Director of Public Prosecutions v De Zylva

[2012] VCC 539

IN THE COUNTY COURT OF VICTORIA Revised

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-11-00535

DIRECTOR OF PUBLIC PROSECUTIONS

v

ERROL DEXTA DE ZYLVA

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 April 2012
CASE MAY BE CITED AS:	DPP v. De Zylva
MEDIUM NEUTRAL CITATION:	[2019] VCC 539

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Porceddu
For the Accused	Mr G.J. Traczyk

HER HONOUR:

1       Errol Dexta De Zylva, you have pleaded before me to one charge of recklessly cause injury.

2       

The facts underlying your offending are as follows: on 15 June 2008 the complainant in this matter, Kamal Shaikh, moved into an apartment at

14/70 Albert Road South Melbourne

where you were living.  He paid you four weeks' rent but was unable to make any further payments due to unemployment.

3       

On 12 November 2008 he told you he would be able to give you $4500 to cover the outstanding rent and you told him he was expected to pay that money by 11 a.m. the following morning.  On 13 November 2008 at about

9 a.m.

Shaikh sent you an SMS saying he would not be home until about four and then ultimately returned home at about nine.  Present at the flat was also Jane Rawlinson, a friend of Mr Shaikh and one Fazle Rabbi, a friend of yours.

4       When Mr Shaikh entered the apartment you began screaming and yelling at him.  He tried to calm you down, then you pushed him and he pushed you back.  You then hit Mr Shaikh in the face with a clenched fist and as he fell to the ground Mr Rabbi started kicking Mr Shaikh in the head, ribs and legs.  You were yelling at Mr Shaikh to give back your keys and then dragged him out of the apartment with Rabbi following close by.

5       

Inside the lift you forcibly took Mr Shaikh's keys and you and Mr Rabbi punched him.  When the lift opened on the ground floor you dragged

Mr Shaikh out by his feet while Mr Rabbi continually kicked him and outside continued to kick him where you were observed by other witnesses.  However most of the kicking apparently was done by Mr Rabbi, although one witness did talk about seeing a person hold Mr Shaikh whilst the other one kicked him.  In any event the prosecution case is put against you on the basis that you were acting in concert with Mr Rabbi which is said to be inferred from the surrounding circumstances.  In other words that you held Mr Shaikh while Mr Rabbi did most of the damage, if I can put it that way.

6       You were observed by independent witnesses, one Daniel Arkells and another passer-by, Anthony Langkemp and Mr Langkemp in particular, saw Mr Shaikh being kicked, told the two of you to stop and after a while you did and went back inside.

7       As a result of the assault Mr Shaikh received multiple linear abrasions to his scalp, bruising and swelling around the right eye, haemorrhages in both eyes, tenderness over the right cheek-bone, linear abrasions to the face, superficial abrasions to the right side of the neck, tenderness over the left lower ribs, linear abrasions to his arms and legs and a closed-head injury.

8       

You were interviewed by police on 17 November 2008 telling them that

Mr Shaikh threw a punch at you which hit you on the lip.  You denied  punching Mr Shaikh to the face in the apartment, said that Mr Shaikh had been hit by Mr Rabbi with a cane basket.  You denied kicking Mr Shaikh, you denied that Mr Rabbi continuously kicked Mr Shaikh but after being told about the independent witnesses, admitted Mr Rabbi kicked Shaikh only because he said you said Mr Shaikh had kicked Rabbi in the groin.

9       I now turn to your personal circumstances.  You are 61 years of age and emigrated to this country with your family from Ceylon when you were aged about 18 in 1968.  You are one of five children.  Your father worked as a clerk with the Victoria Railways, as they then were, for many years and once you completed school you joined him and indeed you, yourself, worked there for about 16 years.

10      You had a difficult childhood in that your father was an alcoholic.  Ultimately he died when you were about 32.  Your life proceeded in a fairly lawful manner until your mid-30s when, your counsel informed me, you became involved with a girlfriend who was a heroin user.  You, yourself, began using it and it would seem swiftly became addicted and ultimately engaged in trafficking heroin in a very major way.

11      You were first sentenced by a court in 1987 for possession and trafficking of heroin.  In 1987 you were placed on a good-behaviour bond for possession of heroin but then in September of 1987 you were sentenced to a total effective sentence of 16 years with a minimum of 13 on charges of trafficking heroin, possessing heroin and possessing cannabis.

12      The matter went on appeal to the Supreme Court who were seen to have varied it in some way, possibly allowing more concurrency of time already served, but in any event it was a major sentence.  You were ultimately released in 1994, pursuant to the then early release scheme whereby prisoners received a remission of about one third, provided they were of good behaviour.

13      You had served your term in Pentridge Prison which your counsel informed you found traumatic, witnessing a brutal murder and to some extent compounding your heroin problems in that time.  In any event it is very clear that very shortly after your release from prison in 1994 you became involved in heroin use and drug trafficking.

14      I note that in the Melbourne County Court in August 1997 you were sentenced to a term of imprisonment of six years with a non-parole period of four years, with a pre-sentence detention declaration of 516 days, indicating that your offending and arrest occurred pretty soon after you were released from gaol.

15      You were then dealt with in 1998 for trafficking in another drug of dependence and attempting to pervert the course of justice.  Your counsel informing me this latter offence comprising an unsuccessful approach by you to a police officer who was involved in charging you with trafficking.

16      Then in 2004 you were fined for handling stolen goods, a matter which you have no recollection of.  In 2004 you were placed on a suspended sentence for possession of a methyl-amphetamine and possession of heroin.  Your counsel informed me that in addition to your heroin addiction you had also formed an addiction to methyl-amphetamine or Ice as it is popularly known.  Ultimately in 2005 you were fined for possessing property, being the proceeds of crime, they being a number of locks and a fail to answer bail.

17      Your counsel told me that for about five years, including the period covering the offending before me, you involved yourself in a business whereby you rented houses with a number of bedrooms and then sub-let them to other tenants.  It was in this context that you met the victim, Mr Shaikh, who was then living in one of those houses in West Footscray.

18      Your counsel also informed me that over the years you had come to reflect upon your addictions and had freed yourself of drug use and currently remain drug free.  You have been unemployed for about 12 months since the cessation of your business involving the renting of houses.  You have no further matters outstanding.

19      Notwithstanding your very serious prior criminal history it is mainly drug related and I am satisfied that the matter for which I deal with you today has no connection to drugs and therefore to some extent your prior criminal history is lacking in relevance, although the fact that you have been so often and so severely dealt with by the courts nevertheless means that I should deal with you in a manner of more severity than perhaps would be the case if someone who came before me with a similar charge with no prior history.

20      In any event it seems to me that this was obviously an uncalled for and violent attack.  You did not immediately plead guilty to these offences, but I note you were originally charged with reckless causing serious injury and on negotiation a plea to the charge of recklessly causing injury was accepted and you have pleaded on that basis and you are entitled to a discount for having pleaded guilty for saving the complainant the trauma of giving evidence (notwithstanding that he had to do this at the committal) and the community the time and expense connected to a criminal trial.

21      In any event it is my view that the gravity of your offending has been an attack in company, essentially, on another man which was not warranted, can be dealt with in terms of the lesser seriousness of the offending, the mitigating factors in your life, which I have referred to, by the imposition of a sentence of imprisonment which will, however, be wholly suspended.  I note that the prosecution has no objection to my taking this course with you.

22      Could you stand up please.  On the charge of recklessly causing injury you are sentenced to eight months imprisonment.  I order that that sentence be wholly suspended for a period of 12 months.

23      What that means is, Mr De Zylva, is that if you commit any offence punishable by imprisonment in the next 12 months you will be brought back in front of me on breaching a suspended sentence and I will make you serve part or all of that suspended term.  Do you understand that?

24      PRISONER:  Yes.

25      HER HONOUR:  Thank you, you can have a seat.  Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of eight months imprisonment and ordered that you serve four, suspending the remainder for a period of 12 months.  Thank you.

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