Director of Public Prosecutions v Ali

[2022] VCC 234

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR -21-01469

DIRECTOR OF PUBLIC PROSECUTIONS

v

RHYS ALI

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	3 February 2022
DATE OF SENTENCE:	3 March 2022
CASE MAY BE CITED AS:	DPP v Ali
MEDIUM NEUTRAL CITATION:	[2022] VCC 234

REASONS FOR SENTENCE

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Subject:

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Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Z. Petric
For the Accused	Mr C. Paterson Finch

HIS HONOUR:

1This plea was conducted on the 3 February 2022.  Mr Ali was 22 at the time of the offending and is now 22, shortly to be 23, having been born on 22 March 1998.  He is a farmhand by occupation.  These proceedings, both the plea and now the sentence, have been conducted remotely.  I want to thank all parties for their assistance in that regard.

2For the Director, Mr Petric appeared, and may well appear today but in his stead for the moment is Ms Mur, and insofar as the defence was concerned, Ms Roodenberg appeared and Mr Paterson appears today.  As I indicated, the Court has had the consideration of the exhibits plus the matters that I have added today. 

3The injury to Mr Montgomery in these circumstances is a classic example of what happens with alcohol and young men. Fortunately, in this case, we did not end up with a dead body, although it went very close. If that had happened, Mr Ali would not have been before this Court but across the road on a charge of manslaughter. I note that insofar as the charge itself is concerned, it is an offence against s15 of the Crimes Act.  The crime of causing serious injury recklessly to Mr Montgomery is one which is of grave seriousness and fittingly, the Parliament has prescribed a maximum penalty of 15 years imprisonment.

4This attack took place outside the Fluid Lounge in Healesville.  It was after the premises were closed.  It occurred at approximately at 3 o'clock. It started at 2 o'clock with a confrontation on the footpath.  The circumstances developed and, indeed there is a CCTV footage, Exhibit B, and which I was able to peruse and is illuminating.

5The dispute between the two groups of people approximately started at 2.29 outside the hotel, as I said the pub having closed at 2 o'clock.  One of Mr Ali's friends touched another girl three times.  That girl reprimanded Mr Howard,  and then there are a number of exchanges between the two groups, all emanating out of this bravado that takes place after too much alcohol.  At one stage on CCTV at 3.15am, there are approximately 10 males surrounding Mr Ali and Mr Howard in the carpark. 

6There is a lot of toing and froing.  The circumstances unfortunately then lead to a situation where finally at 3.26, Mr Ali was confronted by Mr Montgomery.  As a result of that, Mr Montgomery was punched by Mr Ali, knocked to the ground and unfortunately as he hit the ground, cracked his head. He suffered a fracture of the skull, a subdural haematoma, was in a drug-induced coma for nine days, and in hospital for one month. 

7The medical information provided fortunately indicates that the ongoing testing shows no ongoing neurosurgical issues and indeed the testing conducted by the Royal Melbourne Hospital indicates that the physician has no concerns regarding the ongoing cognition of the victim.  Insofar as his injuries are concerned, Mr Montgomery is able now to work, drive, but has ongoing issues with his pituitary gland apparently, but those matters are hoped to resolve as I understand the position.

8There is no victim impact statement.  The record of interview provided was a matter of cooperation by Mr Rhys Ali.  To understand the full circumstances it is necessary to understand what I was advised by the prosecutor at the last hearing, that the victim himself was charged with affray.  That was dealt with at the Magistrates Court and he was subject to a diversion.  Both Howard and Lees who I have mentioned, were also charged.  Howard was also placed on a diversion and I am not sure of the position with Lees. 

9During the plea, I said to both counsel and they acknowledged that this was a very valuable plea.  I say that in the sense that given the circumstances, no doubt a trial could have been run on the issue of self-defence.  Ms Roodenberg's plea before the Court stressed that Mr Ali comes before the Court with no priors.  He comes before the Court with ongoing and excellent family support, I refer to the character references set out at Exhibit 5, in particular, the reference from his mother, Bridget Banes.

10Mr Ali comes before the Court with an excellent employment record.  He is supported by his employer Mr Seamer and has been so employed for a period of seven years.  I found Mr Seamer's letter of particular worth, I note the comments as to the trust and respect with which he is held by the company, for whom he has worked for some seven years.  In particular, I note Mr Seamer's comments, on the second page, that over the last eight to 10 months, he has spoken to Rhys about the incident and each time, he sensed and observed deep regret expressed about his role.

11As I said, this was a very valuable plea.  One notes from the statements made by Mr Ali and record of interview, the fact that he speaks of the full circumstances and the manner in which he was at times surrounded and threatened.  As I said, Exhibit B, the CCTV footage confirms that.  It was submitted by Ms Roodenberg that it is an indication of Mr Ali's remorse and disappointment in himself, that despite being advised of those matters by his legal advisors, his instructions were that he wanted the matter over and he wanted to enter a plea.

12Mr Ali’s remorse not only is exemplified by his plea, but is confirmed by his employer in the terms that I have already read, by his mother, and by the steps taken himself in seeking guidance from a psychological counsellor, I refer to Exhibit 4, which is a statement of Adele Callander.  This Court adjourned the matter on the submission of Ms Roodenberg for a community correct report.  That report having been tendered today, Exhibit C.

13That report is a positive report and I accept the recommendations therein.  It notes his background and proposes appropriate conditions if the Court was minded to impose such an order.  Mr Petric on behalf of the prosecution, submitted to the Court that he accepted in the circumstances, given the particulars detailed by Ms Roodenberg, it was one of the options for a community correction to be passed and/or a combined gaol and community correction order given the seriousness of the crime.  That that was a very professional approach taken by the prosecution.     

14As is obvious from his age, he is still a young person.  I note that a young offender who would otherwise be capable of being sentenced to youth training, is defined in the Act as a person under the age of 21. 

15The consideration of what to do with you, Mr Ali, has been exquisite.  One cannot stress strongly enough how serious this crime is, demonstrated not only by the maximum sentence prescribed but also by the damage that you have done to the victim.  However, in the particular circumstances, it is necessary for the Court to take into account the actions of the victim, the circumstances surrounding and of course, the very unfortunate circumstances of him hitting the pavement when he landed as a result of your one punch. 

16Sentencing young offenders in those circumstances as I have said, is exquisite.  The aspect of rehabilitation must be considered.  In this regard, I refer to DPPv Tokava [2006] VSCA 156, and the words of the President at [21] when he said,

'A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of a serious offence, if in the long term the community’s interests would be best served by that course.'

17I note that in that case, the President referred to a case in the Australian Capital Territory of R v Dixon (1975) 22 ACTR 13, and quoted Justice Fox, where His Honour said,

'When therefore a Court has to consider whether to send a young person to gaol for the first time, it has to take into account the likely adverse effects of a gaol sentence.  A distinct possibility, particularly if the sentence is a long one, is that a person sent to gaol would come out more vicious and distinctly more antisocial in thought and deed than he was when he went in.  His newfound propensities then have to be reckoned with.  A substantial minority of persons who serve medium or long-term sentences will offend again.'

18Still in Tokava, the President went on at [23] to say as follows,

'These passages set out a view held in 1975 of the likely effect of gaol.  As I remarked in the course of argument, my impression is that almost everything which His Honour has said is still appropriate 30 years later'

19If I might say so, it is still appropriate another 15 years later.  I also refer to the President’s comments in R v Merrett & Ors [2007] VSCA 1, [49], where His Honour said,

'As I said in The Queen v Tiburcy, the sentencing Court looks to the future as well to the past. There is a very great benefit to the community at large as well as to individuals themselves and their immediate families, if future criminal activity can be avoided.  It is important this Court by its own sentencing decisions, recognise and reward efforts at rehabilitation just as we should support judges who do so.  It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders. The preoccupation with retribution which characterise much of the public comment on sentencing is understandable, but it focuses on only one part of what the sentencing Court does.'

20In addition, I refer to the principles expressed by the Court of Appeal in DPP v Milson [2019] VSCA 55, at [71], as to the importance of rehabilitation. It is those matters which make this so exquisite and it has not been an easy decision for me. It is never an easy thing to send a young man to gaol. The use of the principles of Boulton [2014] VSCA 342 of course, allow the matters spoken by those authorities to be achieved.

21Mr Paterson, as I say, I have found it very difficult to make a final decision but in the end, given the totality of the circumstances leading to this serious assault, I have been persuaded to release your client on a community correction order.  However, there will be a fine imposed as well.  I think he has already indicated that he understands a community correction order and he would be prepared to enter into one. 

22Would he also be prepared to enter into one if a fine was attached to it?

23MR PATERSON:  He would be, Your Honour.

24HIS HONOUR: Thank you. Yes. So I normally at this stage, Mr Ali, ask you to stand but given the remote circumstances, you stay where you are. You will be convicted of this offence, of causing serious injury recklessly to Mr Montgomery of s17 of the Crimes Act.  I intend to release you on a community correctional order for three years.  The conditions that will be detailed, are those essentially that are recommended in the report.  Firstly, that you perform community work.  That is under 48C and I set that at 100 hours over the 3 years.

25Seems to me that is appropriate and can be fitted in with your work.  I do, however, disagree with the recommendation that those hours be set off by any hours you spend in rehabilitation.  Seems to me that given the seriousness of this crime, one of the conditions imposed on you, must be community work, but I do not impose any set-off.  I accept that also under 48D, you should be subject to appropriate form of treatment and for any alcohol issues.

26I note that they are probably not a large issue in your life but all assistance possible is needed.  I also accept their suggestion that you undergo any programs to ensure that there will be no further offending in your life, and it seems to me that a period of supervision is necessary. 

27I understand your clients would consent to those conditions; is that right, Mr Paterson?

28MR PATERSON:  That's correct, Your Honour. 

29HIS HONOUR:  Mr Paterson, I also intend to impose a fine upon your client of the sum $3,000.  There will be a stay on that of 6 months.  I would hope that that is paid in that time.  If it is not and any application is sought, then I will want a substantial amount paid before I hear any application to grant any further time.  Is that understood?

30MR PATERSON:  Yes, Your Honour. 

31HIS HONOUR:  Well, in the circumstances given the covid provisions that we are working under, those orders will be prepared by my associate.  In particular, the community correction order will be prepared.  It will be forwarded to you, Mr Paterson, and you will arrange for your client to sign it and I'll subsequently sign it in chambers.  That's the process, Madam Associate; isn't it?  Yes.  Are you undertake to do that, Mr Paterson?

32MR PATERSON:  Yes.  I do, Your Honour. 

33HIS HONOUR:  Yes.  Ms Mur, is there anything you want to say about the matter?

34MR PETRIC:  Morning, Your Honour.  It's Mr Petric, Your Honour.  I have joined the link finally.  I do apologise for my lateness.

35HIS HONOUR:  It's Mr Petric; is it?  That's all right, no problem.  Was there anything else you wanted to say?

36MR PETRIC:  Nothing to further to add.  No.  Thank you, Your Honour. 

37HIS HONOUR:  Were you here for me to thank you for your professional approach to this matter?

38MR PETRIC:  I was, Your Honour.  I thank you kindly. 

39HIS HONOUR:  Good.  Thank you.  And thank you for the provision of all that material.  It was of much assistance in the matter.  Yes.  Thank you.  We'll adjourn the court.

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