Director of Public Prosecutions v Anastasios
[2012] VCC 2208
•16 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-00609
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANASTASIOS PETRIDES |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 to 28 February 2012 (Trial); 8 March 2012 (Plea) | |
DATE OF SENTENCE: | 16 March 2012 | |
CASE MAY BE CITED AS: | DPP v Anastasios | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2208 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Trial – Guilty by jury verdict - Recklessly causing serious injury – Victim alcohol affected, verbally abusive and aggressive - No criminal record – Refusal to make Forensic Sample Order
Sentence:Total Effective Sentence 18 months’ imprisonment wholly suspended for 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B Stougiannos | Solicitor for Office Public Prosecutions |
| For the Offender | Mr P Tehan QC (Trial) Mr D.Sheales (Plea) | Grigor Lawyers |
HER HONOUR:
1 Anastasios Petrides, you have been found guilty by a jury of recklessly causing serious injury to Robert Cannizzaro on 11 July 2010. This offence carries a maximum penalty of 15 years’ imprisonment.
2 At trial, you, through your Counsel, Mr Tehan QC, admitted that it was you who struck the victim on the second occasion that he was struck, the first blow being inflicted by your friend, Mr Sukkar. The jury rejected that the blow which you inflicted was in self-defence and upon the plea, Mr Stouggianis submitted that they had perhaps done so on the basis that your response to any harm threatened was disproportionate. I note that Mr Stouggianis addressed the jury predominantly on the basis that you had not acted in self-defence, but out of retribution. I must sentence you consistently with the jury’s verdict, but I am not required to try to work out what they found, or didn’t find in this regard. Mr Sheales, who appeared for Mr Sukkar at the trial and was successful in a no case submission, appeared for you upon the plea. I must say that I felt a degree of unease about this, but was assured by Mr Sheales that there was no conflict. Ultimately, this is a matter for him, and so your plea proceeded.
3 The facts upon which I sentence you are as follows.
4 You were a regular at the Fashion Lounge nightclub and seemed to have a role there in assisting the owner Mr Semann with the supply of things such as toilet rolls, but also you were assisting him in terms of management including management of security staff. However, you did not have a formal position at the club as such as a crowd controller. On the night in question and about ten minutes before the events which gave rise to the charges (which I will refer to as ‘the incident’), the complainant had been ejected from the club. There had been some dispute about whether he had ordered and paid for drinks. He was forcibly ejected by Mr Miller and another crowd controller at the club. I mention this by way of background. It was not alleged that you were aware of the circumstances in which the complainant was ejected. A valuable piece of evidence in the trial was a compilation of various pieces of security footage which showed a good deal of the events leading up to and at the time of the incident itself.
5 It is apparent from the footage that about ten minutes before the incident you are seen outside the club at a time when the complainant, who, on his own admission was heavily intoxicated, was remonstrating with Mr Miller. There is no evidence that you were affected by alcohol or any other substance. The weight of the evidence points to the contrary. You are seen to peaceably usher his friend, Mr Zinghini, away from the club. Thereafter, the complainant is seen in George Parade, a laneway which feeds into Flinders Lane where the club was situated. I sentence you on the basis that just before the incident, Mr Cannizzaro and Mr Zinghini walked back in the direction of the nightclub, and that as they did so, the complainant, fuelled by alcohol, was still being loud, verbally aggressive and appeared not to be resolved to leave the area. It was in these circumstances that you and Mr Miller saw fit to approach him, and I am satisfied that this is what you did on the basis of the evidence of Mr Zinghini and Mr Miller, to which I shall refer: In his evidence-in-chief Mr Miller said that after he had witnessed the complainant yelling and kicking at a building about 20 metres up the laneway, referring to George Parade, he came over towards the door of the Fashion Lounge night club. He then said, and I quote from transcript, page 244 lines 4-17.
6 He was asked:
What’s happened then?
7 Mr Miller answered:
He’s continued with his abuse and – do you know why, “I’m gunna this, I’m gunna that,” and all that sort of stuff. I just said, “Look, mate, I don’t want – I don’t want nothing to do. I’ve had enough of you yelling. Off you go. Go home,” and it’s broken out into what happened.
“Well, what happened? Just tell us what you saw and heard happening step by step?”
“He’s come, we’ve gone – I’ve gone out of the ropes and asked him to leave and carry on and move away. One of his friends that was standing in front of him, trying to hold him back, he’s pushed his friend toward us and his friend has hit us, hit me about on the left-hand side of my body, pushing me to the back –
8 I will not take the transcript any further.
9 Mr Zinghini also gave evidence that two males approached them after they re‑entered Flinders Lane. Their evidence is consistent with the video footage which shows that the incident itself happens adjacent to the driveway of the car park, although it is true that the immediate lead-up occurs out of frame. I do not attribute the remarks of Mr Miller to you in terms of him having had enough of the complainant at the time he returned to the proximity of the nightclub. But even accepting that it was you and Mr Miller who approached the complainant, you did so in circumstances where Mr Cannizzaro was making it plain that he was feeling aggrieved by his ejection, was verbally abusive and behaving aggressively in that he had just kicked a wall and, despite the efforts of Mr Zinghini, he was refusing to leave the area. The next thing that occurred is that Mr Cannizzaro pushed his friend into Mr Miller and then Mr Cannizzaro spat at you and Mr Miller. I find that this conduct was of a highly provocative nature. However, you were able to restrain yourself at that stage to some extent. The footage shows you pushing the complainant to the neck or under the chin. It was just after you pushed him that Mr Sukkar came in from the laneway on his way back from the 7 Eleven in Collins Street and punched Mr Cannizzaro. I sentence you on the basis that you saw this occur and saw the complainant go to the ground.
10 Notwithstanding the very recent provocation of the complainant, you made no motion to assault him whilst he was on the ground at this point. It was when he got up and walked one or two steps toward the direction of the parked cars that you then inflicted what I find to be a punch of considerable force. This saw the complainant go to the ground and lose consciousness. Whilst there were attempts in cross-examination to suggest that it was, or might have been, that the complainant said or did before you struck him, I must say that I found such evidence of a rather tenuous and/or speculative character. It was not apparent to me that any of the things that were put to the complainant as remarks or threats you might have said before you punched him to the ground, were put to him on instructions from you. You chose not to give evidence in the trial, as is your right, and the onus was on the Crown to exclude self-defence. But in the absence of evidence from you as to what you say you heard or reacted to, even in the form of a record of interview, and in view of the footage itself and the fact that Mr Tehan, in a most proper and impressive closing address, went to the jury on the basis that the complainant was ‘probably’ threatening you just before you punched him, I am of the view that you did not act in self-defence as you did not believe that it was necessary to do what you did to defend yourself. When I view the footage, and I have done so repeatedly, it is not at all apparent to me that the complainant, who had just risen to his feet after being felled by Mr Sukkar, was advancing upon you at all or acting in a threatening manner toward you at all.
11 It may well be that, as Mr Sheales has submitted, in taking the few steps that he did, he came within punching range, but it is clear to me that he was in no condition to pose any threat to you at that point and was not doing so. Rather, I am of the view that you reacted instinctively on the spur of the moment to put the complainant, who had been behaving obnoxiously, back down on the ground in a bid to unequivocally deal with him and to put his antics to an end once and for all. In this regard, I note with interest that in Mr Chronis’ reference which was relied upon at your plea, you have said to him if you “…..Could turn back the clock you would have just turned and walked away from a situation that unfortunately resulted in a person’s physical injury……..…” Of course, I cannot and do not use this as part of the evidentiary basis for my findings in relation to self-defence, but it does tend to confirm that you felt that you were in a position to walk away from the situation.
12 After you punched the complainant, you helped to move him to the side of the road and placed him in the recovery position. You did what you felt you could at that time to assist him, notwithstanding that shortly thereafter you left the scene. In the circumstances I do not place undue weight on this latter aspect in terms of your moral culpability, but it is part of the factual scenario in this case for the purposes of sentencing you. This is so, notwithstanding that the Crown relied on your departure for different reasons in the trial and even though the jury were ultimately told to disregard this aspect of the evidence.
13 The injuries which were caused to the complainant and which it was accepted that you caused, were as follows: loss of consciousness; laceration to the lip; a 3‑centimetre laceration over the left eyebrow; considerable bruising around the left eye; broken teeth and an undisplaced supraorbital fracture.
14 Fortunately for the victim and for you, the injuries were not worse. As you might be aware, it can take only one punch to kill a person or put them in a permanently vegetative state. Objectively, your offending is quite serious, although not nearly as serious as many instances of this offence which come before these Courts. I take into account that you acted as you did after a good deal of sustained and, in the end, repugnant provocation in the form of being spat at by the complainant. I also factor in that you had behaved in a most contained and restrained fashion up to the point that you punched the complainant and that once you had done this, you desisted immediately and attempted to help him. In contrast to many offences of this type, it was not a sustained attack by you, but a single blow in circumstances where you knew the victim had already been punched to the ground.
15 I ruled inadmissible at trial the photos taken at your home which revealed that you had won trophies in respect of kickboxing, and I will not and believe cannot, accept the Crown’s submission that I can now somehow factor this in in terms of assessing the seriousness of your offending. Now that your Counsel has informed me of your prowess in the past as a boxer and kick boxer, all this tells me is that you knew how to punch someone in an expert fashion when you punched the complainant; but I still do not know if this is the expertise which you employed when you punched him in that split second. Even if it were, it could also be said that you also knew how to act in a disciplined and restrained fashion. In the end, I am of the view that it is not appropriate to factor this matter in so as to negatively impact upon the sentence that I impose.
16 The victim was asked, but declined, to make a victim impact statement, but he did give evidence that he was required to stay in hospital for one day and that the incident had interfered with his ability to work or drive for a brief period of time. In his evidence, the victim did seem to readily acknowledge that he was not himself on the night in question and was behaving irrationally and in a most unbecoming fashion. However, even someone as trying as the complainant, he did not deserve to be dispatched in the way that he was.
17 You have no prior convictions and have reached the age of 45 without any mark against your name in this regard. You are entitled to call this in your favour and I take this into account in several ways. It indicates that, save for this incident, you are of otherwise good character, which is attested to by the glowing character references tendered at the plea hearing. It also means that in all of the circumstances I need place little weight on specific deterrence and can factor this into your prospects of rehabilitation. You have good family support which was apparent from members of your family and others being present at the plea hearing. You have and continue to contribute to the community in a positive way as outlined in the character references. In all the circumstances, I find that your prospects of rehabilitation are very good. However, I must impose a sentence which reflects just punishment in all of the circumstances and which denounces your conduct. Further, I must attach significant weight to general deterrence. A clear message must be sent to others who are tempted to behave as you have that such conduct will not be tolerated. This is particularly so in the context of violence which occurs all too frequently, late at night or in the early hours, in Melbourne’s Central Business District.
18 I take into account your background which was briefly related to me by Mr Sheales. You come from a good and supportive family and neither your parents nor your two sisters have ever been in trouble with the law. Your parents emigrated to Australia from Greece in the 1950’s and met and married here. You left Footscray High School after Year 11. Then after completing the first year of a panel beating apprenticeship you turned your attention to boxing and kickboxing, which were sports at which you excelled and in which you became involved professionally from about 1983. You had been a crowd controller from 1983 and in 1990 when licensing for that occupation was brought in, you completed the course and held a licence until 1995. I was told by Mr Sheales that throughout the period that you were employed as a crowd controller you had not experienced any trouble at all. I should add that in relation to the boxing and kickboxing in which you engaged, your professional career seemed to span from about 1983 until 2005.
19 You have also owned two nightclubs yourself, being the Viper Room from 1998 to 2008, and Tribecca from 2005 to 2008. You sold both of these in 2008. It appears that you now supply cleaning products and supplies to various venues and at the time of this offending you were assisting Mr Semann in this respect. There was a deal of uncertainty or perhaps confusion as to what your precise role was on the night in question at the plea hearing, but I have previously referred to my factual findings in this regard. You are not married and have no children but have close ties with your parents and sisters.
20 You chose to run a trial, which is your right, and you are not to be punished for this; but because you have done so, you are not entitled to a discount in the sentence that you would otherwise receive. Mr Sheales said that from the outset you have expressed remorse in relation to this incident, which at first glance is difficult to accept because you have maintained a defence of self‑defence. It was not until the eleventh hour that your counsel accepted that identification was not an issue insofar as you were concerned; although in this regard, I gained the firm impression that such a stance may well have been taken on legal advice, rather than anything else. I accept that you are sorry that this incident ever occurred and that if you had your time again you might have behaved differently, but I do have difficulty in accepting that you have genuine remorse for the victim in all of the circumstances.
21 The Crown submitted that in your case a period of imprisonment was appropriate but that the form that it took was a matter for me. Mr Sheales most properly accepted that gaol was warranted but that in all of the circumstances, including the strong matters in mitigation, a wholly suspended sentence was appropriate. The Crown have sought a forensic sample order but this is opposed by you and I have considered the submissions, the relevant provisions and the case law in this regard.
22 Of course, the offence of which you have been found guilty is a relevant offence for the purposes of making such an order; and it is true that you have been convicted of a serious offence. But on my reading of the authorities, this in itself is not enough. The purpose for the taking of and retention of forensic samples is to aid the police in any future investigation where you might be a suspect. In circumstances such as yours where you have no prior convictions and I find you are unlikely to reoffend, I am of the view that the making of such an order is not warranted.
23 Would you please stand up, Mr Petrides.
24 In respect of the charge of recklessly causing serious injury, you are convicted and sentenced to eighteen (18) months’ imprisonment but I wholly suspend this period for three (3) years. This means that if you commit another offence punishable by gaol in the next three years, then unless you can show exceptional circumstances as to why it would be unjust to do so, you will be required to serve that eighteen (18) months gaol in relation to this matter. Do you understand? Yes, thank you, Mr Petrides, you may be seated. Are there any further matters, counsel?
25 COUNSEL: No, Your Honour.
26 COUNSEL: No, Your Honour.
27 HER HONOUR: Yes, thank you. We will adjourn.
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