Director of Public Prosecutions v Gevergizyan
[2019] VCC 286
•14 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02098
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ELTEN GEVERGIZYAN |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 February 2019 | |
DATE OF SENTENCE: | 14 March 2019 | |
CASE MAY BE CITED AS: | DPP v Gevergizyan | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 286 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords:
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Verdins & Ors (2007) 169 A Crim R 581 OR (2007) 16 VR 269; Boulton & Ors v The Queen [2014] VSCA 342; DPP v Maxfield [2015] VSCA 95; Alam v The Queen [2015] VSCA 48; Marocchini v The Queen [2015] VSCA 29; Hutchinson v The Queen [2015] VSCA 115; Gul v The Queen [2016] VSCA 82; Police v Jachmann [2010] SASC 345; R v Franklin (2000) 52 MVR 544; R v Lefebure (2000) 31 MVR 131
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Hammill | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr D Gurvich QC | Emma Turnbull Lawyers |
HER HONOUR:
1 Elten Gevergizyan, you have pleaded guilty to:
· three charges of reckless conduct endangering serious injury, and
· two charges of criminal damage,
on Indictment J11418523. The maximum penalties applicable to those offences are, reckless conduct endangering serious injury, 5 years’ imprisonment, criminal damage 10 years’ imprisonment.
2 You have also agreed to me hearing and have pleaded guilty to a number of summary charges:
· Summary Charge 5, unlawful assault of Leigh Mahady with a weapon – a hammer,
· Summary Charge 6, unlawful assault of Julie Dougherty with a weapon – a hammer,
· Summary Charge 14, unlawful assault of David Robinson with a weapon – a baseball bat,
· Summary Charge 15, assault of Katherine Robinson with a weapon – a baseball bat,
the maximum penalty applicable to those four summary charges being two years’ imprisonment on each.
3 You have also pleaded guilty to:
· Summary Charge 19, unlawful assault of Suzanne DeMarco,
the maximum penalty being a fine of 15 penalty units or three months’ imprisonment.
4 You have also pleaded guilty to:
· Summary Charges 23, 25 and 27, failing to provide your name and address after an incident. The penalty for a first offence (Charge 27) is a fine of 5 penalty units or 14 days’ imprisonment, and for a subsequent offence (Charges 23 and 25, that is in date order of the charges) a fine of 10 penalty units or not less than 14 days and not more than one month’s imprisonment.
5 You have also pleaded guilty to:
· Summary Charge 16, contravening a family violence intervention order.
The maximum penalty applicable to that offence is two years’ imprisonment or a fine of 240 penalty units or both.
6 Your crimes arise out of events which took place on 25, 26 and 27 May 2018. At the time of this offending you were on an undertaking from the Broadmeadows Magistrates’ Court on 11 October 2017. This is an aggravating feature of your offending, i.e. that you were on a court order.
7 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say I regard the facts in this case as extremely serious and disturbing. Your offending over three days was nothing short of appalling with complete disregard for other road users and your obligations as a driver.
8 Your offending arising out of these three “road rage” incidents on three consecutive days also breached an Intervention Order.
9 I turn to a summary of your offending. At the time of it you were 27 years of age, and are 28 at sentence. You were then living in Mickleham and employed as an excavator.
10 I turn to Charge 1 on the indictment and Summary Charges 19 and 27.
11 At approximately 2.15pm on 25 May 2018, 73‑year-old Suzanne DeMarco was driving her vehicle on the Tullamarine Freeway, along a section of the road affected by roadworks, with a 60km per hour speed limit and narrowed lanes due to concrete barriers on either side of the road.
12 She first noticed you driving a white truck because you were tailgating her and blasting your horn at her. When she passed a sign indicating the speed limit, she tooted and pointed at it, but you did not appear to take any notice.
13 You then overtook the victim’s car on double lines, crossing so close that your truck side-swiped her car and hit the driver’s side mirror before you pulled in front of her and continued along the road (Charges 1 and 27).
14 Ms Demarco followed you to get your registration, and when you entered a roundabout you stuck a finger up at her. You exited the roundabout and continued about 100 metres up the road, then slammed on your brakes. Ms DeMarco stayed in her car; however, you got out of the truck ran towards her car and punched it on the pillar between the front and back windows. Ms DeMarco was terrified (Charge 19, unlawful assault.)
15 Ms Demarco drove away and reported the incident to Sunbury police, however, as she provided incorrect details of the truck’s registration due to mud obstructing the licence plate, police were unable to identify you at the time.
16 I turn to the second incident, relevant to Charges 2 and 3 on the Indictment and Summary Charges 5, 6 and 23.
17 At approximately 1 pm the following day, 26 May 2018, Leigh Mahady was driving her car along the Tullamarine Freeway in Bulla, with her friend Julie Dougherty in the passenger seat. Ms Mahady was in the right-hand lane at the posted speed limit of 80km per hour. You, driving a 5‑tonne truck, towing a trailer with a 3‑tonne excavator on the back, drove up close behind her and sounded your horn several times. You then pulled into the lane next to Ms Mahady, and without warning veered across and collided with her car, pushing it towards a concrete safety barrier. You veered across the lane and struck the car on two further occasions. Ms Mahady had to steer strongly to maintain position in her lane (Charge 2).
18 You sped up and pulled ahead of her vehicle, swerving in and out of traffic. The passenger, Ms Dougherty, could see your trailer moving back and forth as you did so.
19 You made no attempt to pull over (Summary charge 23). Ms Dougherty called triple zero and took photographs of the back of your truck, showing the number plate of the trailer.
20 When your truck was in front of her car, Ms Mahady and Ms Dougherty could see you in your rear-vision mirror, laughing, making cut-throat gestures towards them, and waving a stick or piece of wood out the window of the truck.
21 You turned right at a roundabout, and Ms Mahady followed. You pulled up about 150 metres along the lane, and she pulled up behind you. This part of the altercation was captured on CCTV from a nearby property and viewed by me during your hearing. You can clearly be seen in that footage, which lasted approximately 4 minutes. I have no doubt the occupants of Ms Mahady’s car were scared if not terrified by your behaviour towards them.
22 You and Ms Mahady exited the vehicles at the same time, you holding a steel hammer. Ms Mahady told you she just wanted your truck’s registration. You ran towards her with the hammer raised, very angry, screaming at her “Why were you in the emergency lane?” You told her to get back into the car and not to call police. You pushed her with two hands to her shoulders, and she had to grab her car to stop falling to the ground (Summary Charge 5).
23 Ms Dougherty, who was in Ms Mahady’s vehicle, got out and started to run away, but you ran after her and pushed her, causing her to fall into a ditch. You stood over her with the hammer raised in your hand, yelling at her as she cowered in the ditch (Summary Charge 6).
24 While running away she dropped her phone. You picked it up and returned to where Ms Mahady was standing, yelling “You’re not calling the police”.
25 Ms Dougherty returned to the car and sat inside. Ms Mahady said that they were not leaving until you returned Ms Dougherty’s phone. You eventually did, and Ms Mahady got into her car.
26 You went to the passenger side of the vehicle and hit the side mirror with your hammer leaving it hanging off, then hitting the side windows and panels five or six times, before finally hitting the small triangular window behind the passenger seat. That window broke, and you lost your grip on the hammer, which fell onto the back seat.
27 You returned to your truck, and you and Ms Mahady left the scene, Ms Mahady drove straight to the Sunbury Police Station to report the incident. Both women were observed to be visibly upset. Ms Dougherty provided photographs she had taken of the incident. Your hammer was seized from inside the car.
28 Your offending caused extensive damage to Ms Mahady’s vehicle; a broken rear window, damage to every panel, and to both alloy wheels on the passenger side of the car. The passenger side mirror was also destroyed. (Charge 3 on the indictment.)
29 Your truck was later located and photographed by police, who observed metal imbedded in the front driver’s wheel nuts which appeared foreign to the truck.
30 Turning to the third incident relevant to Charges 4 and 5 on the indictment and Summary Charges 14, 15 and 25.
31 At approximately 1 pm the following day, 28 May 2018, David Robinson was driving his car along the Hume Freeway, with his wife, Katherine, in the passenger seat.
32 Robinson was driving at the posted speed limit of 100km per hour. You were in your employer’s Holden Combo van, parked in the left emergency lane ahead of Robinson’s car. Your then-partner, Maria Scrignar, was in the passenger seat of your van.
33 Without indicating or making any effort to appropriately merge, you pulled out of the emergency lane and straight into the Robinsons’ lane. Mr Robinson was forced to apply the brakes heavily to avoid a collision. He sounded his horn and yelled out, before moving into the right-hand lane when he had opportunity to do so. As he drove past you, he again sounded his horn and gestured towards you.
34 You then moved into the same lane as Robinson and started tailgating him. It also appeared to Robinson you were gesturing to him to pull over. You moved back into the left-hand lane and accelerated past Robinson’s vehicle, pulling in front of it, scraping the entire right-hand side of the van against the front left corner of Robinson’s car as you did so (Charge 4 on the indictment).
35 Mr Robinson gestured at you to pull over so you could exchange details, he put on his indicator and started to slow down, however, you made no effort to stop (Summary Charge 25).
36 Katherine Robinson took photographs of your van and called triple zero. You exited the freeway and the van up on the exit ramp, with Mr Robinson following stopping a short distance behind you.
37 You got out of your van carrying a tyre lever, opened the right rear door of the van, put down the tyre lever, and retrieved a baseball bat.
38 You walked to the driver’s side of Mr Robinson’s car, yelling at him to get out, before hitting the driver’s side window three times with the bat. On the third strike the window broke. Glass sprayed across the car, causing cuts to Robinson’s forearm and hand. You continued to strike the rear passenger windows and door with the bat, and also smashed the driver’s side mirror. (Summary Charge 14.)
39 Robinson tried to release the parking brake switch so he could drive away, but it did not work.
40 Your passenger got out of the van and was trying to open the passenger side door of the Robinsons’ car.
41 You swung the bat at the passenger side window and broke the glass, which showered on Ms Robinson. The bat also hit Ms Robinson on the shoulder; luckily however, the window took most of the force of the blow (Summary Charge 15).
42 You and your passenger returned to your vehicle and drove off.
43 A number of calls were made to triple zero by members of the public who had seen that incident. Police were given the van’s registration number. First responding officers saw you driving east on Cooper Street and attempted to catch up with you, however you accelerated away and they could not locate you when patrolling nearby streets.
44 The prosecution tendered a number of photograph books. Photo Book No 3 referable to Incident 2. Photo Book No 4 relevant to Incident 2 and the damage to your truck.
45 Photo Book No 5 relevant to damage caused to the Robinson vehicle with some photographs of the Mr and Mrs Robinson, relevant to Incident 3.
46 The Robinsons attended Epping Police Station. Photographs were taken of the damage to the car caused by you. Both the driver’s and passenger’s windows were destroyed, as were both side mirrors, and the pillar between the driver’s side front and back doors was dented (Charge 5 on the indictment).
47 Turning to Summary Charge 16, you were at the time of this offending the respondent in a final Intervention Order. The affected family member was Ms Scrignar. It was a condition of the Order you not approach or remain within five metres of her. In the period 27 May to 29 May you were in the company of Ms Scrignar, including during incident 3 and at the time of your arrest. When interviewed by police you said you were aware of the existence and conditions of the Order, and admitted your breach of it.
48 Police appealed for assistance from the public after the second incident, and were able to identify you as a suspect through registration details and enquiries with your employer.
49 You were contacted by phone, and an arrangement was made for you to attend a police station for interview. You failed to attend and were subsequently arrested at your home on 29 May 2018 and taken to the Moonee Ponds Police Station for interview.
50 At the time of that interview, you were not asked about Incident No 1 involving Ms DeMarco, as it was not known to the informant at that time.
51 You provided accounts of Incidents 2 and 3 which painted the victims as the ones driving aggressively and being at fault.
52 Regarding Incident No 2, you claimed Ms Mahady had slowed down so that you could not get past, which made you feel like you were being “terrorised and antagonised”. Once you were able to pass her car you said she accelerated to level with your truck and veered into the side of the truck to try to “scare” you. You said she followed you for a good 10 minutes into your work yard before getting out of the car, when she started being a “smartarse” and telling you to “Go back to your own country”. You said you returned to your truck to get a hammer to try and scare her to make her stop trying to ruin your day. You said Ms Dougherty jumped out of the car and tried to run to your truck, so you panicked and “sort of nudged her onto the grass”. You said they drove away and you chased them for a short time, swinging the hammer, which broke the back window and fell into the car.
53 You suggested Ms Mahady was behaving in that manner, “disturbing the peace”, because she was “bored”.
54 You described your altercation and said Ms Mahady was “smiling and just grinning”, “a devilish smile like a witch”, and that the victims “were loving it” and “kept going”, which made you get angrier. You did not think they were scared of the hammer at all, and denied anything like this had ever happened before. You had not reported this incident to police because you were scared and worried about getting into trouble that was not your fault.
55 You denied the account given by Ms Mahady, and said “No comment” when asked about MsDougherty’s account.
56 Regarding your description of Incident 3, you said you had been parked on the side of the road making a phone call, then merged back onto the road when there was “no one around [you] at all for a good 500 metres”. You said Mr Robinson came around the corner “out of nowhere” and decided to “beep, [keeping] on blaring the horn”. You decided to “pull over and have a chat to the guy.” Robinson was “telling off” both you and your passenger, and swearing “in an aggressive manner”. You said Robinson moved his car backwards and forwards towards you as you were walking away, and you had to dodge Robinson’s vehicle. It was this which caused you to start to “lose [your] shit” and retrieve “the bat”. You agreed you hit the window of Robinson’s vehicle. You variously denied the accounts given by the Robinsons or responded “No comment” to them.
57 You denied being drug or alcohol affected at the time of Incident 3 or the others. However, admitted using cannabis and ice, saying the last time you had used ice was two weeks prior to the interview. You told police arrangements had been made for you to be admitted to a rehab clinic.
58 I discussed at some length with your Counsel some of your answers to police in the interview. You maintained in that very lengthy interview that the drivers were at fault in Incidents 2 & 3. At the time of that interview as conceded by your counsel Mr Gurvich you were not remorseful for your offending. You had two days between Incident 3 and your interview to consider your response to the allegations. As your counsel conceded your answers do you “no credit”.
59
Two victim impact statements were before me, also the statement of
Ms DeMarco within the depositions in which the latter described being scared and terrified. I accept the victims of your offending have suffered considerably, as a result of your offending and I shall return to pass some remarks on that subject later.
60 You have pleaded guilty to these charges. You are entitled to have that fact taken into account in your favour, and I do so. The community has by your pleas been spared the time and cost of a trial, and witnesses have been spared the need and ordeal of giving evidence upon your trial. Further, I take into account in your favour you intimated early your intention to plead guilty to these charges. Your plea of guilty has utilitarian benefit and is relevant in mitigation of your sentence. I note the prosecution (Exhibit A) conceded your pleas of guilty were entered at the earliest opportunity the matter resolving at a committal mention.
61 At the time of your plea hearing you had spent 275 days in custody by way of pre-sentence detention, that is from the date of your arrest up to and including 27 February 2019.
62 You have admitted relevant, albeit not associated with driving, prior criminal offence court appearances. You appeared at Broadmeadows Magistrates’ Court on 11 October 2017 on a charge of intentionally damaging property and unlawful assault, and with conviction the matter was adjourned to 9 October 2018 and you were also ordered to pay $1,000 into the Court fund. Your offending before me breached that court order. I stress you are not being sentenced by me for that breach, however it is an aggravating feature of your offending before me that you were on a Court order to be of good behaviour at that time.
63 You next appeared at Broadmeadows Magistrates’ Court on 20 March 2018 on charges of contravening a family violence final intervention order and using cannabis, and without conviction the matter was adjourned to 19 April 2018 (this pre-dates your offending before me, i.e. your offending does not breach that Order).
64 Of concern regarding those prior offences is that you have been before the Court for offences of criminal damage, unlawful assault and contravening a family violence order, involving the same AFM.
65 I was also given details of a large number of Traffic Infringement Notices you have received over the years. Your driving history is frankly appalling. I read those out during the court hearing. The list is lengthy and a most unimpressive driving record for someone your age.
66 The Notices commenced shortly after you obtained your licence at age 18 and every year thereafter.
67 Your counsel, Mr Gurvich, provided a written outline of submissions for your plea hearing, and addressed them during the course of it. I was told of your personal history. You lived with your parents prior to being remanded for this offending. You have one older brother. You completed Year 12, then two years of a civil engineering degree; however, left that to work in your father’s business. You began a turbulent relationship with Ms Scrignar in 2016.
68 Appropriately, your counsel Mr Gurvich, conceded your offending was outrageous. Your counsel also accepted, appropriately – your offending involved shameful conduct, demonstrated a blatant disregard for other road users, and terrified victims with your cowardly aggression. He also conceded you had acted irrationally and violently.
69 It was also accepted by your counsel, and again appropriately, that some degree of cumulation was required to reflect your multiple victims. He is correct.
70 I discussed with Mr Gurvich the nature of your vehicles in relation to the first and second incidents. In Incident 1 you were driving a truck, and in Incident 2 a truck with a trailer attached (clearly visible on the CCTV footage). In the third incident you were driving a ‘Combo’ van, which I was told during the hearing was something like a panel van.
71 In particular I discussed with Mr Gurvich drivers being in charge of heavy vehicles and the potential damage to other vehicles on the road and relevance to Incidents No 1 and 2. Your driving manoeuvres had the potential to be particularly dangerous, given the vehicles you were driving. I stress, however, whilst making that observation, I am well aware of the actual charges before me.
72 Mr Gurvich addressed your prior matters, in particular your offending dealt with on 11 October 2017. You instructed, and it appeared consistent with the LEAP report the prosecution obtained from the police database, that it involved Ms Scrignar, you damaging her mobile phone and pushing her. It was for that offending you were placed on an undertaking breached by your offending before me.
73 I was told in relation to your appearance at Court on 20 March 2018 that offending occurred in January 2018, involving contact between both you and Ms Scrignar texting by phone with some face-to-face contact, you said at her instigation.
74 In mitigation, Mr Gurvich relied heavily upon your early pleas of guilty and the utilitarian benefit of it. He submitted your pleas of guilty indicated some remorse for your offending. I accept some remorse by you only of late. I note you had to be found by police, refusing to attend the pre-arranged meeting at the police station. Regarding you remorse at that time, I am also concerned about the extent of your offending, as following the first incident you had time to consider your actions and desist from further such offending, yet you repeated similar behaviour in Incidents 2 and 3.
75 As noted by your counsel, you denied your offending in the record of interview, blaming others which did you “no credit”.
76 Regarding remorse, Mr Gurvich acknowledged you lacked remorse at the time of your interview with police, and I discussed with him many aspects of your answers in the interview which, as he acknowledged, did not put you in a good light.
77 Since that interview I accept you have shown some remorse for your offending, although it seems in part it relates to your concern about the reputation of your family, in particular given the previous media coverage of your offending behaviour in relation to Incident No 2 as I understood, and concerns for yourself. I accept, however, you have expressed remorse to others, including members of your family, and to Reverend Rosinsky and Mr Edmond Zoomalan.
78 I would be very concerned if you were not remorseful for your offending.
79 Mr Gurvich submitted you had strong family support and employment prospects, although as I discussed with him you had that family support and also had employment at the time of this offending.
80 He urged you had been making good progress in prison, and that your drug use had ceased since being remanded. He urged you had good prospects of rehabilitation. I am not so convinced. However when sentencing you I must seek to maximise your chances of rehabilitation as they may be.
81 There were no expert reports filed on your behalf. Apart from you apparently attending the Melbourne Clinic in Richmond approximately four days prior to this offending and being placed on a waiting list for attendance with that clinic, you had not previously addressed your anger-management issues or drug use, despite them being obvious problems for you.
82 Since being in custody, I was told you had worked as a billet for approximately 3 months, then in a prison factory for approximately 5 months.
83 A number of Certificates were also before me relevant to courses completed by you in custody. A three hour AOD and Anger program, Completion of an Education Session: What makes relationships challenging, a Managing Loss Program, a six hour AOD and Loss Program, a Release Related Harm Reduction Program, a six hour AOD & Stress Program (Exhibit 4).
84 Also before me was a urine analysis result dated 9 October 2018 negative for illicit substances (Exhibit 5).
85 Regarding your character, Mr Gurvich submitted you had a limited criminal history, although I note a very relevant criminal history involving unlawful assault, damage property and breach Intervention Order although not in the context of driving. Mr Gurvich conceded your driving history involving infringement notices was relevant.
86
Mr Gurvich urged you were otherwise of good character. Eleven references were tendered – nine from your family members and two
‘non-family’.
87 As I discussed with Mr Gurvich it appeared your full offending history and full details of this current offending were not known to many of them until this hearing.
88 From your uncle, Danny Gevergizian, dated 3 February 2019. He had never witnessed or known you to be violent. You had always been loving and respectful towards him and your family. Your offending behaviour was totally uncharacteristic and a shock. He and his family would support you to undertake counselling and rehabilitation programs as required. You had taken responsibility, he said, for your actions.
89 A reference from Clyden Ishaya, undated, your older second cousin. In socially interacting with you, he had found you to be a genuine, respectful, considerate and empathetic person. He had not known you to be unruly towards him or others. You had a high aptitude for grasping technical skills and were highly motivated. You had contributed to the family’s excavation business. He believed you were motivated to become a positive contributor to your family and society.
90 A reference from Rosellen Nadjarian, dated 17 September 2018, who had known you all your life. The author described you as a loyal friend, gentle, kind-hearted, compassionate, and well mannered. You avoided conflict, and did not engage in confrontation (I discussed that with Mr Gurvich given your offending before me). You worked in the family business, and took your responsibilities in it seriously. You had the continued support of family and friends.
91 A reference from Yokhanna Gevergizyan, dated 11 October 2018, your father, who referred amongst other matters to you having been booked into the Melbourne Clinic in Richmond for rehabilitation. This offending occurred four days after that initial appointment. You worked in the family business. In custody he had said he noticed a change in you.
92 A reference from Reverend Ron Rosinsky, 8 October 2018. You were a member of the Ascot Vale Uniting Church, and he a minister of that church. You and your family were generous with time at the Ascot Vale church and had cared for others over the years, helping at the church fete and youth group events. You and your family assisted in the rebuilding of the church after it was burnt down in 2004. The author regarded you as a gentle and good-natured person.
93 A reference from James Gevergizian, your uncle, and Marlin Gevergizian, your aunt, dated October 2018. They described you as a hardworking, loving and caring young man. Your offending was not the person they knew. You had a support system in the family. They would offer you any assistance they could. You were not by nature or disposition an aggressive person.
94 There was a reference from Beata Perehyaghmooraali, your cousin, dated October 2018. The author described you as having led a positive lifestyle, earning the respect of family and the broader community. You had been cooperative and compliant on remand, and were ashamed, very remorseful, and very reflective. You wanted to rebuild many relationships.
95 I also heard evidence from Ms Perehyaghmooraali, who said when you were growing up as a young man you were mischievous, funny and respectful. Your family was from a small Assyrian community. You completed Year 12 at Assumption College and began a civil engineering qualification but did not complete it, and then moved to your father’s business. She said at the time of this offending you had been for a short time employed with another business. Your involvement in that other business was it seemed, she thought, because you were perhaps “sacked” from your father’s business just prior to this offending although she was not sure about that.
96 She described your problems at the time of this offending. She was not aware of the extent of your drug problem, albeit knew of it. Your involvement with Ms Maria Scrignar, she described as negative. You had withdrawn from family and disengaged at around that time.
97 She said in late May of 2018 she visited you at Melbourne Assessment Prison and during that conversation you acknowledging the harm you had caused the victims. A lot of the conversation, she said, was you asking “what if you had done something differently that day”.
98 She had visited you on two or three occasions in custody and you had asked how the victims might rebuild their lives. She described you as motivated to improve yourself. You were no longer able to cover up your underlying issues, and were free to address them now that the family knew of them.
99 You were aware you would be spending more time in jail.
100 She understood that upon your eventual release work would be available to you through the family business, but not on the road in vehicles. She described the family as proposing to “shadow” you to keep you, as I understood it, in line.
101 She said you were loved by your family.
102 In cross-examination she said that she had grown up with you and had been in contact weekly, even after you became an adult. She said it would however be very rare she would be alone talking with you. You did not discuss details of each other’s daily lives, rather met at family gatherings.
103 In discussions with you, since you had become an adult, she was aware you had difficulty with illicit drugs, and on five to six occasions in the six months prior to your remand she had spoken to you regarding your drug use.
104
She was aware you had previously been without a driver's licence and that there had been, as she described it, a couple of matters in the
Magistrates’ Court relevant to loss of licence. The only conversation she had with you regarding loss of licence was about your employment and how you would be able to travel to work without same.
105 She described, regarding her interactions with you prior to your remand, she thought over the 12–18 month period prior to that, she would ask you, “Are you okay?” and you would reply, “Yes.” But she did not push it any further, as she did not have the “authority to do so”. You did not ask her for assistance. She became aware you had at some stage stopped working for the family business as previously noted, but did not know the circumstances of that.
106 She knew of your attendance at the Melbourne Clinic from you. She did not ask what your attitude was to such an arrangement.
107 The family business, Edens Excavations, she said, was run by your brother, and would be able to provide you with employment upon completion of your sentence.
108 There was a reference from Edmond Zoomalan, President of the Victorian Assyrian Community, dated August 2018. He expressed dismay and disbelief of your situation. You had been an active member of the Victorian Assyrian community, and volunteered on the committee for many years. You displayed a warm, respectful, joyous, patient, generous and engaging attitude and temperament in dealings within the community. Your offending was out of character for you. He had not directly spoken to you regarding your current situation; however, offered your family his support. He described you as having a solid work ethic, stable and continuing employment within the family business.
109 There was a reference from Berta Gevergizian, a cousin, dated 8 February 2019. The author described your involvement in the Assyrian community, organising youth gatherings, of being hardworking, and that you were remorseful.
110 A reference from Simon Froiland, partner of your cousin Beata Perehyaghmooraali, dated October 2018. He had known you for about five years, and in that time described you as very affectionate, warm and nurturing. He described a good relationship with you. You had acknowledged that you had a quick temper, although appeared willing to work on that.
111
A reference from Peter Shamoon dated 3 February 2019, a director of
River Edge who had a working relationship with Eden’s Excavations for a number of years. He had met you and other operators over that time. All the operators had worked for him but he always preferred you as you were young and smart. You were a funny, helpful and productive person. You worked long hours on various projects, including on Saturday’s as well as Monday to Friday.
112 A number of members of your family and friends were identified in court as being here to support you during the plea hearing.
113 There was also correspondence from you, dated October 2018, in which you expressed remorse for your offending, and accepted responsibility for it. Your time in custody, you said, had given you an opportunity to think about your personal relationships with family and friends, and you now wanted to work out why you acted this way. You believed you could turn your life around. You had behaved well in custody, and started a number of educational courses. You could work, you said, towards being a better person.
114 Mr Gurvich submitted that you had embarked on the path to address some of your problems.
115 From discussion with Mr Gurvich it was apparent you had not previously sought counselling for your issues in particular anger management, or drug use. I would have thought through your prior court appearances for assault, criminal damage and breaking the IVO these would have prompted you to seek professional assistance.
116
There were no reports before me assessing your risk of further such offending or to provide any analysis of this repeated appalling behaviour by you.
Mr Gurvich confirmed he was not relying upon the principles in R v Verdins & Ors [1] and that in my opinion was an appropriate concession.
[1](2007) 169 A Crim R 581 OR (2007) 16 VR 269
117 There were two victim impact statements before me.
118 From Katherine Robinson. She recalled picking shards of glass out of her head most of the night as a result of your offending. The following day she had a panic attack when driving home from a night out with her husband. She had difficulty sleeping, as her shoulder was extremely sore from where it was hit by the baseball bat. She had nightmares play over and over in her mind every night. She was extremely frightened, locking all doors and windows, and double-checking them.
119 She had seen a psychologist a few times, which helped with her PTSD; however, her anxiety and insomnia remained. She had lost friends, as she could no longer drive to visit them.
120 She had isolated herself, feeling safer with just her husband near her. She was on medication for anxiety which she had never had to take before. Her regular occurrences of insomnia were also being medicated.
121 Your vicious actions, she said, had altered her life, and she re‑lived the nightmare she suffered at the hands of “such a selfish person”.
122 There was a victim impact statement from Julie Dougherty sworn 15 February 2019.
123 She described having received counselling since your offending. She found it hard to trust people now. She was not her normal self for some time. She now had to take anti-anxiety medication and anti-depressants. She found it difficult to drive herself to places she was not familiar with.
124 Following the incident she had bruising to her face and jaw, pain in her lip and shoulder. The pain lasted 3-4 weeks. She had trouble eating because of her jaw and struggled to do normal physical activity for a short while after the incident.
125 She was unable to work for five weeks after your offending and lost five weeks of her sick leave.
126 She struggled to sleep at night because of nightmares and flashbacks. She struggled to be around people and was very jumpy. Her social life was affected for at least two months. She was still jumpy when she heard a car screeching its brakes or if she heard loud noises.
127 Whilst not having a victim impact statement from Ms Demarco (relevant to the first incident), the prosecution relied on her statement within depositions in which she stated she was scared and terrified by your offending behaviour. Mr Gurvich agreed such could be taken into account by me.
128 I also note the principle of social rehabilitation when sentencing.
129 The effects upon a victim are a relevant sentencing consideration: see s.5, Sentencing Act 1991, but I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.
130 Turning to your rehabilitation prospects, I have at best guarded optimism. I am not as convinced as some of the authors of the references that you are able to be rehabilitated, and to date there is nothing to suggest you can be. You have however undertaken a number of courses in custody which are a good start. When sentencing you, as I have said, I must of course seek to maximise your prospects of rehabilitation as they may be.
131 Turning to sentence, Mr Gurvich confirmed his written submissions and urged the appropriate disposition would a term of imprisonment the amount of time as described by him together with a Community Corrections Order. He submitted you had not previously been in custody and I am well aware of that. He submitted that by placing you on a community correction order at the end of any term of imprisonment imposed, it would encourage your continued progress to address the issues you had started to address recently in custody.
132 Regarding disqualification of your licence, he referred to The Queen v Franklin[2].
[2](2009) 52 MVR 544 (‘Franklin’)
133
Ms Hammill, on behalf of the Director of Public Prosecutions, clarified a couple of matters relevant to your plea hearing. Firstly, in relation to
Incident 2, Ms Doherty was 60 years of age at the time of your offending, an unknown age for Ms Mahady.
134 Secondly, upon Ms Hammill viewing the CCTV footage, she described the incident, involving incident 2 as I have called it, as of approximately four minutes’ duration on the CCTV footage that I viewed in court.
135 The Prosecution submitted on sentence, an immediate term of imprisonment was required. A combined disposition (as urged by Mr Gurvich), she submitted, would not adequately or appropriately reflect all sentencing considerations.
136 Ms Hammill referred to your offending involving multiple instances of serious offending in three incidents, not in one trip, but rather separated by days.
137 Ms Hammill submitted that general deterrence was of substantial relevance in this case. I agree.
138 That your offending was appropriately described as “road rage”. I agree.
139 That incidents of road rage were prevalent whether or not it be a reaction to provocation or lack of provocation.
140 That in your case, you terrorised a number of road users, specifically five persons (that is two passengers and three drivers). Your terrorisation of them was deplorable, she submitted.
141 Ms Hammill referred to the cause of the damage in the first, second and third Incident. In the first Incident you punched the pillar of Ms Demarco’s car. In Incidents 2 and 3, the cars were struck with weapons.
142 Ms Hammill submitted that there was an absence of any explanation, for Incidents 1 and 2, noting possible provocation referable to Incident 3 (albeit not an excuse for that offending). There were no drugs involved in your offending, she said, which might have provided some explanation (albeit again would not be an excuse).
143 Regarding incident 2, in the Record of Interview, at best you said you wanted to get home from your job.
144 Addressing specific deterrence, Ms Hammill submitted that was particularly important in this case. I agree. You had a prior driving history, involving VicRoad attention (Infringement Notices) over many years. That over those years you had faced consequences of your driving behaviour, including suspension of your licence. Also, during those periods when you accumulated demerit points, you had the opportunity to consider your driving on the road, that is, your anger, and address it before this offending occurred. You knew, urged Ms Hammill, you had difficulty with anger issues, apparent from your earlier court appearances involving damage to property, assault, and also contravening a family violence intervention order. I agree.
145 Ms Hammill submitted the protection of the community was relevant when sentencing you. I agree.
146 In addition, in relation to Incident 1, you were driving a truck, and in incident 2, a truck and trailer. That you were driving heavy machinery. Care was required, given the potential consequences of driving such vehicles. It was clear she submitted you were aware of that, referring to question and answer 106 in the Record of Interview. You were aware of the weight behind you when driving such trucks.
147 Ms Hamill submitted the nature of your driving and the fact you may, in the future, seek to get employment in that field, necessitated consideration of community protection.
148 I discussed with counsel the decision of Police v Jachmann[3], in which Gray J referred, in that case, to the accused driving a B-double vehicle on a country highway. I digress and stress I am aware of the very different charge in that case to yours. However, note reference to the following:
“…The vehicle was difficult to manoeuvre. The vehicle was capable of causing massive damage to anything in its path – whether to another vehicle or an object on the road … Drivers of heavy vehicles should be aware of the devastation that their vehicles may cause in a collision.” [at [19]]
[3][2010] SASC 345
149 Addressing Franklin and licence cancellation and disqualification for your offending, Ms Hammill referred to paragraphs [35] and [36] of that decision and submitted the determination of the appropriate period of disqualification or cancellation of a licence involved a balancing exercise, and it does. The prosecution accepted that in your employment you required a heavy vehicle licence or equivalent, however, there was an offer of employment by your family which would not involve you using or driving vehicles. It has not been suggested by Mr Gurvich, she urged, that the only way you could get work in that business was by having a licence. Ms Hammill submitted it was a family business and that you had worked in the business on previous occasions when your licence had been suspended. Ms Hammill submitted the need for community protection was greater than your need for a licence, albeit, acknowledged its importance to your rehabilitation prospects. I agree.
150 Addressing cumulation and concurrency, Ms Hammill submitted there should be some cumulation between the reckless conduct endanger serious injury charges and the criminal damage charges relevant to Incidents 2 and 3, and I agree. In relation to criminal damage, both vehicles were hit by your vehicle, being the basis of the reckless cause serious injury, otherwise damage by vehicles and striking them with a weapon. I also consider some cumulation relevant to Incident 1.
151 Also relevant to cumulation and concurrency was that three of the recklessly cause serious injury charges occurred on not a single trip, but three separate incidents. I agree.
152 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, which I have at best guarded optimism. I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this. Your offending behaviour was nothing short of appalling. To have a licence is a privilege, and for you to behave in the way you did was, as your counsel conceded, was outrageous.
153 In my opinion there is also the need for specific deterrence when sentencing you, given that there were multiple victims of your offending and your offending occurred on three separate occasions. In addition you have prior court appearances, and on a good-behaviour bond at the time of this undertaking. Your prior driving history has relevance.
154 I must also consider the question of protection of the community from you, and bear in mind the likelihood of your re‑offending. This does concerns me, in particular as your offending involved random members of the public, five of them (including passengers in the three cars), and you are yet to address anger-management and or drug use issues, apart from recent efforts towards that in custody.
155 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct, and generally to impose a just punishment.
156 Specifically addressing Mr Gurvich’s sentencing submission, if I considered it appropriate, I could impose a community corrections order together with a term of imprisonment of up to 12 months (and time to date). Should I consider such to be appropriate, I would impose same. In considering his submission I am aware of Boulton & Ors v The Queen[4], and the subsequent pronouncements of the Court of Appeal relevant to those principles. A community correction order, has both a punitive and rehabilitative aspect to it, and in Boulton the courts were urged to “rethink the conventional wisdom about whether prison is really the only option”.
[4][2014] VSCA 342
157 Community correction orders have been referred to and addressed in cases since, including DPP v Maxfield,[5] Alam v The Queen,[6] Marocchini v The Queen,[7] Hutchinson v The Queen,[8] and Gul v The Queen,[9] amongst others, being mindful, of course, as I am, of the differing offending in those cases from yours. As I have said the list is not exhaustive.
[5][2015] VSCA 95
[6][2015] VSCA 48
[7][2015] VSCA 29
[8][2015] VSCA 115 (‘Hutchinson’)
[9][2016] VSCA 82
158 I did not, however, understand Boulton to remove the requirement a sentencing judge must take into account all of s.5 Sentencing Act 1991. Nor did I under Boulton to mean that sentencing principles stated by the Court of Appeal and other courts relevant to this type of offending amounted to naught.
159 Nor did I understand Boulton to remove the instinctive synthesis when sentencing.
160 Also I did not understand Boulton to remove the need for me to be mindful of the maximum penalties applicable to each of your charges.
161 Further, I note Priest JA observed in Hutchinson that:
“[I]t should not be thought that Boulton offers a ‘Get Out of Jail Free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed.” [17]
162 In my opinion, the only appropriate sentence is a term of imprisonment with a non-parole period. To accede to the sentence urged by Mr Gurvich would, in my opinion, not adequately or appropriately address all relevant sentencing considerations.
163 In sentencing you I take into account the principles of totality and proportionality.
164 Can you stand, thanks. I will take this fairly slowly.
165 On Charge 1 you are convicted and sentenced to 12 months’ imprisonment.
166 On Charge 2, convicted and sentenced to 16 months’ imprisonment.
167 On Charge 3, convicted and sentenced to 8 months’ imprisonment.
168 On Charge 4, convicted and sentenced to 14 months’ imprisonment.
169 On Charge 5, convicted and sentenced to 7 months’ imprisonment.
170 On Summary Charge 5, convicted and sentenced to 4 months’ imprisonment.
171 On Summary Charge 6, convicted and sentenced to 4 months’ imprisonment.
172 On Summary Charge 14, convicted and sentenced to 6 months’ imprisonment.
173 On Summary Charge 15, convicted and sentenced to 6 months’ imprisonment.
174 On Summary Charge 16, convicted and sentenced to 4 months’ imprisonment.
175 On Summary Charge 19, convicted and sentenced to 2 months’ imprisonment.
176 On Summary Charge 23, convicted and sentenced to 14 days imprisonment.
177 On Summary Charge 25, convicted and sentenced to 21 days imprisonment.
178 On Summary Charge 27, convicted and fined $200.
179 Now, you with me so far? All right.
180 Turning to orders for cumulation and concurrency, I direct that Charge 2 is the base sentence, and I direct the following in relation to cumulation and concurrency:
181 I direct that 5 months of Charge 1 be served cumulatively upon Charge 2.
182 I direct that 3 months of Charge 3 be served cumulatively upon Charge 2.
183 I direct that 6 months of Charge 4 be served cumulatively upon Charge 2.
184 I direct that 3 months of Charge 5 be served cumulatively upon Charge 2.
185 I direct that 1 month of Summary Charge 5 be served cumulatively upon Charge 2.
186 I direct that 1 month of Summary Charge 6 be served cumulatively upon Charge 2.
187 I direct that 2 months of Summary Charge 14 be served cumulatively upon Charge 2.
188 I direct that 2 months of Summary Charge 15 be served cumulatively upon Charge 2.
189 I direct that 1 month of Summary Charge 16 be cumulative upon Charge 2.
190 I direct that 1 month of Summary Charge 19 be cumulative upon Charge 2.
191 I direct that 7 days of Summary Charge 23 be served cumulatively upon Charge 2.
192 I direct that 10 days of Summary Charge 25 be served cumulatively upon Charge 2.
193 Now that results in a total effective sentence of three years, five months and 17 days imprisonment and I direct you serve a period of two years and five months before you are eligible for parole.
194 Sit down.
195 For clarity the Orders for cumulation are upon each other and upon the base sentence.
196 I declare pursuant to s.18(4) Sentencing Act 1991 you have spent - I would like this checked, 289 days in custody by way of pre-sentence detention up to and including yesterday, which was 13 March 2019 and I direct this be entered into the records of the court.
197 Pursuant to s.6AAA of the Sentencing Act 1991 had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to six years jail and set a non-parole period of four years and six months.
198 The prosecution made application for a disposal order, and I make the order in the terms sought. That was not opposed by counsel on your behalf.
199 When sentencing you I was directed to s.89A of the Sentencing Act, which is a discretionary provision relevant to licence suspension/cancellation. If I do exercise my discretion to suspend/cancel, I may suspend or cancel your licence for such period as I see fit. The prosecution submits an order under s.89A is appropriate having regard to the circumstances of your offending.
200 I discussed with Mr Gurvich his reliance upon Franklin, to which I have previously referred, and also refer to the decision of R v Lefebure[10], I am aware of the importance of a licence to rehabilitation when determining the appropriate period of disqualification. In my opinion, while a disqualification period is discretionary, given the nature of your offending in my opinion, it is appropriate your licence be cancelled and you be disqualified from obtaining a licence for 5 years from today’s date, pursuant to that Act.
[10](2000) 31 MVR 131
201 For completeness, there is no application before me for a forensic sample, such having been provided at interview and automatically retained.
202 And I do not believe there are any other orders sought. So, let's sort it. Maths right? I am not asking whether you agree with it, but did you get all the figures, the cumulations, it all adds up to the right thing? You got those, counsel?
203 MS GREENER: Your Honour, I got 41 months total, plus 17 days and I assume that 41 months is three years, five months.
204 HER HONOUR: Well, I - - -
205 MS GREENER: Plus the fine.
206 HER HONOUR: That sounds right. Thirty-six plus five is 41.
207 MS GREENER: Yes, Your Honour.
208 HER HONOUR: All right. So I have just worded it differently.
209 MS GREENER: Yes.
210 HER HONOUR: All right, you got that. PSD correct?
211 MS GREENER: Yes, Your Honour.
212 MS HAMILL: Yes, Your Honour.
213 HER HONOUR: Great. Was there any - no, all right, nothing else. Just in relation to the number of references, I think I said nine from family. That could well be eight or seven. I will need to double check that. All right, anything further?
214 MS HAMILL: No, Your Honour.
215 HER HONOUR: All right, thank you very much.
216 MS HAMILL: As Your Honour pleases.
217 HER HONOUR: You will have to go out the back there, please, thank you. Yes, I will sign the disposal orders outside, thank you.
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