Director of Public Prosecutions v Bhinder
[2015] VCC 546
•25 March 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 15-00334
CR 15-00353
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BIKRAMJIT BHINDER |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 and 25 March 2015 |
| DATE OF SENTENCE: | 25 March 2015 |
| CASE MAY BE CITED AS: | DPP v Bhinder |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 546 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Recklessly causing serious injury - summary charge of committing an indictable offence whilst on bail
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:12 months’ imprisonment plus 12-month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Coombes | Office of Public prosecutions |
| For the Accused | Mr L. Gwynn | Lethbridges |
HIS HONOUR:
1Bikramjit Bhinder, you have pleaded guilty to two charges of recklessly causing serious injury and a transferred summary charge of committing an indictable offence whilst on bail.
- Recklessly causing serious injury carries a maximum penalty of 15 years' imprisonment.
- Committing an indictable offence whilst on bail carries a maximum penalty of 30 penalty units or 3 months' imprisonment.
2You were born on 15 January 1990, so you are now aged 25. You were aged 24 when this offending occurred. You have no prior criminal history.
3As to Charge 1 of recklessly causing serious injury committed on 23 August 2014: the victim, Mandeep Singh-Sidhu, is now 23 years old and at the time of the offending was 22 years old.
4On 23 August 2014, you and the victim had been at the Royal Melbourne Hotel in Bourke Street, Melbourne to see a musical performance. At approximately 3 am you were outside the hotel and involved in a verbal altercation with an unknown male who was a friend of the victim. The victim told you to "fuck off". Angry words were exchanged before you went on your way.
5At approximately 3.50 am at the Hungry Jack's restaurant at Southern Cross railway station, you approached the victim, who was seated outside Hungry Jack's, and punched him to the right side of his face. The victim fell to the ground.
6A group of bystanders and friends of both you and the victim tried to get between the two of you. The victim at this stage had resumed his seat outside Hungry Jack's and was being attended to by an unknown female. You continued to aggressively circle around and near the victim, trying to get past the people continually getting in your way. Eventually you managed to slip past those obstructing your path to the victim and, as you approached from behind, the victim fled in a southerly direction down Spencer Street in an attempt to avoid being assaulted again.
7You quickly caught up to him and struck him from behind to the head with a right clenched fist, causing him to fall to the ground.
8Whilst the victim was on the ground, you kicked him to the arm. Once again bystanders and friends came to the victim's aid by standing between the victim and you, who continued to act aggressively.
9A short time later you and an unknown friend left the scene and walked in a southerly direction along Spencer Street. As police arrived at Hungry Jack's, you and your friend fled west on Collins Street.
10CCTV footage shows you circling the victim after the initial assault, which in fact was not captured on the CCTV, and the subsequent assault and its aftermath.
11The victim subsequently attended the Emergency Department of the Casey Hospital in Berwick at 1.18 pm on 23 August 2014. The victim suffered the following injuries:
· left-sided nasal bone fractures;
· extensive comminuted fractures of all walls of the right maxillary sinus - that is, multiple breaks in the fractures;
· a longitudinally-oriented fracture of the lateral wall of the right orbit;
·
a right forearm fracture (a moderately displaced transverse fracture) just below the previously repaired bone injury from a fracture some six years earlier.
12As to Charge 2 of recklessly causing serious injury committed on 11 October 2014: the victim is James Watt and was not known to you.
13On Friday 10 October the victim travelled to Apollo Bay with friends. At about 7 pm that evening the victim went to the Great Ocean Hotel for dinner with his friends.
14During the course of the night the victim and his friends had been mingling with other patrons of the hotel, including a group of girls from a netball club on an end-of-season trip who were easily identifiable, as they were wearing special T-shirts and coloured skirts. You spoke to some of these girls during the course of the night, along with some of the victim's friends, and at one stage played a game of pool with some of the victim's friends.
15You tried to become friendly with some of the girls from the netball group. At one stage the victim saw you try to grab a girl from the dancefloor. The victim thought the girl had attempted to “brush [you] off” and you appeared offended by this. The victim told you to "leave her alone". You then threw a drink over the victim. The victim did not react, and left the dancefloor with his friends.
16A short time later, at midnight, Saturday 11 October 2014, the victim was standing in the bar area when he was approached by you and you started “baiting” him. It appeared to the victim that you wanted to fight him. The victim told you, "Leave me alone. Let it go. I don't want any trouble. Just go and have a good time". Staff who were serving at the bar became aware of the dispute and told both the victim and you to leave the premises. The victim accepted this direction and left, but you refused to accept that you had done anything wrong and refused to leave, arguing with staff.
17After five minutes, the duty manager told another member of staff to call police and then told you that you should leave. You then left the hotel with your friend via the front door.
18The victim, having already left the premises, was out the front of the hotel. The victim had been talking to witness Melissa Godfrey. You exited the hotel and rushed towards the victim from the side. Ms Godfrey saw that the victim did not see you coming at him. You punched the victim with great force to the side of the head, causing the victim to collapse, falling backward and hitting his head on the footpath with great impact. He was rendered unconscious. The sound of the impact was sickening and audible to a number of witnesses at the venue.
19You then ran from the scene but were ultimately caught by police in a car park not far from the hotel, and arrested.
20The victim suffered the following injuries as a result of the assault by you:
· fractured left ankle, which required surgery with insertion of plate and screws and setting with a cast;
· limited ability to walk for two to six weeks;
· ongoing rehabilitation for a period of six to 12 months, depending on pain and stiffness; and
· a haematoma involving bruising to the back of the head.
21On 4 September 2014 you were arrested and interviewed in relation to Charge 1. You made a “no comment” interview.
22On 11 October 2014 you were arrested whilst on bail for the offence subject of Charge 1 on the indictment. You were interviewed by police and again answered “no comment”.
23Victim impact statements were tendered on behalf of each of the victims. In addition to his physical injuries, Mr Singh-Sidhu has required psychological counselling to deal with emotional trauma, loss of confidence resulting in time away from study, anxiety, stress and paranoia. There has been consequential trauma to his family through stress and worry.
24Mr Watt required immobilisation following the assault and required a walking frame during the first few weeks of his recovery. He also suffered consequential psychological trauma including sleep disturbance, anxiety, anger, feelings of helplessness and dependence and general loss of enjoyment of life to himself and his family.
25I now turn to your personal circumstances.
26As I noted earlier, you are 25 years now, you were 24 at the time of the offending and you have no prior criminal history.
27You were born in India and have described a happy childhood. You enjoyed school and sport and proceeded through your education without difficulty.
28You arrived in Australia aged 19 and commenced a course in automotive mechanics. You did not persist with this and later found work at McDonald's, then as a security guard and loss prevention officer. You have worked hard on your fitness and describe yourself as self-disciplined.
29You met your wife through your work at McDonald's where she was employed as a manager. She is supportive and visits you regularly whilst you have been in custody.
30A psychological report from Mr Stephen Gault, clinical psychologist, was tendered on your plea. Mr Gault could find nothing in your background or personality that was odd or abnormal. He said you appear to have had a supportive and stable family background and normal schooling. There is nothing to indicate that you suffer from any personality disorder.
31The most salient aspect of your recent background appears to be your increased pattern of binge drinking of alcohol. You first drank alcohol at the age of 15 but did not really like the taste and you did not want to drink it on a regular basis. When you first came to Australia in 2009 you drank moderately but increased your drinking towards the end of 2009 when you started socialising with friends who drank heavily. When you did drink, you were prone to binge drinking.
32Alcohol was clearly a factor in both assaults. In both instances you had consumed substantial quantities of mixed spirits prior to the assaults.
33In Mr Gault's opinion, the two most obvious risk factors in regard to your offending are alcohol and verbal provocation. To this Mr Gault suggests your self-esteem as a possible third factor. Mr Gault describes you has having insight into your offending to the extent that you recognise that you need to cease drinking. Mr Gault concludes that you would benefit from psychotherapy to address issues in regard to your self-esteem.
34You have been in custody from 27 February 2015 to the present date, a total of - is it 165 days?
35MS COOMBES: Yes.
36HIS HONOUR: 165 days not including today. Is that date correct from the date of custody?
37MR GWYNN: 11 October, I think it should be, Your Honour.
38HIS HONOUR: I believe so. I do not know whether - it was certainly not February.
39MR GWYNN: Yes, 11 October 2014 to 25 March.
40HIS HONOUR: What is it?
41MR GWYNN: 11 October 2014. We agree on 165 days.
42MS COOMBES: Yes, that's right.
43HIS HONOUR: So he has been in custody - I will restate that - from 11 October 2014 to the present date, which is a total of 165 days.
44MS COOMBES: That's correct.
45HIS HONOUR: Not including today.
46MR GWYNN: Correct.
47HIS HONOUR: You were also on bail at the time of the commission of the offending in Charge 2, bail having been entered at the Melbourne West police station on 4 September 2014 for the offending in Charge 1. The commission of the acts represented by Charge 2 whilst you were on bail constitutes the facts upon which you have been charged on the transferred summary charge.
48I note that, pursuant to sub-s.16(3C) of the Sentencing Act, any term of imprisonment I impose on Charge 2 is to be served cumulatively on any term of imprisonment imposed on Charge 1 unless I otherwise direct. I further note that the Crown has not called for a total cumulation but that the aggravating offending nevertheless be acknowledged in the sentence. In my view, having regard to the factors in mitigation and principles of totality, the cumulation that I will order is that which is appropriate.
49A number of character references were tendered on your plea. They all speak highly of you and refer to your shame, remorse and insight into what you did. They also refer to your good work ethic, popularity among your peers, kindness to others and your otherwise healthy lifestyle.
50You also tendered a letter of apology to the court. It also reflects your shame, regret, realisation of the effect your alcohol consumption has had upon you and your determination to improve your life so that this type of incident never occurs again.
51Your assaults on each occasion amount to serious examples of this offence. There is understandable community concern at the incidence of violent attacks by alcohol-fuelled offenders and principles of punishment, denunciation by the court and deterrence assume emphasis in sentencing.
52In the first offending you assaulted twice. You first struck the victim whilst he was seated. Your second act in this assault came as a result of a relentless determination by you to get at the victim despite continuous attempts by others to restrain you. When you struck him it was from behind, to the head, as he was trying to get away from you, causing him to fall to the ground.
53In the second assault the victim had twice left the hotel after having been confronted by you. Hotel staff, sensing trouble, had called police and asked you to leave. You then assaulted the victim when outside by rushing at him and punching him violently to the side of his head. The victim had not seen you coming and fell backwards, striking his head on the concrete and was rendered unconscious. The fact that you were on bail at the time is an aggravating factor.
54In mitigation I accept the matters urged on your behalf by your counsel, including:
· your plea of guilty and that it was made at the earliest possible opportunity;
· your genuine remorse, as evidenced by the plea of guilty and the tendered character material, and indeed your letter of apology;
· your relative youth, being 24 at the time of the offending;
· lack of any prior criminal history and your previous good character;
· the ongoing strong family and community support that you have;
· your excellent work history and sound work ethic;
· the development that you have now of significant insight into the reason behind the offending;
· your determination to cease all consumption of alcohol;
· your positive approach whilst in custody, including participation in all available course work;
· that there have been no incidents while in custody, including any matters of violence despite at times being subjected to racial taunts;
· the fact that your time in custody has had a salient and profound effect upon you, as evidenced by the tendered material: I accept that you have found the prison environment very difficult and isolating and unfamiliar - this is your first time in custody and in the criminal justice system;
· you have nothing standing in the way of rehabilitation, such as psychological or psychiatric factors such as drug addiction.
55Your counsel has submitted that in all the circumstances the purpose or purposes for which a sentence is imposed can be achieved by a suitably directed Community Correction Order that does not involve your further confinement in prison. The prosecution submits that nothing less than a sentence involving imprisonment with an appropriate non-parole period is open.
56Ordinarily an offender in these circumstances should expect a sentence to an immediate term of imprisonment and for a significant period.
57The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific to you and general - to make an example of you in order to deter others), rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, its context, your personal circumstances and those of the victims. I am required to balance the interests of the community in denouncing the criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
58On balance, in the particular circumstances of this case I am not persuaded that the purpose or purposes for which the sentence is imposed can be achieved by a sentence that does not involve your confinement in prison for a further period than that which you have presently served. In my view the objective gravity of your offending is too high, despite the mitigating circumstances, to properly permit your immediate release.
59In arriving at this conclusion I have carefully considered the provisions of the Sentencing Act 1991, in particular s.5(4C), and the recent authorities of the Court of Appeal concerning the way in which the availability of the now extended provisions of a Community Correction Order has changed the sentencing landscape. I have therefore considered, given that a Community Correction Order could be imposed for a period of years with conditions attached which would be both punitive and rehabilitative, whether there is any feature of the offence or the offender which requires the conclusion that imprisonment - with all of its disadvantages - is the only option.
60In my view the gravity of the offending requires the conclusion that the retributive and deterrent purposes of punishment by imprisonment must take precedence. I also consider that the actual time spent in confinement can be appropriately reduced with the combination of a Community Correction Order upon your release to give effect to the mitigating circumstances.
61Mr Bhinder, could you please now stand.
62On Charge 1 of recklessly causing serious injury on 23 August 2014 you are convicted and sentenced to six months' imprisonment.
63On Charge 2 of recklessly causing serious injury on 11 October 2014 you are convicted and sentenced to nine months' imprisonment.
64Charge 2 is the base sentence.
65I direct that three months of the sentence imposed on Charge 1 be served cumulatively on the sentence imposed on Charge 2.
66The total effective sentence is 12 months' imprisonment.
67
On the transferred summary charge of committing an indictable offence whilst on bail, you are convicted and fined $300.
68On Charges 1 and 2 of recklessly causing serious injury, you are also ordered to serve a Community Correction Order for a period of 12 months.
69Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 165 days, not including today, be reckoned as time already served under the sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
70Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the sentence that would have been imposed is three years' imprisonment with a minimum period of 24 months to be served before eligibility for parole.
71As to the Community Correction Order, the order commences immediately upon your release from prison and ends 12 months from that date. The corrections centre you will attend is the Sunshine Community Correctional Service at 10 Foundry Road, Sunshine and you must attend there within two clear working days after the completion of your imprisonment term.
72All the mandatory terms of a Community Correction Order apply and the additional conditions I impose are that:
· you be under the supervision of a community corrections officer;
· you perform 150 hours of unpaid community work;
· you undergo assessment and treatment, including testing, for alcohol abuse or dependency as directed by the regional manager;
· you undergo mental health assessment and treatment, including but not limited to mental health, psychological, neuropsychological and psychiatric, if necessary in a hospital or a residential facility as directed by the regional manager; and
· you undergo programs or courses aimed at addressing factors relating to your offending as directed by the regional manager.
73I believe from the pre-sentence report that you have had the mandatory terms of the Community Correction Order explained to you; however, it is appropriate that I briefly summarise them here. The mandatory terms are that:
· you must not commit another offence for which you could be imprisoned during the time that the order is in force;
· you must report to and receive visits from a community corrections officer;
· you must report to the community corrections centre - that is the Sunshine centre - within two clear working days of the order starting, and as I have already indicated, the order commences immediately upon your release from prison;
· you must notify a community corrections officer of any change of address or employment within two clear working days after the change;
· you must not leave Victoria without first getting permission to do so from a community corrections officer;
· you must obey all lawful instructions from and directions of community corrections officers - such directions may be given either orally or in writing.
74Do you understand and agree to those conditions, Mr Bhinder?
75OFFENDER: Yes, Your Honour.
76HIS HONOUR: If you become sick or if there are exceptional circumstances, the Order may be suspended for a period of time. If your circumstances materially alter, you may apply for a variation or cancellation of the Order. In either case you must notify the Sunshine Community Corrections Centre and I recommend that you obtain legal advice if any of these things happen.
77However, I must warn you if you breach any condition of this Order you will be brought back to court and that will be before me. One of the options open to me is to cancel the Community Correction Order and resentence you on the original charges. I may also deal with you for the breach by sending you to prison for up to three months on that breach.
78So, Mr Bhinder, do you understand the consequences of breaching your Community Correction Order?
79OFFENDER: Yes, Your Honour.
80HIS HONOUR: You may be seated for a moment, please. I will ask that you sign the Community Correction Order shortly. Take a seat.
81At the plea hearing, the Crown sought an order which was not opposed for the taking of a forensic sample, and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, the order is unopposed and the granting of the order is in the public interest.
82I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Bhinder?
83OFFENDER: Yes, Your Honour.
84HIS HONOUR: Thank you. Well, I ask for the Community Correction Order to be passed to you via your counsel for you to acknowledge and sign if you agree. I will just wait here while that occurs.
85I just mention to counsel that the signing of the order for the forensic sample - there is an error in that. I will redo that and have that signed in chambers. It will be made available to you.
86MS COOMBES: If Your Honour pleases.
87MR GWYNN: As Your Honour pleases.
88HIS HONOUR: Unless there is anything else, yes, any other ‑ ‑ ‑
89MS COOMBES: No, Your Honour.
90HIS HONOUR: All right. Thank you for your assistance, both of you, in this matter.
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