Director of Public Prosecutions v Euese

[2021] VCC 811

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MILDURA

CRIMINAL JURISDICTION

CR 20-01084

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW EUESE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Mildura
DATE OF HEARING:	28 May 2021
DATE OF SENTENCE:	17 June 2021
CASE MAY BE CITED AS:	DPP v Euese
MEDIUM NEUTRAL CITATION:	[2021] VCC 811

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutiions
For the Accused	Mr P. Bloemen	Leanne Warren & Associates

HIS HONOUR:

1Matthew Euese, you have pleaded guilty to one charge of causing injury intentionally, that crime carries a maximum penalty of 10 years' imprisonment.  You are 24 years of age and were 23 years of age at the time of the offending.  You have now been in custody for some 566 days.

2I accept that your guilty plea was made at an early time and you ultimately pleaded to a settled indictment.  At the time that you were arrested you made full admissions, you expressed remorse to the police, and I am prepared to accept that you have subsequently expressed appropriate remorse both to members of your family, counsellors and your counsel. 

3You must also get the utilitarian benefit of that plea of guilty, it has saved everybody from the unpleasantness of a trial, and whilst the victim in this matter may not have been able to give evidence in any event, at least made an end of it for him in so far as the court proceedings are concerned.  At least it is clearly not the end of it for him, in so far as the damage that you did to him is concerned.

4A summary of the matter will follow in a moment, but it is important in your situation to look at the history of what it came from.  You as I say are now 24 years of age, you have a violence prior from the Children's Court and Magistrates' Court appearances, including one for violence. 

5And then in December 2019 you were sentenced by Her Honour Judge Wilmoth in respect of four armed robberies, three unlawful assaults, and are summary matters, and an assault on an emergency worker for which you received three months, and a recklessly cause injury for which you received six months, each of those assault charges carried a month - that offending all occurred within the space of around about a month back in late 2017.

6She, when taking all that into account, and factored in you had done well on bail over an extended period of time, was prepared to release you after nine months of imprisonment on a five year community corrections order.  That is a long community corrections order.

7In any event, the offending that I am about to describe happened within three or four months of your release from prison.  I understand that you had been attending on the community corrections order, I will take that into account, but the fact of the matter is that it seems pretty clear that the nine months previously did not teach you a lot.

8A summary of the offending is that the victim in this matter was 28 years of age and you were unknown to each other.  The victim and a friend had been in the city celebrating and they were then going to go elsewhere.  It was three o'clock in the morning.  They engaged a taxi underneath the King Street bridge, and requested to be taken to a nightclub in City Road.  The driver apparently refused to take them without them paying upfront.  Mr Ali, the victim, stood in front of the taxi and called police, to report the taxi driver who he believed was doing the wrong thing.  Mr Ali does not know what happened next.

9Mr Koko his friend observed that the taxi driver was prevented from driving forward because Mr Ali was in the way.  Traffic was starting to build up behind the taxi, and he then saw a male which was you, walk up towards Mr Ali on the road.  He heard a punch and saw Mr Ali fall to the ground, he hit the road hard.  That incident was captured by both mobile phone footage and close circuit television, I watched I believe the mobile phone footage at a previous hearing, and the attack was very quick. 

10It was clear from that that Mr Ali was able to offer no defence whatsoever, he never saw the punches coming.  You hit him twice to the face and it is clearly displayed on the video, he went straight to the ground, hit his head on the concrete and suffered severe injuries I think it is fair to say, overall in consequence of that action.

11You had from a direction of at least two or three cars behind the taxi jogged and then walked straight up to Mr Ali, upon reaching him you appear to engage him for a very short time, someone says it was seconds. That is probably about right.  He was still on the phone and it is at that point in time you throw two punches in quick succession which both connect.  As I said the footage then shows him forcefully going to the ground.

12About five seconds after he hit the ground, you bend down, pick him up with two hands, seemingly by his clothes, you walked to the side of the road and just dropped him on the road behind a parked car, next to a gutter.

13You made, made a full confession in your record of interview, you admitted to police he was totally unconscious and you just picked him up and I think the word, 'Threw', was a word that you used, threw him off the road.

14You then went and apparently got into a white Holden sedan, and there seems to be some suggestion of another car,  I do not understand what that is about, and that car then drove off.  You told police that afterwards you just simply went home. 

15The situation is that the attack was a total surprise to Mr Ali, he did not attempt, or even as I said even had an opportunity to defend himself.  You acknowledged in your police interview that he would not have expected the attack in any way, shape, or form and these are the consequences.

16He was awake a few days later, or the next day he believes, in the Alfred Hospital, he describes being in terrible pain.  His face was burning and swollen, he could barely move his jaw, he was scared, he could not walk around, and he could barely eat and could not shower.  He spent his time in hospital in pain, he was there for about 11 days.  Between the - that is from up until 19 November, the incident having happened on the morning of 11 November. 

17Between 19 and 22 November he was admitted for rehabilitation in the care of Dr Ngu, Dr Ngu notes that he was initially in post-traumatic amnesia and was feeling more fatigued than usual, having reduced cognitive endurance.  On a subsequent admission to the Caulfield Hospital, the post-traumatic amnesia had resolved.

18A medical practitioner Mr Schreiber was the forensic physician with VI, then said that his injuries including bleeding of the brain, that is a subarachnoid haemorrhage, loss of consciousness, laceration to the back of the head requiring sutures and post-traumatic amnesia.  He said also there is a risk of seizures and ongoing cognitive and psychological problems.

19He described in December of that year that he had impaired memory since the incident.  He reported he had impaired memory since the incident, he was referred for occupational therapy, he developed ongoing cognitive difficulties, and the therapist said that he had - or has, as I understand it, nothing has changed, a moderate impairment with auditory memory, maths skills and problem solving, and severe impairment with visual memory and complex problem solving.  It is of significant change for a person of his age, who previously had been high functioning, working and driving.  It is also clear that he now suffers from significant fatigue which has come as a direct result of the assault which occurred on that day.

20I am told during the course of the plea that the victim has been spoken to and says that the matters described in the victim impact statement that I will refer to in a moment, are still a problem that he lives with.  I daresay, everybody hopes it will be to otherwise, but he may well have to live with a number of those problems for an extended period of time.

21I am not going to go through your record of interview, as I have said you made full admissions and agreed that the man was not expecting the attack at all.  You basically just said that you were annoyed.

22The victim impact statement was read out in court by Mr O'Doherty for the Crown, and I do not think I have to go through that or read it completely, but I will just quote from a couple of parts of it.  He said,

'Mostly I haven't been like I used to be, I feel scared to do things I used to do, whatever I used to enjoy I don't do it anymore.  It's scary, I don't feel at home in Australia anymore, either, I'm alone here, I don't have family here.  I'm fully lost, I am not quite sure what to do or what I feel, I can't describe my feelings right now, I am feeling really low most of the time.'

23He said he had trouble sleeping, he has not been able to work ever since the accident because of the injuries he sustained.  It cost him his job, he has not been able to take up other work, because of the loss of the job, loans and financial responsibilities he was unable to meet, and I am not aware as to how that will (indistinct) in the end of being dealt with, and unable to pay back debts.  Adding to stress and anxiety he was already feeling, and he said he was feeling hopeless, he lost his work, he lost his clearance to drive and he said he felt his lost his independence.  He says he sometimes feels dizzy and he is always tired.

24Other than that it is contained within there, clearly the medical opinion is that he suffered significant cognitive problems as a result of all this, and also one can only hope that that someday, with occupational therapy and the like, some improvement can be made, but it seems pretty clear that a concerted effort has been made to assist Mr Ali, but not to as yet great effect. 

25The nature of the assault itself is cowardly, I accept that there were two punches thrown, there were no weapons involved and it was very quick.  On the other hand you are a young man, you hit him very hard and he suffered great consequences from it.  Whilst it does not make the crime any worse, it occurs in a situation where you had only been out of custody for three months for pretty much the same thing.

26In so far as injuries are concerned, it is my view that they are at the high end of injury as such, I would have thought they would amount to serious injury if it had gone before a jury, but the question here was whether you intended to cause serious injury, and I do not believe you did and I certainly do not sentence on that basis.

27So it is a situation of a cowardly attack resulting in my view, a high end injury.  All those things have to be balanced out in terms of the objective seriousness of the crime that happened.  Also it happened in public, there are all sorts of other aspects that we looked at but as I say I think we need to - high range injury as a crime and I sentence on that basis.

28I then look to matters personal to you, and I was given a report from
Dr Pamela Matthews who is well-known to me.  There were also a significant number of references that were tendered as well as some, I might say so, very helpful submissions from your counsel. 

29The situation is that you are a young man of Samoan descent, you came here from New Zealand and you clearly have a good work ethic, you endeavoured to work over the years, you have a religious faith which you endeavour to adhere to and as described by a number of the people, you have expressed appropriate remorse not only in that sense but also in the sense of your faith.

30You commenced working as a machine operator, full-time as casual, after you were released from prison.  I am not going to go through those priors again I think they were adequately described, and they were basically king-hits in public situations.  While you were on the CCO you were doing some work, you had not commenced community work because you had a long time to complete it and you had not started any programs, but other than that you had been doing all right.  You had been attending Headspace for treatment.

31On the evening of the offending, it was pointed out to me, that you were at a birthday party of a good friend when the incident occurred, and you were clearly intoxicated.  You were not so intoxicated that you did not have a very clear memory of what had occurred, when the police interviewed you some days later though I note.  You apparently asked the police when you were speaking to them how bad the man's injuries were, and again that goes to the fact that you are aware certainly of what you had done.

32The prior history that you had is outlined in your barrister's submissions, I do not regard them as minor, you have been gaoled before for recklessly cause injury, you have been gaoled for unlawful assaults, you had been gaoled for four armed robberies and you are not in gaol for assaulting an emergency worker.  Whilst those sentences were all effectively served concurrently, they were separate incidents and separate examples of assault, and assaults by you punching people to the head in circumstances of very little provocation, if any.

33You stand to be re-sentenced upon the community corrections order
Her Honour Judge Wilmoth gave you, which is a five year order.  You received nine months, so what she is going to do on a breach for that offending, I do not know, but as I indicated to counsel during the course of the plea, totality is going to be a matter for her, not for me.

34You also have priors for dangerous driving and the like, controlled weapon, a Children's Court matter of affray, we do not really need to go through that.  You came to Australia in 2006 when you were ten years of age, your family came for better opportunities.  Your father is a truck driver and is still working, your mother works in a warehouse job, they have a house at Noble Park, and are obviously an honest and hardworking family.  In that situation your father apparently only consumed alcohol on weekends, but he had outstanding anger issues.  You were exposed to family violence and I am sure that had a very deleterious effect on you.  Whether it gives rise the principles in Bugmy is another matter, but certainly in your situation I can understand it would have made it difficult for you making judgments in emotional situations.

35You have four siblings, and one is a brother who is working, and you also have siblings in Year 12, Year 10 and Grade 6.  Apparently according to the materials, you were an under average achiever at school, you were a slow reader, you were able to do Year 12, and VCAL in Noble Park, and tried to then do a certificate in youth work, but were not ready or not mature enough.

36When you were aged 20 you moved to study Bible studies in Griffith, and Pentecostal denomination, and you did not complete that.  It was at that point at time that a girlfriend apparently followed you up there, about six months later, followed you up there.  I would worry about it in this situation if there was, had been difficulties with drug use.  I think your real problem is alcohol as far as this sort of thing is concerned.

37You then worked as a machine operator with glass, you were there for two years, working in an aluminium factory and in 2018 you worked as a glazier.

38You had been in a relationship with a girl known Teresa and you separated in November 2022.  She was your co-accused in the four armed robberies that you were convicted of, and she is also the mother of your two children.  You have been together since 2017 and you had met at school.  She is currently living with her family and the children, and since you have been remanded - and I will come to this when I refer to COVID in a minute, you have only seen your boys approximately three times.

39I accept that in your situation the sentence has been undergone in COVID circumstances, particularly for an islander such as yourself, from Samoa, I am sure that the inability to have family visits, the inability to have physical contact at all with your family, with your children, has been very very difficult for you indeed.

40In so far as your athletic abilities are concerned, you I am told represented Victoria as a junior rugby player, until around about the age of 18.  I am not too sure whether you have played since, the reference does certainly indicate you were a talented rugby league player.

41You were introduced to amphetamine when you were about 19 and it was during that period that you were using amphetamine and were homeless that the armed robberies occurred and as I understand it you have not used drugs since being remanded on these matters.  There does not seem to be a suggestion that you need treatment in that regard.  You have been a casual drinker of alcohol but when you do drink substantially it seems to me pretty clear that this is a risk that has been taken.

42Your counsel says prior history is not one of alcohol, there were issues, but certainly this is and certainly one of the prior matters is where you essentially belt, king-hit a barman.  At one stage in Wagga you were admitted to a psychiatric ward after a fight with Teresa but again there seems to be no real matter arising from that.

43You have had suicidal ideation, which is not uncommon in such a situation, you have seen Headspace for anger management.  Your cognitive abilities all in the low average range of intellectual disability and you could get further problems in the future, and again I am very much summarising what was said by Pamela Matthews.

44You do act out with recklessness and impulsiveness, and do I think need assistance in so far as all that is concerned.   Again, you have come from a difficult background where you viewed domestic violence, I have read a report from Mr Bollard which I found very helpful.  He said overall, as a young man, certainly when sober, that you are polite and respectful, in the sense of the justice, that you are helpful to other people, that you are loyal to your friends and family, that you protected of those you love and that you have a heightened sense of responsibility.

45He has the view that you have received very little support for yourself in your struggles after having a very troubled background.  He points out that within your family situation you became the protector and on occasion the parent to the younger members of the family, and when those circumstances are thrust upon young men, they can often in my experience cause real difficulties.

46You had at one stage been sleeping in your brother's car because things had got so bad at home. One of your main concerns is for the welfare of your siblings and there is, from what I can see from the material without going into too much detail, you received very little support yourself.  They are all things that are regrettable, and I have taken into account on your behalf in terms of the difficulties that you have. 

47He says that since your young son was born you have made efforts to provide a better life, it has been unsuccessful.  You have expressed to Mr Bollard your deep remorse and your intention to endeavour to look after your young family, when you do get out and that you want to be a better role model.  They are good ideals or aspirations to have but unfortunately it is going to be a significant period of time before you are able to do that.

48You have been in Marngoneet mainly, you have been doing as much as you can within gaol, you have done drug and alcohol programs and a parenting program, and for someone who has been on remand you have done as much as you could.

49In so far as deportation is concerned, because the sentence will be significantly well over 12 months, you will be - a deportation order will be made, it will then be a matter of administrative discretion to whether that is revoked or not, but I do take into account that you will undergo the sentence on the understanding that you will be, or with the belief that you will be deported and what becomes then of your then partner and your children will be a significant factor weighing upon you.  I do sentence on that basis.

50The prospects of your rehabilitation I think have to be described as guarded, whilst you seem to be able to behave yourself the majority of the time, situations arise where you hurt people and community protection becomes a significant factor in this sentencing process.  Obviously the offending is serious and it calls for general and specific deterrence, as well as denunciation and punishment and the denunciation of this conduct and the public protection from people who are prepared to engage it, have to play a significant part.

51As I have already indicated, you are still young and it is a very sad state of affairs for one so young, to be in your situation, but there you are.  Rehabilitation is as I say guarded, the risk of reoffending would probably be low if you do not drink, but again that is all going to be a matter for you and a matter for the authorities if and when they determine that you are in a position where you can be released.

52So taking all those matters into account, I can only sentence you as follows I think, or sentence you as a matter of law and not as a matter of emotion. On the charge of intentionally causing injury, you are sentenced to be imprisoned for a period of four years and two months. I direct that you serve a minimum term of two and a half years before becoming eligible for parole. I direct that 566 days be reckoned as having been served under this sentence. Pursuant to sAAA of the Sentencing Act, I say but for your plea of guilty, you would have been sentenced to be imprisoned for a period of six and a half years with a minimum term of four and a half years.

53This is not a formal direction, but as I indicated to your counsel during the course of the plea, had you been convicted of intentionally causing serious injury in these circumstances, the sentence would have been much closer to double figures.  I think that is all I need to say.   Are there any other orders I have to make gentlemen?

54COUNSEL:  No.

55HIS HONOUR:  All right, thanks for that.

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