Director of Public Prosecutions v Abraham
[2012] VCC 1127
•2 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01042
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MINA ABRAHAM |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 July 2012 | |
DATE OF SENTENCE: | 2 August 2012 | |
CASE MAY BE CITED AS: | DPP v. Abraham | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1127 | |
REASONS FOR SENTENCE
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Catchwords: Causing serious injury intentionally – Sentence 4 years 4 months – Non-parole 2 years 9 months – R v. Renzella [1997] 2 VR 88.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms E. Ruddle (at hearing) Ms T. Patterson (at sentence) | Office of Public Prosecutions |
| For the Accused | Mr J. Kelly (at hearing) Ms N. Ciampoli (at sentence) | Leanne Warren & Associates |
HER HONOUR:
The offences
1 Mina Abraham, you have pleaded guilty to one charge of causing serious injury intentionally. The maximum penalty for this offence is 20 years' imprisonment.
Background to offending
2 The background to your offending is that on Friday 31 July 2009 your victim, Shane Cosgrove, who was 17 at the time, was out with two female friends and his mate, Andrew Robson, in St Kilda. At 12.15am the following morning Mr Cosgrove and his friends left the Cushion Lounge in Fitzroy Street and walked to the tram stop.
3 While they were waiting for the tram, the two females were approached by your co-offender, Michael Horne, and an unknown male who demanded money from them, saying. "You'd better give us your money or you'll see what happens." Mr Robson replied, saying, "Yeah, what is going to happen?" and approached Michael Horne. Michael Horne then punched Mr Robson in the face, and when Shane Cosgrove stepped in, he was also punched in the face. Michael Horne and the unknown male then walked away and Mr Cosgrove and his friends remained at the tram stop.
4 However, unfortunately this was not the end of the matter. A few minutes later Michael Horne and the unknown male again approached Mr Cosgrove and his friends, this time with six or eight other males, you being one of them. This group of males crowded around Shane Cosgrove and his friends and then Michael Horne punched Shane Cosgrove twice to the mouth. When Mr Robson jumped in front of Shane Cosgrove to stop him from being assaulted, Michael Horne punched him to the head, causing Mr Robson to stumble before he was eventually pushed to the ground by the other males. Together with four of the unidentified men, you and Michael Horne then forced Shane Cosgrove onto the tram tracks. He could not get away, as members of your group had hold of his shirt and were pulling him back towards them. They pushed him onto the ground, onto the tram tracks, and kicked and punched him while he was on the ground. He was curled up on his side with his hands over his head, but the group continued to kick and punch him.
5 Shane Cosgrove eventually got up and ran a short distance along Fitzroy Street and ended up on the footpath outside the Robarta Nightclub. There, you and Michael Horne set upon him again.
6 Descriptions of this attack upon him from various witnesses included that: you had been casually stalking him and continued to punch and kick him when he was pretty much on the ground; he had no chance to hit back or defend himself; he was much smaller in size and would have been overpowered from the word go; you and Mr Horne did not even give him a chance to get up, it was just a repetition of punches and kicks; you kicked him while he was on the ground and he was just rebounding off your feet; he was going up in the air every time you kicked him; you and Mr Horne appeared very angry and appeared to be drug and alcohol affected.
7 Two witnesses described you as being the main aggressor, the most physically aggressive and violent, with Mr Horne and your supporter.
8 By this stage, members of the public were yelling at you and Michael Horne to stop and the assault eventually ceased. However, you remained in the area, being abusive to the public, and a group of young women from the nightclub made a circle around Mr Cosgrove to protect him.
9 After Mr Cosgrove was helped into a taxi by his friends, you walked away along Fitzroy Street while Mr Horne tried to calm you down. You were still yelling out abuse. You went into the 7-Eleven Store in Fitzroy Street where you were spoken to by the police.
10 However, it was not until 9 September 2009 that police executed a search warrant at your house. You were then arrested and taken to the St Kilda Police Station where you were interviewed. You told the police that you honestly did not remember anything from that night, that you had taken a few drugs; Xanax, speed, ice and ecstasy.
11 Shane Cosgrove was taken to the Cabrini Hospital by taxi, then by ambulance to the Alfred Hospital, where he underwent surgery and remained in hospital for five days. His injuries included a minimally displaced orbital fracture, front sinus fractures, fractures to both the right and left sides of his jaw. He underwent extensive orthodontic treatment and operative repair procedures to his facial fracture, including the placement of metal on both sides of his jaw.
Personal circumstances
12
Your personal circumstances were outlined to the court and further details were contained in a psychological report from Mr Jeffrey Cummins dated
29 June 2012.
13 You are 25 years of age, having been born in Melbourne on 25 March 1987. You are the youngest of three children and have two sisters who are supportive of you. Your parents separated when you were aged six and you were raised by your mother, who is now single. You had intermittent contact with your father, whom you have described as being a bit violent but not a heavy drinker. He died of cancer in September 2008 when you were aged 21.
14 With respect to your education, you completed Year 9 and did two years of Year 10. Over the next two or three years you worked in your mother's boyfriend's pizza shop in Ormond, you worked at La Porchetta in Kew for about a year and a half and then at Motor One Car Window Tinting for some six months. You have also been employed in the building and renovation industry.
15 Your father had owned and managed several restaurants, and after his death you attempted to manage one of these, being TJ's Bar Café in Kensington, but you were unfortunately not able to successfully manage this business.
16 You have a history of drug abuse from around 16 to 17, in particular with crystal methamphetamine. After your father's death, you resumed taking drugs and alcohol. In November 2009, at a time when you were feeling depressed about losing your father, you took a cocktail of pills and you were taken to the Alfred Hospital, where you remained overnight. In early 2010, again feeling depressed about your father's death, you took an overdose of Xanax tablets and you were taken to Alfred Hospital where you remained for several hours.
Prior offences
17 You have two prior court appearances. On 17 July 2007 at the Melbourne Magistrates' Court you were convicted of armed robbery, recklessly cause injury, deal with property suspected of being the proceeds of crime, intentionally cause injury, affray, criminal damage and throwing a missile. On 14/7/2009 you were convicted of making a false report to the police.
Mr Cummins’ psychological report
18 In Mr Cummins' opinion, you were in a state of acute grief concerning your father's death at the time of the offending. You were also intoxicated on alcohol and under the influence of Xanax and crystal methamphetamine.
19 Mr Cummins reported that you spoke in an ashamed, embarrassed and remorseful manner concerning the offending. In his opinion you were suffering from a chronic adjustment disorder with mixed disturbance of emotions and conduct which probably pre-dated your father's death and developed in response to a number of stressors including your parents' separation in your mid teenage years.
20 Mr Cummins believed that you had been generally experiencing symptoms of anxiety and depression from your mid teenage years. You are currently taking antidepressant and anti anxiety medication. He believes that you will probably require residential drug and alcohol rehabilitation in order to become drug and alcohol free.
Dr Gouras’ report
21 Your general practitioner, Dr Gouras, reported to the court that you had in fact been under his care for the last five years. He had treated you for symptoms of anxiety and moderate to severe depression. Your symptoms had deteriorated when your father passed away.
Defence sentencing submissions
22 Your counsel relied on these two reports as providing some explanation for your offending. In addition, your counsel relied on the following matters in mitigation of your offending: At the time of your offending you had been only 22 years old. You were still a relatively young man, being 25 years old now. Your prior criminal history was submitted to be not large, given your drug use. Your plea of guilty had meant that there was no committal in this matter and no need for witnesses to give evidence.
23 Counsel also relied on the fact that you had been arrested on 26 March on other matters and you had spent a considerable time in custody. While this was not pre-sentence detention, your counsel submitted that it could be taken into account as Renzella time.
Prosecution submissions
24 The prosecutor submitted that an appropriate sentencing range for your offence was five to seven years with a non-parole period of three to five years. This was a longer sentence than was received by your co-offender, Mr Horne. Mr Horne received a sentence of three years and six months for intentionally causing serious injury to Mr Cosgrove, in addition, a sentence of one year and six months for a separate offence of recklessly causing serious injury to another person. Six months of the sentence on the second count were cumulated on the first count, resulting in a head sentence of four years with a non-parole period of two years and six months.
25 The prosecutor sought to justify the higher sentence for you on the basis that you were older than Mr Horne at the time of the offending - he had only been 19; you had more relevant priors; and it was submitted that you were the primary offender; you pleaded guilty at a later stage.
26 Your counsel responded by submitting that the starting point should be one of parity, you and Michael Horne had been acting in concert, and there was not much difference between your priors. It was submitted that Michael Horne had approached Mr Cosgrove's group first and had been the main aggressor.
Sentencing remarks
27 In sentencing you I have taken into account all the mitigating circumstances referred to by your counsel. By your plea of guilty, you saved the victim of your assault the trauma of giving evidence and the State the expense of a trial. You are entitled to a discount for your plea of guilty and I have given you one. I have also taken in account that you were a relatively young man at the time of the attack and that your prior criminal history was not a substantial one. I accept that you are now motivated to receive drug and alcohol treatment, and consequently, that your chances of rehabilitation are enhanced.
28 However, in sentencing you I must also take into account both general and specific deterrence and the need for denunciation of your conduct.
29 Mr Cosgrove was essentially helpless and lying on the ground when you continued to punch and kick him. These actions of yours were cowardly and despicable. Mr Cosgrove was still at school at the time of your attack and much smaller than you or your co-offender. There is no way that he could have presented any threat to you.
30 It is clear from Mr Cosgrove's victim impact statement that the consequences of your attack on him were not limited to his physical injuries. In his statement he said that he constantly relived the events of the attack in his head, he was nervous when he went out, he did not like crowds and he was constantly vigilant.
31 At the time of your offending, he was in his last year at school and received a very low VCE enter score, missing out on the university that he wanted to attend. I accept that his results were affected by your actions. Given the circumstances of the attack on him, it would have been very difficult for him to fully concentrate on his studies.
32
I have already indicated the sentence that Mr Horne received on
26 September 2011. I note that in Lowe v R (1984) 154 CLR 606, Gibbs CJ said that "It is obviously desirable that persons who have been party to the commission of the same offence should, if other things are equal, receive the same sentence." But other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender and part which he or she played in the commission of the offence have to be taken into account.
33 Having considered all these matters, I have concluded that it is appropriate that you receive a longer sentence than Mr Horne. This is because you are some three and a half years older than Mr Horne, who was only 19 at the time of offending. In addition, although Mr Horne appears to have initiated the violence, as the event progressed, it is apparent from the witness statements that you became the main aggressor at a stage where Mr Cosgrove was essentially helpless and lying on the footpath.
34
Although your sentence is longer in accordance with the principles in
R v. Renzella[1997] 2 VR 88, I have taken into account that you have been in custody since 27 March 2012 on unrelated charges, and I have reduced your sentence accordingly.
Sentence
35 On the charge of intentionally causing serious injury, I sentence you to four years and four months, to serve two years and nine months before being eligible for parole.
36 I note that I remanded you in custody on this matter on 2 July 2012. I declare for the record 31 days pre-sentence detention.
37 Is there anything arising from that matter?
38 MS PATTERSON: Your Honour, I believe there was a retention order sought.
39 MS CIAMPOLI: It's not opposed, Your Honour.
40 HER HONOUR: Yes, there was a retention order sought in relation to this matter. I should tell you, Mr Abraham, that if you were to object to the - it is a retention. So you have already - all right, I do not have to tell you anything about that.
41 There is just one other matter.
42 Yes, I do have to also declare a 6AAA sentence, and that would have been a sentence of six years, to serve four years and six months. But for your plea of guilty, that would have been the sentence you would have got.
43 Yes, is there anything else arising out of this matter?
44 MS PATTERSON: No, Your Honour.
45 MS CIAMPOLI: No, Your Honour.
46 HER HONOUR: Thank you.
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