Director of Public Prosecutions v Bayamis

[2016] VCC 5

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-00475

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER BAYAMIS

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 January 2016
CASE MAY BE CITED AS:	DPP v Bayamis
MEDIUM NEUTRAL CITATION:	[2016] VCC 5

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Livitsanos
For the Accused	Ms A. Beech

HER HONOUR:

1Peter Bayamis, you have pleaded guilty before me to one charge of recklessly causing serious injury. 

2The facts underlying your offending are as follows:  The injury was caused to your cousin, Jordan Debono, who was aged 19 at the time of the offending, and you 28. 

3There had been an argument or a dispute which had arisen between you and Mr Debono, as a result of a car speaker sale from you to your cousin, which according to Mr Debono's statement to police, "Had quite turned nasty." 

4There had been some unfortunate text messaging between you which upset Mr Debono, who on 18 August 2014, visited your family home, in the company of his girlfriend, arriving there about 6.20 pm. 

5Mr Debono was let into the house by your mother, his aunt, whom he kissed on the cheek and he then walked to your bedroom.  You, at the time, were recovering from chemotherapy - therapeutic treatment you had received for Hodgkin's - was it Hodgkin's?

6OFFENDER:  Hodgkin's lymphoma. 

7HER HONOUR:  For Hodgkin's disease, that is, a lymphatic cancer. 

8You were lying on your bed and said to Mr Debono when he walked in, "Get the fuck out", to which Mr Debono responded, "What the fuck's going on with the messages?"  The two of you both started yelling at each other.  It should be noted that somewhat unusually, the victim, Mr Debono, is in fact facing charges in relation to an injury he inflicted upon you before you injured him. 

9Those injuries occurred following the conversation I have just outlined, in the bedroom, whereby Mr Debono punched you to the face, hitting you in the eye.  According to Mr Debono, this is because you got off the bed and shoved him in the shoulder area and he responded out of fear, however this is disputed.  In any event, Mr Debono hit you in the eye, which was particularly serious for you, as you have always suffered from sight difficulties, and some two years before this incident, had received a corneal transplant, after being listed on a waiting list for two years, waiting for a donor. 

10As a result of the transplant operation which had occurred two years before this incident, you had, for the first time in your life, achieved proper sight.  The assault by Mr Debono caused immediate damage to your eye, which began bleeding and you yelled out, "I'm bleeding.  My eye.  My eye" and "You blinded me."  Mr Debono then left your room and walked down the hallway, intending to leave the house, accompanied by your mother and sibling.  At this point, you came up from behind him and stabbed Mr Debono in the left butt cheek.  Mr Debono did not feel the knife go in but felt it come out, immediately feeling pain and yelling, "Ah, he stabbed me, he stabbed me."

11Mr Debono was driven to the Northern Hospital by his girlfriend, where it was discovered he had suffered serious injuries, they comprising a four centimetre long incised wound to the left buttock, extending more than ten centimetres towards the anal canal, angled in an upward direction.  The stab wound extended through the muscle towards the anal canal and the wound was found to be leaking faecal matter.  A second wound was found from within the rectum. 

12Mr Debono underwent surgery and the external opening was washed to remove all contaminants and a sigmoid colonic stoma formed to prevent faeces passing through the rectum, allowing time for the wound to heal.  He required intravenous antibiotics and dressings to the open wound in his left buttock and underwent further surgery to restore the continuity of his bowel, by reversing the colostomy. 

13You, Mr Bayamis, required surgery to your left eye as a result of the assault upon you by Mr Debono, and as I have said, it appears that despite that surgery, your vision in the left eye is now impaired, so that whilst you see colours and shapes, your eyesight lacks definition. 

14Mr Debono has been charged with indictable offences relating to his assault upon you and that matter is to proceed by way of contested committal next month. 

15You were extremely co-operative with police who attended on your premises, telling your mother to give them the knife and undertaking a very co-operative record of interview, where you admitted stabbing the victim. 

16I now turn to your personal circumstances.  You are 28 years of age.  You have one prior criminal matter, arising in 2010 when you were dealt with in the Magistrates' Court for driving offences, which I do not find to be relevant to the sentencing exercise before me. 

17You reside with your father.  You were born in Melbourne and have a younger sister and your parents separated when you were ten years old.  You left school halfway through Year 11, then commenced full-time work at OzPoly, where you remained until you were 20 years old, which means you were employed there for about three and a half years.  You have a good work history, as you then went on to work for Coles Express for six months, then began employment in scaffolding, where you worked for the next three years. 

18When you were 23, you developed a hip infection which required surgery and hospitalisation.  You had had a series of hip operations when you were 14 and 15 and it appears an infection formed around the pin that was inserted during the operation in your teen years. 

19

Shortly after the hip operations when you were 23, you suffered severe neck pain, night sweats and difficulties sleeping and ultimately it was discovered you had contracted Hodgkin's lymphoma, which was diagnosed on

27 December 2013 and you were immediately hospitalised.  You underwent the first round of chemotherapy for a six month period in 2014, and at the time of the offending, you were in fact recovering from the side effects of chemotherapy and were in remission. 

20In October 2014, it was discovered that the disease had returned and through 2014 and 15 you underwent radiotherapy, bone marrow transplants and stem cell transplants.  It appears that you have now recovered from this very serious condition, according to medical reports that were tendered on the plea, but your immune system has been severely damaged by the treatment and you take constant medication, as your spleen no longer works. 

21It was submitted by your counsel that I should deal with this matter by way of a community corrections order.  Ordinarily this is a difficult submission for counsel to make in relation to offending such as this, however understandably, given the powerful mitigatory circumstances relating both to the offending and your own health, the prosecution have conceded that this would not be an inappropriate disposition for the court to impose in this case. 

22I accept that the imposition of a community corrections order is appropriate in this case.  First you have pleaded guilty at an early stage, were co-operative with police, and I accept that you are remorseful for your offending.  Secondly, you do not have a history of violence.  Indeed your history, your criminal history is very sparse.  But thirdly, you appear otherwise to be a person of good character.  You have a good work history.  And as I have said, your offending history is extreme - is limited to one other irrelevant matter.  Fourthly, there are particular circumstances surrounding your offending. 

23I accept that at the time of your offending, you were in a weakened state, and I also accept that although it is not a word likely used by the courts, there was particular provocation in this case, which understands what I accept is most uncharacteristic offending by you, that is, the injury to your eye, which given the circumstances of the corneal transplant, very much explains, as I have said, the uncharacteristically violent way in which you reacted to your cousin's assault upon you. 

24I was informed by your client that concomitant upon your attendance on Peter McCallum Hospital for treatment for your lymphatic cancer, you underwent an amount of counselling, which you continued for some time, subsequent to this offending, both in relation to the difficulties that obviously you had faced as a result of the lengthy treatment you had for cancer, but also in relation to this particular offending, that you discussed with your counsellor, anger management strategies, and I was impressed that you would do this voluntarily, this underlining to me that you are a law-abiding person who took seriously the fact that you had behaved in this uncharacteristically violent way and were not simply blaming your cousin for the circumstances, but took responsibility for your own actions on this occasion.

25I am satisfied that you have excellent prospects of rehabilitation and that the issues of specific deterrence and protection of the community are not ones which need overly concern the court in this sentencing exercise in all the circumstances.

26I also accept that because of your health difficulties, service of a term of imprisonment would be far more onerous for you than for the ordinary prisoner, both because of your sight difficulties and because of the requirement that you have with you medication at all times, which would not be able to be complied with in a prison setting. 

27In all the circumstances therefore, it does seem to me that a community corrections order is the appropriate disposition in this case. 

28I am reinforcing my decision by the psychological report of David Ball, which was also tendered on the plea, where Mr Ball found that you are essentially a person of good character, have no underlying anti-social or anger problems, nor does it seem you have any difficulties with drugs and alcohol. 

29Again, this reassures me in my conclusion that you are not a person who presents any danger to the community, that there were exceptional circumstances surrounding and explaining this offending, and that I am unable to conclude, as required by s.5 of the Sentencing Act, that only a term of imprisonment to be immediately served is appropriate in this case. 

30I need to explain to you the conditions that attach to a community corrections order.  Could you stand up please, Sir. 

31

I can only place you on a community corrections order with your consent and

I need to explain to you what those fundamental conditions are. 

32The first are that you must report to the Community Corrections office within two working days of the making of this order, that is by Thursday of this week. 

33Whilst on the order, you may not commit any offence punishable by imprisonment anywhere, either in Victoria or anywhere in Australia. 

34Now what that means is, that you do not have to commit an offence where you get gaol, you have to - if you commit an offence for which theoretically you could be gaoled, such as stealing a small item from a supermarket, that would breach the order. 

35OFFENDER:  Yeah. 

36HER HONOUR:  All right?  Whilst you are on the order, you may not leave Victoria without the permission of the Community Corrections office.

37Whilst on the order you must attend upon and receive visits from the Community Corrections office, as directed.

38You must obey all lawful directions of the Community Corrections office and you must inform the Community Corrections office of any change of address or employment, within 48 hours of that change. 

39A special condition is an order that you undertake 180 hours of unpaid community work. 

40I note that in addition to your extremely praiseworthy work history, you are now in a position to once again take up employment and that you have two offers of employment, one on a casual basis at a factory which manufactures scaffolding, and another possible job as a traffic controller with a company run by a family friend. 

41

I note that in the medical material tendered on the plea, it was conceded that you would be capable of undertaking unpaid community work, but that advised that you should probably do so not in a crowded environment, if

I can put it that way.  And it is important that you take that medical material with you when you see Community Corrections office for the first time. 

42Are you prepared to enter this order?

43OFFENDER:  Yes, Your Honour.

44HER HONOUR:  Thank you, we will prepare the documentation.  Have a seat, Mr Bayamis. 

45OFFENDER:  Um, I'd just like to add, Your Honour, ah with what happened in the room, if anyone should have feared for their life at that time - - -

46HER HONOUR:  Mr Bayamis, it is not appropriate that you say that to me at this point in time.  I have taken into account the circumstances.  You had your barrister.  I have very much taken into account the extreme - particular circumstances surrounding your situation and I do need to say to you that if those circumstances had not existed, you would be looking at gaol, in a way that you are not today.  All right?

47OFFENDER:  Okay. 

48HER HONOUR:  Thank you very much.

49OFFENDER:  Thank you.

50HER HONOUR:  Have a seat, Mr Bayamis, thank you. 

51The order will last for a period of 18 months'. 

52COUNSEL:  As Your Honour pleases.

53

MR LIVITSANOS:  Your Honour, and the ancillary orders, Your Honour, can

I provide those to Your Honour? 

54HER HONOUR:  Yes, I am not prepared to grant the s.464ZF application.  It does not seem to be appropriate that - - -

55MR LIVITSANOS:  As Your Honour pleases.  I will hand to Your Honour the disposal order - - -

56HER HONOUR:  But in relation to the disposal orders, I will grant those orders.

57MR LIVITSANOS:  As Your Honour pleases.

58HER HONOUR:  Thank you.  All right, I think that takes care of everything.  Thank you very much indeed, Ms Beech, for making this such an easy exercise, and also you, Mr Livitsanos.

59MR LIVITSANOS:  Thank you, Your Honour.

60HER HONOUR:  That was - the Crown has taken the very reasonable position.

61MR LIVITSANOS:  Yes, Your Honour.  Thank you, Your Honour.

62HER HONOUR:  In this case.  All right.  Good luck with that, Mr Bayamis.  Thank you very much.

63OFFENDER:  Thank you. 

64HER HONOUR:  Thank you, we will adjourn to 9.15 tomorrow morning.  Thank you.    

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