Director of Public Prosecutions v Hayek
[2014] VCC 1496
•8 September 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-01635
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OMAR HAYEK |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 September 2014 | |
DATE OF SENTENCE: | 8 September 2014 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Hayek | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1496 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr G Hayward | Office of Public Prosecutions |
| For the Accused | Mr PS Tiwana | Markotich Lawyers |
HER HONOUR:
1 Omar Hayek, you have pleaded guilty to one charge of recklessly cause injury. The maximum penalty applicable to that offence is five years' imprisonment.
2 I have previously sentenced a co-offender in this matter, Ahmed El-Haouli, on 8 November 2013.[1] That sentence was appealed to the Court of Appeal, and on 6 February 2014 the appeal was dismissed.[2]
[1][2014] VCC 1715
[2]El-Haouli v R [2014] VSCA 5
3 Your crime arises out of events which took place between yourself and the victim of your offending, Peter Augusti-Alexis ('Peter').
4 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 (Exhibit A). 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 the facts in this case are most disturbing, in particular in light of your prior court appearance for the offence of unlawful assault, to which I shall later refer.
5 I turn to a brief summary of your offending.
6 As previously stated, the victim is Peter Augusti-Alexis and his brother is Alexi Augusti-Alexis ('Alexi').
7 The victim Peter had been in a relationship with Shantel Leon, with a baby born of that relationship in June 2012, named Xavier.
8 In late 2012 Peter and Ms Leon broke up. Peter found out Ms Leon had been having an affair with Ahmed El-Haouli (your cousin and co-offender).
9 After the breakup things were strained between Peter and Ms Leon, in particular over how much time Xavier spent with each of them. Ms Leon continued in her relationship with her new boyfriend, Mr El-Haouli.
10 On 24 March 2013, Peter's family had organised for Xavier to be christened at a Greek Orthodox Church in Preston. Xavier was with Peter and their extended family at their home in Preston. By the day of the christening, Ms Leon had decided to go to that address and take Xavier to get Xavier back into her custody.
11 At about 2.30pm on 24 March 2013, Peter and Alexi left the house in Preston to take Xavier to the christening. Peter was holding Xavier.
12 Ms Leon, her mother and a friend of Ms Leon's, Michelle Mariona, had driven to the address. Ms Leon and her mother got out of the car and stood near the nature strip. As Peter was getting ready to put Xavier into a car, Xavier was taken off him and ended up in Ms Leon's arms. She then started taking Xavier towards the car in which she had arrived.
13 At about this time, you, together with your co-offenders El-Haouli and another unknown male, ran to the corner of the street where Peter and Alexi were. The other man from your group was armed with an extendable baton.
14 The prosecution opening states that El-Haouli, you and at least one other male, reached an agreement to use unlawful assault to help Ms Leon take Xavier, and that that agreement was carried out. The group of men, including your co-offender, El-Haouli and yourself, ran towards where Peter and Alexi were.
15 Alexi ran towards El-Haouli and collided with him. El-Haouli fell on the ground. Alexi was then involved in a fight with the unknown man who was holding the baton.
16 Peter was struck to the face with the baton, which caused him to fall to the ground. Whilst on the ground, he was struck to the face and head with the baton. El-Haouli and the other man kicked Peter in the back and ribs and struck him in the back with the baton. El-Haouli punched Peter in the face. Peter got up off the ground and was struck to the face again with the baton, causing him to fall back to the ground.
17 El-Haouli returned to Alexi and started kicking or hitting him on his legs and ribs whilst he was on the ground and the men from your group then ran away.
18 Alexi had been injured with a blood nose and damage to his top lip. He had bruising and scrapes to his head, and swelling and tenderness to his nose.
19 Peter sustained a number of injuries. Four of his lower teeth were displaced and the bone underneath the teeth fractured. There was a cut to his chin and laceration to his eyebrow requiring stitches, also a bruise over his left shoulder blade, a split lip, lacerations to his chin, abrasions to both knees, bruising to his head and back and pain to his body, particularly his face, and temporarily blurred vision. He underwent surgery to fix his teeth, including fixing two metal plates into his jaw. He was discharged from hospital on 25 March 2013 and the plates were removed on 11 June 2013.
20 Turning to the charge of recklessly causing injury to which you have pleaded guilty, the prosecution case is that your criminal liability involved you not possessing the baton, nor you physically striking anyone. Rather, you aided and abetted those who injured Peter. By your presence, you lent your co‑offenders support and encouragement. El-Haouli intentionally caused serious injury to Peter.
21 It is important to note at this stage the prosecution case had altered regarding, in particular, your involvement in this incident compared with that in the prosecution opening in the plea hearing of El-Haouli, as I discussed with Mr Tiwana, who appeared on your behalf. This is relevant to the question of parity, to which I shall later refer.
22 After your group ran away, a tug-of-war was had over Xavier with Ms Leon and Ms Mariona on one side and members of the Augusti-Alexis family on the other. Xavier was taken back into the house. Police and an ambulance were called and Peter was taken to the hospital by ambulance.
23 Turning to your plea of guilty to this charge, you had previously offered to plead guilty to the charge of affray on the basis that that charge could be determined in the Magistrates' Court. That offer was made on approximately 27 August 2013 after/during the contested committal and was rejected by the prosecution. The offer to plead to affray in the Magistrates' Court was again offered in approximately March 2014 and again rejected. As at 6 June 2014 the prosecution were wanting pleas of guilty from you to intentionally cause injury and intentionally cause serious injury but on the basis no baton was used by you. On 26 April 2014, as I understood it, the prosecution suggested this matter could resolve if you pleaded guilty to one charge of recklessly cause injury on the basis of aiding and abetting. You accepted that charge that same day and said you would plead to it.
24 I discussed this process towards your plea of guilty to the charge before me with Mr Tiwana. I note at no stage did you offer to plead to recklessly causing injury, despite having originally been charged with that offence by police. Your defence was that you were not present. That was, as I understood it, an identification case.
25 Ultimately, what can be said about your offer to plead guilty was there were discussions between the prosecution and those representing you in an effort to resolve your offending and that ultimately it did resolve.
26 By your plea of guilty, you are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial and witnesses, in particular the victim of your offending, have been spared the need to give evidence upon your trial, although I note there was a contested committal. In relation to the timing of your plea, I accept, as I have said, there were efforts made by you over the history of this matter to have it resolved. The prosecution were initially insisting that whatever the charge, it would involve you using violence and being armed, this now not being the prosecution position.
27 In the circumstances, I am prepared to accept your plea of guilty indicates remorse for your offending.
28 You have admitted a troubling and relevant prior court appearance at Broadmeadows' Magistrates' Court on 16 April 2012 when you were dealt with for the charge of unlawful assault. You were without conviction fined $2000. Disturbingly, you did not learn from that experience, committing this offence approximately some 11 months after that court appearance.
29 I was told something of that offending, which had occurred on 27 October 2011. It involved a male victim being punched to the back of his head. The victim had been going out with another of your cousins and there was also another person present as well as yourself at this assault.
30 As I discussed with Mr Tiwana, there were disturbing similarities in your involvement in that offending and that before me. You need to learn to 'walk away' from physical confrontations or you are going to be back at court and the penalties for such offending, you will find, will become more severe.
31 The victim of your offending, Peter, has suffered considerably as a result of your offending and I shall return to pass some remarks upon that shortly.
32 As I previously stated, your co-offender, El-Haouli, pleaded guilty on 30 October 2013 to charges of intentionally causing injury to Alexi and intentionally causing serious injury to Peter. The sentence imposed was a head sentence of two years and five months with a non-parole period of eight months.
33 As I also said earlier, the sentence was appealed and, in dismissing the appeal, Justice Coghlan JA remarked the sentence was "merciful" and Justice Priest JA described it as a "very lenient" sentence.
34 The prosecution accept it was El-Haouli who had recruited you in this offending.
35 Regarding the issue of parity, the prosecution case currently before me was that both you and El‑Haouli carried out the offences in company, with some planning involved and at least one baton used (not by you).
36 The prosecution has accepted your offending was less culpable than El‑Haouli.
37 You were 21 years of age at the time of the offending and 22 at sentence.
38 Your counsel, Mr Tiwana, provided an outline of his plea submissions (Exhibit 1). I have read those submissions, and Mr Tiwana addressed them during the course of the plea hearing. At a mention prior to the plea hearing Mr Tiwana had, very helpfully in my opinion, indicated what his ultimate submission would be regarding disposition, which enabled me to carefully analyse it.
39 Regarding the timing of your plea of guilty, Mr Tiwana accepted regarding your earlier offer to plead guilty that it was to a different offence and one not previously charged. I note when your offer to plead guilty to affray was made, it was on the basis you did not personally use any violence and were not armed, and that is the basis upon which the prosecution has ultimately accepted your culpability and I am aware of this.
40 Mr Tiwana submitted that in addition to the utilitarian benefits of your plea of guilty, it was also indicative of remorse and entered in the face of a case that was potentially weak. The latter was discussed with both Mr Tiwana and the prosecution and I note the problems the prosecution had relevant to the proposed identification evidence relied upon.
41 Mr Tiwana referred to your subsequent and voluntary participation in an Anger Management Course. There was correspondence from Rory Ford, Counsellor, Victoria Behaviour Change Centre, dated 27 August 2014, which confirmed your completion of the 180 Program Anger Management Course of eight hours' duration. You attended four sessions and made excellent progress during the course and completed the program. You had no history of substance use. A Certificate of Completion was attached to the Report and you are to be commended for your attendance.
42 A number of references were also before me.
43 There was a reference from Rory Shariff, dated 1 September 2014, who had known you for over a year as you regularly attend his gymnasium. He described you as remorseful for your offending and embarrassed about it.
44 There was a reference from Adrian Taverna, dated 1 August 2014, your employer at Aseltech. He was aware of this charge. He confirmed you had been his employee over the past four years, completing your electrical apprenticeship. He described you as a talented young man, hard working and dedicated.
45 There was a reference from Ms Sihan El-Asmar, dated 29 August 2014 (your aunt). She described you as a reliable, trustworthy and honest young man. She confirmed your parents' ill health and your assistance to them. You have expressed remorse for this offending.
46 Mr Tiwana submitted that at age 22 at time of sentence you were therefore a youthful offender and that rehabilitation was a relevant and important sentencing consideration. I agree rehabilitation is important, but as I discussed with Mr Tiwana I remain concerned about your relevant prior criminal record involving unlawful assault in similar circumstances.
47 I turn then to your background and history as outlined in Mr Tiwana's written submissions. .
48 You moved to Australia with your parents in the 1970s and have six sisters and one brother and a number of your family members were present in court to support you during the plea hearing. You are the second youngest child. You attended local state schools in Broadmeadows and completed Year 12. You live with your parents and your brother. Both your parents are in poor health, your father in receipt of a Disability Pension and your mother is your father's official carer. Your father has heart disease, diabetes, poor eyesight and was diagnosed last year with prostate cancer. Your mother was diagnosed with breast cancer three years ago and is currently undergoing chemotherapy. I note Mr Tiwana was not relying on family hardship in mitigation of your sentence and that concession was appropriate.
49 You are single and described your life as revolving around your family, work and going to the gym.
50 Mr Tiwana urged you had good prospects of rehabilitation, and that your prior history was limited to one appearance of unlawful assault, and that offending having occurred in October 2011 when you were 19 years of age.
51 I accept that in the 18 months since your offending before me, you have not been in any further trouble with police and that is to your credit.
52 Mr Tiwana also referred to you having completed the anger management course and I have previously referred to this, nor do you have any issues with drugs and/or alcohol.
53 I was told since finishing your studies, you have been working as an apprentice electrician, with three exams to go to achieve an A-Grade licence to work as a fully qualified electrician. You work six days a week, earning $690 per week.
54 Turning to the question of parity and the principles in R v Taudevin[3] and Postiglione v The Queen[4], Mr Tiwana referred to your co-offender pleading guilty to more serious offences and that you had pleaded guilty to a totally different offence. Different maximum penalties also applied to the offences of your co-offender and to you and of course I accept those submissions. In my opinion there are a number of distinguishing features between yourself and El‑Haouli relevant when sentencing you.
[3] [1996] 2 VR 402
[4] (1997) 98 A Crim R 134
55 Further, Mr Tiwana submitted that your co-offender was the leader of what transpired. I have previously referred to the concession by the prosecution regarding your involvement in this offending.
56 Turning to your rehabilitation prospects, the greatest comfort in that regard comes from the 18 months approximately since this offending in which you have not re-offended and have maintained your employment as an apprentice electrician, although I note that employment did not cause you to 'think twice' before becoming involved in the offending in either 2011 or 2013, if the reference from your employer was accurate that you had been working with his company for four years. Having said that, your employment gives me some comfort, although I am concerned you now have two court appearances for offences involving violence with the offence before me arguably an escalation in the type of violent behaviour in which you are involved. On balance, however, I am satisfied your chances of rehabilitation are reasonably good.
57 In fixing an appropriate sentence, I must seek to maximise your chances of rehabilitation as they may be.
58 There is a Victim Impact Statement from Peter before me in which he described the physical injuries he sustained as a result of your offending, including four teeth being pushed out of place and two teeth having "died". He also referred to other injuries as set out in his Statement and referred to in the prosecution opening. He continued to need to visit the dentist for the pain associated with the injuries sustained in this assault. Whilst he was unemployed at the time of your offending, the pain prevented him from finding employment.
59 Peter described that since this incident, he was afraid to go out alone and watched who was behind him. He was not able to take his child out in case it happened again. His family was over protective of his son because of what had happened. Xavier was very scared when he saw someone in public that looked like the offenders. He and his family were very cautious when out in public in case they were approached by you or your friends.
60 The effects upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991). I am, however, conscious I must not allow the effects upon a victim to swamp the sentencing process.
61 Mr Tiwana urged you could be appropriately dealt with for this offending by the imposition of a fine. I discussed this and the transcript will reveal that discussion. Ultimately, I disagree with the appropriateness of such a disposition. In my opinion, taking into account the facts/circumstances of your offending, your prior relevant criminal history (albeit limited), all matters personal to you and matters in mitigation of sentence, that to impose such a disposition would be manifestly inadequate.
62 Mr Hayward, on behalf of the prosecution, submitted a fine would be outside the range, not adequately reflecting the need for general and specific deterrence.
63 Mr Hayward referred to your relevant prior court appearance and the concern reconciling your remorse with your defence, which was a denial of involvement at all (identification). He referred to the need for general deterrence for offending such as yours.
64 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
65 There is also, in my opinion, an element of specific deterrence required when sentencing you, as you do have a prior court appearance, in particular for a relevant offence, i.e. one involving assault.
66 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. This causes me some concern, although I note to your credit, you have remained out of trouble for the last 18 months.
67 I am called upon by the Sentencing Act 1991 to manifest the community's denunciation of your conduct and generally to impose a just punishment.
68 I arranged to have you assessed for your suitability or otherwise for a Community Corrections Order, and subsequently received a report from Mr Temple-Camp, Corrections Officer, stating you were suitable for such an Order.
69 Mr Temple-Camp referred to your ability to complete unpaid community work if ordered. No other treatment needs were identified by him during that assessment. A supervision component (s.48E) was not considered by him to be necessary.
70 So if you can listen carefully, subject to your consent, bear in mind you have to consent, I intend to impose a Community Corrections Order, but before I do so I must explain the conditions of such an order and ramifications should you breach the order. You have to listen carefully and I am then going to ask if you consent to the Order being made.
71 The Order will be with conviction and for 12 months.
72 The following Core conditions apply to this order. It applies to everybody and it applies to you.
·You must not commit, whether in or outside Victoria, during the period of the order (that is 12 months) an offence punishable by imprisonment. Beware, it can include driving offences, all sorts of things you would not even expect. You do not have to be sentenced to gaol, it is whether it has a penalty of gaol attached to it as a possibility. You are going to have to be really careful for 12 months.
·You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the Order. That means you have got to accept visits from Corrections in general terms for the next 12 months.
·You must report to the Community Corrections Centre at Broadmeadows within two clear working days, ie: by 4.00pm on 10 September 2014. If you are late, you have breached the Order, you are back before me and I have to think of another sentence and it only goes up in severity.
·You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change. That means if you change your job, you have got to tell Corrections within two days of your change.
·You must not leave Victoria. No holidays interstate, overseas, anywhere, except with the permission of Corrections. Well, it is actually with the permission of the Secretary to the Department of Justice, or his or her nominee, but that is Corrections officers. So you have got to tell them, ask them.
·You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the Order, which means Corrections officers. You have got to comply with any direction they give you.
73 There is going to be another condition attached to this Order and it applies to you as well:
· You have to perform 100 hours of unpaid community work over a period of 12 months, so you have got 12 months to do 100 hours as directed by the Regional Manager, basically as Corrections tell you to do, if that makes sense.
74 I can only impose a Community Corrections Order if you agree to such an Order being imposed. So I need to tell you a bit more about that. I have told you what the conditions will be, I need to tell you a few extra things.
75 I should advise you that if you contravene or breach that order by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach. That is separate from being sentenced for the offence, you also get a penalty for the breach. See s.83A(d).
76 You can also be re-sentenced for the offences that are before me. So you come back before me, I have got to think of something else for recklessly cause injury. One of the options available includes a term of imprisonment, s.83A(s). So you run a real risk, you breach this order, come back before me, you go to gaol. Simple.
77 So you have to be extra careful for the next 12 months. No committing any further offences that might incur a term of imprisonment even if you do not get one if it allows that penalty, otherwise you are back before the Court, back before me, not before anybody else and I have to re-sentence you on the charge that is before me. You have got to be extra careful.
78 I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, which means that if you fail to comply with what a Corrections officer says as part of this order, you can also be fined. See s.83A(e) and A(f).
79 Now you are aware of all of that?
80 OFFENDER: Yes.
81 HER HONOUR: Well, can you stand up, because I am going to ask you. Do you want to speak to Mr Tiwana, get some advice?
82 OFFENDER: No, it's all right.
83 HER HONOUR: You sure?
84 OFFENDER: Yep.
85 HER HONOUR: All right. Well, do you consent to the order being made with those conditions attached, bearing in mind what will happen if you do not?
86 OFFENDER: Yes, Your Honour.
87 HER HONOUR: Comply. All right. So you agree to the order?
88 OFFENDER: Yes.
89 HER HONOUR: Very well. Have a seat.
90 Charge 1, convicted and sentenced to be on a Community Corrections Order for a period of 12 months from today's date.
91 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to this charge and had you been found guilty of it by a jury verdict, I would not have imposed a Community Corrections Order, rather I would have sentenced you to imprisonment of 18 months with a non-parole period of 12 months. So it is a big discount for pleading guilty.
92 Pursuant to s18(4) Sentencing Act 1991, I note you have not served any time in custody by way of pre-sentence detention. I do not strictly need to announce that, given the Corrections Order, but if I have to revisit it I will know the answer if I have to think of things like that. I hope I do not have to revisit it, if I do, it means you have done the wrong thing.
93 The prosecution made application for a forensic sample pursuant to s464ZF Crimes Act 1958. Mr Tiwana did not oppose the making of the Order. I make the Order in the terms sought. It will be for a saliva sample on the basis of the seriousness of this offending and your prior conviction. I must advise you the authorities may use reasonable force in order to obtain that sample. No other orders were sought, I do not think.
94 MR HAYWARD: No, Your Honour.
95 HER HONOUR: No. Very well, everything correct. PSD, just in case I have to look at this again, Mr Tiwana, but I hope I do not.
96 MR TIWANA: Yes, Your Honour. Everything's correct.
97 HER HONOUR: Everything's fine?
98 MR HAYWARD: Yes, Your Honour.
99 HER HONOUR: Everything clear? Ms Jackson is going to come down to the back to get you to sign anything to the Corrections Order. Mr Tiwana, you might go back and help him so he knows what he is doing.
100 MR TIWANA: Yes, Your Honour.
101 HER HONOUR: Now, don't forget to report, two days' time. Otherwise I'll end up seeing you a lot sooner than I want to, all right? In other words I don't want to see you again. Anything else?
102 MR TIWANA: No, thank you.
103 MR HAYWARD: No, Your Honour.
104 HER HONOUR: No. Thank you for your assistance. Thank you.
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