Director of Public Prosecutions v Derboghosian

[2019] VCC 510

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00391

DIRECTOR OF PUBLIC PROSECUTIONS

v

GARRY DERBOGHOSIAN

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 April 2019
CASE MAY BE CITED AS:	DPP v Derboghosian
MEDIUM NEUTRAL CITATION:	[2019] VCC 510

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Fallar
For the Accused	Mr S. Moglia

HIS HONOUR: 

1Garry Derboghosian, you have found guilty by jury verdict of two charges of common assault and one charge of intentionally causing injury.  Common assault carries a maximum penalty of five years' imprisonment.  Intentionally causing injury carries a maximum penalty of ten years' imprisonment.

2You are currently 54 years of age, having been born on 22 May 1964.  At the time of the offending four years ago, you were aged 50.  You have no prior criminal history.

3The victim in this matter is your wife, Tamara Derboghosian.  You married in December 1998 and separated in April 2015.  There are three children of the marriage.

4At the time of the incidents, the family lived with your mother at her home in Glen Waverley.  As the marriage progressed, you became more controlling of the family finances.  Your wife was restricted in her access to money and felt degraded having to ask you continually for money, even though she was contributing financially.  You controlled the bank accounts.

5As to the circumstances of the offending, in the period December 2014 and January 2015, you had given your wife money to spend on Christmas presents for your children and relatives and for grocery shopping.  You said you would go food shopping with her and the two of you went shopping together.

6As you were driving home from the shopping, you were getting irritated by another driver.  Your wife asked if the other car was annoying you and you got angry with her.  You drove into your street, stopped the car, parking it some way down from your house.  You were very angry at your wife and hit her very hard to her face with the back of your hand multiple times, causing her pain.  You then continued driving to your house further down the street.  Your wife's face was hurting from being hit and she took Panadol to stop the pain. 
That conduct represents Charge 1, common assault.

7As to Charge 2 of common assault, this incident occurred on Easter Saturday, 4 April 2015.  Your wife woke up around 8 am and stayed in bed, she was using her phone.  You started touching her, trying to initiate intimacy and talk to her but she was not paying you any attention.  You took her mobile phone from her hands and threw it against the wall.  You grabbed her and slapped her repeatedly to the face and ear with an open hand, causing pain.  You told her that she had to be nicer to you.  Later, your wife felt her face had a vibrating sensation and was sore.  She took Panadol for pain relief.

8As to Charge 3 of intentionally causing injury, the following day, 5 April 2015, you and your wife had an argument about whether she had stolen your sunglasses from the car.  The car may have been broken into overnight.  Throughout the day, you continued to ask her if she had taken your sunglasses.  That night, you both went to a family dinner with her extended family.

9At around 2 am, your wife was asleep in bed.  She felt the blanket suddenly pulled off her and woke up.  You were angry and started yelling at her, telling her that she was not going to sleep anymore.  You started hitting her hard, drumming her repeatedly left and right to the face and ears with both hands.  Your wife grabbed a lamp from beside the bed and told you to stop. 
You grabbed her hand and told her to put the lamp down which she eventually did.  She says that you were very angry and were abusing her.

10Your wife packed some clothes into a bag to leave.  She telephoned her brother's home and asked him to pick her up.

11You saw that your wife had packed to leave and the two of you argued more.  You took her keys and locked the door so she could not leave.  You ordered her to go to the bedroom, which she did.  You then tipped a glass of water on her before telling her to have a shower because she was dirty.  In anger, your wife picked up some deodorant spray and sprayed you.  You became more angry.  Your wife turned to run away and tried to keep the door closed. 
You managed to open the door.  You then dragged your wife onto the floor.  You hit her to the face and pulled her hair.  You then repeatedly stomped on her chest and ribs.  She was trying it shield herself from you.

12Your wife's brother arrived at the house a short time later.  Your wife climbed out of a window with the bag of clothes she had packed and left the home. 
Later that night, your wife's sister-in-law took photographs of your wife's injuries.  Your wife collected the children later that day and she never returned to live with you.

13Your wife suffered the following observable injuries.  Black eyes reaching to the upper cheek on both sides with some swelling, slightly reddened and swollen left ear, blood and bruising to the earlobe also evident.  Red mark under the left nostril.  An appearance of bruising to the left forehead.  Bruising to the left forearm with the appearance of at least one large bruise measuring in the vicinity of plus six centimetres, an approximately 1.5 centimetre red bruise with some yellowing noted to the left shoulder.  Three relatively discrete small, that is around one centimetre, bruises in close proximity on the left lateral upper arm.  Yellow bruising to the back of her right upper arm.  A cluster of brown bruising to the right lower arm over an area of approximately seven centimetres.  An approximately four centimetre yellow bruise on the right chest, just above the right breast.  Three abrasions to the anterior right shin, which overlie a bruise which covers most of the front of the shin and extends laterally and three wounds on the right ankle with the appearance of carpet burn or grazed abrasion.

14Your wife ultimately reported the matter to police on 12 April 2015.  Police took photographs of her injuries.  On 12 April 2015, you were arrested an interviewed at the Glen Waverley police station.  You told police that you and your wife had a heated argument on 6 April 2015 but denied assaulting her or causing the injuries depicted in the photographs.

15I now turn to your personal circumstances.  As I noted earlier, you are now aged 54 and you were 50 at the time of the offending and you do not have any prior criminal history.  You came to Australia when you were aged two, completed school to Year 11 level and thereafter commenced work as a panel beater in warehousing and at your father's service station.  You and your wife married in 1997 and at about the same time, you commenced work at Toyota, where you remained for the next 20 years.  At Toyota, you reached a respected position in paint shop quality control.

16At the time of the assaults, you were facing prospective redundancy.  The likely end of your career at Toyota was very stressful for you.  Subsequently to this incident, you were in fact retrenched and you have since worked to this day as an Uber driver and are highly regarded.

17Your wife left the matrimonial home on the occasion of the last offending and did not return.  There has been no reconciliation and the relationship has ended.  Family Court proceedings have been determined and a property settlement reached.

18The court proceedings were extensive and caused you significant financial cost.  As part of the Family Court proceedings, you attended a counsellor on the issue of violence on more than six occasions.  Also as a consequence of Family Court orders, you have limited contact with your children which distresses you. 
They are now respectively aged 18, 16 and 12.  You now continue to live with your aged mother in her home.  You have not engaged in any subsequent domestic partnership.

19The assaults you have committed are regarded seriously by the community and by the courts.  Much violence is committed within the privacy of the domestic home and the overwhelming majority of victims are women.  The prevalence of such violence is a well-recognised public concern and has been the subject of much publicity.  Courts have stated regularly that this type of behaviour cannot be tolerated and will be dealt with sternly.

20Your offending involved repeated instances of multiple strikes to your wife in her home where the children also resided.  It culminated on the third occasion with you repeatedly stomping on her, intentionally causing her injury.  On that occasion, you also attempted to confine your wife in the home by locking the doors and taking her keys.

21I accept that the assaults represented by Charges 1 and 2 fall within a low range of seriousness on the spectrum of assault and the circumstances related to Charge 3 fall within the low to medium range on the spectrum of intentionally cause injury.  Whilst the ultimate injury on that charge might appropriately be viewed as remaining in the low range of possible injuries, the extended and frightening nature of the assault involved being thrown to the floor and repeatedly stomped on while trying to escape extends the serious context towards the middle range.

22You are not to be penalised for pleading not guilty and running a defended trial.  You do not however have the benefit of having expressed any remorse.

23In mitigation, I take into account the matters urged on your behalf by your counsel including that you are a mature, middle-aged man who has no record of previous offending.  You have otherwise led a hardworking life, raising a family.  That the offending took place some four years ago and that there has been no subsequent offending, that your offending took place in the context of the stressful imminence of employment redundancy after a long and successful career and that you have received some counselling on the subject of violence and anger management.

24Prior to sentencing, you were assessed for suitability for a community corrections order.  You were assessed as unsuitable because you appeared dismissive of the offences upon which you were found guilty, you stated that your wife had concocted up a story to make up that she is the victim.  You stated that you were the victim.  You stated that your wife's injuries were as a consequence of her own behaviour.  You were "bemused" by the prospect of a court order, stating "it is the process," and that there an order greater than
12 months would hinder you.  You stated that you saw no purpose of treatment conditions directed to family violence because you were the victim rather than the perpetrator.

25Principles of general deterrence and denunciation of this conduct by the court are important matters for application in the circumstances of this case.  I accept that whilst specific deterrence continues to require application, particularly in light of your attitude to the possibility of a community corrections order, it may be moderated by the mitigating circumstances.

26Ordinarily, in light of the mitigating circumstances, particularly of your otherwise good character and the further years that have passed since these incidents without repetition, I would accept that a sentence which would include therapeutic conditions and not involve you being placed in custody might not fall outside appropriate sentencing range.

27However the sentencing disposition by way of community corrections order can only be applied if the offender consents to the imposition of such an order and is only a realistic, workable alternative that the offending is genuinely willing to engage fulling in its terms and conditions.  The correction order protocol is more skewed towards rehabilitation and is designed to offer the offender the opportunity of engaging in courses and programs to ensure appropriate treatment to address the causes of the offending whilst remaining in the community.

28I see no point in pressing you into a therapeutic process about which you are ambivalent, nor a work program about which you may be bemused.  In the circumstances, I have little confidence that you would fully comply with the processes of a community corrections order.

29I am satisfied that you do not genuinely accept responsibility for your offending and are cynical concerning the programs for rehabilitation and the process of a community corrections order.

30As a consequence, the conclusion I draw is that the punitive deterrent and denunciatory purposes of sentencing must take priority.  In my view, the imposition of a sentence involving a community corrections order is not a rationally viable option.

31Mr Derboghosian, would you please now stand?

32On Charge 1 of common assault, you are convicted and sentenced to two months' imprisonment.  On Charge 2 of common assault, you are convicted and sentenced to two months' imprisonment.  On Charge 3 of intentionally cause injury, you are convicted and sentenced to eight months' imprisonment.

33Charge 3 is the base sentence.  I direct that one month of each of the sentences imposed on Charges 1 and 2 be served cumulatively on the sentence imposed on Charge 3 and upon each other.  The total effective sentence is ten months' imprisonment.

34At the plea hearing, the Crown sought an order for the taking of a forensic sample.  I have made that order for the reasons noted on the order, namely the seriousness of the circumstances of the offending warrants the making of the order, the order is not opposed and the granting of the order is in the public interest.  Now, I must inform you that if, at the time of the request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that procedure to be conducted.  Do you understand that, Mr Derboghosian?

35OFFENDER:  Yes.

36HIS HONOUR:  Thank you.  You may be seated.  Is there anything else from either counsel?

37MS FALLAR:  Section 6AAA, Your Honour.

38HIS HONOUR:  I have sentenced him to a term of imprisonment and 6AAA ‑ ‑ ‑ 

39MS FALLAR:  Of course, you are right.  I am sorry.

40HIS HONOUR:  I was about to say term of imprisonment as a result of a trial.

41MS FALLAR:  Yes, Your Honour.

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