Director of Public Prosecutions v Demetriou
[2012] VCC 1449
•3 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-01140
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTIAN JAKE DEMETRIOU |
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JUDGE: | HIS HONOUR JUDGE HOWARD | |
WHERE HELD: | Melbourne | |
DATE OF TRIAL HEARING: | 16, 17, 18, 19, 24, 25, 26, 27 and 30 July 2012 | |
DATE OF PLEA HEARING: | 1 August 2012 | |
DATE OF SENTENCE: | 3 August 2012 | |
CASE MAY BE CITED AS: | DPP v Demetriou | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1449 | |
REASONS FOR SENTENCE
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CATCHWORDS – CRIMINAL LAW – Sentence following conviction at trial for affray, intentionally causing injury and intentionally causing serious injury (2 charges) – serious offending arising from fight at hotel – use of meat cleaver to attack victims – youthful offender – bad criminal record – importance of general and specific deterrence and protection of the community – TES 6 years’ imprisonment with minimum of 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr D Gray | Solicitor for Office Public Prosecutions |
| For the Accused/Offender | Mr R Backwell | Greg Thomas Barristers & Solicitors |
HIS HONOUR:
1 Christian Jake Demetriou, following a nine day jury trial, you have been found guilty of, and are to be sentenced for, committing an affray (charge 1); intentionally causing injury (charge 2); and intentionally causing serious injury (charges 4 and 6).[1] The maximum penalties are, respectively, five, ten and twenty years' imprisonment.
[1]It was a unanimous verdict on charge 1 and verdicts by majority on charges 2, 4 and 6. No verdicts were required on alternative charges 3, 5 and 7.
Circumstances of offending
2 The circumstances of your offending can be shortly stated. On Friday, 24 April 2009, in company with three other young men, you went to the Matthew Flinders Hotel at Chadstone. It was lunchtime and there were many people around. You were armed with a meat cleaver hidden in your clothing. In your group was Sam Poulton, an apprentice plastering student at a TAFE opposite the hotel. Inside the hotel was a group of plastering and bricklaying students also from the TAFE. One of them, Ben Jackel, had been blamed for causing damage to Poulton’s plasterwork at the TAFE.
3 Jackel left his group and walked outside the entrance to the hotel. He was surrounded by your group, knocked to the ground and kicked and punched.[2] Some of the students inside ran out to defend him, including Billy White who confronted Poulton. You produced the meat cleaver and tried to hit White with it, using an over arm blow. However, White grabbed the weapon under his arm and tried to punch you. You pulled the meat cleaver from under his arm, thereby slicing him with it on the side of his chest (charge 2). This caused a superficial wound approximately 15 centimetres in length, which required seven stitches. There was no lasting physical injury.
[2]It was agreed no issue of parity arose, the co-offenders having been charged only with affray.
4 Another student, Mitchell Hain, was standing nearby not involved in the fight. He was side on to you and presented no threat to anyone. Nevertheless, you swung the meat cleaver with a forceful over arm movement and struck him to the top of his head (charge 4). He suffered a serious injury, a deep wound to the head 6 or 7 centimetres long requiring nine stitches. There was no skull fracture. The wound healed, but Hain has been left with the enduring inability of not being able to balance plaster sheets on his head while hanging ceilings, an essential part of his work as a plasterer, as this causes pain.
5 Not surprisingly, the production of the meat cleaver and your attack led to the student group running inside the hotel or otherwise dispersing. Undeterred by the enormity of your conduct, you moved to the entrance to the hotel and challenged the students to come out and fight “one-on-one”. When they did not respond to such a ridiculous and unfair proposition, things became more chaotic. You threw signs and other objects inside the bar, and then ran in holding the meat cleaver aloft. One of the students, Steven Read, had armed himself with a pool cue. You ran at him with your weapon. He retreated and fell backwards over a table and with a forceful over arm action you tried to strike him in the face with the meat cleaver. He held up his arm to defend himself and you sliced it to the bone, including cutting several tendons (charge 6). Read was hospitalised and underwent surgery the following day, then discharged. He had limited movement of his left wrist and hand, was off work for four months and underwent physiotherapy for six months. He has been left with a residual disability of not being able to bend his left wrist downwards, which has caused problems for him in his work as a bricklayer.
6 The general fighting and aggression which I have described constitutes the affray (charge 1).
Police inquiries and court process
7 When you conducted this appalling attack, you were trying to disguise yourself by wearing a hoodie over your head with a peaked cap and you covered your face with a T-shirt. However, at one stage inside the bar you were hit by a pool cue and a stool and fell over, the T-shirt fell down and one of the witnesses, Aaron Campbell, had a clear view of your face from a short distance away. That witness later identified you from a police photo board. Following this identification, you were arrested in October 2009 and ultimately charged in December that year. You conducted a contested committal in June 2010. The first trial was conducted before another Judge in July 2011. The sole issue was the sufficiency of Campbell’s identification evidence. The jury was discharged without verdict after three days of deliberations.
8 The retrial commenced before me in May 2012. You were on bail and prohibited from approaching any prosecution witness other than the informant. On 23 May last, as you were entering court for the day, you confronted and threatened Billy White as he was sitting outside waiting to give evidence. Of course, you had sliced him with the meat cleaver. You abused him for being a witness and, in a heated exchange, admitted that you were the man with the meat cleaver and threatened to slice him again. The trial was stopped at that time and recommenced in July. The prosecution then led evidence of the admission which you made to White, which significantly strengthened its case. You did not give evidence or call witnesses.
9 Following the incident with White, I revoked bail and there is now 72 days pre-sentence detention up to, but not including, today.
Victim impact
10 I have received Victim Impact Statements from the three men injured by you. In addition to the physical complications I have described, they were each traumatised by your vicious attack upon them.
11 Billy White has experienced a lot of changes in his behaviour, including difficulties with relaxing in social circumstances and lacking trust in others. His relationship with his girlfriend was adversely affected. He has suffered problems with concentration, stress, anxiety and bad dreams and fears the same thing happening again. He has a scar which continually reminds him of the attack. Sadly, he says that he sleeps with a bat behind his door.
12 Mitchell Hain lost work opportunities and income due to stress and anxiety. He has had nightmares and feels a lack of safety and confidence outdoors. He drinks more to relieve his stress. His family and girlfriend have also been affected by all this. He concluded his statement by expressing the fear that he will never have his old life back again.
13 Steven Read also experienced ongoing stress and depression and found it difficult to be outdoors without fearing that he may be attacked again. He says the attack has affected his life in many different ways.
14 Each of these statements stand as telling reminders of the terrible human impact of your crimes. You should feel a great deal of shame and remorse for the trauma and enduring problems which you have caused these men.
Background and personal circumstances
15 I will turn to your background and personal circumstances. These have been set out in a psychological report of Pamela Matthews dated 21 July 2009, which was used for an earlier court proceeding. No update was provided.
16 You are now 21, the eldest of three children. Your mother is occupied with home duties and your father is a self-employed motor mechanic. You described a happy childhood, although there was occasional conflict between your parents. As a young boy, you were kind and caring and had a natural talent for sports. However, at primary school you experienced learning difficulties and were ultimately diagnosed with ADHD. You continued to struggle and were ultimately suspended in Year 8 and asked to leave school. In 2006, you failed to return to school and got in with a bad crowd. You began chroming and seriously abusing illicit drugs. Since then you have been essentially unemployed and living on money provided by your parents.
17 On assessment, you were found to have a low average cognition, your insight was poor and you were tested as functioning on the boundary of a mild to borderline intellectual disability. The combined problems were your ADHD and low cognitive functioning, family turmoil and unhappiness when you were a teenager, serious drug abuse, associations with other alienated young people and a confidential matter raised in the report. The psychologist said you presented as an angry, vulnerable, young, immature man, with many psychological issues to be addressed before you and your family could move forward.
18 Regrettably, for a young person, you have an appalling criminal history characterised by frequent acts of serious violence and the possession and use of weapons. Between 2007 and 2011, when you were 16 to 21, you have been convicted or found guilty of 28 offences from 7 court appearances.
19 In 2007, you were placed on youth probation for possessing a prohibited weapon, recklessly causing serious injury and robbery. You breached that order. In July 2008, you were placed on a youth supervision order for committing five armed robberies, intentionally causing injury, possessing a controlled weapon and other violent offences. That order ran to July 2009 and under it you had the advantage of psychological assessment and treatment, attendance at a violence prevention program and an employment and training program. None of that seemed to make much difference to you as you committed three separate lots of offences leading up to your present offending. First, in October 2008, you committed an armed robbery in company by stealing a mobile phone from a youth whom you assaulted with a knuckle duster. On that occasion you were also in possession of a machete. Then in January 2009, in company with other males, you stabbed a youth with a knife. Finally, on 17 April 2009, you assaulted a female and threatened her with a meat cleaver. All this offending breached the youth parole order you were then on.
20 You continued to offend after the commission of these matters. The following month, in May 2009, you were apprehended for shoplifting and found to be in possession of a knife.
21 In July 2009, you were sentenced in this Court to youth detention for two years and three months for the October 2008 armed robbery. The sentencing judge said that he was only “narrowly persuaded” that he should give you an opportunity to avoid adult prison. Then in September 2009, you were sentenced to a concurrent twelve months’ youth detention for the assault on the female in April 2009 and the offending in May 2009.
22 You were released on youth parole in May 2010 but reclaimed two months later for the breach offending which had occurred in October 2008. You remained in youth custody until February 2011, when you attacked another inmate at Malmsbury causing him an injury, although no weapon was used. You were immediately transferred to a gaol. This was your first time in an adult prison.
23 Meanwhile, in April 2011, you were sentenced to five months' imprisonment on charges of recklessly causing serious injury, intentionally causing injury and affray arising from the stabbing incident in January 2009. The following month, you were dealt with for the Malmsbury attack and, for intentionally causing injury, sentenced to three months' imprisonment to be served concurrently with the sentence you were then undergoing.
24 Ultimately, in September 2011, you were released form prison and remained on bail for these matters until it was revoked in May this year following the incident with Billy White at court.
25 Your family supported you whilst you were in custody and at court. Your father made an impassioned plea on your behalf, indicating that you had matured, particularly since your release from custody. He explained you had done a course whilst in youth detention and kept to yourself in prison. He emphasised you had not reoffended, had lived with the family, worked part time with him in the family business, and also as a builder’s labourer, and that you had learned from your past offending. He asked that any sentence of imprisonment provide for you some hope and expectation in the future and pledged continuing family support for you. You are fortunate that you have such a caring and supportive family.
Mitigating circumstances
26 The mitigating circumstances are that you come from a good and supportive family background and progressed well as a young child. You were beset by learning difficulties and some cognitive impairment. As a teenager your life spiralled out of control as a result of associating with bad friends and abusing illicit drugs. In your favour I have taken account of the psychological opinion however, I should note your counsel did not rely on any specific mental health problem or any Verdins issues.
27 You were only 18 at the time of offending and this is a significant matter. Ordinarily when dealing with a youthful offender, rehabilitation is to be treated as a paramount sentencing consideration. For a number of reasons, it is desirable to avoid placing young offenders in a prison context with hardened criminals who may seek to corrupt them. Where appropriate, the preferable course is for individualised treatment focussing on rehabilitation; as such an approach benefits the community as well as the offender. But these principles are general propositions which are not of universal and automatic application. As is often said, every case must turn on its own facts and circumstances. Youth cannot in all cases keep an offender from gaol. Indeed, your counsel sensibly conceded that a term of imprisonment was inevitable given the seriousness of your offending. However, I still consider the aspect of youth should act to restrain the ultimate sentence to be imposed.
28 I accept your father’s evidence that there has been some rehabilitation and maturation in recent times. This includes you having completed a work safety course in prison. However, I am cautious as to the position concerning illicit drugs, although I note you have produced one very recent negative urine screen dated 28 July 2012. Obviously, future success for you will depend massively on you avoiding this drug problem.
29 You have suffered a lengthy delay in the resolution of these matters, which is all the more significant as there has been some rehabilitation in the meantime.
30 Whilst you have the terrible criminal record I have outlined, up until the incident at Malmsbury in February last year, your last offending for violence or possession of a weapon was around April - May 2009. However, apart from thereafter spending a good deal of time in custody, it is a most troubling aspect that you resorted to violence in youth custody and threatened a witness at court. It was clear to me from the CCTV footage of that incident that you had lost control of yourself and were unable to contain your anger. Of course, your contact with that witness was a breach of your bail conditions.
31 Because of these latter two incidents, I am unable to express confidence about your prospects for rehabilitation. It is encouraging that you have matured and will have the continuing support of your family. You will obviously need intensive parole support on your release from prison.
Other sentencing considerations
32 There are, of course, other important sentencing considerations. You engaged in a serious and cowardly attack with a fearsome weapon upon innocent young men going about their lawful business in a public place.
33 You had no involvement or vested interest in the dispute about Poulton’s plasterwork and I accept the prosecution’s description that you went to the hotel with the meat cleaver as “muscle” for the others in your group. You had an obvious intent to engage in serious violent behaviour. The fact that you went armed for that purpose, and that you used the weapon in company, are aggravating features. So, too, is the fact that you were on a youth supervision order and bailed for the October 2008 and April 2009 matters at the time that you committed these offences.
34 It is also relevant that you attacked defenceless strangers who gave you no provocation. I also take account of the fact that after the initial assault there was a period of time when you had an opportunity to consider what you had done. Instead of then departing, you ran into the bar and attacked Steven Read. Clearly, this was the most serious of your offences. But for his defensive action in putting up his arm, the consequences may have been even more serious than they were. Your moral culpability is high indeed.
35 The principles of general deterrence and protection of the public are significant considerations. As your counsel conceded, these were serious examples of serious offences. The unlawful use of a weapon capable of inflicting severe injury is properly treated as abhorrent conduct in our community. No one should be concerned about their personal safety, particularly that they may be subjected to attacks with weapons of this kind. Others minded to act as you did need to understand that if they are caught doing so, they will face serious penalties from the courts.
36 It is clear from your criminal history that at the time of offending you displayed entrenched anti-social attitudes and continually used violence and aggression in an attempt to manage and control situations and people. Your case worker correctly reported in July 2009 that you had failed to take advantage of the opportunities to rehabilitate yourself which had been offered under various programs. And, since these crimes, there has been the offending at Malmsbury and the confrontation at court. For these reasons there is a need for a sentence which also addresses specific deterrence.
37 While you are not to be punished for contesting the allegations, you have shown no remorse whatsoever. Yours is not the case of an offender who has shown insight, pleaded guilty at the earliest time and thereby avoided the need for the victims to undergo the rigors of cross-examination, including having to relive the trauma they experienced. You have no claim to a significant discount in those circumstances.
38 On charge 6, you are to be sentenced as a serious violent offender. I agree with the prosecution submission that it is not appropriate to impose a disproportionate sentence on that charge so as to better protect the public. That can be achieved otherwise.
39 It is conceded and appropriate that there should be a measure of cumulation on charges 2 and 4, as they constitute separate attacks and injuries. However, I do not accept the prosecution submission that there should be some cumulation of the sentence to be passed upon the affray. It is clear that substantial terror to the public must have been caused by the use of the meat cleaver, compared with the initial attack upon Jackel. I will make the sentence on the affray fully concurrent with the other sentences.
40 The prosecution submitted that the appropriate range in this case was a head sentence of seven to ten years' imprisonment with a minimum of five to eight years. Your counsel disagreed but did not make a specific submission as to range. I consider the prosecution range too high, especially given your youth, the principle of totality and the need to avoid a crushing sentence.
41 On behalf of the community, I strongly denounce your offending.
Sentence
42 Mr Demetriou, please stand up. You are convicted on each charge and sentenced as follows.
43 On charge 1, you are sentenced to twelve months' imprisonment. On charge 2, you are sentenced to two years' imprisonment. On charge 4, you are sentenced to four years' imprisonment. On charge 6, you are sentenced to five years' imprisonment.
44 Charge 6 is the base sentence. I order that three months of the sentence on charge 2 and nine months of the sentence on charge 4 be served cumulatively upon the sentence on charge 6 and upon each other.
45 The total effective sentence is six years' imprisonment. I fix the period of four years' imprisonment to be served before which you shall be eligible for parole.
46 I declare that the period of 72 days pre-sentence detention be reckoned as already served under that sentence, and direct that such declaration be entered in the records of the Court. Please sit down for the moment.
47 I ask counsel, are there any matters arising as to the mechanical aspects of the sentence which I have imposed?
48 MR BACKWELL: No, your Honour.
49 MR GRAY: No, your Honour.
50 Mr Demetriou, you need to go with the prison officers now. Thank you. Please remove the offender.
51 [offender removed]
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