Director of Public Prosecutions v Egkan
[2013] VCC 1361
•8 October 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01847
| THE QUEEN |
| v |
| TIMOTHY EGKAN |
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JUDGE: | HIS HONOUR JUDGE GRANT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 October 2013 and 8 October 2013 | |
DATE OF SENTENCE: | 8 October 2013 | |
CASE MAY BE CITED AS: | DPP v Egkan | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1361 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Triandos | Office of Public Prosecutions |
| For the Accused | Ms J. Dixon SC | Galbally & O’Bryan |
HIS HONOUR:
Timothy Egkan, you have pleaded guilty to one count of affray and one count of intentionally cause injury. The maximum penalty for affray is 5 years imprisonment and the maximum penalty for intentionally cause injury is 10 years imprisonment.
I have heard a summary of your offending from Mr Triandos. That summary will be attached to these remarks as Exhibit “A”.
I regard the following matters from that summary as being particularly relevant for sentencing purposes –
· The complainant’s group initiated the hostilities that developed on that night.
· Prior to striking the complainant with your elbow, you had been hit on the back of the head by a bottle.
· Most importantly, it is conceded by the prosecution that when you hit the complainant with your elbow it was not your intention to cause serious injury nor were you aware that your action would probably cause serious injury.
· The complainant lost balance after being struck by your elbow and fell onto the concrete surface of the kerb or roadway. The head injury sustained by the complainant were consistent with hitting his head on that surface.
· It is an aggravating aspect of your behaviour that after the complainant had fallen to the ground you quickly stamped 3 or 4 times on his upper body or head region. Whilst it is not alleged that this behaviour caused the serious injuries sustained by the complainant, it was a brutal and cowardly thing to do.
· None of the other person’s involved in this incident were charged with affray.
· You were remanded in custody overnight before being released on bail.
· On 13 April 2012 you offered a plea of guilty to offences that were within the jurisdiction of the Magistrates’ Court. The Crown did not accept the offer at that time. I note that the Crown has now accepted pleas of guilty to charges that would have been capable of resolution in the Magistrates’ Court.
· Finally, the prosecution concedes that a suspended sentence of imprisonment is within the appropriate sentencing range.
Mr Egkan I am satisfied that you are a man of good character and that this offending is totally out of character. You are an intelligent and well-educated man with very strong family support. Both your mother and father have travelled from America to support you. Your father gave very impressive evidence on your behalf as did a number of other witnesses. Strong written references were presented in support of your character and your remorse. Mr Porter, Ms Ford and Mr Cort travelled from America to speak on your behalf. They confirmed you are a man of good character and reputation.
You offered a plea of guilty at an early stage of the proceedings. There has been a delay in the proceedings that is no fault of yours. You have had the pressure of this matter hanging over your head for some time and you have used that period for personal development and in community projects. During your time on bail you completed a positive lifestyle program, worked as a volunteer at the Ceres, Harding Street Market Garden and upon being permitted to return to America, participated in the Stockton Project. You have now entered a plea of guilty and I am satisfied that you are very remorseful for your offending. Although you are not criminally responsible for the serious injury suffered by the complainant, I am satisfied that you are deeply regretful that the complainant suffered such injuries. It is clear from the victim impact statement that Mr Mohammed has been profoundly affected by the injuries he sustained on that fateful evening. He was in rehabilitation for over one month and he is still unable to work. Mr Mohammed is currently in receipt of sickness benefits.
Mr Egkan, I am satisfied that you are a very strong candidate for rehabilitation. I am confident that you will not be in trouble again.
Mr Egkan, the basic purposes for which a court may impose a sentence are punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
The community is properly concerned about groups of men engaging in violent behaviour in public places. Apart from the harm suffered by the participants, such behaviour threatens innocent people and puts them in fear for their safety. When, as a result of such violence, a person goes to the ground and is then stamped upon, the offending is regarded as serious indeed. This explains the prosecution submission, which I accept, that the only appropriate order is a term of imprisonment. In determining to suspend the imprisonment term I acknowledge the matters that I have already identified as being relevant to the offending. In that regard, the fact that you are not criminally responsible for the serious injury sustained by the victim is highly relevant. In addition, your lack of prior history, your plea of guilty, your genuine remorse, your good character and your excellent prospects of rehabilitation are also highly persuasive. Given these circumstances, and the concession made by the prosecution that a fully suspended sentence is within the range of sentences open to me, I intend to make such an order. I should advise you that the law in Victoria has recently changed and had this offending occurred after 1 September 2013 I would not have the power to make a suspended sentence order.
Mr Egkan, on both these charges you will be convicted and sentenced to an aggregate imprisonment term of 12 months. I suspend that term for a period of 3 years. If you commit an offence punishable by imprisonment in the next 3 years you will be brought back to court to be further dealt with and in the absence of exceptional circumstances, you will be ordered to immediately serve the 12 months jail. Do you understand that?
10. PRISONER: Yes.
11. HIS HONOUR: Mr Egkan, I make a declaration that you served 1 day by way of pre-sentence detention.
12. If you had been found guilty of these offences after trial, I would have sentenced you to a term of 18 months imprisonment with a minimum of 9 months to serve before being eligible for release on parole.
13. Are there any ancillary orders that are sought, Mr Triandos?
MR TRIANDOS: No, Your Honour.
HIS HONOUR: Yes, thank you.
COUNSEL: If Your Honour pleases
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Attachment 1:
Indictment No. C10126950.2
Court Reference: CR-12-01847
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009
THE DIRECTOR OF PUBLIC PROSECUTIONS
v.
TIMOTHY EGKAN
SUMMARY OF PROSECUTION OPENING
Date of document: 2 October 2013
Filed on behalf of: The Director of Public Prosecutions
Prepared by: Peter Triandos of Counsel
Craig Hyland Solicitor’s Code: 7539
Solicitor for Public Prosecutions Telephone: (03) 9603 7666
565 Lonsdale Street Direct: (03) 9603 7836
Melbourne Vic. 3000 Reference: 1200207/L.Plummer
Indictment
Charge 1 – Affray
Charge 2 – Causing Injury Intentionally
Circumstances of Offences
Charge 1 - Affray
On Sunday 15 January 2012 at about 2.30 a.m. a group consisting of the accused, Charles RICHARDS and Eric FENESSY crossed paths with a group consisting of Saladdin MOHAMMED (“the complainant”), Fahamy MOHAMMED, Filmon GERESSUS and Surafel MULATU near the corner of Swanston and Lonsdale Streets, Melbourne.
As the complainant walked past the accused’s group, he bumped into FENESSY. The two groups exchanged words and a scuffle broke out between them. Glass bottles were thrown by the complainant’s group towards the accused’s group. The accused was hit on the back of his head by an unbroken bottle. Fahamy MOHAMMED held a broken bottle and advanced towards the accused.
RICHARDS chased Fahamy MOHAMMED down Swanston Street. FENESSY ran up Lonsdale Street. The accused and the complainant remained on the Lonsdale Street side of the corner. GERESSUS and MULATU were nearby.
The accused struck the complainant’s head with his elbow, causing him to spin, lose balance and fall to the ground near the kerb and lose consciousness. While the complainant was on the ground, the accused was then seen to quickly stamp on the complainant 3 or 4 times somewhere to the upper body or head region. This was seen not only by GERESSUS and MULATU but another 3 independent witnesses nearby. (Charge 2 - Causing Injury Intentionally)
The accused ran away from the scene along Lonsdale Street.
The complainant was taken to the Royal Melbourne Hospital. His injuries were a skull fracture to his left parietal and mastoid bone base, left frontal contusion (bruising), right frontal petechial haemorrhage and subarachnoid haemorrhage (bleeding), post-traumatic amnesia, and left lower motor neuron facial nerve palsy which made it difficult for him to close his eye.
No surgery was required because there was no major blood clot nor any major brain swelling. Evidence of heavy alcohol intake was found. He was discharged to the Royal Talbot Rehabilitation Centre on 30 January 2012 where he remained till 1 March 2012. He has no recollection of the incident.
The head injury was consistent with a fall onto the concrete surface of the kerb or roadway.
The accused made a no comment record of interview later on 15 January 2012.
DNA evidence on the accused’s shoes linked him with the complainant.
Maximum Penalties
Affray – 5 years imprisonment
Causing Injury Intentionally – 10 years imprisonment
Plea of Guilty
The accused was charged on 15 January 2012 with, inter alia, intentionally causing serious injury. On 13 April 2012 an offer to plead guilty in the summary jurisdiction was rejected. He was committed for trial on 9 October 2012 following a contested committal and entered a plea of not guilty.
The trial was listed on 30 September 2013. On 1 October 2013 the accused was arraigned and pleaded guilty to affray and intentionally causing injury.
Victim Impact Statement
A Victim Impact Statement was made by the complainant on 10 April 2012.
Co-Offenders
RICHARDS, Fahamy MOHAMMED, GERESSUS and MULATU were interviewed but no charges against them were authorised.
Pre-Sentence Detention
1 day. The accused was remanded in custody overnight on 15 January 2012 before he was bailed at a filing hearing on 16 January 2012.
Sentencing Submission
It is conceded that the complainant’s group initiated the hostilities.
The seriousness of the offences warrant a term of imprisonment. How that is to be served is a matter for the Court.
Peter Triandos Deakin Chambers 2 October 2013
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