Director of Public Prosecutions v Csincsi
[2017] VCC 992
•17 July 2017
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.16-01797 & 16-01798
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAYDEN CSINCSI and TYLER CSINCSI |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 July 2017 | |
DATE OF SENTENCE: | 17 July 2017 | |
CASE MAY BE CITED AS: | DPP v Csincsi and Anor | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 992 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Plea - Sentence
Catchwords: Armed robbery – Intentional Cause Injury – Traffick in a Drug of Dependence
Legislation Cited:
Cases Cited:
Sentence:Three months’ imprisonment, four months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D. Karamicov | Office of Public Prosecutions |
| For the Accused H. Csincsi For the Accused T. Csincsi | Mr J. Anderson Mr C. Terry | Stary Norton Halphen Matthew White and Associates |
HER HONOUR:
1
Hayden Csincsi and Tyler Csincsi, you were each found guilty by a jury on
21 June 2017 of one charge of intentionally cause injury to Jye Dean Smith. In addition Tyler Csincsi, you pleaded guilty on the first day of the trial to one charge of trafficking in a drug of dependence. For the sake of completeness,
I note that I found you each had no case to answer on the charges of kidnapping and unlawful imprisonment, which were also on the Indictment. In addition, you were each acquitted of the charges of armed robbery, while you, Tyler Csincsi were also acquitted of making threats to kill.
2 The maximum penalty for trafficking a drug of dependence is 15 years' imprisonment. The maximum penalty for intentionally cause injury is 10 years' imprisonment.
3 The circumstances of the offending were set out in the Further Amended Summary of Prosecution Opening for Trial dated 29 May 2017. I acknowledge that some aspects of this opening did not necessarily accurately reflect the state of the evidence at the conclusion of the trial as to, for example, who punched Jye Smith and how many times.
4 I also acknowledge that each of you, at the commencement of the trial, sought to plead guilty to the alternative charge of recklessly cause injury. You, Tyler Csincsi, did so on the basis of admitting that you punched Jye Smith a few times through the open window of the car driven by Jye Smith, but denied any intention to cause injury.
5 You, Hayden Csincsi, did so on the basis of being present at the time that the punches were thrown, and failing to stop Tyler from punching Jye Smith, but denied that you threw any punches or had an intention that Jye Smith would be caused injury.
6 The prosecution refused to accept your pleas and went to the jury on the charge of intentionally cause injury. In final addresses on the issue of intention, the prosecution submitted that you, Tyler Csincsi, intentionally punched Jye Smith multiple times, and so your intention to cause him injury could be inferred from what the prosecution said was a sustained attack by a flurry of punches over one minute.
7 In relation to you Hayden Csincsi, it was alleged that you also punched Jye Smith but that even if you did not, your intention that Jye Smith suffer injury was part of the understanding you reached with Tyler Csincsi about the confrontation that would occur at Eden Rise, and from the evidence of what you, Hayden Csincsi, said at the window of Jye Smith's car, and from the evidence that Jye Smith said he felt two people punching him, that he did not know how many times because after the first punch he had his arms up and eyes closed and was protecting his head, but that it was over numerous times over 30 seconds to a minute.
8 In his final address, counsel for you, Tyler Csincsi, said that you did not throw punches with the intention of causing injury to Jye Smith. He reminded the jury that in cross-examination, Jye Smith said that you punched him a couple of times, that some punches missed and hit his body, and that it could not be said that you were aiming to render Jye Smith unconscious or to cause him substantial pain.
9 In his final address, counsel for you, Hayden Csincsi, submitted that on the evidence, the jury could not find that you punched Jye Smith, as Jye Smith did not see you do so, nor did Brodie Williams, and that you said in your statement that you did not punch Jye Smith. He reminded the jury that Jye Smith's final position in cross-examination was that Tyler Csincsi punched him twice, which is what you, Hayden Csincsi, had said in your statement. On this basis he submitted that there was no sustained attack, and the jury could therefore find that the injury could have happened without any intention on the part of Tyler or Hayden Csincsi to injure Jye Smith. This would be consistent with the plea of guilty to recklessly cause injury, which was made by each of the accused.
10 In my final charge, I reminded the jury that as there was no evidence that you, Hayden Csincsi, struck Jye Smith, the only evidence upon which it could convict you of intentionally cause injury was if it was satisfied beyond reasonable doubt that you and Tyler Csincsi had an agreement or understanding that you would assault Jye Smith and cause him injury.
11 By its verdict, the jury must have been satisfied that you, Tyler Csincsi, punched Jye Smith with the intention of causing him injury, and that you, Hayden Csincsi, if you did not punch Jye Smith, were present at the time Tyler Csincsi punched him and had an understanding with Tyler Csincsi that there was to be an assault on Jye Smith which was intended to cause him injury.
12 I note for the sake of completeness that you each offered to plead guilty to recklessly cause injury, and in Tyler Csincsi’s case, to the trafficking charge, prior to the committal at a time when there was no charge of intentionally cause injury on the Indictment. The charge of intentionally cause injury was put onto the Indictment once the matter was listed for trial.
13 I also note that ancillary orders were sought against you, Tyler Csincsi, for the forfeiture of a mobile phone. Those orders are by consent and I will make them shortly.
14 I turn to your personal circumstances, Tyler Csincsi. You are 26 years old and grew up in Cranbourne, the youngest of four boys and one girl. Your parents separated when you were an infant, but you maintained contact with your father. Your mother and one of your brothers and his partner were in court to support you during the plea hearing. You were an average student at school and had behavioural issues, which led to you being expelled from one high school. You struggled with reading and writing and left school at the age of 15. You were a keen sportsman playing competitive basketball and football in your late teens. You worked as a labourer, then began working with one of your brothers, Jordan, who owns a concreting business. You started using ice at aged 21 and quickly became addicted, consuming around half a gram per day. You could not afford to maintain your drug habit on your salary and began trafficking.
15 Before your offending, you had broken up with your girlfriend after a three year relationship and you were also abusing drugs and Valium. After your release, you plan to live with your brother Jordan and his partner, and to return to work in his business.
16 The trafficking charge relates to a sale by you of 1.7 grams of methamphetamine to Jye Smith between 28 December 2014 and 8 February 2015. As at the time of the incident on 8 February 2015, Jye Smith still owed you $150 on that transaction, and was spreading unpleasant rumours about you. You had tried to recover the debt from him a number of times and were frustrated that he was avoiding repaying you. You were also annoyed about the rumours he was spreading about you.
17 Whilst on bail for these matters from March 2016, you were sentenced on a subsequent trafficking matter in March this year to one month's jail plus an 18 month CCO including 150 hours of unpaid community work, drug screening, drug and alcohol and mental health assessment and treatment. As a result of that conviction you were arrested on 15 March 2017. Your bail was revoked and you served that sentence. You are entitled to a declaration of 122 days pre-sentence detention.
18 Your counsel submitted that in terms of gravity, the trafficking offence was at the lower end of seriousness, while the intentionally cause injury offence was towards the lower end of the middle of the range. He submitted that you have been demonstrating your remorse for your conduct since you were first charged by offering to plead to what was then charged as recklessly cause injury. Had that plea been accepted, it was submitted this matter could have been dealt with by the Magistrates' Court. You were 24 at the time of offending and therefore a youthful offender. He noted that you have complied with the Community Corrections Order imposed in 2012 and are willing to undertake another Community Corrections Order.
19 The prosecution agreed with your counsel's submissions in relation to gravity, but noted that the aggravating features of the intentional cause injury were that it was committed in company, was the result of a surprise confrontation, and would have been terrifying for the victim who was in the driver's seat of the car at the time.
20 You have prior convictions for dishonesty, driving, weapons, property and trafficking offences in 2010, 2013 and 2015, for which you have received repeated community based dispositions. You have one relevant prior conviction for unlawful assault in September 2013. Apart from the subsequent offending which has led to the disposition referred to above, I would have considered that given your relative youthfulness, your solid employment prospects and your family support you would have good prospects of rehabilitation.
21 Whilst this matter went to trial, I accept that you have at all times accepted responsibility for having punched Jye Smith and caused him injury. I consider that the trafficking offence falls at the lower end of the range of seriousness for this type of offence. I consider that the intentionally cause injury offence falls at the lower end of the mid-range of seriousness. I have taken into account all of the relevant sentencing principles, including, in your case, the need for general and specific deterrence.
22 I turn to your personal circumstances Hayden Csincsi. You are 27 years old and have four young children all of whom live with your mother. You were an infant when your parents separated. You lived briefly with your father in Sydney when you were 15. You started drinking and smoking marijuana in your early teens. After leaving school you started an apprenticeship in butchery but did not complete it. You worked in abattoirs and then in concreting and demolition. By the age of 22 you were using ice heavily.
23 Your criminal history comprises, relevantly, of convictions in 2010 for assault in company, for which you were fined with conviction, and an aggravated burglary person present, in March 2014, for which you received a sentence of 12 months' imprisonment.
24 Your counsel remarked also on the unusual circumstance that prior to committal, when the relevant charge against you amongst others was one of recklessly cause injury, you offered to plead guilty to that charge. For this reason it was submitted that I should take into account your willingness to plead guilty to that charge, and that you went to trial because of the remaining charges on the Indictment. And so in relation to the present charge I should treat you as not lacking in remorse.
25
Your counsel submitted that you fall to be sentenced on the basis of the evidence from Jye Smith, that Tyler Csincsi was the person who struck Jye Smith a couple of times, pursuant to an understanding between yourself and
Tyler Csincsi that Jye Smith would be assaulted. He submitted that there was no evidence of significant premeditation by you, as you were just picked up by Tyler Csincsi on the day and went with him. It was Tyler Csincsi who had issues with Jye Smith, and who had set up the meeting via Brodie Williams, and who was going to confront Jye Smith about the rumours he was spreading. You did not punch Jye Smith, but it was conceded that your presence might have added fuel to the overall assault. Overall it was submitted your role was a lesser one than that of Tyler Csincsi.
26 On the issue of parity, your counsel noted that Brodie Williams, your co-offender, pleaded guilty to recklessly cause injury, robbery, making a demand with threat to kill, extortion and theft in relation to the events of 8 February 2015, and that she received an aggregate sentence of six month's imprisonment with a three year CCO. It was submitted that her offending was much greater than what you sought to plead to before the jury. Although she had no prior convictions, she would have received an additional discount for offering to give evidence against yourself and Tyler Csincsi.
27 Your counsel tendered a bundle of documents including certificates relating to courses completed in custody and ten negative urine screens obtained between May 2016 and 12 June 2017, and I have considered them.
28 You were bailed on 7 April 2017 on these matters on strict conditions, including a curfew and a requirement that you attend for drug and alcohol treatment. You have complied with the bail conditions and saw a counsellor weekly until the trial. You plan to continue that counselling. You have also maintained abstinence since your release.
29 I consider that you played a slightly lesser role than Tyler Csincsi in the offending. I accept that from the start you have accepted your role in causing Jye Smith injury, albeit that once the trial Indictment was prepared, you denied any intention to cause him injury. You have relevant prior convictions. You are a little older than Tyler Csincsi. However, your conduct whilst on bail in complying with conditions, remaining abstinent and receiving drug counselling, coupled with your relative youth, suggest that you have good prospects of rehabilitation.
30
Your counsel took me to sentencing snapshot No.189 for the offence of intentionally cause injury, that shows between 2010 and 2014, only about
one-third of offenders received a sentence of imprisonment, with that percentage declining once CCOs became available.
31 Each case must be determined on its own facts. In all the circumstances, I consider it appropriate to impose upon you a sentence equivalent to that imposed upon Tyler Csincsi.
32 Tyler Csincsi, on Charge 1 on the Indictment, trafficking in a drug of dependence, you are convicted and sentenced to 30 days' imprisonment.
33 On Charge 3 on the Indictment, you are convicted and sentenced to 90 days' imprisonment.
34 The sentence imposed on Charge 1 is to be served cumulatively upon the sentence imposed on Charge 3. The total effective sentence is one of 120 days' imprisonment. There are 122 days' pre-sentence detention, not including today, and I direct that these be entered into the court records and be deducted administratively.
35 Hayden Csincsi, on Charge 3 of the Indictment, intentionally cause injury, you are convicted and sentenced to 90 days' imprisonment. There are 261 days' pre-sentence detention not including today, and I direct that these be entered into the court records and deducted administratively.
36 At the conclusion of the hearing, your counsel, Hayden Csincsi, made application to transfer a number of related indictable and summary charges to the Melbourne Magistrates' Court. This was not opposed by the prosecution and accordingly I order that Indictable Charges 12 and 13, and Summary Charges 8, 9, 10, 11, 14 and 15 be remitted to the Melbourne Magistrates' Court on 24 July 2017 at 9.30 am. I bail you to that time and date.
37 I also note that there will be a variation of your bail conditions so that your only condition will be that you reside at 37 Glenbrook Avenue, Clayton.
38 I will make the forfeiture order that is sought against you, Tyler Csincsi, related to the mobile phone, noting that you have consented to the making of that order.
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