Director of Public Prosecutions v Bugeja

[2020] VCC 1165

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted

     Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-02012

DIRECTOR OF PUBLIC PROSECUTIONS

v

COREY BUGEJA

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	30 June, 24 July 2020
DATE OF SENTENCE:	31 July 2020
CASE MAY BE CITED AS:	DPP v Bugeja
MEDIUM NEUTRAL CITATION:	[2020] VCC 1165

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Intentionally causing serious injury – Subject of Community Corrections Order – Serious example of offence – Stabbing to neck – Factual dispute – Facts unfavourable to the offender – Background of extreme disadvantage
Legislation Cited: Crimes Act 1958, Sentencing Act 1991
Cases Cited: R v Storey [1998] 1 VR 359, Filippou v The Queen [2015] HCA 29
Sentence: Total effective sentence of 9 years imprisonment with a non-parole period of 6 years and 3 months – s.6AAA declaration – 11 years imprisonment with a non-parole period of 8 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. MacDougall	The Office of Public Prosecutions
For the Accused	Ms K. Rolfe	Rebecca Boreham Barristers & Solicitors

HIS HONOUR:

1Corey Bugeja, you have pleaded guilty to one charge of intentionally causing serious injury contrary to s.16 of the Crimes Act 1958. The maximum penalty for that offence is 20 years' imprisonment. The offence is also a Category 2 offence for the purposes of S.5(2H) of the Sentencing Act 1991 and the court is therefore obliged to impose a custodial sentence, subject to limited exceptions which are not relied on in this case.

2You pleaded guilty on the day the matter was listed for committal hearing and no witnesses were then required to be called.  I have in the circumstances treated your plea as at an early stage in the proceedings and it has spared the community and the witnesses the burden of committal proceedings and a criminal trial.  For this reason, I have taken your plea into account in your favour in mitigation of sentence.  I also accept that it is evidence of some remorse in your case, although for reasons that follow, I do not accept that you are fully remorseful for your offending.

3You have admitted a criminal history in Victoria, commencing on 16 December 2014 in the County Court at Mildura, where you were sentenced to three years' imprisonment, with a non-parole period of 18 months, to the offences of aggravated burglary and common law assault.  Following this, on 6 June 2018, in the Mildura Magistrates' Court, you were sentenced to 54 days' imprisonment and an 18 month Community Correction Order, in relation to offences of dishonesty and firearms offences.

4Finally on 6 December 2018, again at the Mildura Magistrates' Court, you were sentenced to a further Community Correction Order of 12 months for drug, driving and dishonesty offences. 

5You were therefore the subject of two Community Correction orders at the time you committed the offence now before this court. 

6On 30 June 2020, when the matter first came on for hearing, an agreed Prosecution Opening was tendered in evidence, detailing the circumstances of your offending.  That opening was subsequently amended and a further opening was tendered without objection when the matter resumed on 24 July 2020.

7The circumstances of your offending may be summarised as follows –

8On 20 April 2019, you were travelling in a vehicle seated behind the driver Cameron O'Brien, the victim of your offending.  The evidence discloses that he was a stranger to you and you had not met him before.  The previous evening, the victim had stayed at the home of Damien Kerr, who was the friend of yours.  That night Kerr asked the victim to assist him with his utility vehicle, to collect another vehicle the following day that was to be repaired.

9On the afternoon of 20 April 2019, Kerr, the victim, yourself and Sam Thomson, all met at Kerr's unit, prior to leaving to collect the vehicle that was to be repaired.  The evidence discloses that you overheard a conversation between Kerr and Thomson wherein the victim was referred to as 'a sex pest.'  Another man, Richard Portelli, was also present and you asked him to assist in the collecting of the vehicle and he agreed to do so.

10The evidence discloses that when you left the unit, you were dressed in a black hoodie, black trackpants, black shoes and sunglasses.  It was 30 degrees in Mildura that day and shortly before this you were filmed on CCTV wearing shorts and a T-shirt.  Kerr sat in the front passenger seat of the victim's utility and you were in the rear.  Portelli followed in his vehicle, with his girlfriend.

11Shortly after arriving at the premises known as 'Skunkworks', to collect the vehicle to be repaired and as the victim was reversing into a shed, you stabbed him from behind without any warning in the neck.  You then got out of the car and stabbed him again in the neck through the open driver's window. 

12The victim was immediately bleeding profusely and he drove himself at high speed to the Mildura Base Hospital.  He was suffering life threatening injuries and his admission was treated as a code blue emergency.  He was transferred to surgery where two wounds were observed.  The first was a relatively minor laceration to his face which was cauterised.

13The second neck wound was 13 centimetres long and penetrated down to his cervical spine.  This was treated to slow the profuse bleeding and the victim was then transferred by helicopter to the Alfred Hospital for emergency surgery to save his life, following which he was placed in an induced coma for four days.  Had the victim not been treated urgently at the Mildura Hospital when he was, he would have bled to death.  Had he not got to the hospital quickly, he would have bled to death in his car.

14After you stabbed the victim, you got into Portelli's car and instructed him to drive away and he did so. 

15You were arrested by investigating police on 24 April 2020 and stated during an interview that you did not know the victim.  You then told police that you had an acquired brain injury and for that reason, the interview was suspended by the investigating officers and did not ultimately proceed.

16During the course of the hearing on 30 June 2020, your counsel submitted that your instructions were that when you overheard the remark that the victim was a 'sex pest' you became fixated with this and whilst travelling in the victim's vehicle, you found a Stanley knife and used this to inflict the injuries.  At the time, for reasons that are not clear to me, the Prosecution Opening did not specifically address this issue and in particular, did not detail the evidence in relation to the weapon you used and whether there was a Stanley knife or like instrument in the victim's vehicle at the relevant time.

17Following some consideration of the issue during the hearing, the matter was adjourned and upon resuming, the prosecution tendered, also without objection, a notice of additional evidence containing a statement prepared by the informant.  You did not give evidence or call evidence in relation to this issue and relied on written submissions prepared by your counsel. 

18I accept that the principles governing the determination of this factual issue are set out by the Court of Appeal in R v Storey [1998] 1 VR 359 and a finding by me that you armed yourself with a knife for the purposes of stabbing the victim prior to getting into his vehicle is a finding that is adverse to your interests.

19Accordingly, I am required to be satisfied of that fact to the criminal standard.  Based upon the following items of evidence, I am so satisfied –

(i) the victim stated to investigators in his initial witness statement and subsequent conversation that there was not anything in his vehicle that could be used to stab him;

(ii) the victim stated to investigators that there was not a Stanley knife in his vehicle;

(iii) Kerr saw the weapon you used and described it to investigators as a knife with a blade approximate 10 centimetres long;

(iv) you arranged for Portelli to follow you to Skunkworks;

(v) you dressed in clothing intended to disguise your appearance;

(vi) the clothing that you wore would have allowed for the concealment of a knife;

(vii) the short time that elapsed between you entering the vehicle and stabbing the victim, and;

(viii) the catastrophic nature of the 13 centimetre wound inflicted to the victim.

20As I observed during the course of the hearing, the reason disclosed by the evidence for your offending, namely that you heard a remark that the victim was a 'sex pest', does not, in my opinion, bear scrutiny.  The background to your offending was aptly described by the prosecutor as 'murky'. 

21In a psychological report tendered on your behalf during the plea hearing, the following statement appears -

“Mr Bugeja reported that he started dating another woman two weeks prior to his offences, but this had ended due to his incarceration.  He denies that he was aware that the victim of his offences had been accused of sexually offending against her.”

22It is not clear what the origin of this statement is and is it not possible for me to make any finding as to why you did what you did. To that extent, as set out by the High Court of Australia in Filippou v The Queen [2015] HCA 29, you will be sentenced by me in circumstances where this aspect of the relevant facts cannot be established. Whilst I am satisfied to the criminal standard that you armed yourself with a knife to stab the victim before you entered the vehicle, I am unable to state why you did so, or why you in fact committed the offence that you have pleaded guilty to.

23It was also submitted on your behalf that you had used illegal drugs prior to your offending, but this does not, in my opinion, explain the reason why you committed an offence of this gravity.

24I have received in evidence a Victim Impact Statement of the victim and I accept that your offending has had a deeply traumatic effect upon him.  His sense of security has been seriously impaired.  He has daily pain in his neck.  His sleep is disrupted.  He has not returned to work.  As he states, the attack upon him has changed everything in his life.  His parents feared that he would die. 

25In my opinion, your offending is a very serious example of the serious offence that you have pleaded guilty to.  You stabbed a defenceless man from behind and then through a car window with a knife.  The attack was vicious, cowardly and premeditated.  The victim was a stranger to you and you advanced in this court an account of your offending that was untrue.

26In advancing that account, you revealed that you were not fully remorseful for this grave crime of violence that you committed and in my opinion, for this reason and by reference to your criminal history, specific deterrence is an important consideration in this case. 

27The sentence I impose must also be calculated to deter others from offending in this extremely serious way.  Our community must be protected from the use of weapons in this manner and you must be punished for your offending.

28I now turn to your personal circumstances –

29You were born in Adelaide on 11 July 1991 and are now aged 29.  As I have stated, you have a relevant criminal history and have been imprisoned in the past.  At the time of your offending, you were the subject of two Community Correction orders. 

30Your childhood and formative years were characterised by poverty, substance abuse and violence.  Your parents separated when you were six months old.  You were, thereafter, exposed to violence inflicted upon your mother by a range of partners and you were also the victim of such violence.

31Your schooling was frequently disrupted and you attended numerous schools, before leaving Bordertown High School in Year 11.  You suffer from substance abuse disorder and have abused a range of illegal drugs of dependence and alcohol since your early teen years. 

32Despite your background of extreme disadvantage, you have a good work history and are a qualified butcher.  You have never been married and have no dependent children.

33I have received in evidence a psychological report from Dr Lauren Gradstein, a forensic psychologist, detailing your background, psychological history and profile.  Dr Gradstein did not observe any significant difficulties in cognitive or executive function and refers to a neuropsychological assessment which was not tendered, prepared by Dr Loretta Evans on 30 January 2020 that concluded that there were no signs of an acquired brain injury in your case. 

34Dr Gradstein concludes that you suffer from substance abuse disorder and further, that your personal development has resulted in impulsivity and poor emotional regulation.  She states that you require ongoing treatment to address the factors that make you more likely to offend.  She concluded:

“There is no evidence that Mr Bugeja's psychological functioning would adversely impact on his ability to cope with imprisonment, or to deteriorate as a result of being imprisoned.”

35I have also received in evidence two references prepared by Michelle Enbom, the disability coordinator at Port Phillip Prison and Ali Assafiri, the deputy general manager of Port Phillip Prison.  Both of the authors speak highly of you in relation to your work as a disability mentor at the prison and your work in that regard with prisoners suffering from a cognitive impairment.  The evidence is very much to your credit and I have taken it into account in my assessment of your prospects for rehabilitation.

36I have also had regard to certificates tendered on your behalf in relation to programs completed by you whilst in custody.  Whilst there is evidence to support a positive assessment of your prospects for rehabilitation, in my opinion, those prospects are to be approached with a degree of caution.  There is no satisfactory explanation before the court as to why you committed this serious offence of violence.  Furthermore, as I have said, I do not accept that you are truly remorseful for your offending and you sought to advance an untrue account of it in court.

37Your counsel emphasised that your background is one of extreme disadvantage and poverty and I accept that this is the case and I have given this appropriate weight in the context of sentencing you in relation to a serious offence of violence. 

38I also accept that by reason of the COVID-19 pandemic and recent second wave of that virus in Victoria and in the prison system, the hardship of incarceration has been compounded by this fact and this may continue for the foreseeable future.

39In the result, the sentence of the court is as follows - 

40In relation to the charge of intentionally causing serious injury, you are convicted and sentenced to be imprisoned for nine years. 

41I direct that you serve six years and three months, before becoming eligible for release on parole. 

42But for your plea of guilty, I would have imposed a sentence of 11 years' imprisonment and fixed a non-parole period of eight years. 

43I declare that you have served 464 days, not including today, by way of presentence detention.  I will make the ancillary orders sought by the prosecution. 

44There is a s.464ZF application before the court, as I understand it, Ms MacDougall, is that correct?

45MS MacDOUGALL:  That's correct, Your Honour

46HIS HONOUR:  Is that opposed, Ms Rolfe?

47HIS HONOUR:  It's not opposed?  All right, thank you.  I'll make that order and the disposal order sought.

48MS MacDOUGALL:  If it please the court.

49HIS HONOUR:  Thank you.  The court will now adjourn.