Director of Public Prosecutions v Farquhar
[2024] VCC 326
•22 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-23-01994
Indictment No. C2316419
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VALIANT TANGAROA FARQUHAR |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 12 March 2024 | |
DATE OF SENTENCE: | 22 March 2024 | |
CASE MAY BE CITED AS: | DPP v Farquhar | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 326 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords:
Legislation Cited: Crimes Act 1958, s15B; s195H; Sentencing Act 1991
Cases Cited:R v Guthrie and Watt [2003] VSC 323; DPP v SKJ; DPP v GAS [2002] VSCA 131; Guden v The Queen (2010) 28 VR 299; Akot v The Queen [2020] VSCA 55; R v Mills [1998] 4 VR 235; DPP v Lawrence (2004) 10 VR 125; Hussein v The Queen [2010] VSCA 257; Azzopardi v R (2011) 35 VR 43
Sentence: Two years (24 months) in a youth justice centre
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B Sharp | Solicitor for the Office of Public Prosecutions |
| For the Offender Farquhar | Mr T Wise | Dib & Associates |
HIS HONOUR:
1This is the sentence in respect of you, Valiant Farquhar.
2Valiant Farquhar, you are to be sentenced in respect of one charge of causing serious injury recklessly, in circumstances of gross violence in contravention of s15B of the Crimes Act 1958 (“Crimes Act”) and one charge of affray, in breach of s195H of the Crimes Act. Pleas of guilty have been entered in respect of both of the charges. I particularly record that the charge in respect of s15B of the Crimes Act has been pleaded guilty to on the basis of a plea of complicity with the other co-offenders.
3The maximum applicable penalties in relation to:
(a) causing serious injury recklessly in circumstances of gross violence, Level 4 – fifteen years’ imprisonment or 1,800 penalty units;
(b) affray, Level 6 – five years’ imprisonment or 600 penalty units.
4The circumstances of the offending are set out in the Summary of Prosecution Opening Upon Plea, dated 6 March 2024. You agree with the facts alleged in the summary. The offending occurred in the following circumstances. You, Valiant Faquhar, Zachariah Overhoff, and also Levi Terepo, were at or about Crown Casino in the Melbourne CBD shortly after midnight on 18 June 2022. You, and the group you were with, particularly Mr Terepo, were harassing a number of homeless people on Southbank Promenade in Southbank. The victim in relation to the first charge, Mr Rose, was also present. Mr Rose had come to Melbourne with his employer for a weekend of socialising. Mr Rose was essentially minding his own business when he noticed the group you were with harassing the homeless people. A short interchange between your group and Mr Rose then occurred. Mr Terepo began to chase Mr Rose, in company with you and Mr Overhoff. A number of unknown co-offenders followed close behind. Your group charged at Mr Rose and brought him to the ground. The group surrounded Mr Rose and proceeded to kick and stomp on him for at least fifteen seconds. During the assault, Mr Rose felt immense pain and feared for his life. Your group then left Mr Rose on the ground and began walking back to Crown Casino. Mr Rose was in significant pain, however managed to make it back to his hotel. He was struggling to weight bear and an ambulance conveyed him to The Alfred hospital. He suffered from a fractured right hip and a comminuted fractured left ankle. He was discharged the following day.
5Those are the circumstances in respect of the first charge.
6In relation to Charge 2, this occurred at approximately 1.36am on 18 June 2022. That is, about an hour and a half after the first incident. You, Mr Terepo and Mr Overhoff, and unknown co-offenders, were at the food court at Crown Casino. At that time, Mr Terepo pushed past the second victim of the night, Mr Coleman. Mr Coleman exchanged short words with Mr Terepo and began walking in the opposite direction. That is, Mr Coleman walked away from Mr Terepo and your group. Mr Overhoff and an unknown offender followed Mr Coleman and stopped him from walking further. You, Mr Farquhar, approached shortly afterwards. Mr Terepo then joined the group and punched Mr Coleman in the face. Mr Terepo threw a further three hook punches and then pulled Mr Coleman to the ground. Mr Overhoff kicked Mr Coleman at this time. You, Mr Farquhar and the unknown co-offender grabbed Mr Coleman by the shirt and dragged him across the ground. Mr Overhoff, then struck Mr Coleman four times while he was on the ground. Mr Terepo kicked him twice. A passerby, Ms Gallagher, the third victim of your group on the night, attempted to intervene at this time. Ms Gallagher pushed Mr Terepo away from the fight and Mr Terepo responded by pushing her and slapping her to the jaw with an open palm. Your group then left the food court.
The victims’ injuries
7Dealing with Mr Rose first. The injuries to Mr Rose are ongoing. As of 15 August 2022, his ankle movement was limited, he experienced calf muscle weakness and pain when walking. Mr Rose was unable to return to his work in hospitality until February 2023. An MRI scan from 26 September 2023, noted a non-union of the fracture and that Mr Rose was at risk of ongoing foot pain, stiffness and instability.
8As to Mr Coleman and Ms Gallagher, both did not sustain permanent injury.
Investigation
9You, Mr Terepo and Mr Overhoff were identified through CCTV footage. You, Mr Terepo and Mr Overhoff, were arrested in Queensland on 13 August 2023. You were both extradited to Victoria on 16 August 2023. You have five days of pre-sentence detention available to you, otherwise you both have been on bail with reporting responsibilities three times per week.
Gravity of offending
10As to the charge of recklessly causing serious injury in circumstances of gross violence. This is a serious offence. So much can be inferred from the maximum applicable penalty. It was put by your counsel, Mr Wise, on the plea, that you ought be assessed as having low to moderate culpability in relation to the offending. This is particularly because, while it was Mr Terepo who can be seen engaging in punching and kicking, you, Mr Farquhar, were unlikely to be performing any stomping and kicking of Mr Rose.
11Counsel were invited to provide case law in respect of whether it was possible to assess different levels of culpability where a plea to this charge had been entered on a complicity basis. That is, whether you, Mr Farquhar, could be determined to have a different level of culpability to Mr Terepo, who was more actively involved. In considering this issue, it is relevant to note what his Honour Redlich J said in R v Guthrie and Watt.[1] There, his Honour said:
“… One who aids and abets is linked in purpose with the person actually committing the crime and is by word or conduct doing something to bring about or render more likely the crime's commission. … .”[2]
[1][2003] VSC 323
[2](Ibid) at paragraph [30]
12And, then, at paragraph 31, he stated:
“… The circumstances of a particular case may justify regarding an aider and abettor as equally culpable with and sometimes even more culpable than the principal. … .”[3]
[3](Ibid) at paragraph [31]
13It is clear, then, that any suggestion an aider and abettor would receive a lesser penalty is a proposition which must be considered with considerable circumspection.[4] However, in contrast to the facts of DPP v SKJ; DPP v GAS (“SJK”), [5] where it was completely unclear who had caused the fatal injuries, the CCTV does allow some analysis of different role.
[4]DPP v SKJ; DPP v GAS [2002] VSCA 131 at paragraph [47]
[5][2002] VSCA 131
14Mr Terepo was obviously the lead instigator and attacker. However, you, Mr Farquhar, in forming part of the group that chased and then brought Mr Rose to the ground, perpetrated a circumstance where he was confronted with a number of males physically assaulting him. This simply rendered more likely the crime’s commission, to use the words of Redlich J. In that circumstance, I consider that the gravity of the offending cannot be low. Rather, I consider it to be moderate. In support of that finding, I consider that this appears to have been a reasonably spontaneous act brought about by the minor verbal altercation which occurred between Mr Rose and the group. What happened next occurred spontaneously over a very short period of time. While no weapons were used, as a group Mr Rose was chased indicating real intent, then brough to the ground and even after he was vulnerable and defenceless he was kicked and stomped on.
15Then, as to the incident, of affray. I consider the gravity of the offending to be moderate to low. You, Mr Farquhar, were clearly involved, but in a peripheral way. The incident occurred spontaneously with, once again, Mr Terepo being the instigator. However, it was a rolling maul in a public place, occurring in a situation where Mr Coleman was simply set upon, dragged to the ground, punched and kicked. But for the intervention of good Samaritans, the consequences could have been dire.
Background personal history
16Mr Farquhar, you were born in New Zealand in March 2003. You were nineteen at the time of the offending and will turn twenty-one next week. You were raised in New Zealand by your parents. Your father passed away when you were eleven. Around 2016, your family relocated to Queensland. You are a permanent resident of Australia. You completed high school education to Year 12 and then began work as a warehouse packer and scaffolder. You took up an opportunity to work in Melbourne as a form worker until the end of 2021. You were in Melbourne when the offending occurred and remained in Melbourne for some months afterwards. You then relocated to Queensland. This is where you were ultimately arrested before being extradited to Victoria. You were offered a position as an apprentice roof plumber in the last quarter of 2023. You intend taking up that apprenticeship and your employer is aware of these charges. You live with your mother and sister in the Logan area of Queensland. You have a partner, but no children. You have been on bail conditions requiring reporting three times a week. You have completed that successfully.
Plea in mitigation
17In comprehensive plea submissions made by your counsel, Mr Wise, there are a number of factors which were said to arise, which moderates your sentence. These are, in order:
(a) Your youth. You are only 20 years of age now. You have had no prior interactions with the law. Subsequent to the offending, you have had no further charges or incidents which brought you to the attention of the law. In short, this was said to be the dominant factor in your case, as your prospects for rehabilitation were very strong, particularly given your work;
(b) Your early guilty plea. There was some debate as to whether or not this was entered at the earliest possible opportunity, but I take note of the fact that you pleaded guilty at a very early stage. I pause to note that this is evidence of remorse. You have also written a letter of apology which is somewhat unconvincing given it is addressed to Mr Ross (not Rose).
(c) Your prospects for rehabilitation:
(i)you have completed an anger management course over four sessions;
(ii)you have an apprenticeship with an employer aware of your charges, who is prepared to offer you work;
(iii)you have good family connections and the support of your community. I note that character references were received from Natasha Paul, your aunty and your mentor from your local church, Mr Sulusi Tuimaualuga;
Possibility of deportation
18In considering punishment of the offenders, your counsel has submitted that the possibility of your being deported if you are given a sentence of over 12 months ought be taken into account in his sentence. In Guden v The Queen,[6] the Court of Appeal held that the fact an offender will serve their term of imprisonment in expectation of being deported following release may mean the burden of imprisonment will weigh more heavily, and that this may be taken into account in sentencing.[7] However, this cannot merely speculative.[8] Section 501 of the Migration Act 1958 (Cth) requires that a person sentenced to a term of imprisonment of 12 months or more must be deported.[9] This means that this is a factor I must take into account if I were to sentence you to a term of 12 months or more.
[6](2010) 28 VR 299
[7]Ibid 9, [28]. See also Akot v The Queen [2020] VSCA 55
[8]Ibid 9-10, [28]-[29]
[9]"imprisonment" includes any form of punitive detention in a facility or institution
19You have been in Australia since you were around 13 years old. All of your immediate family are in Australia. I accept that the prospect of deportation will weigh heavily upon you whilst you serve your sentence.
Assessment
20The Crown submitted that a period of imprisonment with a non-parole period was appropriate.
21Your counsel contended that a period in youth detention, combined with a period on a community correction order, was appropriate.
22When I step back to assess your case, I am conscious that there is a real tension in the application of the sentencing principles. As his Honour Batt JA noted in R v Mills,[10] youth and rehabilitation should be “a primary consideration”.
[10][1998] 4 VR 235
23The Court of Appeal noted, however, in SJK issues of punishment and general deterrence also have a role to play. To this extent, what Batt JA said DPP v Lawrence,[11] another case involving causing serious injury recklessly involving gross violence, is relevant:
“… There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance. This is that, as this very case exemplifies, the persons who commit the offence and wreak appalling injuries, very often by kicking and stomping upon their prone or supine victims, are predominantly youths and young men acting under the influence of alcohol or drugs or both.”[12]
[11](2004) 10 VR 125
[12](Ibid) at 125
24I am also aware that principles of parity arise, though this can only have limited application given Mr Terepo will be sentenced in the adult justice system.[13]
[13]Hussein v The Queen [2010] VSCA 257 at [16]
25As in most cases, all factors that are relevant must be synthesised then. In this particular case, I still do consider that youth and rehabilitation are the most important factors. This is not a case like Azzopardi v R,[14] because these are first-time offenders, with no relevant subsequent offending, with good compliance on very strict bail conditions for a considerable period of time.
[14](2011) 35 VR 43 at paragraphs [53]-[57]
26In those circumstances, particularly with employment available and a very supportive family, rehabilitation remains the primary protective factor for the community. This does not mean that deterrence, specific and general, can simply be put aside. A length of a sentence can operate as a way to demonstrate to an offender, but also to the broader community, that behaviour like this, visited on innocent members of the community, will not be tolerated.
27For this reason, I sentence you to a period of 24 months in a youth justice centre[15] as an aggregate sentence in accordance with s32A of the Sentencing Act.
[15]You were assessed suitable for detention within a Youth Justice Centre by Youth Justice in a report dated 21 March 2024
28I do so as it reflects your overall criminality in the two hour period when these offences occurred. This is not normal behaviour for you.
29I indicate that, but for you early plea of guilty, I would have sentenced you to 32 months imprisonment. In that event, I would have sentenced you to 28 months on Charge 1 and four months on Charge 2.
30I declare 5 days of pre-sentence detention.
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