Director of Public Prosecutions v Ainiu

[2017] VCC 1244

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00715

DIRECTOR OF PUBLIC PROSECUTIONS

v

FALEALII AINIU

---

JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2017
DATE OF SENTENCE:	1 September 2017
CASE MAY BE CITED AS:	DPP v Ainiu
MEDIUM NEUTRAL CITATION:	[2017] VCC 1244

REASONS FOR SENTENCE
---

Subject:  Intentionally cause serious injury; drive whilst exceed .05

Catchwords:      Assault following car accident; young offender where weight attached to youth is reduced due to seriousness of offending

Legislation Cited:

Cases Cited:Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342 - Marocchini v The Queen [2015] VSCA 29; DPP v Grech; Azzopardi v The Queen;Baltatzis v The Queen; Gabriel v The Queen [2011] VSCA 372 - Mansfield v The Queen [2017] VSCA 220

Sentence:4 years imprisonment; 2 years and 3 months non-parole period

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper
For the Accused	Mr S. Howe

HER HONOUR:

Charges

1Falealii Ainiu, you have pleaded guilty to one count of intentionally cause serious injury, for which the maximum penalty is 20 years' imprisonment.  You have also pleaded guilty to the summary charge of drive while exceeding the prescribed concentration of alcohol.  Since this is a first offence, the maximum penalty for that offence is 20 penalty units and a licence cancellation for six months.

Circumstances of offending

2The circumstances surrounding the offence of intentionally cause injury are set out in detail in the prosecution opening.  In summary, on Saturday 27 August 2016, you consumed a dozen or so Corona beers with friends at home.  At about 5 am, you drove your Holden Calais vehicle into the city, where you were involved in a car accident at the intersection of Lonsdale and Spring Streets. 

3As a result of the accident, your vehicle sustained moderate damage to the front-left guard and front-left door.  You pulled over a short distance along Spring Street and walked quickly back to the other car involved in the collision.

4By this stage, the driver, Amir Batah, was standing next to the driver's door of his car.  You claim that you asked him why he had hit your car. Mr Batah disputes that you said anything to him.  However, irrespective of whether or not you said anything to him, it is not disputed that you then punched him to the face, knocking him to the ground. 

5Mr Batah fell on his back and tried to cover his face as he was struck again, this time being knocked unconscious.  You continued to punch him five or six times before kicking him in the head area several more times.  You then walked away, leaving him lying on the road, and you took a taxi home.

6Police attended the scene at approximately 5.30 am.  An ambulance was called, and Mr Batah was conveyed to the Royal Melbourne Hospital for treatment.  As a result of the assault, he suffered unconsciousness, a subdural haematoma, post-traumatic amnesia, indicating a moderately-severe traumatic brain injury, a fractured eye socket, a nasal fracture, facial lacerations and abrasions.

7A report from Dr Wendy Castle at the Royal Talbot Rehabilitation Centre also noted that he suffered from double vision on the left lateral upward gaze.  Symptoms including dizziness were expected to show improvement over time.

8Due to his injuries, Mr Batah was unable to return to his studies or work.  He spent a week recovering at the Royal Melbourne Hospital, and another week at the Royal Talbot Rehabilitation Centre.

Arrest and record of interview

9You were arrested on Sunday 28 August 2016, and you underwent a preliminary breath test, which indicated that you had alcohol in your system.  Upon arrival at the Melbourne West police station, you furnished a sample of your breath into the approved breath-analysing instrument, which indicated a read of 0.037, and it is as a result of this reading that you were charged with the drive while exceeding the prescribed concentration of alcohol.

10In your record of interview you made full admissions and stated that you had attacked Mr Batah because you felt he had caused the accident and you were angry about your new car being damaged.  You also said your behaviour was not normal for yourself, and you asked after his condition.

Personal circumstances

11Your personal circumstances were outlined to the court by your counsel, and further details were contained in a report from Dr Michael King, and a report from Dr Ian Joblin, both psychologists.

12You were born on 27 June 1995 in Hastings, New Zealand.  Your parents originated from Samoa, and you have two brothers.  You completed the equivalent of Year 10 in New Zealand, with sufficient grades to attend university.  However, in 2013, instead of pursuing further studies, you moved to Australia, to Melbourne, to be with your parents.  Apparently you have been continuously employed since arriving here, working in a takeaway food business and also unloading containers.

13Prior to coming to Australia, you had little experience with alcohol, as you lived with an uncle who does not drink, and who is a very religious man.  On arriving here however, you quickly adapted to a culture which unfortunately includes drinking excessive amounts of alcohol.  While you do not drink on a daily basis, or indeed every weekend, you told Mr Joblin that you have difficulty in stopping once you do drink.  You informed him that you had been drinking on the night of the accident, and that if you had not been drinking, a number of inappropriate decisions would not have been made, and you would not be facing this court.

14Mr Joblin was of the opinion that you did not have an antisocial personality, and that your demonstration of aggressiveness was not a symptom of such a diagnosis.  He considered the relevance of the alcohol that you had consumed that night was important.

15Mr King was of the opinion that you were normal in personality and not a fundamentally aggressive person, however he did describe you as - in the personality assessment - being assessed as "exuberant and impulsive".  He also was of the opinion that you had a poorly-developed understanding of social interactions, and you were likely to make poor predications about the interactions of other people.  In his opinion, this combination of psychological factors led to the actions which have brought you before this court.

Defence submissions

16In his plea on your behalf, your counsel sought a disposition of a term of imprisonment for a period of less than 12 months followed by a community corrections order.  In doing so, he relied upon the following matters: 

·your plea of guilty and remorse;

·your previous good character and lack of prior offending;

·your youth;

·the high likelihood of your rehabilitation, particularly because of the strength of your family and community support.

17In particular, it was submitted that as you were a young offender, rehabilitation was an important sentencing consideration.  The family support relied on included support letters from a cousin, family friend, your employer, a senior pastor and chaplain from the Gilson Community Church, the choir coordinator at a church you attend, and there was also reference from your parish priest.  In addition to these references, your counsel relied on the reports of both Mr Joblin and Dr King as supporting his submission that you were remorseful, and that your prospects of rehabilitation were good.

18Your counsel relied on a decision of the Court of Appeal of Boulton v The Queen[1].  He also relied a decision Marocchini v The Queen[2] and Grech v The Queen[3] as being comparable cases where combination sentences had been imposed. 

[1] [2014] VSCA 342

[2] [2015] VSCA 29

[3] [2016] VSCA 98

Prosecution submissions

19However, the prosecution disputed that a combination sentence was appropriate in  your case.  They submitted that such a sentence was inadequate to reflect the gravity of your offending.  The prosecutor referred the court to the case of Azzopardi v The Queen[4] in submitting that while youth remained a sentencing consideration, the seriousness of your offending required that general deterrence and denunciation be emphasised.

[4] [2011] VSCA 372

Sentencing remarks

20In sentencing you, I have taken into account all the mitigating matters referred to by your counsel, your early plea of guilty saved the victim from the ordeal of giving evidence, and saved the state the expense of a trial.  I have given you an appropriate discount for that plea.

21I also accept that you are remorseful for your offending, and that it is out of character.  In this respect, I note that the references on your behalf variously described you as a loyal and respectful young man, extremely courteous, calm and thoughtful, regretful and remorseful for your wrongdoing, and of being an upright character.

22I accept that you come from a religious family that is close and supportive of you, and that your prospects of rehabilitation are good.  However, in Azzopardi, after considering several other decisions dealing with young offenders, Redlich JA says as follows:

"The general propositions which flow from these authorities is that where the degree of criminality of the offence requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced.  As the level of seriousness of the criminality increases, there will be a corresponding reduction in the mitigating effects of the offender's youth, but only in the circumstances of the greatest criminal offending, and when there is no realistic prospect of rehabilitation, may the mitigatory considerations of youth be viewed as all but extinguished."

23While I accept that your youth and good chances of rehabilitation remain important sentencing considerations, I consider that the serious nature of your offending requires the sentencing objectives of general deterrence, denunciation, just punishment and the protection of the community to become more prominent in the sentencing calculus. 

24Other young men must be deterred from road rage incidents.  You struck and kicked someone who was lying unconscious on the ground.  As a result of your actions, the victim suffered a moderately-severe traumatic brain injury, as well as several other injuries.  He had to spend a week in hospital and another week in a rehabilitation centre.

25The prosecutor read his statement to the court.  It was clear from the victim impact statement that your actions had a profound effect on him.  He described waking up in hospital, not being able to talk, feeling like he was experiencing a terrifying dream that he would never wake up from.  At the rehabilitation hospital, he had to learn how to walk and feed himself again.  He had to use a wheelchair, because he had difficulty in getting to his feet.  At the time of the accident, he was studying civil engineering and had a part-time job.  As a result of your assault on him, he had to defer his studies, he lost his job, he developed stress and anxiety when using and travelling in a car. 

26In sentencing you, I have had regard to the cases relied upon by your counsel, and to the cases relied on by the prosecutor.  In addition, I have had regard to the recent decision of Mansfield v The Queen[5].  However, at the end of the day, every case must be decided on its own merits, and taking into account all the circumstances of your case, for the reasons I have already referred to, I am not persuaded that a combination sentence is appropriate.  Could you please stand up?

[5] [2017] VSCA 220

Sentence

27On the charge of intentionally cause serious injury, you are convicted and sentenced to a term of imprisonment of four years.  I fix a non-parole period of two years and three months.

28On the charge of driving while exceeding the prescribed concentration of alcohol, you are convicted and fined $800.  Your licence is cancelled for a period of six months.  But for your plea of guilty, I would have sentenced you to six years to serve four years.  Is there anything ‑ ‑ ‑

29COUNSEL:  Pre-sentence detention.

30HER HONOUR:  What is - there is not - a day, two days?

31COUNSEL:  I think it is two days, yes.

32HER HONOUR:  I declare two days pre-sentence detention.  Was there are s.464ZF?

33MR ROPER:  There was an order - I believe not opposed, for the taking of a forensic sample.

34HER HONOUR:  I will make that order on the basis that it is not opposed, it is in the interests of the community and the seriousness of the offence. 

35MR ROPER:  Thank you.

36HER HONOUR:  I will sign it when I am out the back of the court.  I just inform the accused that the police will take a sample from you.  It is just a cotton bud they put in your mouth.  They are entitled to use force if you were to resist, but I am sure that you will not have any problems, given that you have consented.  All right, thank you.  Yes, you can take the prisoner down.  I will adjourn the court.

‑ ‑ ‑