Director of Public Prosecutions v Gashi (Sentence)
[2023] VCC 1035
•20 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01670
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BASHKIM GASHI |
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JUDGE: | JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2023 | |
DATE OF SENTENCE: | 20 June 2023 | |
CASE MAY BE CITED AS: | DPP v Gashi (Sentence) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1035 | |
REASONS FOR SENTENCE
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Subject:Criminal law - Sentence
Catchwords: Guilty plea – one charge of intentionally causing injury – the victim was the neighbour of the offender – unprovoked assault occasioning injuries including a lacerated lip – unplanned offending that quickly escalated – offending occurred in the victim’s home where she was entitled to be safe – significant prior criminal history including offences of violence – utility of early plea – burden of imprisonment – guarded prospects of rehabilitation - general and specific deterrence, just punishment, denunciation and community protection all relevant sentencing considerations
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Worboyes v The Queen [2021] VSCA 169; DPP v. Dalgiesh (A Pseudonym) (2017) 262 CLR 428; R v. Verdins (2007) 16 VR 269; DPP v Jolley [2016] VCC 1685; DPP v Cassidy [2018] VCC 2052
Sentence: 22 months’ imprisonment with a non-parole period of 13 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H. Baxter | Office of Public Prosecutions Victoria |
| For the Accused | Mr H. Moodie | James Dowsley & Associates |
HER HONOUR:
1Bashkim Gashi you have pleaded guilty to one charge of intentionally cause injury contrary to s18 of the Crimes Act 1958 arising from an incident on 13 March 2021. The maximum penalty for this offence is 10 years’ imprisonment.
2You were born in April 1983 and were 37 years old at the time. The victim of your offending was a woman who lived in the apartment next door to you in Hawthorn Road, Doveton.
3You have admitted your prior criminal history.
Summary of Offending
4The circumstances of your offending are detailed in the Amended Summary of Prosecution Opening for Plea dated 31 May 2023 which is the agreed basis upon which you are to be sentenced.
5At approximately 2am on 13 March 2021, the victim was driving home to meet a male friend. Before she arrived home, the friend observed you in your car and contacted the victim to tell her you appeared to be waiting for her.
6When she arrived, you approached the victim’s friend, asking if he knew her. The victim yelled at you not to speak to her friends. She put her hand up to you and said, “get off my property”. You responded to this by throwing a drink at the victim, and spitting in her face.
7When the victim moved into the garage area with her friend, you followed her inside. You knocked over a piece of furniture, hitting the victim in the back of her legs. It is accepted that she responded by hitting you to the right side of your face in self-defence.
8You then hit the victim to left side of her head with your right hand, causing her to stumble and fall into the wall on the other side of the garage. You shouted at her as she attempted to retreat inside her house. You continued to follow her, despite her twice gesturing for you to leave, and pushing you in the direction of the garage door. The victim’s friend tried to intervene and prevent you from pursuing her, but you sidestepped him and rushed at the victim.
9You picked the victim up by her head, with both of your hands around her neck. Holding her in this manner, you walked the victim through the internal door of the garage into the hallway of her house, before throwing her down in the front hallway. The victim was unable to breathe while your hands were around her neck.
10The victim stood up, and you spat on her again. She walked backwards into her kitchen/lounge area yelling, “Get out of my house”. You then hit her twice with a closed fist. The victim believed you wanted to kill her. She pointed out an internal camera in the kitchen, saying “smile, you’re on camera”, in response to which you picked up the camera, hitting her to the face with it. This caused the victim’s face to bleed. At this point, the victim’s friend intervened once more, demanding that you to leave - which you did, telling the victim she was a “dead girl walking” as you left.
11The victim’s friend drove the victim to Dandenong Hospital where she received treatment, but refused to be admitted and returned home. She was in a lot of pain that evening and the next day, having sustained a laceration to the corner of her lip, swelling of her left cheekbone, bruising to her right forearm and a cut finger.
12The police attended the victim’s address the next day at approximately 1.50pm, where they observed the injuries sustained by the victim, including a cut to the left side of her mouth. The police took photographs of these injuries which I have seen. The victim was then transported to hospital for treatment.
13On 15 March 2021, the victim re-attended Dandenong Hospital where she was examined by Dr Kiayang Lim, who found a “left commissure (lip) laceration”, which was surgically repaired in theatre.
14You were arrested on 14 March 2021 and participated in a record of interview. During the record of interview you admitted living at the apartment in Hawthorn Road Doveton and said you knew the victim. You agreed that there was an altercation between the two of you, and knew the victim had been hurt, but otherwise exercised your right to make no comment.
Procedural history
15The history of these proceedings is relevant to your sentence.
16Shortly after being charged, and at an early stage in the proceedings, you offered to plead guilty to the charge of intentionally causing injury. That plea offer was rejected by the prosecution at that time.
17A contested committal was held in August 2021 during which the victim was cross-examined. You were granted bail at the conclusion of the committal hearing.
18The matter was listed for trial to commence on 3 November 2022. Three days prior to the trial commencing, the prosecution accepted the earlier plea offer you had made to plead guilty to the charge of intentionally causing injury. You were arraigned and entered a plea of guilty to that charge on 3 November 2022. The prosecution correctly accepts that you pleaded guilty at the earliest reasonable opportunity in these circumstances.
19However, further delay was caused by your failure to appear at the plea hearing scheduled for 4 November 2022. You were arrested and remanded in custody on 15 November 2022. There was further delay as you sought legal advice regarding an application to change your plea, which you ultimately chose not to pursue. To be clear, you are not to be punished for obtaining legal advice regarding your options to change your plea, but rather this explains the further delay in the finalisation of this matter following your remand.
Offence Gravity
20The offence of intentionally causing injury carries a maximum penalty of ten years’ imprisonment, which reflects the seriousness of the offence.
21It is hard to understand what triggered your violent response to the victim that evening. At the plea hearing, your counsel advised that you had previously had an amicable relationship with the victim, indeed that you had assisted her on a previous occasion when she had problems with a former boyfriend. It appears the impetuous for this offending was the fact you felt offended and upset when the victim argued with you and told you to get off her property. You responded by throwing a drink over her and spitting in her face. Spitting at someone is particularly offensive behaviour. Your violent response escalated quickly after the victim struck you in self-defence.
22This was not offending fuelled by alcohol or drugs, rather appears to have been driven by uncontrolled anger. You were neither deterred by the presence of the victim’s friend nor by his efforts to intervene. Your conduct in dragging the victim by her throat, during which she was unable to breathe, was particularly egregious. You struck the victim to her face, repeatedly, and with sufficient force that you caused her a laceration to her lip, requiring surgery. This was not momentary offending.
23That the offending occurred in the victim’s home, where she is entitled to be safe, is another aggravating feature of the offending.
24However, I accept the submission made on your behalf that this was not planned or sophisticated offending, and was of relatively brief duration. I also accept the submission made on your behalf that I cannot be satisfied, to the requisite standard, that you were ‘waiting’ for the victim to attend the house when you were first observed in your car. I do not conclude that your offending was premeditated. You ultimately left the house when the victim’s friend intervened a second time, and did so without further incident.
25Fortunately, the victim’s injuries were not more serious and she did not require admission to hospital. The victim did not suffer any facial bone fractures or other significant injury.[1] I accept that the injury sustained by the victim could not be characterised as being at a higher end, although it was not a minor injury either.
[1]Report of Dr Lim dated 19 July 2021
26As the victim impact statement attests,[2] the incident has had a significant emotional impact on the victim. The victim says she now feels unsafe in what she describes as her “dream home” and states that she suffers from feelings of anxiety and depression, with difficulty sleeping and a loss of confidence. She says the scar to her lip is a constant reminder of the trauma of that evening.
[2]Exhibit B – Victim Impact Statement sworn 3 November 2022
27It was conceded by your counsel that this was not a low level example of the offence of intentionally causing injury. I assess this as a low to mid-range instance of this type offending. Your moral culpability for your conduct that evening is significant.
Personal Circumstances
28I turn now to your personal circumstances.
29You are now 40 years old, and have an older sister, with whom you resided for a period whilst on bail. Until the age of 9, you were raised in Dandenong where you attended primary school. In 1993, you and your family migrated to Germany where you completed your primary and secondary school education.
30At the age of 21, you returned to live in Australia.
31You have a strong work history, principally working as a concreter. You have also worked in maintenance for Glen Eira City Council, and have performed brickwork and plastering work. Your counsel reports that you have concreting work available to you upon your release from custody with TCV Concrete, for whom you have worked in the past as a sub-contractor.
32You report a history of depressive symptoms, having been prescribed anti-depressant medication for two years between 2016-2018. No psychological material was tendered on your plea, and it was not argued that the principles of Verdins[3] have any application to your sentence, or that any mental health impairment operates to reduce your moral culpability for this offending. You report having no psychiatric history or any previous diagnosis of a psychiatric illness.
[3]R v. Verdins (2007) 16 VR 269
33You have relevant prior convictions for offences of violence. Dating back to 2008, you have prior convictions for four charges of unlawful assault, two charges of recklessly causing injury, one charge of threat to inflict serious injury, two charges of persistent contravention of a family violence intervention order, contravention of an interim personal safety intervention order, reckless conduct endangering serious injury, and two charges of intentionally causing injury. You also have a prior conviction for an offence of riot for which you were sentenced to 16 months’ imprisonment in November 2016, and one prior for being a prohibited person in possession of a firearm.
34You have received sentences of imprisonment of varying lengths in the past. In October 2015, you were sentenced to 140 days’ imprisonment in combination with a 12-month community correction order. You were then resentenced to two months’ imprisonment in July 2016 following contravention of that community correction order, by further offending for which you were sentenced to 18 months’ imprisonment in May 2016.
35In May 2019, you were sentenced of 282 days’ imprisonment followed by a 12-month community correction order. The offending for which you were sentenced on that occasion arose out of a violent altercation at a factory after you attended the premises armed with a gun, where one of the victims was a protected person under a personal safety intervention order. At the time you were sentenced, it was noted you were withdrawing from the drug Ice, GHB, cocaine and Xanax. In July 2020, you were resentenced to twenty months’ imprisonment for contravening that community correction order.
36At the plea hearing, your Counsel reported that you have not used illicit drugs since your release from custody in March 2020.
37In light of your prior criminal history, the sentence I impose must operate to deter you specifically from violent offending in the future. Community protection remains a relevant sentencing consideration in this case.
Matters in Mitigation
38I turn now to matters that were raised on your behalf which are relevant in mitigation of your sentence
39First and foremost is the fact you pleaded guilty to the offence. As stated, while your plea was entered shortly before the commencement of your trial, it is fairly accepted that it is to be treated as a plea entered at the earliest reasonable opportunity, given your earlier offer to plead to the charge of intentionally causing injury. There is utility in your plea in that you saved the court and the community the cost and time associated with a trial. Your plea has facilitated the course of justice, through which you acknowledge responsibility for your offending.
40As the Court of Appeal has explained, an offender who pleads guilty at present is entitled to an additional sentencing discount given the delays in the justice system that continue as a result of the pandemic.[4] You are entitled to, and will receive, a substantial sentencing discount by reason of your guilty plea.
[4]Worboyes v The Queen [2021] VSCA 169
41Assessing your remorse is more difficult. Beyond your plea, there is no material before me that demonstrates insight or genuine remorse for your offending against the victim.
42You have been remanded on two separate occasions for this offending. The first period was 146 days between 14 March 2021 to 6 August 2021. You were arrested and remanded again on 15 November 2022 and have remained in custody since this date.
43I accept that your time in custody has been difficult for a number of reasons.
44Whilst in custody in 2016, you were the victim of a stabbing, resulting in nerve damage to your shoulder and thumb. A report from St Vincent’s Hospital dated 4 February 2019 states you underwent surgery in 2016 to repair “a laceration of the head, neck, face, right shoulder and a deep wound to the CMCJ (the carpometacarpal joint of the thumb) and tendon repair of the right thumb”.[5] You reported ongoing pain and numbness associated with these injuries in 2019. You are prescribed medication to treat the ongoing nerve damage.
[5]Exhibit 1 – Report of St Vincent’s Hospital dated 4 February 2019
45Whilst I have not received updated medical material, I act on the basis that the pain associated with this injury adds to the burden of your imprisonment. Further, you counsel reports that understandably, you remain vigilant for your safety in custody and experience considerable anxiety as a result of your past experience.
46Further, you were first remanded at the height of restrictions imposed in custodial settings to respond to the COVID-19 pandemic. This included a loss of personal visits, increased lockdowns to manage the risk of transmission, and limited access to programs or activities in custody. These conditions added to the burden usually associated with custody and operate in mitigation of your sentence. I accept that these limitations, whilst eased somewhat, continue to operate to respond to the pandemic and have taken that matter into account.
47Moreover, your counsel advised the court that since December 2022, you have been placed in a ‘management unit’ where you are limited to one hour of exercise, outside of your cell, each day. No other information about this decision was provided, but I accept that the conditions of your detention have added considerably to the burden of your time in custody. I have given the added burden of your imprisonment weight in mitigation of your sentence.
48Assessing your prospects of rehabilitation is not an easy task. It is positive that you have no underlying mental health conditions. Further, that whilst you have had difficulties with illicit drugs in the past, you report no ongoing abuse of drugs or alcohol since March 2020. This is to your credit. You have a strong history of employment and have ongoing concreting work available to you.
49Against these positive indicators however, you have a significant criminal history involving offences of violence and despite having received custodial dispositions and opportunities to complete community based dispositions in the past, such sentences did not deter you from committing this act of violence on 13 March 2021. Your family have been supportive of you, including providing you with stable accommodation previously but I am informed that such accommodation is no longer available to you on your release.
50Overall, I remain guarded about your future prospects of rehabilitation however they are not extinguished.
Other Sentencing Considerations
51I turn now to other sentencing considerations.
52In cases such as this, the sentencing considerations of general deterrence, just punishment and denunciation are to be given great weight. Others must be deterred from rage-fuelled acts of violence. In sentencing you, I clearly denounce your unprovoked, violent conduct towards the victim in her home.
53Current sentencing practices are another relevant consideration, although they neither govern nor dictate the sentence to be imposed.[6] Each case must turn on its own facts and circumstances. Current sentencing practices for comparable offending, may however provide some guidance as to a sentencing range, and thereby promotes consistency in sentencing.
[6]DPP v. Dalgliesh (A Pseudonym) (2017) 262 CLR 428
54In this case, the prosecution referred me to two previous sentences of this court imposed for the offence of intentionally causing injury.
55In the case of DPP v Jolley[7], the offender went to the home of an acquaintance to purchase cannabis. The offender believed the victim called him a derogatory name when he answered the front door, and assaulted the victim by punched him to the face causing bruising and swelling, multiple lacerations, a fractured nasal bone and loss of teeth. Whilst that offender’s assault of the victim was not as sustained as yours, the injuries to the victim in that case were more severe.
[7]DPP v Jolley [2016] VCC 1685
56The offender, who was 45 years old, was alcohol-affected at the time. In that case, the court sentenced the offender to 463 days’ imprisonment in combination with a community correction order of two years’ duration. In the case of Jolley, the offender had two prior convictions for assault and other court appearances for dishonesty and driving matters, but had not offended since 2002, a gap of 11 years. It is apparent that the offender’s prior criminal history was not as significant as yours.
57In the case of DPP v Cassidy[8], the offender, who was 37 years of age, had no prior criminal convictions. In that case, the offender attended the home of his neighbour in a state of paranoid delusion, and repeatedly hit the victim, including punching him to the face and placing him in a headlock. He then punched the victim to the head with considerable force, knocking him to the ground. While the victim was on the ground, the offender kicked him to the head twice. The victim was hospitalised, suffering multiple head fractures.
[8]DPP v Cassidy [2018] VCC 2052
58In the case of Cassidy, there were powerful factors that operated in mitigation of sentence. Most significantly, the offender had been diagnosed with schizophrenia, which enlivened the principles in Verdins, reducing his moral culpability for the offending. The offending was a response to the offender’s auditory hallucinations and the sentencing judge concluded his offending was out of character. The offender was sentenced to 18 months’ imprisonment with a non-parole period of nine months. In that case, the injury sustained by the victim was more serious than here, however the offender had no history of similarly violent offending.
59As can be seen, neither of the two cases is directly comparable to yours. I have had regard to these cases but only as a general guide to current sentencing practices.
60On your behalf, it was submitted that a sentence of imprisonment combined with a community correction order could meet all relevant sentencing considerations, including the sentencing principle of parsimony.
61In contrast, the prosecution submitted that an immediate term of imprisonment with a non-parole period fixed, was the appropriate sentence, having regard to the need for the sentence to operate as both a general and specific deterrent.
62
In my view, the serious nature of your unprovoked assault on the victim, particularly when viewed in the context of your prior criminal history for offences of violence warrants an immediate custodial term and a non-parole period fixed.
This is because of the weight that must attach to the sentencing considerations of general and specific deterrence, through which community protection is achieved.
63I do not consider a further combination sentence is suitable in order to meet the various sentencing factors to which I have referred, particularly having regard to your history of breaching such orders in the past. That said, you are entitled to, and will receive, a sentencing discount have regard to the various matters that operate in mitigation of your sentence, including the utility of your early guilty plea.
Sentence
64Balancing the various factors to which I have referred, whilst having regard to the maximum penalty for the offence of intentionally causing injury, I sentence you as follows.
65On Charge 1 - intentionally causing injury you are convicted and sentenced to 22 months’ imprisonment.
66I fix a period of 13 months’ imprisonment before you are eligible for parole.
67Pursuant to s18 of the Sentencing Act 1991, I declare 363 days of pre-sentence detention to be reckoned as already served under the sentence I have imposed.
68Finally pursuant to s 6AAA of the Sentencing Act 1991, I declare that had you not entered a plea of guilty to the charge of intentionally causing injury, the sentence I would otherwise have imposed is a sentence of two years, six months’ imprisonment with a non-parole period of 1 year, ten months.
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