Director of Public Prosecutions v Irakoze

[2015] VCC 781

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-15-00652

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEDRICK IRAKOZE

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	2 June 2015
DATE OF SENTENCE:	11 June 2015
CASE MAY BE CITED AS:	DPP v Irakoze
MEDIUM NEUTRAL CITATION:	[2015] VCC 781

REASONS FOR SENTENCE
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Subject:   CRIMINAL LAW 

Catchwords:   Sentence – plea of guilty to one charge of recklessly cause serious injury – possess drug of dependence – young offender

Legislation Cited:     Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic), Drugs, Poisons and Controlled Substances Act 1981 (Vic)

Sentence:Convicted and sentenced to detention in a Youth Justice Centre for 2 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S.Coombes	Solicitor for the Office of Public Prosecutions
For the Offender	Mr J. McLoughlin	Victoria Legal Aid

HIS HONOUR: 

1Sedrick Irakoze pleaded guilty to two matters in Indictment No.F10054418.  Mr Jon McLouglin appeared on behalf of Mr Irakoze and Ms Coombes on behalf of the Director of Public Prosecutions. The Indictment is a two charge Indictment, the first a very serious charge, that on 6 January, Mr Irakoze, without lawful excuse recklessly caused serious injury.  The seriousness of such matter is indicated by the fact that an offence under this section of the Crimes Act carries with it a maximum penalty of 15 years. As part of the investigation, Mr Irakoze was found to be in possession of a very small amount of cannabis. That is an offence under s.73(1) of the Drugs, Poisons and Controlled Substances Act.  The maximum penalty that applied, indicative of the amount in this matter, is a matter of five penalty units.

2Insofar as the prosecution summary (Exhibit A) was concerned, Mr McLoughlin accepted the summary, although he emphasised a number of matters as to the background and circumstances that led to this particular injury being inflicted.

3Albeit, that in the victim impact statement talks about Mr Irakoze as a friend, it would appear that they did not come to know each other until Mr Irakoze began boarding at these premises in Footscray.  That was shared accommodation.  The boarding house was opposite the McDonalds restaurant, located in Ballarat Road.

4There was issues and arguments apparently at a party that the victim had.  The full circumstances, one is not quite sure, except that at one stage Mr Irakoze and the victim, to use the phrase, "took it outside."  During such altercation there was an initial stabbing to the chest, which caused a superficial wound.

5There was further discussion and subsequently at about 3.30 pm, Mr Irakoze and two witnesses, at least, were out the front of the boarding house.  The victim came into contact or within range of Mr Irakoze.  There seems to be some issue as to how that came about, but certainly it would appear to be in the front of the boarding house, and there the altercation took place. 

6As detailed at paragraph 8 of the prosecution summary, in regard to Charge 1, the victim approached Mr Irakoze and the fight began.  Mr Irakoze was, it is agreed, kicked by the offender but at the same time unfortunately struck out at the victim with a knife in his hand, in a manner which he described as a "hook style punch."  The stabbing unfortunately penetrated the chest wall through to the heart and lung of the victim.  The victim then struggled to a situation close on the road or near to McDonalds when he was subsequently attended to.

7The circumstances surrounding that injury are set out in Exhibit B, the statement of Mr Phillip Antippa, cardio thoracic surgeon.  As I said during the hearing, a reading of this statement shows how close to an absolute tragedy the prisoner came.  There were, as indicated, two stabs, one of the earlier altercation and one later. However the severe wound is the one comprising the charge of recklessly cause serious injury, which was diagnosed as a stab wound to the right ventricle and left upper lobe of the lung.  This required the opening up of the pericardium and the finding there of a laceration, consistent with a stab wound to the right ventricle, requiring suturing.  There was a significant amount of blood in the left chest, and part of the lung had to be removed by way of a small wedge resection, with what they call a thoroscopic stapling device.  As a result of this particular procedure, the victim remained in intensive care for four days and was finally discharged, approximately seven days later, on the 13th day of January 2015, he was followed up as an out-patient.

8The opinion of the surgeon was that the stab wounds of the lung and heart were caused by a stabbing motion with a sharp implement, consistent with a knife.  It is noted in the report, that upon examination when the victim came to the hospital, the doctor said, “I was able to physically examine the patient at this time on the operating table, just prior to urgent surgery.” 

9As I say, that report indicates what this could have been.  I make it clear that one is not sentenced in these type of matters for what could have happened, but I just make the point that this type of action, the use of a knife for any circumstances involving a fight between people, is condemned in our community. The results are quite obvious, and for you Mr Irakoze, you could have been very easily as I said, across the road facing a charge of murder, but for the skill of the surgeons.

10Insofar as the victim impact statement, which was tendered Exhibit C, it seemed to me that there was nothing inappropriate insofar as the comments made by the victim.  Fortunately, with the skill of the surgeon, there was no ongoing physical problem and no doubt, given the manner in which surgery was undertaken, there would have been a lot of pain on recovery initially while the victim was in hospital.  However, the victim has some underlying psychiatric issues and the fact that he went to the country and has had to live with his mother caused some particular concerns to him. As I say, it was particularly uncomfortable because of the fact that his ribcage had to be opened during surgery, essentially none of those matters that were put in that declaration of 8 May 2015 seemed to be unreasonable in any way. 

11Coming then to the plea itself, Mr McLoughlin filled me in with the fact of a conviction in the Magistrates' Court, and service of a period of imprisonment.  Mr McLoughlin stressed the support of the family, and the family are here again, and took me back to the makeup of the family, his mother, his aunts, and in particular his two brothers were present and I presume are present again.

12In particular, Mr McLoughlin took me to the report of Ms Karviski, from Youth Justice, dated 5 March 2015 (Exhibit 7). Such report detailed the charges for which it was specifically prepared.  They were the matters heard at the Sunshine Magistrates' Court.  However, I am told that such report is valid as to the penalty sought in this matter by Mr McLoughlin.  At paragraph 3 of such report, Ms Karveski says this;

"It is the writer's assessment that a youth justice custodial environment is the most conducive to Mr Irakoze's present circumstances.  He would be provided with rehabilitative programs aimed specifically for young offenders that would maximise his prospects for positive change.  Furthermore, it would provide Mr Irakoze with an opportunity for a possible youth parole order and support post his release should he be eligible.  The recommendation made was that it was respectfully recommended Mr Irakoze be considered a suitable candidate for a youth justice order."

13There were a series of reports.  The Justice Plan, which was Exhibit 11, was referred to, dated 6 August 2014.  That plan confirms the intellectual disability status of Mr Irakoze.  Insofar as the prior matters, it would appear that, although they are not dramatic, the one prior matter of perhaps concern, that was referred to by Mr McLoughlin, is the intentionally cause injury recorded at Sunshine and the Children's Court. Although they are not priors in this matter, being subsequently dealt with at the Sunshine Magistrates' Court.  It was put that essentially these crimes occurred when Mr Irakoze has been in the company of a group, who have become aggressive with drinking and drugs.  It is to be hoped that with the assistance of his family he would be able to rid himself of this type of influence.  In particular, Mr McLoughlin stressed the fact that Mr Irakoze has done particularly well when he was at Malmsbury.  In particular, Mr McLoughlin referred to the report dated 13 May 2015, Exhibit 18, which speaks of Mr Irakoze doing particularly well in the study program, in the art program, and undergoing his drug counselling.  It was submitted that in all the circumstances, a Community Correction Order would not be appropriate in this particular case. The strong submission of counsel on behalf of Mr Irakoze was that, given his age, detention in a Youth Justice Centre would be the appropriate order.

14I was also given the psychiatric report of Dr Helen Driscoll, which was received, it is undated, tendered Exhibit 17.  I am not going to go into the details of it.  It was received on 27 April 2015.  However, that report confirms the earlier material that is contained in the justice report and the issues as to his ongoing PTSD, a need for treatment, which no doubt will be carried out at Parkville.

15The Court heard from Mr Irakoze’s elder brother Fabrice.  Fabrice is a youth pastor in the Lighthouse Chapel International, that particular chapel, we understand, has a particular pastoral role within the African community.  Fabrice indicated to the Court that he had made it very clear, and indeed that was one of the reasons why his brother left his home, that he was not to misbehave, in particular in regard to alcohol.  Fabrice said that he had particular rules, and those rules were no alcohol within the house.  Fabrice indicated to me that the family fully understood, and indeed that he had spoken to his brother, as to how serious this matter is, and the need for continued family support for his brother.  I was impressed with the comments that he made.

16The learned prosecutor did not necessarily resile from the sentence proposed, which is not underestimated.  This is a very serious example of an assault of this type.  I make it clear that this Court does not condone the use of knives and appropriate sentence must be imposed by way of denunciation, general deterrence and indeed specific deterrence, even with a person of Mr Irakoze's age and difficulties. 

17There is no doubt that as a result of this serious attack, as the learned prosecutor said, the victim was left with life-threatening injuries.  However, as she professionally put to the Court, in taking into account the synthesis of matters that must be looked at by the Court, the particular age, the rehabilitative aspects and issues of general deterrence, must all be finely balanced.  It was the submission of the prosecution that in this matter there was no alternative but for a term of incarceration.  However, given his age, it was put a period of detention in a Youth Justice Centre would be appropriate and I was referred to the appropriate section in the Sentencing Act.

18Having considered all of the material tendered that I have not referred to, there was the Oregon Youth Health Report, the excellent reports from YSAS and the Disability Services Overview, Exhibit 12, in particular the earlier Justice Plan and the Jesuit Social Services Report,  in all the circumstances I have determined to accept the submission made by counsel in this matter, by Mr McLoughlin, and I have determined to impose a Youth Justice order, I understand from all parties that I am able to do so having had a report within that timeframe. Would you stand please, Mr Irakoze? 

19In regard to charge 1, I sentence you to a period of two years, in a Youth Justice Centre. It is not necessary for me to impose, and do not in such sentences impose any minimum terms.  Those matters are done administratively. In regard to charge 2, I impose a penalty of one penalty unit, being $147.61.  I will give a stay of 12 months and we will see what happens in regard to that. 

20I make a declaration pursuant to s.35 of the Sentencing Act, that the time held in custody is to be deducted from the sentence, to be reckoned as the period of detention already served under the sentence and that period, as agreed, is 35 days.

21Mr Irakoze, you've got some very good social workers looking after you and you got very educationalists and you've got a very good family who wants to support you, so you've got to make sure no more trouble.  All right?  Because that's a very serious matter, next time you come back - if you came back here again - there'll be no more youth detention for you.  And unfortunately, you've been in adult prison for 35 days, I think is it?

22MR McCLOUGHLIN:  Yes, Your Honour.

23HIS HONOUR:  Not very nice.  So we'll get you back to Malmsbury as soon as we can.  All right?  Good luck.

24PRISONER:  All right.

25HIS HONOUR:  I want to hear that you've done very well.

26PRISIONER:  Yep.

27HIS HONOUR:  Thank you.