Director of Public Prosecutions v Bandi
[2021] VCC 172
•24 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00092
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MANSIS BANDI |
---
JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 January 2021 | |
DATE OF SENTENCE: | 24 February 2021 | |
CASE MAY BE CITED AS: | DPP v Bandi | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 172 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Recklessly cause serious injury - physical struggle - dynamic and heated situation – self-defence – not a reasonable response - low moral culpability - delay – plea of guilty – remorse
Legislation Cited: Crimes Act s.17
Cases Cited:
Sentence: With conviction, adjourned undertaking for 12 months with conditions.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Malik | Office of Public Prosecutions |
| For the Accused | Mr A. Halphen | Victoria Legal Aid |
HIS HONOUR:
1 Mansis Bandi, on 13 January 2021 you pleaded guilty to a charge of recklessly causing serious injury. This offence carries a maximum penalty of 15 years’ imprisonment.
Circumstances of the offending
2 You and the victim, Ms Augusta Aitum, are both from Papua New Guinea (‘PNG’) and have known each other for most of your lives. At the time of the incident Ms Aitum was aged 40 and you were 47 years of age. Ms Aitum referred to you as her ‘sister’. The relationship between you began to sour around the end of 2016 when you commenced a relationship with John Fitzgerald of which Ms Aitum did not approve. Despite this, you and Ms Aitum still saw each other, and she continued to help you with your children.
3 On Saturday 14 October 2017 you were at a social function at a farm in Kelly Road, Cranbourne South. At about midday you invited Ms Aitum to the function and asked that she also bring your two teenage children.
4 Ms Aitum arrived at the farm just before 7:00pm with your children. There were several other adults present. Over the course of the night the adults consumed a bottle of wine and three small bottles of whiskey. You and the
Ms Aitum became drunk.
5 At about 10:00pm you and Mr Fitzgerald took your children home. You and he returned about an hour later. I will not set out the complete chronology leading up to the incident between you and Ms Aitum, but you told the police that during the evening she became angry with you.
6 In the early hours of Sunday 15 October 2017, while sitting in your car at the farm, Ms Aitum approached you, banged on the car and told you to get out. You got out of the car and you and she began to fight one another. You both fell to the ground. You both wrestled on the ground, punching and scratching at each other’s face and neck.
7 At one point during the altercation, Ms Aitum put her hands up towards her face and you bit her fingers. It was not entirely clear to me how this occurred. In any event, Ms Aitum was able to pull one of her hands free from your mouth. You then bit down hard on her other fingers. Ms Aitum screamed and asked you to let go and stop. You bit down and pulled on one of her fingers causing her immense pain. In so doing you bit off the top of her left ring finger. This conduct is the subject of the charge. After the fight had finished you and Mr Fitzgerald then got into his car and drove off.
8 Ms Aitum was taken to hospital where she underwent treatment for her injuries. Part of the treatment received was a further amputation of the left ring finger.
9 On the afternoon of 15 October 2017, you attended the Cranbourne Police Station and reported having been assaulted by Ms Aitum. You made a statement to the Police in which you stated that Ms Aitum had been the aggressor, that she pulled you out of your car by your hair, bit your left index finger and swung a piece of timber at you. Police took photographs of the injuries you sustained in the fight. They were tendered on your behalf and marked exhibit D2.
10 You participated in a recorded interview with police on 9 November 2017 and made a number of admissions. However, it wasn’t until 24 July 2018 that you were charged with offences relating to the incident.
11 Ms Aitum declined to make a victim impact statement.
12 I will set out some of the procedural history regarding this proceeding as they are relevant to the issue of delay. As just mentioned, you were charged on 24 July 2018. In January 2019 you were committed to stand trial in this Court on charges of recklessly causing serious injury or, in the alternative, intentionally causing injury, rape, and a further charge of intentionally causing injury. These all related to the incident between you and Ms Aitum on
15 October 2017.
13 In February 2020 you made an offer to plead guilty to the charge of intentionally causing injury on the basis that the other charges be withdrawn. That offer was rejected by the prosecution and you stood trial on
24 February 2020. Through no fault of yours, on 2 March the jury had to be discharged without verdict. Another trial was listed to commence on
13 July 2020 but was vacated because of the COVID-19 pandemic. The trial was next listed to begin on 13 January 2021.
14 On 18 December 2020, following plea discussions, the charges against you resolved on the basis that you would plead guilty to a single charge of recklessly causing serious injury and the other charges would be withdrawn. Your plea was entered before me on the 13 January 2021.
Personal circumstances
15 You were born in Wewak, PNG in July 1970. You are now 50 years of age.
16 Your parents are both deceased. Your mother passed away in 1978 and your father in 1995. You have an older sister aged 54, a younger brother and sister aged 48 and 44 respectively. Another sister passed away in 2004 from breast cancer. You have a good relationship with your siblings who all reside in PNG.
17 You completed high school in PNG and then obtained a bachelor degree in Commercial Computing from the University of Lae. You are the only person in your family and indeed your village to attend university. In your final year of university you secured a six-month placement with DHL Couriers. You remained with that company for another two years after completing your studies.
18 You met your first husband while you were studying at university. You had two children during that relationship which ended in 1999. You had another relationship and another two children before that relationship ended in 2012. Your children are aged between 17 and 26. All are employed in customer service roles and building construction. You are a grandmother to a seven month old child and you are expecting another grandchild early this year.
19 You have worked at various information technology jobs up to 2012. You initially taught IT at a business training college and then for Thompson Data Corporation. In 2003 you were seconded to Melbourne on a three-year temporary visa to continue your role with Thompsons. Your employer sponsored your residency in Australia. You are now a permanent resident. You remained working for Thompsons for 10 years.
20 Since 2012 you have undertaken cleaning and factory work. You are currently employed as a packer at a farm near Maffra. During the working week you rent a room in Maffra. On the weekends you return to rental premises in Pakenham East. You earn $700 gross per week. Your combined rental expense is $450 per week.
21 In 2018 you were diagnosed with pleural tuberculosis. After six months of treatment, which included surgery, you were cleared of the disease. In early 2019 you were diagnosed with breast cancer and underwent a double mastectomy. You require ongoing review.
22 You have been a long-term financial member and committee member of the Wontok Group, a Melbourne based organisation supporting PNG students and other Papua New Guineans who come to Melbourne for medical treatment. The group helps to integrate new arrivals into the community and with fund raising for those visiting and in need of medical assistance.
Criminal Record
23 You have admitted your criminal record which contains one prior matter dating back to April 2015 for unlawful assault and use carriage service to harass. On the former charge a Magistrate, without proceeding to conviction adjourned your case for 12 months and you were ordered to pay $100 to the Court Fund. On the latter charge, without proceeding to conviction, you were fined the sum of $100.
24 I was informed that the circumstances concerning the prior matters are that you punched a woman to the face from behind, pushing and grabbing her and then sending her a threatening text message. Mr Halphen, who appeared on your behalf, submitted that the leniency in sentence suggests that your role in the offending was not especially serious. This was not disputed by the learned prosecutor.
25 You have not been in any further trouble since the commission of the offence before me.
Defence submissions
26 Mr Halphen relied on the following matters in relation to your offending:
i) the victim was the initial aggressor;
ii) the fight was not one sided, there were mutual exchanges of blows;
iii) you suffered injuries including scratches and bruising to your face, back, left upper forearm and a bite injury to your left index finger which ultimately required hospitalisation for several days; and
iv) what you did is to be regarded as “excessive self-defence”.
27 Mr Halphen referred to your record of interview at question 26 where you said the bite occurred at a point in time when the victim was on top of you, punching and pulling your hair. You said that you had nowhere to go and were “totally immobile so (you) had to bite her”.[1] Mr Halphen also relied on the statement of Mr Fitzgerald in which he said that he saw Ms Aitum grab a piece of wood and raise it to strike you. The wood was about one meter in length. He grabbed it from her and threw it onto the fire.
[1] Depositions P294
28 Mr Halphen submitted that the plea of guilty was entered on the basis of ‘excessive self-defence’ in circumstances where it was accepted by the prosecution that you believed that it was necessary to do what you did. It was conceded, however, that what you did was not a reasonable response in the circumstances as you perceived them.
29 In relation to your state of mind, Mr Halphen submitted that at the relevant time, your foresight as to the consequences of your conduct causing serious injury to the victim, falls at the margins of “probable” and therefore your moral culpability is low. He referred to an answer you gave in the interview that you bit Ms Aitum’s fingers hard enough to get her off you but as to the extent of the injury caused by you, you had no idea.
30 Mr Halphen also pointed to the injuries you received in support of the submission that both you and the victim were involved in similar conduct.
31 As to your injuries I was informed that you suffered scratches to your face, back, and left forearm, bruising and a bite injury to your left index finger. Your finger became infected and you were admitted to hospital for treatment on
19 October 2017 and discharged on 22 October. Photographs of your injuries, medical reports and the hospital discharge summary confirming your injuries and hospitalisation were tendered on your behalf.
32 Mr Halphen submitted that you are genuinely remorseful for your conduct. He relied on your answers to police as reflecting your remorse.
33 At question 349 you answered -
Look, I don’t feel good, I feel bad that I have caused that much injury. I didn’t intend to cause that injury. I actually walked away from all of it before it happened, but it happened and I can’t change that. I’m sorry it happened.”
34 At question 373 you answered -
A I will say that most of the things she said are not true.
…
The biting of the finger, I’ll agree to it. I’m sorry I caused it
… but that was in my defence to get away.
35 Mr Halphen also relied on a reference from Ms Nellie Tinga in which she stated:
“We have spent many a nights (sic) talking about the charges laid against Mansis of which she is remorseful of.”
36 As to your prospects for rehabilitation, Mr Halphen submitted they were good as the offending is dated and there has been no offending since. He added that you are fully occupied providing financial and emotional support to your family, including your infant grandchild.
37 It was also submitted punishment has been visited upon you by reason of the three year delay in the disposition of the charge. Mr Halphen argued that having the charges hanging over you for so long, particularly as you were also undergoing treatment for breast cancer, was particularly punishing.
38 He urged me to consider releasing you on an adjourned undertaking or to impose a fine.
Prosecution Submissions
39 Mr Malik, who appeared on behalf of the Director of Public Prosecutions, accepted the victim was the initial aggressor. It was accepted she approached you as you were sitting in your car. As to what then happened, you and the victim gave differing accounts. Mr Malik submitted that the fight or struggle was a dynamic event and it was not possible to say who was on top of whom. It was accepted that you were bitten in the course of the fight.
Mr Malik submitted that your moral culpability should be looked at through the prism of a fluid, physical struggle.
40 Mr Malik also submitted that your act of biting off the tip of the victim’s finger, whilst purportedly done in self-defence, was not reasonable in the circumstances. He accepted that your actions may be characterised as ‘excessive self-defence’.
41 In respect to the submission made concerning your remorse, Mr Malik submitted that any expressions of remorse made in the recorded interview needs to be looked at in the context of your answer at question 347 where you were asked the following -
“So you think it’s justified to bite someone’s finger off?
You responded -
A: To get off, yes.
42 With respect to disposition, Mr Malik submitted that a Community Corrections Order (‘CCO’) is within range, but not anything less than that.
Sentencing Considerations
43 I am not able to find that at the time you bit Ms Aitum she was on top of you. That scenario is not accepted by the prosecution and no evidence was called on the issue. I am not able to make a finding one way or the other. However, the altercation between you was dynamic and happened quickly. It was, as stated by the learned prosecutor, a “fluid physical struggle” by two intoxicated persons.
44 The basis on which you have pleaded guilty, and which is accepted by the prosecution, is that you believed that your conduct was necessary in self-defence but that it was not a reasonable response in the circumstances as you perceived them. Having regard to that basis, and the fact that you were not the initial aggressor, I find that the objective gravity of your offending falls at the lower end of the spectrum.
45 The fact you did not go out looking for a fight, that you were simply seated in your car when Ms Aitum aggressively approached you, and that you believed your conduct was necessary in self-defence, in my opinion, also renders your moral culpability low.
46 However, it must not be overlooked that you accept that your response was not a reasonable response. It must also not be overlooked that the offence to which you pleaded guilty carries a maximum penalty of 15 years’ imprisonment. It is a serious offence and Ms Aitum suffered a serious injury.
47 I accept that you are remorseful for your conduct.
48 I do not consider that the one answer referred to by Mr Malik from your interview means that you are not remorseful. In my opinion, the evidence when viewed as a whole, suggests you are genuinely remorseful for your conduct. I also have regard to your admissions to police and to your plea of guilty as further indicators of that remorse.
49 Your plea was entered following negotiations as to what was the proper charge to which you should plead. It must be recalled that until resolution in December 2020, you were facing the more serious charge of rape which you denied and which the prosecution ultimately abandoned in December 2020. That charge presented an obstacle to the sensible resolution of the case. I am prepared in the circumstances to treat your plea as an early plea and to give you the benefit of that plea of guilty. The plea is of utility in saving the victim from having to give evidence again, and the saving to the Court and the community the time and cost of another trial.
50 There has also been considerable delay between the offence and sentence. As stated, although you were interviewed by police on 9 November 2017 you were not charged until 24 July 2018. There has since been a committal hearing and a trial in which the jury was discharged before verdict. You are not responsible for what I consider to be the undue delay in finalising this case.
51 I accept Mr Halphen’s submission that you have been left in a lingering state of uncertainty for an extended period. Given the charges with which you were initially charged, the threat of a significant sentence of imprisonment if found guilty, hung over you until December 2020. You were in this state of uncertainty whilst also having to contend with serious health issues. I accept the delay has had a punitive effect upon you.
52 The fact you have not been in any further trouble with the law in the intervening 3 years and four months is a matter that weighs in your favour in my assessment of your prospects for rehabilitation.
53 I consider that you have very good prospects for rehabilitation having regard to the following factors:
· At 50 years of age, you have only one previous conviction;
· You are in employment and have a very good work history;
· You have a supportive family including four children and a grandchild for whom you care;
· You have made a significant contribution to the Papua New Guinean Community in Victoria over a long period of time;
· You have not been charged with any offence since the commission of this offence; and
· You are a person, in my opinion, of otherwise good character as evidenced in each of the references tendered on your behalf.
54 I have received references from Mr Samson Bandi, Ms Nellie Tinga and
Ms Mary Dellah Tasker.
55 Samson Bandi, your eldest son, described you as a “brave strong woman” who brought up four children on your own, and who made many sacrifices on behalf of your family. You and he speak on a weekly basis and you visit as often as possible so you can see your grandson. He stated that you have been under a lot of strain with the Court case and the continual medical appointments because of your cancer diagnosis.
56 Nellie Tinga described you as well respected in the PNG community. She spoke highly of your charity work helping to settle PNG students in Australia. You and she have spoken at length about the offence and she believes that you are remorseful for your conduct. Ms Tinga also speaks of how you have confronted many challenges in your life including a double mastectomy and describes you as a survivor committed to caring for your children and grand-child. Ms Tinga also refers to your extensive volunteer work which includes your presidency of the Wantoks Group, fundraising for projects such as the purchase of medical equipment for a hospital in Lae and you being the point of contact for students undertaking studies in Australia under the AusAid Scholarship scheme.
57 Dellah Tasker has known you for over 21 years. She spoke of your fund raising to support schools in PNG as well as you having to travel vast distances for work so that you may support your children. Ms Tasker described you as a decent, hardworking and trustworthy person and considered your offending out of character.
58 In determining the appropriate sentence I have had regard to the principles of deterrence, denunciation, just punishment and protection of the community. Ordinarily, general deterrence is a significant consideration. There is a need to deter others from committing similar offences. There is also a need to deter you from similar offending in the future. However, given the unusual circumstances in which this offence came to be committed, your low level of moral culpability, and my view as to your prospects of rehabilitation, the weight to be given to both general and specific deterrence is reduced.
59 I have also had regard to current sentencing practice for the offence of recklessly causing serious injury. Whilst many persons convicted of this offence receive terms of imprisonment and or community corrections orders, it is very difficult to ascertain anything more than a general sentencing yardstick from current sentencing practice given the many ways in which the offence may be committed as well as the myriad personal circumstances of individual offenders.
60 I have given careful consideration to the competing sentencing submissions of both counsel. I have in the end concluded that in the circumstances of this case, it is appropriate to convict you and release you on an adjournment with conditions.
61 At the risk of some repetition, in arriving at this conclusion, I have particular regard to the fact you did not provoke this incident and that you were acting in what you believed was self-defence. You, of course, over-stepped the mark as to what might be considered a reasonable response. You did so, however, in a dynamic and heated situation with little or no opportunity for calm thought. I also have regard to the delay and the fact that for a number of years you faced a more serious charge and even stood trial in respect of it and other charges. These considerations are in addition to the other powerful matters in mitigation to which I have earlier referred. In all of the circumstances, I find this to be an exceptional case warranting the penalty proposed. Ms Bandi would you please stand.
Sentence
62 You are convicted and I adjourn the proceedings for a period of three years on your giving your undertaking with the following conditions -
63 First, that you attend before the court if called on to do so during the period of the adjournment and if the court so specifies at the time to which the further hearing is adjourned.
64 Secondly, that you be of good behaviour during the period of the adjournment.
65 Thirdly, that you are to make a donation in the sum of $300 to a registered charity and provide a receipt to the registrar of this court within six months of today's date. If I haven't already said it, the undertaking starts this day and goes for a period of three years.
66 Ms Bandi you may step forward and just take a seat behind Mr Halphen please. Mr Malik, are there any other orders required?
67 MR MALIK: There is not, Your Honour. I do not know if Your Honour wished to make a 6AAA statement, whether one is required in the circumstances.
68 HIS HONOUR: Yes, sorry. I did intend to do that. Ms Bandi, had you not pleaded guilty to this charge, I would have placed you on a community correction order for a period of 12 months with conditions.
69 MR MALIK: As Your Honour please.
70 HIS HONOUR: Thank you for reminding of that, Mr Malik. Mr Halphen, are there any other matters?
71 MR MALIK: Not at all, Your Honour, (indistinct words).
72 MR HALPHEN: No, Your Honour.
73 HIS HONOUR: All right, thank you. Once the undertaking is signed, Ms Bandi will be free to leave.
74 MR HALPHEN: Thank you, sir.
75 HIS HONOUR: Ms Bandi, I am going to hand the document down to you, you and Mr Halphen can read it and then I will ask that you sign it and also acknowledge that you understand the effect and conditions of this order and that you consent to it being made.
76 MR HALPHEN: Might Ms Bandi approach - - -
77 HIS HONOUR: Yes, certainly, Mr Halphen. You will have to maintain your distance, I am afraid, yes.
78 MR HALPHEN: I certainly will.
79 HIS HONOUR: Mr Halphen, would you like the court to stand down or - - -
80 MR HALPHEN: No, Your Honour, it is not necessary.
81 HIS HONOUR: Ms Bandi, do you understand the effect and conditions of this order?
82 OFFENDER: Yes, I do.
83 HIS HONOUR: And do you consent to the order being made?
84 OFFENDER: Yes.
85 HIS HONOUR: Very well, I make the order. Gentlemen, thank you both for your assistance in this matter, I will now ask that the court be adjourned.
86 MR MALIK: As Your Honour please.
- - -
0
0
0