Director of Public Prosecutions v Cerveira

[2020] VCC 1612

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR 19-02122

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEAU JAMES CERVEIRA

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	8 October 2020
DATE OF SENTENCE:	8 October 2020
CASE MAY BE CITED AS:	DPP v Cerveira
MEDIUM NEUTRAL CITATION:	[2020] VCC 1612

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms  F. Holmes	Office of Public Prosecutions
For the Accused	Mr D. Langton	Dribbin & Brown Criminal Lawyers

HIS HONOUR: 

1Beau James Cerveira, you have pleaded guilty to one charge of intentionally causing injury.  That crime carries a maximum penalty of 10 years' imprisonment.  You are now 31 years of age.  You pleaded guilty at an early date having previously made offers in relation to the matter.

2I accept that despite your vehement denials at the time of the offending, that you now express at least appropriate remorse.  You must also get a considerable discount in my view for the utilitarian benefit of that plea of guilty.

3Insofar as prior convictions are concerned, you have one prior conviction of recklessly causing injury for a matter some seven years ago, and it would appear to be somewhat unrelated to this sort of offending. 

4You do have other matters in your criminal history, but nothing to suggest violence to the level to which you descended on this particular occasion.

5A summary of the offending is that on 19 May 2019, at approximately four o'clock in the morning, a Mr Walker and you and your then-partner boarded a train at Windsor.  He got on with a bike which had a metal bike lock hanging from the handle bars. 

6I make it clear that I have watched the CCTV footage of all this from each angle and I have watched it on a couple of occasions and have a very good impression of what occurred.

7In any event, you started talking to Mr Walker and an argument started.  I do not know who started that argument. 

8But, in any event, Mr Walker reached past your then-girlfriend and punched you in the face causing you to fall to the floor.  She was entangled in the conversation and also fell backwards and approached the complainant, Mr Walker and was, the Crown summary says, pushed away, but it was far more vigorous than that. 

9I indicate that it would appear to me that Mr Walker was probably intoxicated, but in any event, he is a man who could certainly look after himself. 

10In any event, a short time later, you were back on your feet, started walking towards Mr Walker.  Your girlfriend pulled you back and you both continued abusing him.  He was now seated away from you. 

11Shortly after that, your girlfriend took his bike, threw it across the side of the carriage.  He got up and went towards it.  He then returned to his seat at the end of the carriage.  You then - this is where the real trouble starts Mr Cerviera - picked up his bike lock and ran towards him.  There is no suggestion of self-defence. 

12Your counsel's submissions talk about provocation but certainly, in my view, at this point in time, your conduct was way out of proportion to what had occurred earlier. 

13In any event, you then used your right arm to swing the bike lock at his head and continued to swing and strike his head and upper body.  Your girlfriend chased him, that is, chased you, in to the altercation.  He tried to fight back to defend himself. You got over the top of Mr Walker and continued hitting him with the bike lock.  Your girlfriend was also punching and kicking him and again, after that you continued to strike him with the lock. 

14You were pulled off him by a witness and at that point Mr Walker went towards you swinging punches.  You then swung the bike lock again at him - sorry - you then swung the bike lock at him.  Your girlfriend was now hitting him from behind.  He fell backwards onto the ground and tried to get up, but then she pulled him back.  He was lying across a seat with your girlfriend behind him against the window and she pulled him down and you struck him three times towards the head with the bike lock.  He fell to the floor. 

15It appears pretty clear to me that Mr Walker was, if not unconscious, very close to it and as you backed away, having continued to strike him in that condition, you said to him, 'You will die tonight.'  The pair of you then collected your belongings and got off the train and ultimately were arrested. 

16You, upon arrest, claimed that you had been acting in self-defence and that you feared for your life, and it is apparent from the CCTV footage that I have watched, that that is absolute nonsense. 

17How clear your memory is of what occurred, I do not know.  There is no material before me to indicate whether you were drug or alcohol affected, and I just simply, in the situation of somebody with no priors of this nature who, in this particular situation, lost the plot and by reason of what you were shouting at him certainly intended to do him some damage.  There is, in my view, nothing reckless about it at all. 

18He suffered the following injuries:  A comminuted depressed fracture of the left parietal bone of the skull with a pneumocephalus and a small extradural haematoma and on the inside surface of the skull.  In other words, air had got inside the skull.  That can be a dangerous situation, though one of the difficulties of this new definition of serious injury, one can descend to semantics, but in any event, he had a left sided craniotomy with elevation of the fracture and evacuation of the haematoma. 

19He was discharged from hospital on 24 May, that is, a few days later, with pain relief and anti-epilepsy drugs and has, as far as I am aware, not had any ongoing medical complications.  I am told that he has declined to make a victim impact statement.

20The offending has to be regarded as serious.  It is, in my view, so far as injury is concerned, is a higher-end injury as such and calls for the application of general and specific deterrence as well as denunciation and appropriate punishment.  The attitude involved and the level of intensity described by yourself as it was occurring are matters for concern. 

21The Crown's submission, and indeed, your counsel accepts very sensibly, that the only available sentence here is one of imprisonment and in my view, one of imprisonment with a minimum term.

22I think what is known as a combination sentence would simply not be appropriate and you have had CCOs in the past.  In terms of determining the length of that sentence, I look to matters personal to you.  

23You have now actually been in custody for something in the order of 500 or so days; 414 days of that is attributable to this offending.  There are also 91 days which were served in relation to other matters and I take that into account in a general sense under effectively the same sort of concepts as Renzella.

24Your situation is that the last seven months on remand have been under the COVID-19 restrictions.  I am aware that means you have no personal visits.  Your capacity to do courses and the like is very limited and is an unfortunate time to be undergoing a sentence or to be on remand.

25To your credit, documents have been tendered on your behalf which shows that you have, whilst in custody, endeavoured to rehabilitate yourself.  You have done a number of courses.  You have been clean on a drug screen and all those matters go very much in your favour.

26In these circumstances some prisoners just give up and sit there.  You have obviously made an attempt to rehabilitate yourself and the court must show that there is a benefit to be received from that. 

27I have received from you a letter and I have taken that into account.  As I have already indicated, I regard these letters in the general sense as self-serving.  The Crown are unable to cross-examine on them.  I simply take it into account as an expression of remorse and no more. 

28There are also a number of references, letters or testimonials that have been provided by members of your family which speak of you in fairly glowing terms. 

29I accept that upon your release, and this will be a matter for the Parole Board, you will have appropriate family support.  Your life has clearly been off-track for the last few years, but you do have a relatively good work record, particularly when you were younger and are clearly a person who is able to work. 

30What you have done in custody indicates that you have an intention to rehabilitate, and the risk of you reoffending will depend upon that rehabilitation.  I would be pretty confident that you would not reoffend in this sort of manner again, not having done it in the past, and now understanding after your first custodial sentence, what the disadvantages of a gaol sentence are. 

31I have already indicated that I do not, even though it was put on your behalf, consider that there was provocation. What you did went way beyond any form of provocation and I think it is fair to say that, having watched it, the weapon you were using and the situation you were in, you are probably very lucky you are not in a very different jurisdiction facing a very much more severe sentence. 

32Insofar as your background is concerned, you have used alcohol since the age of 16.  You do have a problem with alcohol, though I have seen a lot worse.  You have used ice from the age of 23 years onwards, though, from what I am told, you apparently stopped that ice use a few years ago and before you went into custody. 

33You were in a relationship at the time all this occurred and she, indeed, was the co-accused who received a CCO in the Magistrates' Court, but in my view, that does not give rise to any parity arguments in these set of circumstances. 

34It would seem that basically, your father and certainly your mother, up until the time of her demise, endeavoured to set you on the right path and that, by and large, you have done so.  If you had a period of years of using drugs and alcohol and have the very limited prior history that you have, that gives me added confidence in the fact that you may well be able to rehabilitate yourself once released from prison. 

35It is clear that your problems really commenced when your mother took her own life.  That was effected by her hanging herself.  You, as a child, found her body and that has had a profound effect upon you.  She, in fact, took her own life on the birthday of your grandfather who had also committed suicide by gassing himself in a car.  You were in Year 7 when that happened. 

36I do not profess to be able to indicate what the effects of something like that would have on a young person; devastating would be the only word, I think that I could use.  It is a matter for you, it is a matter hopefully, for professional assistance to get over all that.  You are probably lucky in one sense that you have not descended to the level of drug abuse and self-destruction that that sort of traumatic event can cause in people. 

37However, taking all those matters into account and being aware of the procedural history, and that it is your first time in gaol, it has been a significant sentence and whilst I indicated I do not think it is quite enough, I am somewhat hopeful for when you get out. 

38It must be recognised that the injury is of the higher end of injury and that has to be reflected in the sentence. The way it was inflicted was very violent indeed and I have already indicated what could have been the consequences.  However, I sentence you for what did occur, not what might have occurred. 

39Accordingly, on the charge of intentionally causing injury, you are sentenced to be imprisoned for a period of two years and six months.  I direct that you serve a minimum term of 18 months before becoming eligible for parole. 

40I direct that 414 days be reckoned as having been served under this sentence.  I make it clear that as I understand the situation, that declaration of 414 days by me will effectively within the auspices of Corrections be treated as a significantly higher figure.  I am not taking that into account in terms of the sentences I impose and it may well be that they regard you as having completed the minimum term.  I am just simply pointing out that I am aware of that, but I have endeavoured to impose the sentence that I impose without taking it into account.

41Just so you clearly understand the benefits of your having pleaded guilty and the benefits of you having saved the community the cost of a trial and the trauma it would have given the victim in having to come in and give evidence and certainly to have watched that CCTV again himself, that you understand the benefit you received from doing that. 

42Accordingly, pursuant to s.6AAA, but for your plea of guilty, you would have been sentenced to be imprisoned for a period of four years with a minimum term of three.  So the sentence is two and a half with 18 months, 414 served.  It is a matter for Corrections what they do with that. 

43Are there any other orders I have to make Ms Holmes or Mr Langton?

44MS HOLMES:  No, Your Honour.

45HIS HONOUR:  All right.  What I will try and do for you Mr Langton - this might not be possible - I will see if my tipstaff can fix this so you can just have a quick talk to your client. 

46MR LANGTON:  Yes, thank you, Your Honour.

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