Director of Public Prosecutions v Ater
[2015] VCC 1367
•30 September 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01256
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MONYARA ATER |
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JUDGE: | Her Honour Judge Lawson | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 September 2015 | |
DATE OF SENTENCE: | 30 September 2015 | |
CASE MAY BE CITED AS: | DPP v Ater | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1367 | |
REASONS FOR SENTENCE
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Subject: Criminal Law- Sentence.
Catchwords: Criminal Law- Sentencing- Recklessly Causing Serious Injury.
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Livitsanos | Ms V. Anscombe, Acting Solicitor for Office Public Prosecutions |
| For the Offender | Mr S. Tovey | Doogue O’Brien George |
1 Monyar Ater, you have pleaded guilty before me to one charge of recklessly causing serious injury to Ahmed Magan. This offending arose out of an incident that occurred at Footscray on the evening of Thursday 17 January 2013.
2 The charge is serious and that is reflected in the maximum penalty that is prescribed by Parliament, namely 15 years' imprisonment.
3 In addition, you have admitted your prior criminal history. You have extensive relevant priors. In the past, you have been dealt with by the courts for assault with weapon, recklessly cause serious injury, contravene family violence intervention orders, unlawful assaults, for which you have received a number of dispositions, including adjourned undertakings, Community-Based Orders, Intensive Corrections Orders and a Community Corrections Order.
4 Given this offending occurred on 17 January 2013, it occurred during the currency of the Community Corrections Order of 12 months' duration that was imposed by the Melbourne Magistrates’ Court on 18 June 2012. In the past, you have been given a number of opportunities by various courts but unfortunately you have not utilised those opportunities.
5 Your prior criminal history spans the period from 11 September 2008, starting with an attendance at the Sunshine Children’s Court, through to various Magistrates’ Court attendances, culminating in the community corrections order that was imposed at the Melbourne Magistrates’ Court on 18 June 2012. You have also been dealt with by way of subsequent offending.
6 You were remanded in respect of this charge on 23 January 2013. From 18 February 2014, you served a sentence of imprisonment of eight months for unrelated matters that included contravention of a Community Corrections Order, contravention of two Intensive Corrections Orders and fresh offending.
7 In relation to those matters, you served an aggregate sentence of eight months' imprisonment.
8 Details of the subsequent offending were provided to the court. That offending involved, firstly, your former domestic partner, whereby you breached the intervention orders that were in place by striking your former partner to the head with an open hand and a closed fist to the stomach, following which she received a laceration to her nose, bruising and swelling to the face. That was on 14 May 2012. On 11 July 2012, you attended another victim’s home, following which there was an argument. When asked to leave by the victim, you punched him in the left ear, causing him a minor cut and bleeding and you then decamped.
9 From today's date, there are some 676 days' pre‑sentence detention that must be declared that relates to this matter solely.
10 I shall now proceed to sentence you on the basis of the summary of the prosecution opening that was read into the transcript. There was no issue taken with that during the course of the plea hearing by your counsel, Mr Tovey.
11 In brief, the incident happened on the evening of Thursday 17 January 2013. Police found the victim, Mr Magan, lying unconscious on the roadway in Paisley Street, Footscray. He was taken to hospital with life‑threatening injuries.
12 At hospital he was assessed with a Glasgow coma score of 13 out of a possible 15. That was recorded on his admission. He was diagnosed with a severe head injury following a CT brain scan. A fracture of the skull with acute subdural haemorrhage was treated operatively via a craniotomy with elevation of the fractured skull fragment, being the right temple. Thereafter he was admitted to intensive care and treated. He was initially intubated for surgery and the tube remained for a couple of days. He was discharged on day 4 on 22 January 2013 into the ward.
13 Mr Magan was present at the plea hearing and provided a Victim Impact Statement that set out in graphic detail the effect upon him of his injuries. He was 28 at the time of the assault. He has suffered both physically and psychologically. Post-operatively, he has been diagnosed with epilepsy and seizures. He has to take lifelong medication. He has difficulties coping mentally. He previously worked as a forklift driver in a warehouse but is now unable to work due to his medical condition and is currently in receipt of a disability support pension. He continues to be treated and his doctor, Dr Greg Kuriata, provided a letter to the court dated 30 May 2014 that confirms following this assault, he has suffered memory loss, tinnitus in the left ear, post-traumatic stress disorder, depression and possible ongoing seizure disorder.
14 Mr Ater, your offending involved a vicious and unprovoked attack on an innocent victim, a person who was not known to you. You were aged 24 at the time. You were with a group of men who confronted three others that included the victim. They were heading off to meet a friend at a local restaurant. You began harassing them for cigarettes and money. They ignored your requests and continued walking on towards the restaurant. Their friend was not there, so they left the restaurant and proceeded to walk down the street. You then grabbed the victim and punched him, splitting his lip. He became very upset and was pulled away by his friends. The men quickly attempted to make their way back to a nearby vehicle.
15 Moments later you were captured on CCTV footage running into the Nicholson Street mall, confronting the victim again. At this time, the victim was in possession of a knife and he is seen on the footage to place the knife down on a ledge, at which point you picked up the knife and proceeded to attack him. The knife was a silver-bladed black-handled knife between 25 to 30 centimetres in length. You took several large swings towards the victim and a number of those connected with him, causing moderate cuts to his neck and arms. One of his friends attempted to intervene and you swung the knife at him.
16 You were then restrained by one of your own associates who attempted to diffuse the situation and pull you away. However, you managed to break free and ran after the victim and his friends. You continued to violently swing the knife at him, at which point you began hitting him in the side of the head with such force that another person who was standing nearby stated that the force of the impact sounded like a sharp popping or cracking noise.
17 The knife lodged in the victim's head for about three to five seconds, whilst you were trying to remove the knife. He then dropped to the ground, got up and staggered towards a nearby vehicle. His friend, Mr Abdi, was yelling at you, “You've killed him, you've killed him.” He then went to the boot of his vehicle and got a baseball bat. He then swung the bat at you as you were still wielding the knife. At this point, Mr Magan had collapsed on the roadway and some bystanders had called 000.
18 Thereafter, there was a physical confrontation between yourself and Mr Abdi. He managed to hit you on the head, knocking you to the ground. You immediately got to your feet, there was a minor scuffle and then you ran away. He initially attended his friend but then chased after you again and caught up with you and struck you about the head, causing you to fall to the ground. He assaulted you by kicking you a number of times to the body and the head and then ran off.
19 Police, when they attended, located you a short distance away in a laneway, hiding in a refrigeration unit.
20 You were taken to the Royal Melbourne Hospital via ambulance where, following a CT scan of the brain, you were diagnosed with a non-depressed right-sided skull fracture with associated subdural haematoma. Soft tissue injuries were noted as well, attributable to blunt trauma. You were commenced on anti-seizure medication and monitored for neurological status. You were discharged and released into the custody of the police.
21 Your assailant, Mr Abdi, was convicted and sentenced to a two-year Youth Justice Centre order by His Honour Judge Mullaly on 22 April 2013 for one charge of recklessly causing serious injury and an unrelated aggravated burglary.
22 I accept you have already suffered some extracurial punishment and I have taken that into account.
23 Upon your release from hospital on 23 January 2013, you were arrested and conveyed to the police station at Footscray for an interview. During a video‑recorded interview, you stated you could recall a fight in the street but said it had nothing to do with you and that you did not carry weapons. You told police you had been drinking alcohol that night but only had had a couple of drinks. You remembered an altercation that involved up to about three Somalian males but stated there was no fight. Otherwise, you stated you had little recollection of the entire incident. When police detailed the incident as captured on the various CCTV footage, you further denied any offending.
24 As was stated during the course of the plea hearing, I consider that this is a serious example of this kind of serious offence. This was a terrifying experience for the victim. He was an innocent bystander merely going about his business in a public place when you viciously attacked and injured him. You have not provided any explanation for the offending. It is a senseless and unnecessary act of violence inflicted on another person. Mr Magan was gravely injured and, without surgical intervention, could well have died.
25 It is important, when formulating an appropriate sentence, to emphasise both general and specific deterrence and denunciation and to provide for the protection of the community. I accept that there was no preplanning in this offending, that you were not initially armed with a knife, and that you armed yourself with a knife when it became available. This was opportunistic offending, but nonetheless I consider that this sort of offending represents offending towards the higher end of the spectrum for this offence of recklessly causing serious injury and that will be reflected in your sentence.
26 The use of a knife, which is of itself a dangerous weapon, makes this offence more serious as it heightens both the probability of serious injury and degree of seriousness of the probable injury.[1]
[1]Ashdown v R (2011) 219 ACrimR 459 [19-20].
27 The Court of Appeal in this state has often remarked about the dangerousness of knives, given the obvious risk in their use of damage to a victim's internal organs, blood supply and thus to life, therefore it is important in formulating an appropriate sentence that you be deterred from such offending in the future and also as a need to deter others from so doing in the future.
28 Mr Tovey, on your behalf, accepted that you have had a bad history of violence that is reflected in your past criminal offending. He emphasised that you are a person who has grown up independently without appropriate parental guidance in your formative years and that has had a real impact upon you
29 In respect to this offending, it is not claimed that there are any Verdins principles that are enlivened. Through your counsel, you accept that this was a dangerous and violent act and you did not wish to justify your unwarranted actions. By your plea, you have acknowledged that when you wielded the knife, you foresaw the probability that you would cause the victim serious injury. Therefore, I consider your moral culpability to be high.
30 So far as your personal circumstances are concerned, you are now 25. You were born on 3 December 1989 in the north of Sudan. Your parents separated when you were about two. Your father lives in the United States and your mother continues to live in Sudan. In the mid-2000s you were placed into the care of a cousin of your mother whom you know as an uncle and you left Sudan at age 14. Initially you were in Egypt for about a year in transit and thereafter, once your uncle was granted asylum in Australia, you followed him.
31 You lived with your uncle and his wife in the western suburbs for a few years. You learnt English for about eight months and then transitioned to year 9 at Kealba Secondary School. You left school having completed year 9.
32 Thereafter, things seem to have spiralled out of control and that is reflected in your past criminal history. From about age 15, there was DHS involvement but primarily you lived a nomadic life, living with friends and acquaintances, having no real aims in life. You have very little family connections here in Victoria. Your uncle and his wife and your former partner, Ms Aschalew, and your two children, Hana and Marey, continue to reside here.
33 Ms Aschalew is estranged from you. The Department of Human Services are now involved in your two children’s care and currently there is an interim protection order in place. You are concerned about the future of your children and have maintained some contact, albeit limited, since the time of your incarceration. The department is keeping you informed about the progress of their protection application. You acknowledge that in order to rebuild your relationship with your two children that you will have to engage in men’s behaviour change program and have supervised access.
34 Your relationship with Ms Aschalew commenced when you were about 19 and your first daughter, Marey, was born in 2008 and Hana was born in early 2013 following your remand. Your relationship with your partner in the past has been characterised by a history of alcohol abuse and violence.
35 Mr Jeffrey Cummins, clinical psychologist, in his report dated 2 September 2015 sets out your past history and I do not propose to recanvass that, other than to say I have read it and taken it into account. You told him you were intoxicated by alcohol at the time of your offending. You acknowledged to him that alcohol had played a role in your offending and other violent offending. He noted that you have never received any mental health treatment or participated in an anger management program or had any treatment in relation to alcohol or drug-related problems.
36 He considered that you presented as somebody who has multiple unresolved psychological issues that have a genesis in your disrupted childhood years. He said you were not a person who is easy to assess and stated it was his opinion that you probably suffer from a chronic adjustment disorder with features of traumatisation, although you may be also suffering from PTSD related to your dysfunctional upbringing. He did not think that you had suffered any acquired brain injury as a result of the head injury you suffered on the day of the incident. He considers it is imperative that you be linked in with one or more counsellors from the local Sudanese community upon your eventual release and that you do participate in an anger management program.
37 I note in the past that you have attempted some further education. You have completed certificate I in information technology and you have in the past begun but not completed a second certificate in that field. I have read your letter addressed to the court today which indicates that you want to pursue your interest in computers and it is your dream to study it to PhD level in the future.
38 Mr Tovey put a number of matters in mitigation on your behalf. I accept that your plea of guilty was entered at an early stage in the proceedings prior to trial. By your plea of guilty, you acknowledge that what you did was wrong. I accept that you now do deeply regret your actions in engaging in this assault and that you acknowledge that what you did was both dangerous and violent. I also accept what you say in your letter of apology that you are now sorry for what you have done and you are disappointed by your own actions towards the victim and the victim's family and you now acknowledge that it has affected the victim and his family.
39 By your plea of guilty, you have facilitated justice and there is real utility in your plea and your sentence will be discounted accordingly. I accept that this plea is indicative of some remorse.
40 I accept further that you have utilised your time whilst in custody productively. You have undertaken various programs, including programs for relapse prevention and substance use. You have undertaken a certificate in occupational health and safety and you have done some further education in respect to English, maths and IT. You are currently working whilst at Port Phillip Prison and you act as the unit billet. Therefore, you have demonstrated that you can be a responsible person and that is all good in terms of your future rehabilitation prospects.
41 I accept that prison has been a very sobering experience for you and that you are now expressing a real commitment to change so that you can re-engage with your two daughters in the future and play a positive role in their lives. You do have only limited contact with people while you've been in gaol. Your uncle visited you once and that was whilst you were in hospital. Your ex‑partner and children have come for some visits, although those have ceased now that you are estranged.
42 I accept that you have very little other contact with people in Victoria and so your time in gaol is going to be very isolated and I have taken that into account.
43 In the future, your ambition is to pursue further education in IT and also to secure employment and stable accommodation upon your eventual release. You are committed to programs to deal with your underlying offending behaviours. I accept that your rehabilitation prospects are good, having regard to your commitment to change. In sentencing you, I accept that you are still relatively young and that your ultimate rehabilitation and assimilation back into the community with appropriate supports is imperative.
44 Mr Tovey, on your behalf, sought a disposition that involved a combination of gaol and a Community Corrections Order. Mr Livitsanos, on behalf of the Crown, sought an immediate custodial sentence and submitted a Community Corrections Order in combination with gaol was not appropriate.
45 Given the grave nature of your offending, it is my assessment that it is a very serious example of this type of crime, I consider that nothing short of a sentence wholly comprised of an immediate term of imprisonment would suffice to satisfy the requirements of just punishment and a community correction order, either alone or in conjunction with a sentence of imprisonment, would not satisfy the requirement of just punishment in this case. That is because of the importance of general deterrence in cases of this kind.
46 I will now proceed to sentence you, Mr Ater. If you could please stand. Formal court orders in respect to the one charge of recklessly causing serious injury: you will be convicted and sentenced to five years' imprisonment and I order that you serve a period of three years' non-parole period.
47 I make the disposal order sought.
48 I declare that pursuant to s.18 of the Sentencing Act that you have served 676 days' pre-sentence detention. I direct that that be entered the records of the court.
49 I make the following declaration pursuant to s6AAA of the Sentencing Act 1991: but for your plea of guilty I would have imposed a sentence of seven years' imprisonment, to serve five years.
50 That completes my sentencing remarks.
51 MR LIVITSANOS: If Your Honour pleases.
52 HER HONOUR: Did you want to speak to your client before he's taken down to the cells?
53 MS SMITH: I might have a quick word with him, Your Honour.
54 HER HONOUR: I've signed the disposal order, so I will hand that bank.
55 MR LIVITSANOS: Thank, Your Honour.
56 MS SMITH: Thank you, Your Honour.
57 HER HONOUR: All right. Thanks for coming up, Ms Smith, at such short sentence.
58 MS SMITH: I apologise for keeping everyone waiting.
59 HER HONOUR: No, that's okay. I think it's important though in cases of this nature, particular where it's obvious the client is going to be sentenced, that more attention be given to making sure you're on time.
60 MS SMITH: Yes.
61 HER HONOUR: All right. I will adjourn the court.
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