Director of Public Prosecutions v Ater
[2013] VCC 1109
•2 August 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01255
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AWAN ATER |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 July 2013 | |
DATE OF SENTENCE: | 2 August 2013 | |
CASE MAY BE CITED AS: | DPP v. Ater | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1109 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Guesdon | |
| For the Accused | Ms D. Keogh |
HIS HONOUR:
1 Mr Anwan Ater, on 29 July 2013, you pleaded guilty to the following charges:
Charge 1, on 8 February 2013, you recklessly caused injury to Sam Thompson.
Charge 2, on 8 February 2013, you intentionally caused serious injury to Paul Leslie Giddy.
Charge 3, on 8 February 2013, you robbed Paul Leslie Giddy of a wallet. That wallet contained $400 and other credit cards and the like.
2
The maximum penalty for Charge 1 is five years' imprisonment.
The maximum penalty for Charge 2 is 20 years' imprisonment.
The maximum penalty for Charge 3 is 15 years' imprisonment.
The circumstances of the offences
3 Your offending on this occasion is serious. You, in company with a friend, have attacked the two victims, Thompson and Giddy, on the intersection of Moore and Napier Streets, Fitzroy. The assaults were sustained, brutal and cowardly. Neither of the victims invited or provoked any interaction with you or your friend prior to your assaults of them. You have simply treated them as prey in your violent attack in a pursuit of easy financial gain.
4 The circumstances of the offences are adequately set out in the agreed summary, which became Exhibit A on the plea. It is appropriate to set out your offending in full, and I am now going to read into the transcript of your sentence the summary.
5 On Thursday 7 February 2012, Mr Giddy was playing a gig with his band in Brunswick. In the early hours of 8 February, he and his friend, Sam Thompson, went to the Old Bar in Johnston Street, Fitzroy to have a drink. At about 1.30 am they decided to leave and began walking home through Fitzroy. Giddy and Thompson approached the roundabout at the intersection of Moore Street and Napier Street near the town hall. They were stopped by the accused, that is you, Mr Ater, and a Mr Bill. One of them asked Giddy if they had any money. Giddy began reaching into his coin pocket. At that moment the co-accused, Bill, grabbed Giddy from behind, putting an arm around his neck. Giddy grabbed his arm and struggled, backing them both into the sign on the street. You came at Thompson and swung a punch at him, connecting with his upper body and causing him to fall to the ground. Thompson's left knee, left elbow and left hand were cut.
6 Giddy was then assaulted by both accused. He was lying on the ground, on his side or back, being pummelled to the head with punches. Thompson said to you who had punched him, "Calm down. What do you want, we don't want to fight?" As he said this, the co-accused, Bill, kicked Giddy once to the head with full force. The co-accused, Bill, then reached into Giddy's pocket, took out his wallet, this contained $400 in notes, driver's licence, Commonwealth credit card and other cards. The two of you then ran from the scene in different directions.
7 A truck driver, Walter Hussey, was driving past and saw the end of the assault. He noted the offender, who had jumped on Giddy's head was hopping, as if he had hurt his leg. Thompson ran up to Hussey and asked him to call 000. Giddy was lying on the ground, initially not moving or talking, his face covered in blood.
8 Police attended, and a few minutes later, followed by the ambulance, Giddy was taken to St Vincent's Hospital. He was diagnosed with a right ankle fracture, right orbital blow out fracture, right nasal bone fracture, and right maxillary sinus haematoma (which is bleeding on the brain), right parietal contusion (bruise on the brain), and haematoma (bleeding to the base of his skull.) That is how you left him on the street. His fractured ankle was surgically repaired.
9 At about 2.10 am, police searching the scene located a white iPhone in the gutter, opposite where the assault took place. This phone belonged to your friend, Bill. At 3 am, the accused, that is you, and Mr Bill, along with another male returned to Napier Street. They were walking toward the scene of the assault when intercepted by police. Bill was walking with a distinct limp. The accused and Bill had blood on their clothing. They were arrested.
10 Police then located the Commonwealth key card, belonging to Giddy, on the footpath near the corner of Condell Street, where it had either fallen or been discarded by one of you. The accused, Ater, was conveyed to Fitzroy Police Station, which I understand is just around the corner. The Commonwealth MasterCard belonging to Giddy was located on you whilst you were in the cell at the station. You were interviewed and you denied knowledge of the offences. You stated that before you were arrested you had been playing basketball on a court at Fitzroy, the blood on your clothing came from the basketball, that you had not been in the area near the council hall earlier at the time of the assault and you did not know where the credit card, found on you, belonging to Giddy, came from. In summary, you did not co-operate with the police in their enquiries, although your returning to the scene of the crime, together with Bill, made it very easy for them to identify and arrest you.
Your personal circumstances
11 You are 19 years old.
12
You have one prior court appearance in Melbourne Children's Court, on
20 September 2012. On the charge of robbery and theft, you were placed on $100 bond to be of good behaviour to 19 September 2013, that is in the future from today. The offences in this case were committed within five months of that court appearance. You have breached your Children's Court good behaviour bond by these offences.
13 You were born in Sudan. You left Sudan for Egypt in 2003, in the company of your paternal aunt and uncle. You were nine years old. By that time your parents had divorced. You remained with your mother in the Sudan. Your mother remarried and you were subjected to violence from your stepfather because you refused to refer to him as your father. Your mother and stepfather have had further children and still live in Sudan. You last saw your mother in 2002, prior to moving to Egypt with your aunty. Your father now resides in America, I take that to be United States of America, and has remarried. He has also had more children with his new wife. You last saw your father in 2009 when he came to visit you in Australia. At that time you were 15 years old.
14 In company with your aunty, you arrived in Australia in 2004. You have resided in the Fitzroy area with your aunty, uncle and half brother until 2012. Due to some domestic disharmony with your aunty, you left her home at her request. I read from the report of the Department of Human Services that she was too strict on you. Since that time, you have lived with associates, or similarly aged people and have commenced your use of alcohol and cannabis. You do not have any ongoing contact with your aunty and she is your sole family link here in Australia, as I understood the plea.
15 It was submitted on your behalf that since leaving the stabilising influence of your aunty, you have been living a largely transient and substance abuse lifestyle.
16 You have completed Year 12 VCAL course at NMIT, Collingwood Campus. Your intentions were to continue your education and training by commencing an apprenticeship in building and construction at NMIT at the Heidelberg Campus. Your troubles with the criminal justice system have interrupted that ambition. You have never had any employment.
Your post offence circumstances
17
You have been in adult custody since the date of your arrest to
19 March 2013. On 19 March 2013, you were granted bail on the basis that you attended a CISP program. You ignored that opportunity and were remanded in custody on 18 May 2013. You have been in custody, in the Melbourne Remand Centre and, as I understand it, the MAP as well since that date. In total you have served 117 days in adult custody.
18 Your counsel informed me that you had two outstanding court dates, which are at the stage of charges only. You deny those charges. This information forms no part of the reasons for sentencing you for the offences under consideration here.
19 On 3 July 2013, at your committal mention hearing, you indicated your plea of guilty to the charges on this indictment. You have pleaded guilty at a reasonably early stage of the proceedings. That is to your credit.
Medical and psychological circumstances
20 A report of Michael Bilik, dated 13 July 2013, was tendered on your behalf. Mr Bilik is a psychologist. Mr Bilik did not obtain any history from you about your Children's Court appearance in September 2012. Mr Bilik did note in his report that, "By his own admission though, there seemingly is a history of non-compliance with supervision in the community (failing to attend court as required) which again will need to form part of the self management planning."
21 You gave a history of alcohol and cannabis abuse to Mr Bilik, which has led you to a lifestyle of negative peer association. That is a flash phrase for mixing with the wrong crowd. "These offences occurred in the company of negative peer association." In Mr Bilik's opinion, you represent a moderate risk of violence generally given the presence of both perpetuating and protective factors relevant to violent recidivism. In summary, you have fallen into alcohol and cannabis use in the company of like minded peers that places you at a moderate risk of re-offending. Mr Bilik did not identify post traumatic stress at clinical levels. In that regard he was referring to your days prior to leaving the Sudan.
22 It was put on your behalf that you were affected by alcohol at the time of the offence and you have little memory of the events surrounding these offences. I do not accept that you do not remember what you have done to your victims in this case. Your intoxication, if it existed, was and is no excuse for your criminal behaviour. It is not a mitigating factor in your sentence.
The impact on your victims
23 In this case a victim impact statement was filed by Paul Giddy. It was
Exhibit B on the plea and read into the court record. I will not repeat the detail of the victim impact statement. Mr Giddy received the following physical injuries. As I have said before, he had a fractured right ankle, a right orbital blow out fracture, a right nasal bone fracture, bleeding in his right maxillary sinus, bruising to the right parietal area of the brain and bleeding at the base of his scalp. The fracture of the right ankle required surgical repair. This resulted in Mr Giddy using crutches for some three months. The injury stopped his involvement in playing sport, football, golf, tennis, netball and his fitness activities. Mr Giddy stated in his statement he was no longer able to play music. Your criminal activity has deprived Mr Giddy of his feelings of happiness, wellbeing and fitness. He was unable to work as a physical education and mathematics teacher. The result of this is a significant loss of income for him. The victim has also lost money as a result of the robbery and his inability to play music engagements he calls gigs.
24 In context for both of you and Mr Giddy, he states - and when I say the context, he is very brutal in his victim impact statement. He states this. "I find myself stereotyping people based on their race as a result of this incident, something I have never done before. I hate racism and especially hate that I now have racist thoughts." Mr Giddy is a person who is a teacher. Do you think he is not going to have younger Sudanese, or Somali children in his classes? So any reaction he has he has got to control, but you remember this, you have impacted on their relationship. The emotional and values impact your actions have had on Mr Giddy extend, as I say, beyond you and him. You should reflect on that and understand that violent criminal behaviour has far reaching consequences for many people, not just you and not just him.
Sam Thompson
25 On the day of your plea, on 29 July 2013, Mr Thompson had not filed a victim impact statement. As you know he prepared one the day after and it has been read into the court record this morning. It has just been read out. It is clear that your actions have undermined his sense of safety and wellbeing in his local area. It is the same local area that you were living in. Mr Thompson has two immediate reminders of your assault. The first is the scar to his knee, which is there forever. The second is where he lives. He passes the scene of this crime regularly, every time he is going about his daily life and that serves as a constant reminder of your criminal activity. Mr Thompson stated he even considered moving because of these problems. He has echoed the view of many in the community, that you be punished appropriately to give him and others reassurance that the law takes your behaviour seriously.
Sentencing considerations
26 The basic purpose for which a court may impose a sentence of imprisonment, just punishment; deterrence, both specific and general; rehabilitation, denunciation of your actions; and the protection of the community. In sentencing you I must have regard to a range of factors, such as the seriousness of your offences, your culpability for them and your personal circumstances and those of your victims, Sam Thompson and Paul Giddy. I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, you, as an offender, are rehabilitated and reintegrated into society.
27 You have pleaded guilty at an early stage in these proceedings. The plea was indicated at the committal mention proceedings. Your plea has a utilitarian value of allowing the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of court and police resources to deal with other matters. Your plea indicates public confidence in the legal process set up to protect the community. You have, by your plea, relieved the victims, Thompson and Giddy, from giving evidence against you. It facilitates some closure for them as victims of your offending. Your plea also is a clear acknowledgment by you that you accept responsibility for your criminal behaviour in this case.
28 Your plea also recognises you are willing to facilitate the course of justice in the community. I also accept your plea of guilty to these charges indicates and demonstrates remorse on your part. In your interview with the psychologist, Mr Bilik, you acknowledged your victims did not deserve to be assaulted. You indicated an understanding of the physical impact of the assaults on your victims. I accept that you have demonstrated some remorse for your criminal activity.
29 You are a young offender. You were just 19 at the time of this offending. Whilst you have had a prior Children's Court appearance for robbery and theft, you have not been incarcerated prior to these offences. The court has to take into account whether you have reasonable prospects of rehabilitation. I also have to be mindful of whether you are particularly impressionable, immature and likely to be subjected to the undesirable influences in adult prison. You have already been in adult prison for 117 days. You have expressed fear and concern for your safety whilst being on remand for these offences. The balance of considerations is between the prospects for rehabilitation of a young offender and the just punishment for an offender for a violent and unprovoked assault of innocent persons in the street.
30 The prosecutor urged that the considerations of general and specific deterrence are paramount in this case. The prevalence of street violence resulting in serious injury to innocent victims calls for a term of imprisonment. The prosecutor submitted that at the time of these offences you were on a Children's Court imposed good behaviour bond for robbery. This, it was submitted, raised the considerations of specific deterrence in your case, as in you have just offended the same way again.
31 The prosecutor submitted a term of imprisonment between three and four and half years was an appropriate total sentence for you. The aggravating features of the offending are that it was a sustained and cowardly attack by you in the company of another. The injuries to Mr Giddy were inflicted by kicking or stomping on him. Your co-accused was the person actually doing the kicking according to the witnesses. The motivation for the offending was robbery. At the time of the offence you were on a court order for robbery.
32 The mitigating factors are that you are a young offender of 19 years. You have a disrupted and uninterested family background in respect of your mother and father, that is they do not have anything to do with you any more. You had, whilst in a stable home position with your aunty, completed Year 12, VCAL, at Collingwood NMIT. You had indicated an ability to study and better yourself by training and education. In the time of your remand that you have been in adult prison, as I say, you have been fearful in that custody. You know and understand what the force of adult imprisonment has as a punishment now. You have pleaded to the offences.
33 All of these factors point to the prospect of rehabilitation for you. The best chance of rehabilitation for someone in your position is to serve your penalty in a Youth Justice Centre. Your rehabilitation is directly linked to your control of your cannabis and alcohol use. It is also linked to your peer group or chosen associates on your release into the community. Both of those things are only up to you. The community is best served if you take up this opportunity to turn your life around and take up the mentoring, training and direction given to you in Youth Justice Centre.
34 I note in the report from the Department of Human Services to do with whether or not you are suitable to go to Youth Justice Centre, that in the past you have shown what I am calling a bit of attitude about being directed. You have to be more mature than that and get over it, because I want you to understand that if you show attitude, so to speak, in Youth Justice Centre, they just transfer you to somewhere and that somewhere is prison.
35 You have been assessed as being suitable for a Youth Justice Centre order.
I sentence you as follows:
36 Charge 1, you are convicted and sentenced to be detained in a Youth Justice Centre for 12 months.
37 Charge 2, you are convicted and sentenced to be detained in a Youth Justice Centre for three years.
38 Charge 3, you are convicted and ordered to be detained in a Youth Justice Centre for 18 months.
39 That is a total effective sentence of three years' detention in a Youth Justice Centre.
40 I declare that you have served 117 days. Is that a correct calculation?
41 MS GUESDON: Another four days.
42 HIS HONOUR: Four on that 113, yes.
43 MS GUESDON: I think so, yes.
44 HIS HONOUR: I declare that you have served 117 days pre-sentence detention, which is to be deducted, pursuant to s.35 of the Sentencing Act, from your sentence of detention.
45 I order that the prisoner provide a forensic sample, pursuant to s.464ZF of the Crimes Act, be retained. I have signed that order.
46 I order that pursuant to s.6AAA of the Sentencing Act that but for you plea of guilty in this case, the sentence, that is the total effective sentence would have been four years' imprisonment with a minimum of three years before being eligible for parole. Just so you understand, your plea of guilty has helped you go from being sentenced to imprisonment for four years and three years minimum, to being given an opportunity in a Youth Justice Centre for three years. It is up to you to make and take this opportunity, it will be your last. Otherwise what happens is, you have escaped from the Sudan with your aunty to come to Australia to spend your life in a revolving door going back to prison time and time again. You can change it if you take this opportunity. Good luck.
47 Is there anything else?
48 MS GUESDON: No, Your Honour.
49 MS KEOGH: No, Your Honour.
50 HIS HONOUR: Thank you, I will hand down that signed forensic order.
51 (Section 464ZF order signed and acknowledged.)
52 Thank you. Thank you very much, officer. Thanks, Mr Ater. Thank you both for your help. Thank you, we will adjourn until 10.30
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