Director of Public Prosecutions v Chakik

[2014] VCC 369

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-000962

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMMED CHAKIK

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 March 2014
CASE MAY BE CITED AS:	DPP v Chakik
MEDIUM NEUTRAL CITATION:	[2014] VCC 369

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	Ms M. Burnside
For the Offender	Ms T. Bolton

HIS HONOUR:

1Mohammed Chakik, you have pleaded guilty to one charge of common assault.  That crime carries a maximum penalty of five years' imprisonment. 

2You are 26 years of age.  You pleaded guilty, or offered to plead guilty at least, at the earliest reasonable opportunity and you must get the utilitarian benefit of that plea.  I accept that in these circumstances you have at least now expressed appropriate remorse.  You do have one prior finding of guilt for an assault, although that is now some years old. 

3The submission was put on your behalf that this disposition could be without conviction, but in my view the nature of the matter and the fact that you have had a previous opportunity in respect of such offending precludes that.

4The circumstances of the offending were that a Mr Osman El-Chakik, who was 32 years old, was attacked by you and another, who is now deceased, at McDonald's in Avondale Heights.  There was a history to the matter and he had been married for some four or five years to your sister. 

5The matter started off at about 8 pm at the Angler's Tavern Hotel.  At that particular place the complainant was involved in an incident in the car park and was punched a number of times.  That caused some bleeding.  It is unclear who punched him on that occasion.  He then drove away from the car park and went and called a Mr Haouchar, who was apparently either at or going to the McDonald's in Military Road, where he then went.  The complainant got out of the car.  He was, at that stage, approached by you and Mr Ibrahim and he noticed you approach and tried to lock his doors.  However, you were able to open the door and drag him from the vehicle.  You struck him with a torch, causing him to fall to the ground.  He was then repeatedly struck by you and your co-offender whilst on the ground.  He was kicked and hit, although I do not specifically find that you kicked him.  These acts were the intentional application of force which gives rise to common assault.  I am obviously well aware that I am not sentencing you for intentionally causing injury or a similar crime.  As a result of this, though, the complainant was bleeding and in due course was bruised.  He was taken to the Royal Melbourne Hospital because of some bleeding, which cannot be directly attributed to you.

6You were arrested on 6 September 2012, that is some four days later, and made a "no comment" record of interview, which you were perfectly entitled to do. 

7There is a victim impact statement, which I have now read, and I take into account the relevant parts.  This is not the worst example of common assault I have ever seen, but it is certainly not trivial either.  For two of you to drag a man out of a car and give him a hiding in this way is not only cowardly, but is certainly deserving of criminal punishment. 

8There was, in the end, essentially agreement that a fine was an appropriate disposition. 

9The situation is that I have before me various references in regard to your work, and you have a steam cleaning business, and clearly by the nature of the people who have given those references, you are a very capable and good worker.  Your business goes well, and I have no doubt about that.  You have good family support, and there were many here the other day.  As I understand it, you are presently living at home and the prospects of your rehabilitation in this situation should be good.  The risk of you re-offending should be low, but I am mindful that this is indeed your second outing before the courts for violence. 

10In a situation such as this, general and specific deterrence have to play a part and the punishment must be appropriate.  As I have said, it is not the worst common assault I have seen, but I have gaoled people for common assault.  I think in this situation the fine must be one of such a magnitude that brings home very clearly to you that this is indeed criminal offending and whatever the background to it might have been and the consequences, they are not very pleasant for the complainant.  Accordingly, taking all those matters into account on the charge, you are fined the sum of $5000.  I grant a stay of three months, and if there is difficulty paying within that time, obviously application can be made for payment by instalments.

11MS BURNSIDE: If Your Honour pleases.

12HIS HONOUR:  There are no ancillary orders that ‑ ‑ ‑

13MS BOLTON:  No, there aren't, Your Honour.

14MS BURNSIDE:  No, Your Honour.

15HIS HONOUR:  All right, thanks ladies.

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