Director of Public Prosecutions v Bil
[2014] VCC 298
•20 February 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-01695
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| AKOLDA BIL |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 January 2014 | |
DATE OF SENTENCE: | 20 February 2014 | |
CASE MAY BE CITED AS: | DPP v Bil | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 298 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – recklessly cause injury, intentionally cause serious injury, robbery
Sentence: 2 years and 6 months in a Youth Justice Centre
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Guesdon | OPP |
| For the Accused | Mr M McGrath | Fitzroy Legal Service |
HER HONOUR:
1 Mr Akolda Bil, on 30 January 2014 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 which contained $400 and credit cards and other items.
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 The circumstances of the offences were set out in full in the agreed summary which was Exhibit 1 on the plea. It is appropriate to set out your offending in full.
4 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 a pub in Johnston Street, Fitzroy, to have a drink. At about 1.30am they decided to leave and began walking home. As they approached the intersection of Moore and Napier street you, along with your co-accused, Mr Awan Ater, stopped them. One of you asked Mr Giddy if he had any money. He began reaching into his pocket. You grabbed him from behind, putting an arm around his neck. Giddy grabbed your arm and struggled, and you both backed into a sign on the street. Mr Ater swung a punch at Mr Thompson, connecting with his upper body and causing him to fall to the ground. He suffered cuts to the left knee, left elbow and left hand. This is the subject of charge 1 – recklessly causing injury.
5 You and Mr Ater then both assaulted Mr Giddy, who was lying on the ground on his side or back, by pummelling him to the head with punches. Mr Thomson said to Mr Ater: “calm down, what do you want, we don’t want to fight”. As he said this, you kicked Mr Giddy once to the head with full force. This is the subject of charge 2, intentionally causing serious injury.
6 You then reached into Mr Giddy’s pocket and took out his wallet, which contained about $400 in notes, drivers licence, Commonwealth credit card and other bank cards. This is the subject of charge 3, robbery. You and Mr Ater then ran from the scene in different directions.
7 A truck driver, Walter Hussy, was driving past and saw you hopping as if you had hurt your leg. Mr Thomson ran up to Mr Hussey and asked him to call 000. Mr Giddy was lying on the ground, his face covered in blood, initially not moving or talking.
8 Police attended a few minutes later, followed by the ambulance. Mr Giddy was taken by ambulance to St Vincent’s Hospital, where he was diagnosed with a right ankle fracture, right orbital blowout fracture, right nasal bone fracture, right maxillary sinus haematoma (bleeding), right parietal lobe contusion (bruise) on the brain and haematoma (bleeding) to the base of the skull. His fractured ankle was surgically repaired.
9 At about 2.10am police searching the scene located a white iPhone in the gutter opposite where the assault took place. This phone had been in your possession. At 3 am, you and Mr Ater, along with another male, returned to Napier Street. You were walking towards the scene of the assault when intercepted by police. You were walking with a distinct limp. Both you and Mr Ater had blood on your clothing. You were both arrested by police.
10 Police then located a Commonwealth keycard belonging to Mr Giddy on the footpath around the corner on Condell Street, where it had either fallen or been discarded by one of you.
11 You were taken to Fitzroy police station. During a record of interview you denied the offences, stating that:
· You had had a fair bit to drink, maybe half a cask of wine;
· You and your mates had been walking to the liquor store and out of the blue were stopped by police;
· You described having a white iPhone with you that morning, that you lent it to some other guy who was drinking, and that it was your phone at the scene;
· You denied being present or involved in any way with the assault and robbery.
12 I note that your co-accused, Awan Ater, pleaded guilty to the same offences and was sentenced on 2 August 2013 to 3 years’ detention in a Youth Justice Centre. I note that he was older than you at the time of the offences; that he had prior convictions, including for robbery; that he breached a court sentence through commission of the current offences; that he was remanded, released on bail then remanded again; that he did not engage with support services; and that he had matters pending (although these were not taken into account by Judge Carmody).
Your personal circumstances
13 You were 18 years at the time of the offending and are now 19 years old. You have no prior convictions.
14 You were born in Sudan in September 1994. Your father left the family unit when you were a young child, one of four children. Your mother moved the family to Egypt for three years until you were 9. You then came to Australia as a family in 2003, settling in Newcastle. You did not speak any English on arrival. You went to school in Newcastle, and your mother worked as a cleaner. While in primary school you became friends with a young girl and became very friendly with her family, particularly her parents, Margo Mannix and Stephen Feaires. You spent a lot of time with them, including weekends and special occasions, and spent Christmas with them each year, sharing their holidays. You had some trouble fitting in at school and suffered some bullying in secondary school. Your mother wanted to move to Melbourne to support your sister, who had a baby here. Some consideration was given to the possibility of your staying in Newcastle with the Mannix/Faire family, but your mother decided you should all come to Melbourne which you did in 2011. You lived in Housing Commission flats in Fitzroy and met other African youths there with whom you began to drink heavily and smoke cannabis. You repeated Year 11 and left school during Year 12. You worked at Pizza Hut while at school in 2011. After leaving school you worked nightshifts at Crown Casino as a kitchen hand. In 2012 your mother was diagnosed with breast cancer. She had surgery and is still receiving treatment. For this reason she was unable to attend the plea hearing. You completed Certificates 1 and 2 in English and Maths at NMIT in 2012 and 2013 and in 2013 you completed a pre-apprenticeship course at Tafe. You want to be a plumber or work in construction. Your bail conditions were varied to enable you to go to Newcastle for Christmas holidays in December 2013 with the Mannix/Faire family. Your hobby is playing basketball. As a child you had an Achilles tendon problem which was later repaired but you still have a limp.
Your post-offence circumstances
15 As a result of these charges, you were bailed. On 15 February 2013 you were ordered to be assessed by Youth Justice. You began to attend on a regular basis in early April 2013 and according to Stephen Riordan’s report of 29 January 2014 which was Exhibit A on the plea, you attended the vast majority of your appointments. You were referred to YSAS through Youth Justice and successfully completed a 14 day residential detoxification program from 21 August to 2 September 2013, according to the report dated 25 August 2013 which was Exhibit B on the plea.
16 You also attended sessions of treatment around your substance abuse with Michele Allbrecht, between May and November 2013, according to the report of Christa Grapentin dated 29 January 2014 which was Exhibit C on the plea and Ms Allbrecht provided relapse prevention strategies around your cannabis and alcohol use.
17 Mr Riordan’s report of 29 January 2014 noted that you have been polite, respectful and have not tried to minimise your offending behaviour. You have expressed considerable remorse, shown significant victim empathy and awareness of the impact of your actions on the victims and their families. He noted that you have been drinking to excess since the age of 15 and since living in Fitzroy have been associating with young men who actively seek confrontation when drunk. You now go home when confrontation occurs. You have been smoking cannabis since the age of 14. He noted your referral to Michele Allbrecht, your successful completion of a two week residential detoxification program in August 2013. Mr Riordan noted that after discharge from residential rehabilitation you continue to drink alcohol and smoke cannabis daily.
18 I note that the report dated 9 August 2013 by Matthew Pearce noted that you were progressing quite well in your engagement with YSAS in relation to your problem with alcohol and that it came “as a surprise that Mr Bil has been apprehended in the city drunk well after his curfew and then to have allegedly stolen goods in his apartment”.
19 On 9 August 2013 you received a 12 month Community Corrections Order in the Melbourne Magistrates Court for retention of stolen goods and dealing with property being the proceeds of crime, offences committed on June 2013, at a time when you were affected by alcohol. You were required to complete 50 hours of unpaid community work. You successfully completed that community work and are still reporting to the Office of Corrections. There are no other matters pending.
Impact on your victims
20 Victim impact statements were filed by Sam Thompson and Paul Giddy and tendered as Exhibits 2 and 3 respectively. Mr Thompson requested that his victim impact statement dated 30 July 2013 be read in court and it was. It is not necessary for me to restate what he said in his statement. However, I note that he says that as he lives in the area where the assault occurred and passes the scene regularly his sense of safety and wellbeing close to home have been affected. Secondly, he still bears a scar on his knee to remind him of the assault. He considered moving because of what happened to him and how unsafe he feels. He asked that you be punished appropriately to give him and others in the community reassurance that the law takes your behaviour seriously.
21 The victim impact statement of Mr Giddy dated 29 July 2013 was tendered on the plea as Exhibit 2 and I have read it carefully. Mr Giddy received a number of physical injuries as outlined above in paragraph 8. After surgical repair of the fractured right ankle, Mr Giddy used crutches for about three months. The injuries stopped him from playing sport, including football, golf, tennis and netball, and also prevented him from engaging in his fitness activities or playing music for about three months. He was unable to work as a physical education and mathematics teacher for about three months, resulting in a significant loss of income for him. He was also unable to play music with his band at functions for about three months, and lost income from this source as well as losing the enjoyment of socialising with others. Mr Giddy stated that your criminal activity has deprived him of his avenues to happiness and enjoyment, and has also resulted in his experiencing many negative emotions. He is afraid to walk down the street after dark and is angry that this offending could happen in his neighbourhood. He stated: “I find myself stereotyping people based on their race as a result of the incident, something that I have never done before. I hate racism and especially hate that I now have racist thoughts”. You should understand that your actions have affected the way he may relate to other people in the future. In this way, your violent criminal behaviour has consequences for people apart from you and your co-offender.
Sentencing considerations
22 The basic purposes for which a court may impose a sentence of imprisonment are those of just punishment; deterrence, both specific and general; rehabilitation; denunciation of your actions; and protection of the community. I must have regard to the seriousness of your offences, your culpability for them, 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, that you, as an offender, particularly as a youthful offender, are rehabilitated and reintegrated into society.
23 Your counsel submitted that your situation is different from that of your co-offender in a number of ways. Mr Atar was older than you at the time of the offences; had prior convictions including for robbery; committed these offences while on a court sentence; had other matters pending at the time he committed the offences; and did not engage with support services. He suggested the robbery. On the other hand, it was conceded that your actions were unprovoked and that you delivered the kick which resulted in the serious physical injury to Mr Giddy. Your counsel pointed to the ongoing support you have from Stephen Faiers and Margot Mannix, who treat you like their son and have indicated that you would be welcome to live with them in Newcastle. I take into account the evidence given by Mr Faiers that he knows you well as an affable, caring and gentle, respectful young man and that your offending is very out of character; that you have expressed a lot of remorse for the injuries you have caused. He also noted since returning to Melbourne you have been living in Fiztroy in housing commission flats and have found it hard to get out without running the gauntlet of youth who are drinking and smoking pot. I also take into account the letters from Margot Mannix and Stephen Faiers which were Exhibits D and E on the plea.
24 It was submitted on your behalf that you have already completed a CCO, and that this is a significant punishment which could be imposed for the current offences. It was conceded that but for your engagement with Youth Justice services, immediate detention would be an appropriate penalty. However, given that engagement, the fact that you have completed a pre-apprenticeship course, completed a CCO, worked in the past, and have no prior convictions, it was submitted on your behalf that you should only be detained or imprisoned if no other sentencing option is available. In this case, it was submitted, a CCO, even for an extended period, is an available sentencing option and should be imposed in this case.
25 You counsel relied on the case of DPP v Bridle [2007] VSCA 173 where the imposition of a CBO was upheld on appeal on the basis of the exceptional circumstances of the particular case. It was a glassing case, a single hit to the face when the accused was 18, which resulted in serious injury to the victim. The accused had grown up without parental supervision and without any support. He left school at age 15, but 18 months later, again without any support from anyone, he went back to school full time and obtained his VCE. At the same time, he became a regular user of cannabis and trafficked in it, but by the time of sentence had substantially reduced his drug consumption, without professional assistance.
26 It was submitted on behalf of the prosecution that the Court in Bridle made it clear, at paragraph 7, that they considered that case to be exceptional. The prosecution submitted that there were no exceptional circumstances in this case, and that a custodial sentence was appropriate in the light of the seriousness of the offences, and in the light of the sentence imposed on Mr Atar. It was conceded that your engagement with Youth Justice is a positive factor in your favour, but counsel noted the report that you continue to drink alcohol, which lay at the root of your offending. The attack was unprovoked, fuelled by alcohol, committed in a public place and at random against local residents minding their own business. You played a greater role in the assault in that you grabbed Mr Giddy, kicked him while he was on the ground, and took his wallet. It was conceded that you have slightly better prospects of rehabilitation than Mr Atar but that in all the circumstances the same sentence should be imposed on you.
27 Mr Riordan has assessed you as a suitable candidate for a Youth Justice Centre Order in his report dated 18 February 2014. His opinion is that you have better than reasonable prospects for rehabilitation because of your youth, lack of prior convictions and your expression of appropriate remorse on a number of occasions. I accept his conclusion that if a custodial sentence is to be imposed, your rehabilitation would be far better facilitated in a Youth Justice Centre than in a prison.
28 I note that you have also been assessed as suitable for a Community Corrections Order in a report dated 18 February 2014. That assessment noted that your general risk of re-offending has been assessed as moderate and that treatment in relation to your use of alcohol will be needed.
29 You pleaded guilty to the charges at the committal mention hearing. It is to your credit that you have pleaded guilty at a reasonably early stage of the proceeding. Your plea has value in allowing court and police resources to be spent on other matters, in relieving the victims, Mr Thompson and Mr Giddy, from having to give evidence against you, and in acknowledging that you accept responsibility for your criminal behaviour in this case. I accept that your plea of guilty also demonstrates remorse on your part. I accept the evidence of Margot Mannix and Stephen Faiers, as set out in their letter dated 29 January 2014, which is Exhibit E on the plea, that you have expressed remorse and shame to them about your offending, and I accept what Mr Riordan says in this regard which I have referred to above.
30 I take into account that you were a little younger than your co-accused, and that you had no prior convictions and had had some work history. I accept that it was Mr Atar’s idea to commit the robbery. However, I consider that you went further than Mr Atar physically in that you grabbed Mr Giddy, you kicked him in the head with full force as he lay on the ground and while Mr Thompson was asking for you to stop the attack; and you took Mr Giddy’s wallet. Your acts were unprovoked violent acts, committed in company, against residents going about their business, and continued over a period of time. You caused serious injuries to Mr Giddy. The fact that you had been drinking on the night of the offending does not in any way excuse your criminal behaviour and is not a mitigating factor in your sentence.
31 I note that you have completed further study, and have a potential to improve yourself by training and education. I note that you have successfully completed a CCO in relation to subsequent offences, although your continuing consumption of alcohol has been a factor in leading to the offending which resulted in the CCO. Given your engagement with YSAS and your completion of TAFE courses, as well as the ongoing support being provided by Mr Faiers and Ms Mannox, and the report of Mr Riordan I consider that your prospects for rehabilitation are better than reasonable. I must balance your prospects for rehabilitation as a young offender and the just punishment for a violent, sustained and unprovoked assault, in company of innocent persons in the street. Given the seriousness of your offending, as I have characterised it in the previous paragraph above, I consider that the considerations of general deterrence and just punishment are important considerations, along with consideration of how to best secure rehabilitation for you as a youthful offender. I must also consider parity of your disposition with that given to your co-accused, Mr Atar.
32 I do not consider that there are exceptional circumstances in this case as were present in Bridle’s case, such as would warrant a non-custodial disposition. In your case, bearing in mind all the circumstances and including the principle of parity, I consider that a custodial sentence is the only sentencing option. However, I consider that you are particularly impressionable, immature and likely to be subjected to undesirable influences in adult prison. You have never been incarcerated. I consider that the best prospect for rehabilitation for someone in your position is to serve your penalty in a Youth Justice Centre. Your rehabilitation is directly linked to your alcohol use, and to who you choose to associate with on your release into the community. These things are up to you. I consider that the community would be best served if you take this opportunity to turn your life around and take up the mentoring, training and direction given to you in a Youth Justice Centre.
33 I consider that the period of detention imposed on you should be less than that imposed on Mr Atar because you were younger at the time of the offences, had no prior convictions, have demonstrated consistent remorse and shame for your conduct, engaged successfully with YSAS after being bailed by the magistrate, and have steadfast ongoing personal support from Mr Faiers and Ms Mannix, in addition to your mother.
34 I sentence you as follows:
· Charge 1: you are convicted and ordered to be detained in a Youth Justice Centre for 9 months;
· Charge 2: you are convicted and ordered to be detained in a Youth Justice Centre for 2 and a half years
· Charge 3: you are convicted and ordered to be detained in a Youth Justice Centre for 15 months.
35 The sentence on charges 1 and 3 are to be served concurrently with the sentence imposed on charge 2. This means that you will serve a total of two years’ and 6 months detention in a Youth Justice Centre. As you have been on bail, there is no pre-sentence detention to take into account.
36 Pursuant to s.464ZF of the Crimes Act, I am satisfied that, in all the circumstances, the making of the order that I am about to make is warranted because of the seriousness and the circumstances of the offending and that the granting of the order is in the public interest. I don’t understand the orders to be opposed, do I, in relation to the forensic sample being retained.
37 COUNSEL: If I could just have a moment, your Honour. I don’t think they are opposed. If I could just have a moment. Thank you for that time, Your Honour. It is not opposed.
38 HER HONOUR: On the basis of the seriousness and the circumstances of the offending warranting the order, and the fact that the order is not opposed and my consideration that the granting of the order is in the public interest, I make the order for retention of the forensic sample obtained from you on 8 February 2013. I will sign the orders and hand them back. I declare, pursuant to s.6AAA of the Sentencing Act, that, but for your plea of guilty in this case, the total effective sentence I would have imposed upon you would have been three years imprisonment with a non-parole period of two years. You need to understand, Mr Bil, that your plea of guilty has resulted in you avoiding a term of three years with a minimum of two years imprisonment in an adult prison.
39 Instead, you are being given an opportunity to serve a two and a half year term of detention in a youth training centre. I hope that you will take advantage of this opportunity to cement your rehabilitation and to keep you away from the justice system in the future. Is there anything else?
40 COUNSEL: No, Your Honour.
41 HER HONOUR: All right. Adjourn. Thank you.
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