed. The assault then occurs. You are in the passenger seat, but become armed with the shotgun. You leave the car. The weapon is brandished in full public view, in daylight, in a residential area. There is no suggestion that Arico had provoked the attack. Your actions in leaving the car to strike him with the shotgun, and then assault him with punches and kicks, was unprovoked and violent.
55The following factors are also relevant. You were a prohibited person in relation to firearms. At the time of the offending, you had only just been released from a 53-day prison term and had been placed on a community correction order for driving and weapons offences. These matters are all aggravating factors. There is also no motive for this attack given. You do not know Mr Workman, whose grievance, it is said, motivated all three of you on that particular day.
Victim Impact Statement
56There is no Victim Impact Statement from Mr Arico. I repeat what I inferred earlier that this must have been a terrifying event for Mr Arico.
Personal circumstances of Verigos
57You called in aid reports of Mr Cummins, dated 30 June 2023; an apology letter, dated 25 June 2023;[7] a letter from a family friend, Ms Dimas;[8] a letter from your mother, Ms Verigos, and a letter from your stepfather, Michael Ioannidis, who states that he will employ you as a labourer with his company once you are released. All the referees speak of the fact that you have expressed remorse for your actions, will be welcomed back to the family home and that you have changed while in prison, particularly by reason of ceasing drug use.
[7]Exhibit D4
[8]Exhibit D5
58By way of background, you were born on 7 January 2003 in Melbourne. You were raised in the family home until about the age of fifteen, when your parents separated. Around this time, you became aware that your father had a chronic history of illicit drug use, mainly being methamphetamine. This dovetailed with difficulties at school, which led to you being expelled in Year 9 at the age of fifteen. You then left school and unfortunately became dependent on methamphetamine. You worked sporadically in labouring jobs and were then on Centrelink. At a young age, you became involved in car thefts and driving unlicensed. This has led to some of the offending seen on your extensive criminal history. You have never had any learning difficulties, ADHD, or diagnosed psychiatric conditions. You are in no relationship and have no children. You describe your association to Mr Hurmiz as being strictly drug related and that you have no involvement in the Mongols motorcycle club, even as a prospect.
59As I have recorded, you have written a letter of apology, addressed to the Court, in which you express your remorse for your actions. The same was expressed to Mr Cummins. While in prison, it appears you have been abstinent from drugs. You have not participated in any particular courses.
60In your overall assessment, Mr Cummins considered that you were a low to moderate risk of re-offending.
Matters in mitigation
61It is accepted that the pleas of guilty, in relation to the offending on both indictments, and in respect of the related summary offences, were early pleas of guilty. In combination with your letter to the Court, I accept, that you are remorseful for your actions. There is a role for rehabilitation in this case, it is submitted, given the fact that you are a young offender with some real prospects for rehabilitation. I accept that this is the case, given the letters from your family, the abstinence from drugs while in jail, the work that you do in jail and significant elements of remorse for your actions. The report of Mr Cummins supports this view.
62Your offending, however, must be looked at somewhat separately, because the March 2022 offending is so distinct from that which occurs in July 2022. The March 2022 offending occurs in a situation where you had already been before the Court and had not abided by conditions of bail. This was the same situation in the July offending. This is a repeated pattern of behaviour in terms of non-compliance with warnings, and orders of the Court. Even the fact that you had been in prison for fifty-three days prior to the July offending did not seem to act as a deterrent for an almost immediate return to criminal activity. Deterrence, overall, both specific and general, I consider important.
63Punishment also plays a role, given those circumstances, but is significantly tempered by your youth and rehabilitative prospects.
64I am mindful of parity, particularly in relation to the July 2022 offending, but, overall, the principal of totality demands that I have regard to the overall sentence imposed on an admitted young offender with prospects for rehabilitation. I specifically moderate, beyond the usual range, your non parole period to account for your youth, behaviour in prison to date and rehabilitative prospects (such as potential for work and a stable home).[9]
[9]DPP v Jabbour [2023] VSCA 204 at [70]
65Balancing those matters, I sentence you as follows:
66On Indictment P10330762 – the driving offence in March 2022:
CHARGE
OFFENCE
MAX
SENTENCE
CUMULATION
Charge 1
dangerous driving causing serious injury
5 years
600 penalty units
24 months
24 months
base
Charge 2
failure to render assistance
20 years
12 penalty units
12 months
6 months
Charge 8 RSO
failure to give name and address at scene
8 months
80 penalty units
4 months
0
Charge 9 RSO
drive while disqualified
2 years
10 months
10 months
Charge 11 RSO
breach bail condition of do not drive
3 months
3 penalty units
2 months
0
Charge 12 RSO
commit indictable offence on bail
3 months
30 penalty units
2 months
2
67As to Indictment No. N11695745
CHARGE
OFFENCE
MAX
SENTENCE
CUMULATION
Charge 1
prohibited person possess firearm
10 years
1200 penalty units
18 months
18 months
Charge 2
armed with firearm with criminal intent
5 years
6 months
3 months
Charge 3
common law assault
5 years
6 months
0
Charge 4
theft
10 years
Disqualification
1200 penalty units
6 months
6 months
Charge 5
possess drug of dependence
1 year
30 penalty units
3 months
3 months
Charge 5 RSO
driver at speed dangerous
12 months
120 penalty units
10 months
10 months
Charge 7 RSO
Drive while disqualified
2 years
240 penalty units
12 months
12 months
Charge 15 RSO
Use a fraudulent registration label
2 months
10 penalty units
1 month
0
68I have not commented much on the stealing of the Porsche and the driving it at speed. These were much more minor examples of offending. These matters, I have considered overall in the sentence.
69I am mindful of the significance in this case of the application of that principle which requires me when sentencing you for multiple offences to ensure that the term I impose is a just and appropriate measure of the total criminality involved. There must be an appropriate relativity between the totality of all criminality and the totality of the effective length of the sentence. This is true when I consider the interaction between charges on each of the two indictments.
70When dealing with each indictment, I have determined an appropriate length for each charge, taking the applicable sentencing considerations into account and designated the highest term as the base sentence, then I determined the extent to which there should be any cumulation regarding each count and finally stood back and considered in light of totality what an appropriate sentence ought to be.
71Further as I am dealing with two indictments which encompass different factual offending on different dates I have to formulate orders for cumulation between the indictments and finally specify a non parole period and other associated orders for both indictments combined, again with an eye to the principle of totality.[10]
[10]Pollard v the Queen [2015] VSCA 138 at [27], citing R v Nobile,[2006] VSCA 211 at [42-43]
72As I have indicated earlier the principle of totality is a very important consideration given your youth and the significant hope that brings for a better future. An overwhelming, crushing sentence should not be imposed.
73I direct that the sentence on Charge 1 on indictment P10330762 – the driving offence in March 2022, be the base sentence of 24 months. I direct that 12 months of the sentence on Indictment No. N11695745 be served cumulatively upon the base sentence from indictment P10330762.
74I overall sentence you to a total effective sentence of 36 months imprisonment, with a non-parole period of 21 months.
75But for early pleas of guilty pursuant to s6AAA, I would have sentenced you to 46 months, with a non-parole period of 32 months.
76I will make orders disqualifying you from driving for 24 months.
77I will make the forfeiture orders as requested.
78I declare 400 days of pre-sentence detention.
Auxilliary order
79I also order, pursuant to section 78(1) of the Confiscation Act 1997, the forfeiture to the State of the property referred to in the Schedule 1 of the Record of Order.
Sentencing remarks of Mr Tristan Workman
80I have set out the circumstances of the offending above.
81Mr Workman, you have pleaded guilty to the following charges on Indictment N11589271:
Charge 1 –stalking, maximum penalty of 10 years;
Charge 2 –being armed with criminal intent, maximum penalty of five years;
Charge 3 – common assault maximum penalty of five years;
Charge 4 – Intentionally damaging property, maximum penalty of 10 years;
82There was consent that related summary offences could be dealt with by this court and guilty pleas were entered in respect of each of them. These were:
Related Summary Charge 9 – commit indictable offence on bail, maximum penalty three months and 30 penalty units;
Related Summary Charge 11 – fraudulently use license plates, maximum penalty six months imprisonment or 60 penalty units.
Arrest and interview
83On 27 July you were arrested. You made predominantly a “no comment” interview, but admitted to being at the scene of the incident on 20 July 2022 to speak to Arico. You were remanded in custody until 31 August 2022, when you were bailed. You have 36 days’ pre-sentence detention.
Prior criminal history
84You have no prior criminal history.
Nature and gravity of offending
85I consider your offending to be serious. On the accepted facts, you were essentially the instigator of the events of 20 July 2022. It was obvious from your text messages and enquiries that you were seeking to locate Arico and you messaged him, indicating your intention to threaten and potentially assault him. It was your dispute with Arico which led to all three of you being present in Nivea Terrace. You went to Mr Hurmiz’s house, were complicit in concealing the identity of the Toyota Kluger and you understood that weapons were in the car at the time that it left. In addition to the guns, you also carried a screwdriver in your pants, which you ultimately would use to slash the tyres of the vehicle. You and the others lay in wait for Arico’s arrival. The attack was then conducted in a residential street in daylight. It was a brazen, violent act. The footage shows you wrestling with Arico on a number of occasions. In addition, you then participated in the violent assault on him.
Victim Impact Statement
86There was no Victim Impact Statement provided. Medical evidence indicates that the injuries sustained by Arico were minor. I repeat my earlier comments that Mr Arico would have been terrified.
Personal circumstances
87You were born on 6 May 1999 and are a Koori man. You have three other siblings and you live with your mother and father. Your father worked as a concreter, but now acts as a carer for your mother, as she suffers from anxiety and depression. Neither of your parents have been in trouble with the law. You attended Primary School in Mill Park and then went on to Mill Park Secondary College. You left there towards the end of Year 8 and began at Peter Lalor Secondary College. You did a Certificate I and II in Building Construction, but ultimately ceased school at age fourteen. You worked at a tyre business in Thomastown for close to a year, and then worked on and off as a painter for three years. You last worked about two years ago in 2021. Since then, you have been in receipt of payments through a Job Search allowance.
88You began using illicit drugs, particularly cannabis, at about the age of fourteen or fifteen. From about the age of fifteen or sixteen, you developed a methamphetamine habit. In addition to those illicit drugs, you have been on Seroquel, and also antidepressant and antipsychotic medication, through Victorian Aboriginal Health Services (“VAHS”). At about fifteen years of age, you experienced a psychotic episode and were admitted to the psychiatric ward at the hospital. Around this time, you attempted suicide on a number of occasions. From the age of sixteen, that is, in about 2016, you have been linked with VAHS where you see a drug counsellor, a psychologist and a psychiatrist on a regular basis. I note your psychiatric appointments have ceased since the end of last year.
89After your time on remand, you have found your way clear of methamphetamine and abuse of prescription medication, such as Lyrica, Xanax and Seroquel. You remain smoking cannabis on an almost daily basis.
90A number of materials were supplied at your plea. The first is the medical report of Mr Jeffrey Cummins, psychologist, dated 27 July 2023, a further supplementary report, dated 3 August 2023, a letter from VAHS from 2019 from your youth mental health clinician, a letter of 1 August 2023 from Dr Anthony Raj at VAHS, and a letter dated 20 July 2023, from Mr Gareth Rego, a social worker at VAHS. Those materials confirm that, since the time you were on remand, you have remained compliant with your conditions of bail and have engaged with VAHS on a regular basis. The material also indicates that you are remorseful for your actions and that you have attempted to improve your life.[11] Overall, Mr Cummins assessed you as being a moderate risk of re-offending and that it would be appropriate for you to participate in a men’s behaviour change program.
[11]Report of Mr Cummins, dated 27 July 2023 at paragraphs [21]-[22]
91You currently have two young children. The first is the child born to Ms Taneisha Willis, your ex-partner. The second is a child named “Rhylan”, who is about two months old, born to your second partner, Ms Taylor Azzopardi.
92You currently live at home with your mother and father, and assist with raising your children when you can, as neither of them live with you. You are otherwise unemployed, but regularly see Mr Rego as part of your treatment.
Matters in mitigation
93You participated in the County Koori Court on 7 August 2023. Your parents and your social worker, Mr Rego, were present with you. In the course of that hearing, you described your role in that offending and your plans for the future. I record that you engaged with the Elders and the Court openly. This is a matter which stands to your credit and I take account of.
94The other factors said to go towards mitigation of your sentence are the fact that you have expressed remorse and pleaded guilty at an early stage. That guilty plea is evidence of remorse and that is replicated in Mr Cummins’ material. I accept that.
95As to rehabilitation you were at the time of offending, 23 years old. You have no prior criminal history and you have complied with bail over the past year while you have been in the community. In addition to this, I also take into account that, in the sentencing conversations, your social worker indicated that you have had good engagement with his service and that further referrals for a men’s behaviour change program and employment were shortly to be forthcoming.
96Limbs 6 and 7 of Verdins[12] were said to be engaged. This is because, in your recent assessment, you were diagnosed with an adjustment disorder with mixed disturbance of emotions and conduct, by Mr Cummins. He then went on to note, in his second report:
“… it is my opinion it would inevitably be more onerous for [you] to serve time in custody than for someone who did not have the mental health history which [you have]. [You] would be at risk of again attempting to take [your] life if [you were] incarcerated.”
[12]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
97That is uncontroverted evidence and, given this, I consider that limbs 5 and 6 of Verdins are enlivened, namely:
(a) the existence of an impairment at the time of sentencing, or its reasonably-foreseeable recurrence, may mean that a specific sentence may weigh more heavily on the offender than it would on a person in normal health;
(b) if there is a serious risk that imprisonment will have a significantly-adverse impact on an offender’s mental health, this will be a mitigating factor.
98As part of this assessment, I also note that you had a negative reaction to your period on remand.
Relevant sentencing principles
99I consider that just punishment, general deterrence and denunciation all have a role to play. This is because of the precursor activity of stalking, and then the brazen result of the assault. The presence, use and knowledge of the firearms is particularly concerning, though I make it clear you did not possess or use the guns. Specific deterrence also has a role to play, given, at the time of the offending you were on bail for other offences and were the instigator of the events which occurred on 20 July, however given the application of Verdins this factor is of less weight. I consider protection of the community of lesser importance, given your lack of criminal history and clear evidence of such behaviour being out of character. There is lessening of the methamphetamine use and the fact there is no evidence of ongoing involvement with criminal activity.
100The principles of parity and also totality must also be considered. Here, the principle of parity does not dictate, automatically, that like sentences be given for Hurmiz, Verigos and you, arising out of the incident on 20 July 2022. Particularly, you are in a different category because of your lack of prior criminal history, the presence of firearms in their offending, the medical material tendered on your behalf and your prospects for rehabilitation. This stands in stark contrast to Mr Hurmiz, as he has a prior criminal history, called no psychological material and had very limited material as to his prospects for rehabilitation. As to Mr Verigos, his criminal history is much more significant and involved multiple other offences, some of which were committed while breaching bail and conduct conditions. This all clearly separates their sentencing from yours. These very significant matters mean that I focus on your particular circumstances, Mr Workman, when I come to sentence you.
101After the plea hearing which was conducted during a sentencing conversation in Koori Court a number of steps were taken in preparation for sentencing. You were assessed as suitable for a CCO with drug, alcohol and mental health conditions.[13] You were also to explore the Dardi Munwurro Men’s Behaviour Change program and employment services. At the resumed plea on 13 September 2023, I was informed that you had engaged with Dardi Munwurro, continued to engage with VAHS (Mr Rego) and had remained abstinent from methamphetamine. A report from Mr Rego was tendered at the sentence which confirmed these matters. Your compliance with bail and steps taken to date toward rehabilitation. I consider this supports the fact that rehabilitation ought be a prominent factor in your sentence. In my view, however, it is necessary to mark the gravity of your offending with a term of imprisonment.
[13]MAHRS Report of Mr Lane 14 August 2023, CCO Report of Mr Squerzi 17 August 2023.
102While a head sentence and non parole period may afford a degree of parity with the other co-accused I have set out why I consider your case significantly different to those of Mr Hurmiz and Mr Verigos. I am also informed by the principles in Boulton v The Queen[14] which held that a Community Corrections Order (“CCO”) can be a form of punitive punishment. I consider this apt in this case.
[14][2014] VSCA 342
103I am particularly mindful of your youth and prospects for rehabilitation. I am also acutely aware of the psychiatric material and consider this to be a strong factor which mitigates against any further prison time.
104The offending of stalking on Charge 1 is separated from the offending that comprises Charges 2, 3, 4 and the related summary offences by time. As to Charge 1 I will impose a term of imprisonment of 36 days. I will sentence on Charges 2,3, 4 and related summary offence 9 by an aggregate sentence with the imposition of a term of imprisonment of 36 days and a CCO of three years with strict conditions which I will outline.[15] This is because the offending largely occurred in the course of one event and share common facts and circumstances. The CCO will commence immediately. I have imposed a fine on related summary offence 9.
[15]Section 9 Sentencing Act 1991
105I confirm that I have had consideration of the factors mentioned in the Sentencing Act 1991 and have considered them in the synthesis of this sentence.
106For this reason, I will sentence you as follows.
CHARGE
OFFENCE
MAX
SENTENCE
CUMULATION
Charge 1
Stalking
10 years
36 days
36 days
Charge 2
armed with criminal intent
5 years
Aggregate Sentence CCO 3 years
CCO 3 years
Charge 3
common law assault
5 years
36 days
Forms part of aggregate sentence
Charge 4
Intentionally Damaging Property
10 years
36 days
Forms part of aggregate sentence
RSO Charge 9
Commit indictable offence while on bail
3 months or 30 penalty units
36 days
Forms part of aggregate sentence
RSO Charge 11
Fraudulently use license plates
6 months or 60 penalty units
$400
107A total effective sentence of 36 days as time served, a CCO of three years and a fine of $400.
1086AAA: But for the early plea I would have imposed an aggregate sentence sentence of five months imprisonment with a CCO of two years and six months.
109I declare 36 days of pre-sentence detention.
0
5
0