Director of Public Prosecutions v Fakalata

[2022] VCC 1018

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-00099

DIRECTOR OF PUBLIC PROSECUTIONS

v

DIEGO FAKALATA

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May and 30 June 2022
DATE OF SENTENCE:	30 June 2022
CASE MAY BE CITED AS:	DPP v Fakalata
MEDIUM NEUTRAL CITATION:	[2022] VCC 1018

REASONS FOR SENTENCE

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Subject:Plea – sentencing

Catchwords:          Cause serious injury intentionally - commit indictable offence whilst on bail - contravene conduct condition of bail - fail to comply with direction of authorised officer

Legislation Cited:  Sentencing Act 1991

Cases Cited:

Sentence:3 years and 9 months' imprisonment, 2 years and 3 months non-parole

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Teo	Office of Public Prosecutions
For the Accused	Ms J. Swiney	Chris Mclennan & Co.

HIS HONOUR:

1Diego Fakalata, you pleaded guilty to an offence of causing serious injury intentionally and to three related summary offences: committing an indictable offence whilst on bail (Summary Charge 3); contravening a conduct condition of bail (Summary Charge 4); and failing to comply with direction of an authorised officer under the Public Health and Wellbeing Act 2008 (Summary Charge 5).

2The offence of intentionally causing serious injury carries a maximum sentence of imprisonment for 20 years; the offence of committing an indictable offence whilst on bail has a maximum term of three months' imprisonment and/or 30 penalty units; for contravening a conduct condition of bail, the maximum term of imprisonment is three months' imprisonment and/or a fine of 30 penalty units; and for failing to comply with a direction of an authorised officer, the maximum penalty is a fine of 120 penalty units.

3The offence of intentionally causing serious injury is a Category 2 offence under s52H of the Sentencing Act 1991 and requires the court to impose a custodial order unless circumstances exist which enable the court to take a different course. It is not being suggested that any of those provisions apply.

4You have admitted a number of prior convictions set out in your criminal history.  The criminal history includes a number of offences involving violence and a number of offences involving dishonesty.  All of those set out on your criminal history are matters that were dealt with by the Children's Court.

5The case against you is set out in the Summary of Prosecution Opening dated 30 April 2022, which is Exhibit A on the plea.  I am not going to read it again.  The events occurred on 21 April 2021 when at about 5.30 pm the victim of your offence of causing serious injury intentionally, aged 15, and his cousin, aged 13, were at the McDonald's restaurant in Riverdale Village Tarneit.  They were sitting in the dining area and waiting for a coffee.

6At about 11 minutes past 6 pm you arrived in a Holden Commodore vehicle driven by an associate.  In the same vehicle were four other of your associates, one of whom you were prohibited from associating with under the conditions of your bail.  That conduct is the subject of related Summary Charge 4, to which you have pleaded guilty.

7One of your colleagues from the car apparently knew and approached the victim and his cousin.  He spoke to them briefly and told them: “if anything happens I have got your back”.  He also told them not to do anything.  Shortly afterwards you and one of your colleagues walked into the restaurant and, despite one or more of your colleagues endeavouring to hold you back, you and your co-offender approached the victim and his young cousin and removed meat cleavers from the front of your pants.  The two of you then set about attacking your victim and his young cousin with the meat cleavers.

8The victim lay over the top of his cousin whilst one of your other colleagues sought to protect the two of them.  Those actions did not prevent you from swinging the meat cleaver you were holding above your head, and your colleague doing the same thing.  You both struck your victim a number of times with the meat cleavers.

9Your assault was captured on the CCTV footage and that was played at the plea hearing.  It was a truly horrifying spectacle.  Your offending conduct was a savage, ruthless and cowardly attack on totally defenceless young people.  It was terrifying to your victim and his younger cousin and utterly horrifying for innocent customers and staff who witnessed the attack.  The long term consequences for your victim, both physically and mentally, are incalculable.

10Once you had ceased your attack you left the vicinity in the same vehicle.  Your victim was transported to the Royal Children's Hospital by ambulance and underwent plastic surgery for his injuries.  The medical report from a doctor at the hospital described the injuries as a large incised wound over the left scapula with bone visible and supra scapular muscles elevated; next, a significant incised wound over the left forearm with weakness to the hand/finger, and thirdly, small puncture wounds to the right forearm palmar surface.

11Later your victim was assisted by an occupational therapist, who assessed him as having a weakness in the forearm, wrist and fingers.  Another doctor was of the opinion that your victim had sustained a serious injury because, firstly, the injuries were deep, incised wounds with completely severed muscles and nerve with important motor function and extended up to underlying bones, and secondly, that your victim continued to have mild functional deficit of his wrist and fingers six weeks post-surgical repair.

12At the time of the assault you were the subject of bail imposed by the Broadmeadows Magistrates' Court on 2 July 2021.  One of the conditions of bail was not to associate with one of your co-offenders in the assault.  That person was also a co-accused in relation to the matter for which you were granted bail.  Those are the facts in relation to the related Summary Offences 3 and 4.

13At the time that you engaged in your assault the State of Victoria was under a stay-at-home order as a result of the COVID-19 pandemic and your attendance at McDonald's on that day was not a valid reason to leave home under the imposed restrictions.  That is the basis for Summary Charge 5.

14On 3 August 2021 police executed a search warrant at your home.  You were arrested, you participated in a recorded interview at the police station and you made no comment during the course of the interview.

15The plea of guilty to this matter was indicated on 28 January 2022 at the committal mention.  So there has been an early indication of your plea of guilty.

16Turning to matters personal to you, you were 19 years of age at the time of the offending and you are now 20 years of age.  You are the oldest of 10 children born in Australia to a father of Tongan descent and a mother of El Salvadorian descent. You had a somewhat fractured relationship with your parents during your childhood and there were a number of periods during which you absconded from home and from school.  You attempted to live independently from your family.  You ended up being the subject of negative peer influence and a great deal of police and Youth Justice involvement.

17Your mother presently lives in Mill Park with your siblings.  Your father lives elsewhere.  You are still in regular contact with your parents, I am told, and you have had weekly contact with your mother and siblings whilst in custody.

18You have had periods of time in Youth Justice detention.  On at least one of those occasions you were the subject of a significant assault whilst in detention, including kicks to the head.  There were further assaults upon you, including two stabbings - one in September 2019 and one in February 2020. 

19I am told that you are a talented musician and that you wish to obtain a qualification that could lead to significant work upon release.  Unfortunately it seems that you have not experienced much in the way of work and certainly not in recent times.

20The report of Mr Mackinnon gives some further detail about your background, your education and your employment.  It seems that in addition to having some talent as a rap musician, you have demonstrated prowess at sport, and in particular, basketball. 

21Your mental health assessment revealed that you have recurrent depression and have suffered from complex post-traumatic stress disorder, although that seems to be in relative remission at this time.  Clearly one of the major problems of your life thus far, and no doubt associated with your very poor criminal history, is the fact that from your mid-teens you have abused various illicit drugs and alcohol, including since you were 16 years of age, regular use of Xanax and methylamphetamine.  According to what you told Mr Mackinnon, the offending conduct occurred under the influence of one or more of these substances.

22That is not an excuse for your conduct.  It is not a mitigating circumstance.  But it does go some way perhaps to explain the viciousness of your conduct on that day and your wanton disregard for the safety of your victim.  It is not suggested that Verdins principles apply either to reduce your moral culpability or to affect the degree to which the court should regard general deterrence as an important sentencing consideration.  Nor is it suggested that any mental incapacity is likely to increase the burden of imprisonment or to increase in severity to a significant extent as a result of your incarceration.

23It was suggested by your counsel that there has been some delay between your arrest and today.  It has been less than 12 months altogether.  Unfortunately that is not uncommon, particularly in these COVID times.  I do not regard that as being a significant mitigating factor.  Although I note that you have had this hanging over your head for that period of time.

24Your pleas of guilty require me to give a significant reduction in sentence, particularly because the pleas have been tendered during the COVID pandemic.  The Court of Appeal has stated and endorsed the proposition that, during the pandemic, a plea is to be given particular significance in determining an appropriate sentence and reducing the penalty accordingly.  I note also that your time in custody has been during the COVID pandemic, that programs have not been available to you that would otherwise have been available and that you have been subject to considerably increased periods of lockdown.  No doubt the period during which you have been in custody has also resulted in difficulties in communication with friends and relatives.  That too is a factor that needs to be given consideration in the reduction of the sentence.  I do give it prominence in determining the appropriate penalty.

25The most significant of the matters put forward on your behalf is that you are still only 20 years of age.  This offending occurred when you were
19 years of age.  It is very unfortunate that you have such a bad criminal record at such a young age, but despite the seriousness of this offending conduct it seems to me that you still have some prospect of rehabilitation.  I am not prepared to suggest that your prospects are yet good, and one must remain guarded about the degree to which you are prepared to put effort into furthering your rehabilitation once you are released from custody.

26Much will depend upon your willingness to tackle your drug and alcohol abuse and to endeavour to forge a career for yourself through work, either through your musical talent or through social activities including pursuit of your sporting interests.  Also your willingness to turn your back on the poor company that you were keeping on the day these offences were committed.

27I am not prepared to find that you are genuinely remorseful.  You have not chosen to give evidence.  You have expressed remorse in terms to
Mr Mackinnon and you indicated to him that your victim was entirely blameless, and that your attack was unjustified.  No real explanation has been provided for your conduct on that day.  It seems that for one reason or another you went out deliberately armed, with another person also deliberately armed, each with meat cleavers concealed in your clothing intent on some form of violence prior to arriving at that location.

28It was put to me by your counsel that you were carrying a meat cleaver essentially for self-defence.  You had no business being away from your home that day.  You did not need to leave your home that day.  There was no need for you to be armed because you were required not to leave your home that day.  I need to sentence you on the basis of what you did and the intention with which you did it.

29The crime of intentionally causing serious injury is a very serious offence.  You are fortunate that you did not cause more serious injury.  You could easily have killed your victim.  The attack was not carefully directed, it was calculated to risk causing a fatal injury.

30The victim impact statements of your victim and his young cousin reflect not only the physical harm upon the injured victim, but also the psychological harm upon your victims.

31You are still 20 years of age.  It seemed to me that you should be given the opportunity of an assessment as to whether you are suitable for a Youth Justice Centre order, despite the fact that you have previously been found unsuitable for such an order.  A report was obtained which clearly shows that you are not suitable for a Youth Justice Centre order.  I am always reluctant to impose a term of imprisonment on a 20-year-old when they are going to serve that term in an adult prison.  However, you have been in custody in adult prisons for almost 12 months now and whilst some of that time was taken up with serving a sentence for other matters, you have been on remand for these matters for 253 days.

32My approach to sentencing you is to provide you with some hope and opportunity of rehabilitation through parole and therefore to fix a non-parole period which gives you the opportunity of a reasonably long period under supervision on parole.  This offending requires a sentence that adequately denounces your conduct, punishes you for your offending and, in particular, sends a strong message to others who might wish to engage in such conduct, that offences of this kind should be met with substantial periods of imprisonment.

33Whilst rehabilitation is an important feature of sentencing a young person, rehabilitation does not trump adequate punishment and other sentencing considerations for crimes of violence of this nature.

34I have done my best to find comparable sentencing orders in relation to offenders for similar offences to discern current sentencing practice.  Many of the comparable sentences occurred during periods prior to the COVID pandemic, but I have found useful guidance amongst them.

35Doing my best to balance all of those competing considerations and doing my best also to give you some prospect of demonstrating a capacity for rehabilitation, I sentence you as follows:

-on the charge on the indictment of causing serious injury intentionally you are convicted and sentenced to imprisonment for 45 months;

-on Summary Charge 3 of committing an indictable offence whilst on bail you are convicted and sentenced to imprisonment for one month;

-on Summary Charge 4 of breaching a conduct condition of your bail, you are convicted and sentenced to imprisonment for one month.

36The sentences for the two summary offences to which I have referred are to be served concurrently with the sentence of 45 months that I imposed on the offence of causing serious injury intentionally.

37The total effective sentence is three years and nine months' imprisonment.

38I direct that the minimum term to be served before becoming eligible for parole is two years and three months' imprisonment.

39I further declare that the period that you must serve in custody in respect to these offences will be reduced by 253 days of pre-sentence detention to be reckoned as a period of imprisonment already served under this sentence.  That is to be deducted administratively.

40On Summary Charge 5 of failing to comply with an order under the COVID provisions you are convicted and ordered to pay a fine of $2000.  That fine will be paid to the registrar of the County Court.  If the fine is not paid to the registrar of the County Court on the day that this order is made, the fine will be referred to the director of Fines Victoria for collection and management under the Fines Reform Act of 2014.  The director may collect and manage the fine as determined by the director under that Act, including by way of payment arrangement on terms proposed by the director.

41Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty to the offences to which I have referred, the total effective sentence that I would have imposed is five years and four months' imprisonment with a non-parole period of four years.

42Are there any other matters, counsel?

43MR TEO:  Your Honour, there was a forfeiture order sought in relation to a hooded top and a phone.

44HIS HONOUR:  Right.  Do we have a copy of that?

45MR TEO:  It would have been filed or it was filed by my instructor prior to the plea date.

46HIS HONOUR:  All right.  We will have a look and see if we can find it.  I take it there is no opposition to that, Ms Swiney.

47MS SWINEY:  That is not, that is not opposed, no, Your Honour.

48HIS HONOUR:  Yes.  You can take it that I will sign that order once it has been printed off.

49MR TEO:  Thank you, Your Honour.

50MS SWINEY:  As Your Honour pleases.

51HIS HONOUR:  Yes, thank you.

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