Director of Public Prosecutions v Joachim
[2022] VCC 824
•23 May 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01919
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHAQUILL JOACHIM |
---
JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Plea – Shepparton; Further Plea & Sentence - Melbourne | |
DATE OF HEARING: | 23 November 2021; 11 March 2022 | |
DATE OF SENTENCE: | 23 May 2022 | |
CASE MAY BE CITED AS: | DPP v Joachim | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 824 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Common Law Assault; Affray
Legislation Cited: Sentencing Act 1991
Cases Cited:Bugmy v R (2013) 249 CLR 571; Worboyes v R [2021] VSCA 169;
DPP v Heyfron [2019] VSCA 130; DPP v Russell (2014) 44 VR
471; R v Renzella [1997] 2 VR 88
Sentence: Community Correction Order of 18 months
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Cameron Ms S. Hosking | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms M. McKenna | Sally Wilson Legal |
HIS HONOUR:
Introduction
1Shaquill Joachim, you have pleaded guilty to one charge of common law assault which carries a maximum penalty of 5 years' imprisonment, and one charge of affray which also carries a maximum penalty of 5 years' imprisonment.
2You also pleaded guilty to a related summary offence of contravening a conduct condition of bail, which carries a maximum penalty of three months' imprisonment.
3You have also admitted your criminal record.
Circumstances of the Offending
4The circumstances of your offending were set out in the Summary of Prosecution Opening for Plea dated 26 October 2021, Exhibit A at your plea hearing. That document sets out the factual basis of the offending for which you will be sentenced.
5Your offending can be briefly summarised. On Saturday, 20 March 2021, Kalvin Ewart was celebrating his 24th birthday with a number of friends, including Kane Lewis, in the Shepparton area. During the course of the evening, both Mr Ewart and Mr Lewis had attended a number of venues in Shepparton, including the Victoria Hotel, and had consumed a number of alcoholic beverages. At about 4:45 am on 21 March, they left the Victoria Hotel and were standing near a taxi rank nearby, waiting to hail a taxi home. The events that followed outside the Victoria Hotel were captured on CCTV footage, which was played at your plea hearing, and which I have subsequently viewed closely.
6Mr Ewart saw another man, Branden Lindrea, a relative of both you and Mr Jim Velos, your co‑offender in this matter, also standing near the taxi rank, and Mr Ewart spoke with him. Both you and Mr Velos were also present outside the Victoria Hotel at this point, standing nearby. At the time, you were subject to a grant of bail for unrelated criminal matters, with a condition requiring you to not leave your nominated residential address between 9 pm and 6 am. Due to your presence outside the Victoria Hotel at this time, you were in breach of this conduct condition of bail, the Related Summary Offence to which you pleaded guilty in this matter.
7Both you and Mr Velos apparently overheard Mr Ewart speaking with Mr Lindrea and became agitated.
8You both then began to push Mr Ewart, who backed away from the two of you, with Kane Lewis next to Mr Ewart. Mr Ewart and Mr Lewis walked backwards from both you and Mr Velos, with Mr Velos continuing to push Mr Ewart with both hands to the chest. You then approached Mr Lewis and punched him at least three times to the head. As a result, Mr Lewis fell to the ground. At this point, Mr Velos took a step towards Mr Ewart and punched him with what was referred to in the Summary of Prosecution Opening on Plea as a “king hit” to the head, causing him to fall immediately to the ground unconscious where Mr Ewart’s right side of the head struck the footpath. Mr Velos has previously been sentenced with regards to his conduct in this regard, on the charge of recklessly causing serious injury.
9Meanwhile you continued to assault Mr Lewis on the ground, by kicking him twice to the head. You continued the assault by kicking and pushing Mr Lewis. Your conduct with regards to punching, kicking and pushing Mr Lewis forms the basis of Charge 1 on the indictment, common law assault of Kane Lewis.
10After pushing Mr Lewis, your co‑offender, Mr Velos, walked away from the scene of the offending. Mr Velos has also been sentenced with regards to his conduct relating to Mr Lewis, in relation to the charge of common law assault. Meanwhile, another witness to this incident went to the assistance of Mr Ewart who was still on the ground. Mr Ewart was observed with his eyes rolling, bleeding from the ear and shaking. Whilst this witness was still tending to Mr Ewart, you pushed Mr Ewart’s head from the witness’s hands and lifted your leg appearing like you were trying to stomp on Mr Ewart’s head. You were pulled away by a witness before you could do this, with Mr Ewart remaining unconscious at this time.
11There were a number of witnesses to the assaults, some of whom attempted to intervene and stop both you and Mr Velos from assaulting the victims. Your conduct in this regard forms the basis of Charge 3 on the indictment, affray.
12Both you and Mr Velos then left the scene.
13Subsequently, a Triple Zero call was made and ambulance officers subsequently attended, with both Mr Ewart and Mr Lewis being treated initially by ambulance officers, before being conveyed to Goulburn Valley Health. Mr Ewart suffered serious injuries as a result of being assaulted by Mr Velos, the details of which were set out in the Summary of Prosecution Opening for Plea.
14After being transported to Goulburn Health, Mr Lewis was discharged the following day, on 22 March 2021. Police investigators took a series of photographs of Mr Lewis depicting marks on his head and chin as well, sustained as a result of the assault.
15You were arrested by police on 31 March 2021, and in a subsequent police interview you largely answered, 'no comment', other than stating that you were drunk and not thinking at all, as well as the following words - 'That’s just me when I'm drunk' - and in relation to the allegation that you attempted to stomp on Mr Ewart’s head - 'I can’t even remember doing that, that’s just fucked.'
16You were charged and remanded on 1 April 2021, and subsequently bailed on 16 April 2021, accordingly, accruing 15 days' pre‑sentence detention referable to this matter.
Victim Impact
17Victim impact statements were completed by both Mr Ewart and Mr Lewis, in relation to this incident. Whilst clearly you are not criminally liable for the injuries sustained to Mr Ewart, I have generally taken into consideration his Victim Impact Statement with regards to the gravity of the incident as a whole, including the nature of the affray for which you now fall to be sentenced.
18A Victim Impact Statement from your victim, Mr Lewis, was made on 31 August 2021 and tendered at your plea hearing, marked Exhibit C. At the request of Mr Lewis, this Victim Impact Statement was not read aloud in Court, and consistent with that, I will not now detail its contents, save to say that Mr Lewis has clearly suffered physically, emotionally, socially and financially as a result of your offending. The emotional impacts in particular upon Mr Lewis at the time of your offending, and the consequences since this incident, have been significant for Mr Lewis. Victim Impact Statements are an important means through which victims can meaningfully participate in the sentencing process, by informing the Court of the often-catastrophic consequences of offending upon them. I have taken into consideration as one of the relevant sentencing factors when formulating an appropriate sentence in your case, the impact of your offending on your victim.
Nature and Seriousness of the Offending and Your Level of Culpability
19In relation to both charges on the indictment, I agree with the prosecution submission that your offending represents serious examples of the offences of common law assault and affray. Having reviewed the CCTV footage and the photographs of Mr Lewis, I am satisfied that your punches delivered to Mr Lewis were likely delivered with considerable force. Your punches were directed towards Mr Lewis’s head, a vulnerable part of a person’s body, which caused him to fall to the ground. Upon Mr Lewis falling to the ground and becoming even more vulnerable to your attack, you continued to assault him, delivering kicks to his head. Your punches to Mr Lewis were delivered after both he and Mr Ewart were retreating from you and Mr Velos, aggravating the seriousness of your conduct. Furthermore, the presence of a co‑offender in relation to the charge of common law assault is further aggravating in my view. Likewise, I regard the affray in your case as representing a serious example of this crime. Various witnesses were present for what was no doubt a very frightening experience. Some attempted to intervene, and your conduct in interfering with witnesses who were trying to assist Mr Ewart when he was on the ground, by pushing Mr Ewart’s head out of a witness’s hands, and then engaging in conduct reflecting a potential desire on your part to stomp on Mr Ewart’s head, is highly concerning. Whilst I am not satisfied beyond reasonable doubt that that was your intention, nevertheless, having viewed the relevant footage, your conduct at this point in my view accentuates your moral culpability overall for your offending. Your counsel did not rely upon any psychological or psychiatric material in an effort to reduce your moral culpability. In all the circumstances, I find your culpability to be high. Finally, with regard to the bail offence, whilst in and of itself is not at the higher end of seriousness, your criminal history for bail offences and breaching Court orders elevates the seriousness of this offence, and your level of culpability for it.
Personal Circumstances
20You are a 19-year-old Yorta Yorta man, with your Aboriginal heritage coming from both your mother's and father's side. At the time of this offending, you were just 18.
21You are one of seven children to your parents Colleen and Troy. Sadly, you were raised in a household where significant physical violence was perpetrated by your father towards your mother in the presence of the children, and towards yourself. Your father was reportedly a heavy drinker, and a man prone to considerable violence. He died suddenly when you were 14, leaving your mother Colleen to raise the seven children alone. Your older brothers were reportedly in and out of jail in your formative years, and perhaps unsurprisingly, you were regularly exposed in your childhood to antisocial behaviours, negative peers, criminality and substance abuse. Unsurprisingly, you have not been educated beyond part way through Year 9, which has impacted on your vocational and employment options.
22As a result of your unstable, traumatic and in my view deprived upbringing, I am satisfied that your moral culpability for your offending is reduced in accordance with the well-known Bugmy[1] principles, and I have made a mitigatory allowance to your sentence due to this fact.
[1] Bugmy v R (2013) 249 CLR 571.
23You have a history of heavy alcohol consumption from the age of 16, in the context of negative peer associations, and it seems your alcohol intake has increased over the past 2 years, reportedly drinking two slabs or more of pre-mixed drinks along with straight bourbon or vodka if available over the weekend. You have reported that drinking alcohol in these quantities makes you angry and uncontrollable. Indeed, you have reported that on the day of your offending you had been drinking alcohol to excess throughout the day and evening, impacting on your memory of your offending conduct. You have also reported using methylamphetimes or ice in the 12 months prior to your assessment with neuropsychologist Dr Sara Fratti in February 2022, and accordingly, I infer that Ice use was an issue in the time period of your offending, in March 2021. Indeed, you made such sentiments in your assessment with Dr Fratti.
24Your criminal history, which you have attributed to the disinhibitory effects of alcohol and later ice use, commenced in 2017, in the Childrens Court jurisdiction. There, you have been previously dealt with for dishonesty, driving and family violence offending, receiving various therapeutic dispositions without conviction. Significantly, in December 2019, you received a probation order for offending which included intentionally causing injury. Your last Childrens Court appearance shown on your criminal history was on 15 March 2021, just six days before your current offending, when you received a Good Behaviour Bond without conviction for a family violence matter. You have also subsequently been dealt with in the adult jurisdiction, and you are currently subject to a Community Correction Order from November last year, for various offences. I have also been informed that you have recently been placed on a probation order, which is running concurrently with your existing Community Correction Order. Whilst you have a history of breaching Court Orders, I am informed as of today, that your progress on the current Community Correction Order has been mostly satisfactory. Clearly though, there is a need for any penalty I impose to reflect the sentencing purpose of specific deterrence, given your failure to be deterred from reoffending as a result of previous Court interventions.
Applicable Sentencing Factors
25There are in my view a number of powerful mitigatory factors impacting on the formulation of an appropriate sentence in your case.
26
At the age of just 19, your youth remains a very significant factor in sentencing, notwithstanding your rather concerning criminal history. In accordance with
well-established authority, your rehabilitation is a sentencing purpose of considerable importance, and to that end a sentence of imprisonment or detention should be avoided unless there is no reasonable alternative, in the interests of your rehabilitation, and ultimately the community's protection.
27You have spent some time in adult custody, which has no doubt reinforced to you both the gravity of your legal predicament and served as a motivating factor for change on your part. In relation to the matters which ultimately resulted in the imposition of an 18-month Community Correction Order on 25 October 2021, I was informed that you had spent some 65 days in custody at Port Phillip Prison, then at Ravenhall Correctional Centre, and that this period was not the subject of a pre-sentence declaration with regards to the Community Correction Order imposed. In relation to the matter before me, you have spent 15 days in custody in April last year. Significantly, both periods occurred during the COVID-19 pandemic, and its now well-known impacts on the custodial environment with reduced freedom of movement, access to visits, programs and employment, not to mention the increased anxieties for the prison population regarding the entry of COVID-19 to the prison population where social distancing is more problematic, and the demographic is more compromised. A mitigatory allowance is warranted.
28Your matter resolved to a plea of guilty on the date a committal hearing was listed, on 17 August 2021, without as I understand it, any witnesses being cross examined. This represents a relatively early plea in the circumstances. Pursuant to the now well-known authority of Worboyes v R,[2] the utilitarian value of your plea is enhanced given its occurrence in the midst of the COVID-19 pandemic, and its unprecedented impact on the Court’s backlogs.
[2] [2021] VSCA 169.
29I am satisfied in all the circumstances that a further mitigatory allowance is warranted due to your remorse for your offending. Whilst to some degree, your recent comments with regards to the offending, made in the context of your assessment for suitability for a Community Correction Order where you were apparently vague and denied any intention to stomp on the head of Mr Ewart, are problematic, I am satisfied given your overall intellectual functioning, and likely level of intoxication at the time, that such comments ultimately do not preclude a positive finding on the issue of remorse. According to neuropsychologist Dr Sara Fratti, in her report dated 6 March 2022 which was tendered and marked ‘Exhibit J4’ at your further plea hearing, whilst superficial, you were able to articulate a level of remorse for your offending, in the context of your immaturity and limited abstract thinking abilities.[3] Furthermore, whilst in my view your presentation and demeanour in the Koori Court Sentencing Conversation was reserved and somewhat aloof, you were able to express your feelings of remorse for your offending, and an awareness of the impact of your behaviour on Mr Ewart and Mr Lewis.
[3] Neuropsychological Report of Dr Sara Fratti dated 6 March 2022 at [3].
30Turning to the Koori Court involvement more generally, on 23 November 2021 you participated in a Sentencing Conversation, in the presence of Aboriginal Elders, as part of the Koori Court plea hearing procedure. As is often the case, that Sentencing Conversation was substantial, direct and at times confronting for you. This was so, particularly given the nature and severity of your offending, and the fact that footage of your assault was played immediately before the Sentencing Conversation. I formed the view that during the Sentencing Conversation, you were conscientiously participating and taking responsibility for your actions.
31Part of the Sentencing Conversation to which I have referred involves a shaming aspect which, in my view, you genuinely embraced. I have little doubt that this would have been particularly confronting for you, and your willingness to expose yourself in this way is to your credit. Furthermore, your mother, Colleen, contributed to that discussion, no doubt reinforcing to you the gravity of your conduct, together with your predicament. As acknowledged in recent authority,[4] meaningful engagement in the Koori Court Sentencing Conversation may operate as a mitigating circumstance. You faced the shaming that is an integral part of those proceedings and you were prepared to be accountable for your offending. Participation in the process of a Koori Court is more burdensome than appearing at a traditional plea hearing, and participation therefore may of itself be rehabilitative.
[4]DPP v Heyfron [2019] VSCA 130 at [66] – [69].
32Your participation in the Koori Court Sentencing Conversation therefore accentuates your prospects for rehabilitation. Given your problematic criminal history and difficult personal background, it would be unrealistic, in my view, to view your prospects of rehabilitation as good. Clearly, you have significant challenges ahead of you. However, your positive progress in the Koori Court Sentencing Conversation, together with your ongoing support from your mother and her partner, your recent positive progress on the Community Correction Order, your engagement in prosocial activities presently such as football with Merrigum and the fact that in the last two and a half years you have no outstanding police charges, together with your youth, means that your prospects remain hopeful, though somewhat guarded in my view. You will need to wholeheartedly grasp the rehabilitative opportunities that will be available to you on the Order that I will shortly impose, to avoid the ever-increasing risk of longer and longer periods of confinement, away from your loved ones in the future.
33In formulating an appropriate sentence in your case, I have considered the issue of parity, given the sentence I imposed on your co-offender Mr Velos, which involved a period of detention in a Youth Justice Centre. However, in my view, your circumstances are markedly different from Mr Velos, who pleaded guilty to a much more serious charge in relation to extremely serious injuries sustained to Mr Ewart when Mr Velos punched him, which was referred to in the Summary of Prosecution Opening as a “king hit”.
Sentence to be Imposed
34You have been assessed as suitable, with some reservations, for a Community Correction Order. The Prosecution have conceded that such a penalty would be an appropriate sentence. In my view, your offending is far too serious for a Good Behaviour Bond. Consistent with the parsimony principle, in my view a period of confinement in a Youth Justice Centre is not warranted. An appropriately tailored Community Correction Order in my view will meet the various sentencing factors, purposes and principles in this case. Before I announce the details of my sentence, let me repeat for the sake of clarity the sentiments I expressed when I sentenced Mr Velos.
35Alcohol fuelled violence by young males, often on the street and in view of others, is understandably a cause for considerable public concern. The Victorian Court of Appeal has referred to random street violence as being a scourge on our society.[5] Any penalty imposed must, in my view, serve to denounce such abhorrent conduct, send a clear message to the community that this conduct is completely unacceptable, and deter others from undertaking similar conduct. General deterrence, accordingly, is a significant sentencing purpose in this case.
[5] DPP v Russell (2014) 44 VR 471 at [1].
36Mr Joachim, in relation to the charges to which you have pleaded guilty you are sentenced as follows. On the two charges on the Indictment, Common Law Assault and Affray, together with the related summary offence of contravening a conduct condition of bail, you are convicted and ordered to undergo and complete a Community Correction Order.
37The length of the Order will be 18 months. The Order will commence today.
38Pursuant to that Order, you must attend at the Shepparton Community Correctional Services at 307-331 Wyndham Street, Shepparton, within two clear working days after the commencement of this Order. The mandatory terms that apply to all Community Correction Orders are:
You must not commit another offence for which you could be imprisoned during the time that the Order is in force.
You must comply with any obligation or requirement prescribed under the relevant regulations.
You must report to and receive visits from the Secretary or a delegate.
You must report to the Community Correction Centre, as I have said, within two clear working days of today.
You must let a Community Correction Officer know within two clear working days of your change of address or job.
You must not leave Victoria without first getting permission to do so.
You must obey all lawful instructions from and directions of the Secretary.
39In addition to those core conditions, you will be subject to the following conditions:
You must perform 180 hours of unpaid community work over the duration of the Order, as directed by the Regional Manager.
You must be under the supervision of a Community Correction Officer for the duration of the Order.
You must undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the Regional Manager.
You must undergo assessment and treatment, including testing for alcohol abuse or dependency, as directed.
You must participate in programs and/or courses that address factors relating to the offending, as directed.
40I declare that 30 hours of treatment and rehabilitation satisfactorily undertaken may be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
41I note that you have served 15 days in custody on this matter, but I make no order pursuant to s18(4) of the Sentencing Act 1991 at this time. I have not made a Renzella[6] allowance regarding the earlier 65-day period of imprisonment; such a period remains available in the event of any further sentencing for other offending.
[6] R v Renzella [1997] 2 VR 88.
42Finally, I will make the Disposal Order sought by the Crown, this application not being opposed by you.
43Firstly, before I turn directly to Mr Joachim, Ms Hosking, any ambiguities with regards to the sentence imposed? Has anything been missed?
44MS HOSKING: No, nothing missed, Your Honour.
45HIS HONOUR: Thank you. Ms McKenna?
46MS McKENNA: No, nothing, thank you, Your Honour.
47HIS HONOUR: All right, now, Mr Joachim, you can still see and hear me okay?
48OFFENDER: Yeah.
49HIS HONOUR: Now you have been subject to a Community Correction Order before and I understand you are still subject to one, so you should know all of this but I can only impose a Community Correction Order if you consent or agree to doing the Order, and you can only do that if you understand what is involved in the Order. Are you satisfied that you understand what is involved in this Order, in terms of the core conditions, but also the specific conditions that apply to you?
50OFFENDER: Yeah.
51HIS HONOUR: All right. So you have got a number of conditions including 180 hours of unpaid work, 30 of which can be ticked off, so to speak, through treatment and rehabilitation. Then, you have a number of treatment and rehabilitation conditions relating to offender programs, drugs, alcohol and you will also be supervised. If you breach any of these conditions, which can include not keeping in touch with Corrections, not turning up to appointments, changing your address or your job without telling Corrections, committing an offence punishable by jail, leaving the State without getting permission, you can and I suspect will be breached in relation to this Order, and in all likelihood you will come back before me and I can assure you, Mr Joachim, I will take a very dim view in relation to any breach of this Order. Do you understand what I have just said to you?
52OFFENDER: Yeah.
53HIS HONOUR: All right, so understanding all of that, do you agree to comply with this Community Correction Order?
54OFFENDER: Yes.
55HIS HONOUR: All right. Mr Parkinson, any issues from your perspective with regards to the Order.
56MR PARKINSON: No, Your Honour. I believe that the Order will be perfectly capable of being administered in the terms and conditions.
57HIS HONOUR: Great.
58Mr Joachim, I will not see you again hopefully. If I do, it will be because there is a problem, so I do want to wish you well. I know your mother is probably still in the background there. I just wanted to leave by saying this, I remember well the Sentencing Conversation with you and I remember, and it has been referred to in the assessment report, there have been concerns expressed about your environment, your family, your home environment, whether it is what they call prosocial. I just want you to know, Mr Joachim, that I have a degree of confidence in you and I genuinely do hope that you put your best foot forward on this Order. You have just got to get through this Order so that you can get on with your life. You are only 19, you have got your whole life ahead of you. Please try and focus on the good things, stay away from trouble, stay away from other people and really grasp or grab onto these opportunities that are going to be given to you. Do you understand what I have just said?
59OFFENDER: Yeah.
60HIS HONOUR: All right, thank you.
- - -
0
4
0