Director of Public Prosecutions v Eser

[2021] VCC 1182

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01761

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAKAN ESER

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	23 April 2021, 4 June 2021
DATE OF SENTENCE:	10 August 2021
CASE MAY BE CITED AS:	DPP v Eser
MEDIUM NEUTRAL CITATION:	[2021] VCC 1182

REASONS FOR SENTENCE

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Subject: Criminal Law

Catchwords: Plea- Reckless cause serious injury- parity- co-accused sentenced for intentional cause serious injury in planned attack in company- co-accused without priors- whether Court should act on the factual settlement made by parties- obligation to give parties an opportunity to make further submissions- very serious offence- offender with relevant priors- high moral culpability- consideration of youth.

Legislation Cited:

Cases Cited: R v Peter Lowe [2009] VSCA 268; R v Van Nguyen & R v Ho [2019] VSCA 134 ; Malvaso v R [1089]HCA 58;(1989)168 CLR 227,233; Chow v DPP (1992) 28 NSWLR 593; R v Mielicki (1994) 72 A Crim R 72; R v Alexandridis [2008] VSCA 126; DPP v Jawahiri [2020] VCC 1351; R v Nipoe [2020] VSCA 137, R v Roe [2021] VSCA 54, R v Salazar [2021] VSCA 125, R v Tran [2009] VSCA 252

R v Sharp [2018] VSCA 327, R v Ashe [2010] VSCA 119, R v West &

R v Beyer [2014] VSCA 36, R v Tran [2009] VSCA 252, DPP v Terrick, Marks & Stewart [2009] VSCA 220, R v Sergeant & Garratt [2020] VSCA 45,

R v Begg, Hobby & Claridge [2020] VSCA 183, R v Atem [2020] VSCA 35, DPP v McKay [2018] VSCA 292 and R v Al Wahame [2018] VSCA 4.

Sentence:7 years imprisonment, 5-year non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Fargher	Mr Matthew Taylor
For the Accused	Mr I. Polak	Ms Caitlin Blakeney (Greg Thomas Barristers & Solicitors)

HIS HONOUR:

1Hakan Eser, you are 21 years old.  You pleaded guilty to one charge of causing serious injury recklessly.  The maximum penalty for this charge is
15 years' imprisonment.  The charge relates to offending which took place on 25 October 2019 in Flemington.

2You were one of a group of three who on that day assaulted Jibril God.  One of your co-offenders was your stepbrother, 20-year-old Raphel Jawahiri.  The identity of the third offender is not known.

3The circumstances of your offending were outlined in a document titled, 'Prosecution opening on plea', dated 19 April 2021 and tendered to the court.  It was said to contain a description of the offending.

4As to the agreed facts I will recite them in summary, but I intend to make clear in these reasons that I do not accept some conclusions or concessions made in this case by the prosecution as to what is to be inferred or concluded from some of these facts, concessions upon which on one view the defence relied for its submissions, although that was also far from satisfactory in my view.

5I should state clearly that at the outset that the plea process in this case and the position taken by both parties, but particularly the prosecution, has rendered this sentencing exercise particularly difficult.  I will elucidate this as I progress with my reasons for sentence.

6This much can be accepted as to the circumstances.  Shortly before 11 pm on Friday 25 October 2019 the victim, Jibril God, was walking home alone from a friend's house in North Melbourne.  At the corner of Racecourse and Boundary Roads he cut diagonally across the 7-Eleven service station situated there.

7As he did so he was depicted by CCTV footage and still photographs derived from that footage walking near a car which was parked in front of the store in a parking bay near some fuel pumps.  The image shows your co-offender, Jawahiri, leaving the black sedan and entering the store.  He's dressed in black, and he is carrying a brown satchel slung over his right shoulder.

8He then exits the store and returns to the car just as the victim is walking past the black car into which he is entering.  Mr Jawahiri can be seen to be pointing with his right hand in the direction of Mr God who says that Jawahiri, who is at the passenger side of the car, standing outside the vehicle, made eye contact with him.  'He was looking at me funny when I walked past'.

9A few moments later the black car leaves the 7-Eleven store.  The store is two or 300 metres from the public housing apartment in Flemington where
Mr God resided with his family.  He was 31 years old.

10He continued to walk home west along Racecourse Road.  The black car headed west along Racecourse Road, at some point having driven past
Mr God.  You, Mr Jawahiri and the third male exited the car and walked across Racecourse Road.

11CCTV footage from the public housing complex at 120 Racecourse Road shows you, the unknown third person, walking from the roadway onto the entry apron of the apartment blocks just ahead of Jawahiri.

12It is abundantly clear that at this point at which Jawahiri steps onto the entry apron he is carrying a large knife in his left hand.  This was at 11 pm and
59 seconds on the CCTV counter.  The three of you then walked to the concrete step edge to the right of the driveway at the top of the screen where you all loitered in the expression of the summary, in that area.

13Your feet can be seen moving at times facing Jawahiri's feet on the concrete and grassed area beyond it.  I have no doubt even from these few moments that your common intention and plan was in place to attack Mr God.

14At 11:01:13, if one is to rely on the time stamp on the CCTV, Mr Jawahiri walked towards you on the concrete driveway.  You are on the grass facing him.  You are wearing grey tracksuit pants with dark stripes on the sides and light shoes.

15There is more movement in and out of the captured image and then
Mr Jawahiri can be seen to sit on a timber bollard.  You go to the middle of the driveway just as Mr God enters the driveway from the roadway.  As he proceeds forward you place yourself in his path, and as he approaches you, he can be seen to clearly extend his hand towards you as if to shake your hand.

16You called out to him saying, 'What's your name?'  He replied, 'Jibril'.  You said, 'Remember me, you fucking dog cunt?'  It is difficult to see whether you actually took his hand, but Mr God walks to arm's length away from you.  As Mr Jawahiri gets off the bollard and stands, you grab Mr God roughly and pulled him to the ground, pushing him onto the grassed area.

17Immediately Jawahiri was upon him striking him with a weapon which was in fact the meat cleaver.  As Mr God put his hands up to protect his face and head you and Jawahiri proceeded to assault him.  You can be seen kicking him at least three times, probably four.  Jawahiri can be seen holding him down, Mr God, with his left hand, while he strikes him with his right hand and as he is doing so, he is being punched and kicked.

18Mr God was scared and feared for his life.  His torso was now on the grass and his waist and legs on the concrete driveway.  You and Mr Jawahiri and the third man all run off leaving Mr God in a foetal position on the ground.

19By 11.02 he can be seen to struggle to get up and goes towards the flat.  The actual physical attack is complete in about 15 seconds.  It may have been a very short attack, but it was carried out viciously in a coordinated fashion by the wielding of a very dangerous weapon, kicks and punches, and despite its brevity it was ferocious upon the victim.

20At the end one of you said, 'He's done.  Leg it, let's go'.  You fled along Racecourse Road heading north with a further CCTV footage depicting you decamping from the scene.  One image from Boundary Road depicts Jawahiri still carrying the meat cleaver as you walk behind him.

21The victim was bleeding badly from the attack but made his way to his apartment where he collapsed on the living room floor.  Graphic photographs were taken of him in that location as the police and paramedics attended there, as well as his poor state when he was taken by wheelchair to an ambulance.

22Police had arrived at 11.38 pm following upon a Triple O call and saw a pool of blood at the front entrance to 120 Racecourse Road.  Mr God was in shock, bloodied, wearing what appeared to be deep injuries, including a large gash on his back as pictured.

23He was conscious but not in a state to respond to questions.  The deep wound on his back was with muscles and internal organs on view.  A deep cut to the side of his head was noted, and multiple lacerations to both hands, ranging from superficial to almost complete amputation of some fingers.

24These injuries must have occurred as he cowered, covering his head and face, which means Jawahiri was aiming his weapon as you kicked him, and this also confirmed the injuries inflicted on the face and head of the victim.

25A mobile intensive care ambulance was called.  The MICA arrived at 11.56 pm and the victim was taken to the Royal Melbourne Hospital by ambulance.  At 12.06 am he was admitted for treatment in a critical condition, requiring urgent lifesaving intervention.

26He had sustained serious injuries and was admitted to the intensive care unit.  Upon admission to the intensive care unit the following was noted.  He had ongoing bleeding with one and a half litres of blood loss, penetrating chest trauma with punctured lung requiring chest decompression and chest drain insertion, multiple knife wounds to the head, torso and limbs, a head wound on the side of the left temple requiring emergency surgical repair by suturing due to severe bleeding, multiple scalp wounds, cheek wound, a left ear wound requiring plastic reconstructive surgery treatment by cleaning.

27Several slash wounds on the back on the right lower chest with one severe wound having muscle and possibly organs visible.  This required emergency keyhole surgery for assessment and repair.  Several partially amputated fingers and tendon injuries requiring emergency plastic reconstructive surgery with tendon repair and hand splinting.

28The summary said contaminated.  It may mean comminuted, I am not sure, comminuted meaning where the bone has broken in two or more places, but it may have been a contaminated wound on the shin, exposing the bone, which required surgical treatment under general anaesthesia, involving opening of the knee joint, release of the joint capsule, wound debridement and removal of bone fragments from the shin fracture.

29This injury could only have occurred by kicking the leg as it was partially on the concrete edge, or by such force when he was supine.  Multiple fractures were dealt with in this way.  The left cheek bone fracture was managed conservatively.  A fracture of the midline bony prominence of the rear of the skull was managed conservatively.

30Multiple rib fractures, ribs nine to 12, on the right side, were managed conservatively.  Left middle hand bone and finger fractures involving the hand finger joint that required fracture repair by a metal pin insertion, which is a KY fixation.

31Complicated left thumb fracture that required fracture repair by a metal pin insertion, and fracture of the upper shin bone aspect with parts of the bone torn off requiring surgery.  The victim was in the intensive care unit from 26 to 28 October when he was transferred to the trauma service unit and released then on 2 November 2019.

32He required pain killers, antibiotics and anaesthetics and underwent investigative imaging, including CT scans and X-rays, follow up appointments were made for removal of sutures, review of the wounds, review of surgical clinic hand therapy orthopaedic outpatient clinic.

33Royal Melbourne Hospital notes of the victim's post release treatment included plastic wound clinic review, wires removed, plastic wound clinic range of movement of fingers, some near full range, others 50 per cent, removal of scalp staples, removal of staples from the left knee, pain to the left thumb for which he was referred to his GP, scars on the thumb and index finger, and the knee wound with keloid scar forming.

34Victoria Police Major Crime Scene Unit members attended the crime scene and observed the blood trail and took photographs and swabs.  Police obtained the various CCTV footage and identified you and Mr Jawahiri through the link to the Subaru vehicle which you were driving.

35On 31 October 2019 police attended your home address in Clifton Hill and executed a search warrant for the residence and the Subaru Impreza.  The offender was present, you were present, and you were arrested, and police seized a pair of grey Nike tracksuit pants from under your bed matching those shown on the CCTV.

36You were interviewed by police on 31 October.  You made no comment to questions.  You were charged and remanded in custody.  Your co-offender, Mr Jawahiri, was also arrested on 31 October at his home address.  He was interviewed and initially denied any involvement, but later stated, 'He got into a fight with the victim', and admitted he hit the victim twice with a meat cleaver.

37He said, 'I did what I had to do'.  He pleaded guilty in the County Court to one charge of causing serious injury intentionally and on 28 August 2020 was sentenced by His Honour Judge Tinney to imprisonment for eight and a half years with a non-parole period of five and a half years.  DPP v Jawahiri [2020] VCC 1351.

38I note in passing that leave was granted to appeal that sentence by Justice of Appeal Niall on 29 March of this year and as far as I am informed the matter has not come before the court yet.

39Before turning to the victim impact statement, I return to the matters which I mentioned before in the context of the indictment and the Crown opening as to the circumstances.  At the beginning of the plea, I enquired of the plea prosecutor as to the basis of the charge on the indictment.

40The prosecutor's submission on plea read in part in paragraph 9:

'This matter has resolved on the basis that, (a) the offender did not possess a weapon at the time of the offending, (b) the offender, Jawahiri, was armed with a meat cleaver and inflicted injuries to the victim using that weapon and, (c) the offender, that being a reference to you, Mr Eser, was not aware of the meat cleaver prior to the attack but became aware of the meat cleaver when it was produced during the course of the physical assault'.

41At the beginning of the plea, I indicated to the learned prosecutor that based on my view of the evidence this statement was contrary to the evidence.  I added in passing that I thought that the tenor of His Honour Judge Tinney's sentence in Jawahiri's case was also contrary to that statement.

42The rationale for this statement by the prosecution was said to rest on the fact that when the video footage first shows you walking onto the entrance apron to the apartment block where the assault takes place, you appear to be a couple of metres in front of Jawahiri, who is walking behind you.

43According to the prosecution this means it is unable to prove beyond reasonable doubt that you were aware of the presence of the meat cleaver before the assault.  As I indicated to the prosecutor at the plea, this conclusion in my view flies in the face of available evidence in the clear nature of the enterprise which can be gleaned from it.

44I specifically asked whether I was supposed to act on the assumption on p4 of the transcript of the plea that when you position yourself in front of the victim, drag him to the ground, you were still unaware Jawahiri was holding a meat cleaver the answer was yes.

45When the meat cleaver is produced in the physical assault by joining the assault from that point forward you were aware that a meat cleaver is being used and not before then.  This is said to be the foundation for the lesser charge of recklessly cause serious injury.

46I indicated that I thought that position was very problematic.  This concession or agreement completely ignores the evidence leading up to the actual assault and is of significance to the degree of culpability involved in your actions and the role which you played in this assault.

47I queried the prosecutor on the issue of parity.  As to this the prosecutor replied at p31 of the plea, line 9, 'If it was the case that this offender was aware that a weapon was brought into the fight and was to be used, then that would be aggravating and it would increase his role', referring to you, Mr Eser.

48The prosecutor goes on to submit that aggravating feature does not exist in sentencing you.  I disagree with that proposition.  The prosecutor then reiterates the Crown position.  However, then the prosecutor conceded that as to the significant loss of blood and the fractures, 'A substantial cause of the serious injuries that this victim had suffered referred to your actions'.

49I again express doubt as to this proposition, both as to the aggravation of his awareness, and I cannot frankly see how your particular engagement in the attack was the substantial cause as the significant loss of blood when that was primarily caused by the injury caused by the meat cleaver.

50This also runs contrary in my view to the disavowal as to the aggravation I just previously mentioned.  At this point I asked as to what foresight of which serious injury I was to have regard in your case.  The prosecutor at p3 replied that it was foresight, 'Not of a specific injury that was caused, namely knife punctures and wounds to that degree prior to entering into this physical attack, the basis upon which it has resolved is that he wasn't aware that there was a knife, so he had foresight that serious injury may occur, and it did occur'.

51I find that answer unhelpful and again I sought clarification.  The prosecutor at line 16 said, 'The serious injury may occur in the course of a physical attack by three men against an unarmed victim alone.  It is clear that there is an agreement to pursue and attack the victim in a group and to cause injury to him, and he was complicit and actively involved in that agreement.  Once the meat cleaver is produced there is no withdrawal from any agreement to physically attack the victim.  He continues to be engaged in that physical attack.'

52So, this was how the prosecution it appears was now putting its case, that you had not withdrawn once you were aware of the meat cleaver.  I found all this very unhelpful.  It was further confused by the defence position.

53At paragraph 9 of the defence submissions, point 3, it is said, 'It is accepted by the prosecution that Eser was not armed and was not aware of his stepbrother being armed until the weapon was produced'.  Mr Polak for the defence said at p16, line 25, 'I think it is produced at the time of the altercation'.

54When I pointed out that it had been, 'Produced before the altercation on the evidence and therefore the defence proposition seemed to be that you were aware of the meat cleaver at that point', Mr Polak in response said that this was, 'Quite a complicated sentencing exercise'.

55The submissions from both sides appear to me to fairly require an opportunity for a re-examination and I asked for all video evidence available to be forwarded to the court, and I again convened the court with the parties in order to give them a fair opportunity to deal with the matters I had raised. (See Footnote 1)

56At that hearing the position of both prosecution and defence remained the same, maintaining their relative position.  In this context see R v Van Nguyen & R v Ho [2019] VSCA 134 in relation to non-acceptance of Crown concessions by the court. (See Footnote 2)

57Having viewed the CCTV footage available innumerable times in my view it is plain that you and the other two co-offenders planned to assault the victim and enacted that plan soon after he came across you at the 7-Eleven store.  You drove up to anticipate his arrival at the Racecourse Road apartments.

58By the time you entered that property Mr Jawahiri was already carrying the meat cleaver, a large shiny weapon.  You loitered around the entrance driveway as a group and plainly spoke and formulated a plan of action.  I have no doubt you were aware of the weapon before the actual assault took place.

59Your actions in halting the progress of the victim into the premises was purposeful and was your action to drag him down to the ground effectively at the feet of Mr Jawahiri, who had the weapon, whereupon he started slashing and stabbing the victim as you kicked him repeatedly and punched him.

60The proposition that you became aware of the weapon as it was produced in the attack is not tenable in my view.  The proposition that your liability by way of your foresight, coupled with your action, is triggered by a failure to withdraw at that point, is also untenable.

61This is a situation in which you faced and have pleaded to a charge of recklessly cause injury because you were not the one wielding the meat cleaver.  It strikes me as it did Justice of Appeal Coghlan in R v Tran [2009] VSCA 252 at paragraph 16 to 19 that this was a merciful disposition in that you were allowed to plead guilty to this offence rather than intentionally cause serious injury.

62The injuries were life threatening and very serious.  The attack could easily have been fatal.  The offending was pointless and remains unexplained in any satisfactory way at all.  However, I must sentence you for the charge to which you have pleaded and not on any other, and in doing so be mindful of many factors, including the issue of parity with your co-offender.

63The offence of recklessly causing serious injury is only committed if the offender foresees the probability that his actions will cause serious injury to the victim and goes ahead regardless of that probability.  This is not mere carelessness, rather a conscious disregard of a risk of serious injury which the offender knows to exist.

64It is my view that you possessed the foresight required because you and your co-offenders were acting together pursuant to a joint plan in which you were aware fully that a weapon was to be used.  The assessment of the seriousness of a particular instance of recklessly cause serious injury involves considering both the degree of probability that serious injury will result, and the degree of seriousness of the probable injury.

65The use of the weapon and the other offensive actions to be used upon the victim makes this a serious offence.  This heightened the probability of serious injury and the degree of seriousness of the probable injury.

66Your awareness of the weapon is an aggravating feature in your role.  The offence was not a spur of the moment reaction under agitation or in the heat of an argument, it was not constituted by a single blow.  The victim was corralled as he entered the place where he lived, lured into conversation, attacked by surprise by a group of men, was unprovoked and cowardly.

67This is a particularly bad example of recklessly cause injury in the upper reaches of example of serious lawless, ungoverned violent behaviour.  The parity issue is of course primarily condition by the different charge which presents before the court, a resolution, and the difference in maximum penalties.

68I base my considerations as to this issue primarily on the facts that although there is some clear correlation and connectedness between you and
Mr Jawahiri, you did not yourself wield the weapon.

69Accessorial liability deals with criminal responsibility as to the actions of each other in these circumstances.  However, I am still entitled to give this fact some consideration and application.  Then personal circumstances must also play a very important role so that my sentence will reflect these aspects rather than Mr Jawahiri's sentence impacting on your sentence.  There will inevitably be disparity as a result which is reasonable and reasoned.

70The victim in this case prepared a victim impact statement which was unsigned, but which was tendered without objection.  It appeared that Mr God on the morning in which he was supposed to sign was unwell as a result of the injuries from the assault and had to be hospitalised.

71His brief victim impact statement notes that he was then in hospital and there was no access to him for an extended period with a deterioration in his mental state.  It is abundantly clear this vicious assault had very serious consequences, both physical and psychological, and the offenders, including you, Mr Eser, are responsible for both of those consequences.

72He describes his depression, anxiety and difficulties sleeping, his nightmares in which he relives the events, his life was significantly changed, the impact has been considerable, and I take that impact into account.

73I take your personal circumstances into account.  You are 20 years of age,
21 on 14 September next.  You were born in Melbourne.  You have a 24-year-old sister and a 16-year-old brother.  Your parents separated when you were 11 and your father has lived in supported accommodation due to his mental health issues.

74Your mother repartnered.  Her new partner is the father of your co-offender, Mr Jawahiri, who is 23 years old.  You and your younger brother were placed in care when you were aged 14 to 17 years old.  However, when this offence took place you were living at home with your family.

75Your school education finished at Year 7, though you later attended the Pavilion School in Preston.  At age 14 an intellectual disability was diagnosed as ADHD with Ritalin being prescribed to you.  You have for a man of your age already accumulated a significant criminal history which starts when you were 14 in the Children's Court primarily, and then aged 19 in the Magistrates' Court.

76You graduated from thefts aged 14 to further thefts and a weapons offence at 15, proceeds of crime and bail offences at 16.  In October 2016 you were placed on probation and a counselling order for a number of offences which included an affray, resist emergency worker, robbery, assault and recklessly cause injury.

77Age 17 you faced the court a number of times for dishonesty offences and placed on a youth supervision order.  Then there were appearances for aggravated burglary with an offensive weapon, robbery, theft, theft of motor vehicle, and breach of a youth supervision order by way of the robbery.

78You were sentenced to 12 months youth justice centre order for carjacking, aggravated burglary with an offensive weapon and another month for assault.  Aged 18 you received a further six months youth training centre order for affray, intentionally cause injury and dishonesty offences.

79Also, in 2018 you again were placed in detention under a youth justice centre order for unlawful assault by kicking, affray and three separate other appearances.  In 2019 in June a magistrate placed you on an 18-month community corrections order for aggravated burglary person present, bail and dishonesty offences.

80You were on this community correction order at the time of this offence in October, but in early September just preceding this offending you appeared in the Magistrates' Court at Melbourne and you were placed on another community correction order for 12 months for burglary and theft and recklessly causing injury and assault.

81That order was to cumulate upon the June 2019 order, in other words at the time of this offence you were the subject of two community correction orders.  This is an aggravating fact to your offending.

82I note all of these priors not because you are to be punished again for them, but because they are most relevant to any assessment of your prospects of rehabilitation, and as to the application of specific deterrence in your case.

83In relation to these community correction orders yesterday the defence provided a contravention report dated 13 February 2020 prepared by Anika Restak, the case manager at the Reservoir Community Correctional Services.  It primarily related to the June order of 2019 which then ran cumulatively onto the one ordered in September 2019.

84The report notes that you were assessed as being a high risk of reoffending with his criminogenic needs.  However, your compliance quickly declined, failing to attend supervision appointments despite multiple attempts by the service to engage you.

85You failed to attend the Australian Community Support Organisation assessment in August.  You continued to use methylamphetamines.  You failed to complete a mental health plan.  You were put on a justice plan but totally disengaged from the coordinator and from the City Mission which had organised a plumbing certificate course for you, amongst other things.

86The report recommended that the order be cancelled, and you be resentenced.  Your counsel during the plea sought to argue that another community correction order with a justice plan was a suitable disposition in this case.  I agree with the prosecution that a community correction order does not neither properly address the level of criminality involved here, nor does it adequately respond to the requirement of sentencing principles and objects to be considered.

87Mr Polak relied upon some reports in his plea on your behalf.  The first was dated February 2015 upon your entry into the secure welfare service and was prepared by a clinical worker, Dr Tiffany Lewis, a psychologist from Take Two, an agency of Berry Street Services.

88It is a report which addresses your situation aged 14 and an interim accommodation order.  The report gives as reasons for referral as physical abuse, witnessing family violence and parental mental illness.  You had been absconding and engaging in extreme risk-taking behaviour, using illicit substances.

89The report summarised your family background and noted incidents of conflict in the home.  The file was cleared in 2014 as there was not a significant risk of harm, but in January 2015 you were placed in out of home care in a Berry Street residential care unit.

90There you displayed aggressive behaviour and creating weapons while in the unit.  Your accommodation order was extended to a secure welfare order.  At interview you reported having asked your brother to beat up a young kid for you, that you tried almost every drug available but were not addicted.  You then discontinued the testing, and you became dysregulated and listed several ways you could hurt Ms Lewis in some detail.

91You had little insight into your behaviour, you blamed others for your conduct.  Cognitive tests were administered and reported cognitive functioning as measured in the extremely low range, although the writer expressed caution and reservation in the context of a single session assessment.

92It was at least clear that you were seeking attachment relationships with inappropriate peers.  The report made a number of recommendations.  A second report was from June 2015 by the disability intake worker, Simone Fillies, who relied also on four reports, including that of Dr Lewis, two from Child Protection of February and March 2015, as well as a teacher's report from St Joseph's Flexible Learning College of June 2015.

93This brief report notes a diagnosis of intellectual disability and echoes much of the Lewis report.  Your school attendance had become sporadic following absconding from residential placement.

94The writer concluded you met the criteria stipulated in the Disability Act 2006 and declared within the target group under that Act.  A statement of intellectual disability was issued in June 2016 by reference to sub-average general intellectual functioning and significant deficits in adaptive behaviour each manifest before the age of 18.

95Two other reports from Disability Justice both of 2019 concluded the material before the court, both dated 2 May 2019.  These reports were for purposes of the Magistrates' Court at Heidelberg in June 2019 which imposed a community correction order with a justice plan with specific programs.

96These reports essentially repeat much of the material mentioned above and notes your intention to move back home once you turn 19.  Within a few months of the magistrate disposition, you were before the court again on serious violent offences, including assault and recklessly cause injury.

97Within a month from that sentence, you committed these offences.  Mr Polak highlighted that the reports surmised that you can be easily led by others.  He submitted that your history and background meant that it should decrease your culpability, and that a community correction order was an appropriate vehicle.

98Later in the plea he took up an argument which appeared to propose a youth justice centre order, 'In the light of your youth, your vulnerabilities, limited role, and reduced liability due to your conditions'.  He has admitted there was a high degree of remorse by offering to plead and accepting the unsigned victim impact statement.

99He also emphasised in the plea and the current impact of the pandemic.  There was no specific cogent argument directed to any limbs of Verdins in the defence submissions, but I took the material to be presented in order to argue that your moral culpability should be reduced.

100Although the cognitive disabilities generally described in these reports must be taken into account as part of your personal circumstances and some intellectual disabilities clearly can enliven Verdins principles, in my view they do not amount to matters which bring into engagement the Verdins principles per se in this case.

101Your moral culpability in my view is high.  Your cognitive dysfunction plays a small function in this offending either causatively or more generally.  Some realistic connection between your disability and the offending is required in order to eliminate or moderate general and specific deterrence, the impairment must have contributed to or be connected to or explain the offending.

102None of these matters in my view were raised cogently in submissions.  I do not accept that your role was limited.  Your role was substantial.  I do take into account your plea.  It was made relatively early and prior to being committed for trial.  The plea has a significant utilitarian benefit of having avoided a criminal trial and in the circumstances in which the pandemic has so significantly impacted on the ability of the criminal justice system to deliver outcomes during this time and has impacted the nature and severity of reclusion upon prisoners, its value is important.

103Your plea will mean that your sentence will be reduced.  I also take into account that incarceration at this time causes a greater burden upon prisoners due to the restrictions and constraints that exists in relation to movement within the prison, the delivery of services, the delivery of programs, the curtailing of in person visits, and the prospects of extended quarantines and lockdowns.

104I take these matters into account.  Your guilty plea is some evidence of remorse; however, this is an aspect which is difficult to assess and often it is fully formed presence is only developing in truth.  The plea is one indication as to the acceptance of the victim impact statements, but beyond this I am not persuaded that you are as was put remorseful to a high degree.

105The prosecution submitted that it did not concede a high degree of remorse and I agree with this proposition, particularly in view of the lack of any explanation.  Some vague speculative argument was raised and quickly disavowed during the plea.

106The most significant issue relates to your youth.  This was argued only obliquely by counsel but remains the most significant mitigating matter to consider, this tied to all the other important sentencing principles to be applied.

107The prosecutor submitted your youth should be afforded reduced weight in the light of the seriousness of the offence and your prior convictions.  Further, it was submitted the circumstances of relative disadvantage in your formative years while remaining relevant, decrease in significance in cases involving serious violent offending by repeat offenders where specific deterrence and community protection loom large.

108Clearly your youth remains relevant as a consideration.  In my view its significance is reduced by the nature of the offence and by your criminal history.  I accept your disability may have reduced an ability to exercise appropriate judgment and to make calm and rational choices.

109Youth and immaturity add another layer to that reduced ability.  These aspects reduce your moral culpability, but it does not in this case do so to a significant degree.  You have little or no insight and your prospects for your rehabilitation are not good and will require significant changes in your attitude and personality.

110These same factors of course reveal a danger to society and therefore maintains the need for specific deterrence.  However, I am not to be understood to be of the view that this makes you beyond reclamation and correction.

111To consider incorrigibility in the youthful offender except in very rare circumstances is contrary to the policy of the criminal law generally and to common sense.  General deterrence is primary in this sentence.  Unprovoked attacks in company at night with the use of a large knife must be denounced on behalf of the community who is left disturbed and fearful by such behaviour.

112The community looks to the court for protection and to discourage those who would commit similar offences by just punishment.  This has been your first adult incarceration on remand and will continue.  I have no material before me about your time in reclusion, but I accept that a sentence may weigh heavily on you with risks that your mental state may deteriorate, and you will be vulnerable to manipulation.

113I take this effect into account.  Balancing these considerations make sentencing exercise difficult when youth, immaturity, and cognitive vulnerabilities must to some significant degree be subordinated to other sentencing considerations, but they do in this case take priority.

114In sentencing you I have given as must appear plain anxious consideration to the issue of parity.  Parity takes into account the role you played in the offending and your personal circumstances.  Here the different charge pleaded to is also of significance.

115Each of these factors lead me to differentiate in an appropriately qualitative way.  It is a discretionary comparative judgment that is not mechanical in the sense that each of these factors have a fixed weight.  Rarely will two offenders stand in exactly the same position when they fall to be sentenced.

116Here Mr Jawahiri was older than you.  He has no prior convictions at the time of his sentence, he wielded the weapon and pleaded to intentionally cause serious injury.  You were younger but have a significant prior criminal record and have pleaded to recklessly cause serious injury, but in some cases these two types of offences will not warrant a significant or meaningful differentiation.

117Given that my finding that you were aware of the weapon and its use as part of the plan, you foresaw the probability of the degree of serious injury suffered by the victim, and you acted with recklessness as to that consequence.

118I have reviewed many cases which deal with recklessly cause serious injury in order to obtain some guide, but comparable cases are of only some assistance and of course current sentencing practice is only one matter to consider even if it could be established.

119However, I have reviewed each of the cases that were mentioned during the plea and beyond, as well as others to do with parity, such as R v Nipoe [2020] VSCA 137, R v Roe [2021] VSCA 54, R v Salazar [2021] VSCA 125,
R v Sharp [2018] VSCA 327, R v Ashe [2010] VSCA 119, R v West &
R v Beyer [2014] VSCA 36, R v Tran [2009] VSCA 252, DPP v Terrick, Marks & Stewart [2009] VSCA 220, R v Sergeant & Garratt [2020] VSCA 45,
R v Begg, Hobby & Claridge [2020] VSCA 183, R v Atem [2020] VSCA 35, DPP v McKay [2018] VSCA 292 and R v Al Wahame [2018] VSCA 4.

120I do not agree with the contention by the defence that anything other than a sentence of imprisonment is required.  On the recklessly cause serious injury you are convicted and sentenced to seven years' imprisonment.  I order that you be eligible for parole after five years.

121I declare that you have served 649 days by way of presentence detention and will have that number noted in the records of the court.  I have signed disposal orders for the items in the schedule.  But for your plea I would have sentenced you to eight years with five years and eight months as a non-parole period.

122Madam Prosecutor, are there any other ancillary orders?

123MS FARGHER:  No, Your Honour.

124HIS HONOUR:  Is the effect of the sentence clear, Mr Polak?

125MR POLAK:  Yes, Your Honour.

126HIS HONOUR:  Do you wish time to speak to Mr Eser while you have got him here?

127MR POLAK:  That would be good, Your Honour.

128HIS HONOUR:  That is fine.  I will just have Ms Fargher and myself taken out of the conversation so you can speak to him privately.

129MR POLAK:  Thank you, Your Honour.

130HIS HONOUR:  Yes, thank you.

1. See R v Peter Lowe [2009] VSCA 268;

2.See Malvaso v R [1089]HCA 58;(1989)168 CLR 227,233; Chow v DPP (1992) 28 NSWLR 593; R v Mielicki (1994) 72 A Crim R 72; R v Alexandridis [2008] VSCA 126;

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