Director of Public Prosecutions v Fikak
[2012] VCC 699
•31 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01486
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AMIR FIKAK |
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JUDGE: | HIS HONOUR JUDGE HOWIE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2012 | |
DATE OF SENTENCE: | 31 May 2012 | |
CASE MAY BE CITED AS: | DPP v Fikak | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 699 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr G. Hayward | Office of Public Prosecutions |
| For the Accused | Mr N. Hutton | Robert Stary Lawyers |
HIS HONOUR:
1 Amir Fikak, yesterday you were found guilty by a jury verdict of recklessly causing injury to David Strachan. Verdicts of not guilty were given for charges of intentionally cause serious injury, recklessly causing serious injury and intentionally causing injury.
2 I understand the verdict to mean that the jury did not accept your evidence that you had not punched or struck David Strachan, and they were satisfied beyond reasonable doubt that you were the person that he described as having struck him above the left eye with the buckle of a belt, and who then grappled with him, held him in a "kind of headlock" and struck him to the face in the region of his mouth, causing his tooth to be dislodged.
3 As the jury returned a verdict of not guilty to the charge of intentionally causing injury, my understanding is that they were not satisfied that you were the person Senior Constable Varcoe and Constable Beaumont described as kicking the man on the ground. There were reasons to doubt that you were the man they observed and that Senior Constable Varcoe said he spoke to, as he did not arrest you for kicking the man and he recorded your name in his notebook, with others, and identified you as “OW”, or "other witness."
4 The guilty verdict for recklessly causing injury reflects a number of aspects of the evidence. David Strachan, who had a considerable amount to drink that night, four or five stubbies of full strength beer before going out and about 12 drinks at the nightclub, a mixture of beer and other drinks he said, was both upset and angry before he got to Lonsdale Street where you encountered him.
5 These events occurred in the early hours of Sunday morning, 27 June 2010 at about half past four. In Queen Street he had been struck to the left side of the head by a bottle wielded by an "African looking man" who had asked to use his phone. He described the blow as "a massive blow to the left side of the head causing immense pain." He attempted to pursue the man who hit him but stopped as he felt dizzy and had, what he called, "a massive headache."
6 Later that morning when Mr Strachan was examined at St Vincent's Hospital it was found that he had bruising of the brain on the left side, a small amount of blood in what was called the sylvian fissures of the brain, and slight misalignment of the brain due to swelling. This injury may well have played a part in the way that he behaved in Lonsdale Street.
7 When he reached Lonsdale Street, still in pursuit of the man who hit him with the bottle, he saw a group of some three African men and an African woman, Sarah Berhan, near the blue car. They intended to drive away in the car but it would not start. Although perhaps not part of that group you were also in the vicinity of the car. Mr Strachan approached the group demanding to know the whereabouts of the man who had hit him with the bottle. He agreed in his evidence that he was shouting and that he was angry and aggressive. He agreed he was saying such things as, "Where the fuck did he go? Why the fuck did he bottle me?" Mr Strachan's evidence was that a man approached him, there was an argument, the man circled him and struck him with a belt before grappling with him and striking him to the face.
8 According to Ms Berhan a fight started after you spoke to Mr Strachan and he pushed you in the chest three times. The verdict I think reflects a finding that you knew that injury would occur if you struck David Strachan with the belt, and punched him, and you went ahead regardless and carried out those acts thereby causing him injury.
9 I am not persuaded by Mr Hutton's submission that the verdict reflects a view by the jury that you were not the person who struck the blow with the belt, but that you were the person who kicked Mr Strachan to the body or the head in the manner described by Constable Beaumont and Senior Constable Varcoe. Nor am I, I should say, persuaded that such a scenario would be more favourable to you. It may not have caused the laceration above the eye. It nevertheless involved kicking of a vulnerable man on the ground when he was no longer confronting you.
10 For sentencing purposes the injury consisted of a laceration about the left eye requiring eight stitches, an abrasion on the forehead, bleeding from the nose, bruising around the eyes, a dislodged tooth and swelling of the upper lip.
11 The maximum penalty for recklessly causing injury is a term of imprisonment of five years.
12 The nature of this offence was street fighting in the central business district in the early hours of the morning by men who had spent hours in city nightclubs. It is behaviour that should be discouraged. Your protagonist and the victim was the aggressor in commencing this conflict with you. He was affected by alcohol and anger, and his behaviour may well have been affected by the earlier blow to his head. Although it is not the worst kind of weapon the use of the belt to strike him is a matter for concern.
13 Mr Hayward submitted to me that general deterrence is an important principle in these circumstances. While not disagreeing with him, it does seem to me that the principle of general deterrence is quite complex in circumstances such as these, when someone is, as Mr Hayward expressed it, "confronted by intoxicated, aggressive and belligerent people."
14 Clearly personal deterrence is important, and you need to be discouraged from acting like that again, as indeed is just punishment, that has proper regard to the injuries suffered by Mr Strachan.
15 I have read and taken into account his victim impact statement. Clearly this was a traumatic experience for him. A significant part of the trauma was the result of both assaults upon him, the one in Queen Street and the one in Lonsdale Street. The assault in Lonsdale Street in which you participated may have appeared to be more dramatic, because of the bleeding from his nose and the laceration above his eye. However, in fact, the more serious injury that he suffered was a consequence of the blow that was delivered in Queen Street, and for which you were not responsible.
16 Ms Joyce gave impressive evidence of your personal qualities as a member of the African community who has been of considerable assistance to her over a period of some years as a role model and as a provider of guidance and support to other young people. As I said in discussion earlier this afternoon, I have had the opportunity observe you in court over the time of the trial. My impression, and it is of course only an impression, is of a mature and experienced young man. The evidence of Ms Joyce and the letter of Dr Ahmed, chairperson of the African Think Tank, tend to confirm that impression.
17 My sense of what occurred on this morning is that you intervened on behalf of some African young people, including the young woman Sarah Berhan, who you knew slightly, and who may well have been fairly volatile. You may well have had a sense of having the skills and experience to deal with the situation. However your response became violent when confronted by the aggression and demands of Mr Strachan.
18 Dr Ahmed's letter sets out in summary form some things of your background and your circumstances as a refugee from Eritrea, as well as your admirable qualities as a person.
19 As the youngest of 11 children whose father died when you were aged two, you fled Eritrea and after time in camps, as I understand it, in Sudan, came as a refugee to Australia when aged eight.
20 You have completed your primary and secondary education here, including your VCE at RMIT, and have been involved significantly in the community. You are now married. Your wife has had the benefit of spending her honeymoon here in court, and you are in employment in a family cleaning business in a management role as a supervisor.
21 The prosecution have submitted to me that a non-custodial sentence is appropriate or within the range of appropriate sentences, and submitted that a Community Corrections Order with some unpaid community work would be an appropriate sentence.
22 Of course I have given serious thought to that. I am conscious however that this is in all probability a single event from which you are likely to learn, and which I would expect not to occur again.
23 You have no prior convictions. A subsequent matter involving cannabis resolved in a bond and a contribution to a charity without conviction.
24 The view I have come to is that it is appropriate to convict you of the offence.
25 You are convicted of the offence and I impose a fine of $2000.
26 MR HUTTON: As Your Honour pleases.
27 MR HAYWARD: May it please the court.
28 HIS HONOUR: Mr Hayward, I have signed those disposal orders which I will have handed back to you.
29 MR HAYWARD: Thank you, Your Honour.
30 MR HUTTON: Would Your Honour consider granting a stay of three months?
31 HIS HONOUR: I'll grant a stay of a month.
32 MR HUTTON: A month, yes, Your Honour.
33 HIS HONOUR: My understanding of Mr Fikak's situation is that he is in a position to pay a fine, and my view is that he ought to do so immediately.
34 MR HUTTON: Yes, Your Honour.
35 HIS HONOUR: And if he does not have the ready money he ought to borrow it and pay and the fine and make other arrangements to repay whatever he borrows.
36 MR HUTTON: I will advise him accordingly and I'm sure he's heard Your Honour.
37 HIS HONOUR: That completes the matter. Thank you both.
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