Director of Public Prosecutions v Lambis
[2013] VCC 1460
•25 October 2013
23
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00233
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEXIS LAMBIS |
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JUDGE: | HIS HONOUR CHIEF JUDGE ROZENES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 October 2013 | |
DATE OF SENTENCE: | 25 October 2013 | |
CASE MAY BE CITED AS: | DPP v LAMBIS | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1460 | |
REASONS FOR SENTENCE
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Catchwords: Intentionally causing injury – Community Correction Order – previous good character – impact of recorded conviction on career prospects
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N. Batten | Office of Public Prosecutions |
| For the Accused | Mr W. Toohey | Michael J Gleeson & Associates |
HIS HONOUR:
1 Alexis Lambis, you have pleaded guilty to one charge of intentionally causing injury on 20 March 2011. You have no prior convictions or subsequent matters pending.
2 The facts were opened in detail by Mr Batten, who appeared to prosecute, and are contained in the summary of prosecution opening, Exhibit A.
3 On 20 March 2011 you were with your brother, Petros Lambis, at a restaurant in Elwood. Also present were the victim, his brother and two young women. You knew the women. The four of them left together sometime after midnight and you and your brother followed very shortly afterward. When you left the restaurant you saw the group some distance away and it appeared to you that the victim was grabbing one of the women. You ran towards them and there was a scuffle between you and the victim. Blows were exchanged and, as a consequence, the victim went to ground. You then kicked him several times to the head. Whilst this was happening he was, at all relevant times, cowering and attempting to protect his head. A witness said that even after he called out to you to stop, and said that police were coming, you nevertheless kicked the victim in the head a further two times. He sustained a laceration to the upper lip, which required stitching, a sore jaw, sore ribs, a bruised and scratched elbow, a grazed right knee and bruises and tenderness to the head. A piece of stone was embedded in his forehead. He also lost consciousness for a time.
4 In his Victim Impact Statement, Exhibit B, the victim said that he has a permanent scar which interferes with his shaving, and constantly reminds him of his trauma. He said he had pain in the jaw which caused difficulty when eating, had become anxious and stressed, developed mouth ulcers, suffered from insomnia and traumatic dreams, and was concerned for his personal safety and that of his partner. He said that he was deliberately avoiding Elwood and his friends who socialise in that area. Exhibit C was a series of photographs depicting his facial injury.
5 When interviewed by police you said that you were concerned for the safety of the two women, denied any kicking and portrayed the episode essentially as one of self defence and defence of another. By your plea of guilty you acknowledge that no issue of self defence was open on the evidence. In any event it is difficult to view the kicking, whilst the victim was on the ground, as defensive and, certainly on the evidence of the neighbour who called upon you to desist, it was clearly excessive.
6 This matter was listed for trial on 14 October 2013 however, following discussions with the Crown, on 15 October 2013 you indicated you would plead guilty. The trial was formally vacated on 16 October 2013 and the matter fixed for plea on 23 October 2013. Your brother’s trial was not reached by the court and is listed again for trial on 7 July 2014.
7 By way of personal background, Mr Toohey submitted that you are now 32 years of age without any prior convictions and with nothing pending. You graduated with a Bachelor of Arts (Hons) in 2008 from Monash University and are currently applying to undertake a PhD in International Relations focussing on globalisation and State power. He said that it was your ambition to lecture at overseas universities including in the USA, Canada and China. He said that you had ambitions to work with the Department of Foreign Affairs, the Department of Defence and possibly with the United Nations. He said that you currently tutor at Monash University in International Relations. In addition, you are engaged with your brother in a restaurant where you employ some 10 staff. He said that you were a hard worker and had the benefit of a good and supportive family and a fine education. He relied upon the fact that this episode was isolated and totally out of character. He said there was no risk of you reoffending and that you were remorseful.
8 Dr Remy Davison, Jean Monnet Chair in Politics and Economics at Monash University gave evidence on the plea. Dr Davison is your supervisor at Monash and spoke of your high academic achievement and good prospects for PhD candidature, of which you will be notified at the end of this year. He said that you had earned a 1st Class honours degree being placed second in your year. He said that your offending came as an absolute surprise to him and to others at the university. He said that you were widely respected by your students and found you to be a “quiet” and “studious” young man. He noted that many post-graduate students in the field of International Relations undertake research and attend conferences overseas. He had some concerns that if you have a conviction recorded it may impact on your ability to enter the United States and some European nations. He said that you were embarrassed about your predicament and that the conduct was out of character.
9 A bundle of seven character references was tendered on your behalf, Exhibit 2. Each of the letters attest to your good character and voices surprise at your offending. All of the letters, from both professional and personal referees, express the view that this incident was completely out of character for you. The authors of the letters also speak highly of your academic and entrepreneurial success and articulate concern that a conviction might have on your future endeavours.
10 Mr Toohey said that I should not view your conduct as the kind of loutish behaviour that is often before the courts where drunken offenders, spoiling for a fight, assault each other outside clubs, pubs and restaurants. He submitted that you had made an honest but reasonable mistake getting involved at all. He said that you knew the girls and had been friendly with them in the past and that as a result of what you had seen in the restaurant you not unreasonably formed the view that they might have been is some jeopardy in the presence of the two brothers. He said that your concern for them was confirmed for you when you misinterpreted a friendly hug as an inappropriate grab from behind, and you wrongly believed that you had to intervene. Not surprisingly, the brothers thought that you were the aggressor and a scuffle developed. Mr Toohey said that your mistake was taking it to the level you did, but that I should view this as a momentary lapse rather than a concerted effort by someone spoiling for a fight. He submitted that you were surprised when a punch of yours sent the victim to the ground. He said that you had never hit anyone before. He described the whole of the event as fast and furious rather than calculated and that your participation was, as it was quite out of character and to use his words, not part of your makeup.
11 The basic purposes for which a court may impose a sentence are punishment, deterrence both specific in general, rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interest of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
12 Fighting amongst young people is prevalent and is of concern to all. It is just on occasions such as this where serious injury, often unintended, results in permanent damage and lasting consequences for both offender and victim, as well as their families.
13 Whilst I accept that you intervened out of a mistaken but honest belief that the girls were in danger, what followed once the victim was on the ground went beyond any reasonable response to such a situation. It may have been fast and furious, as Mr Toohey described it, but kicking a person on the ground who was not offering resistance is abhorrent and cowardly. It is a serious example of intentionally causing injury and you are fortunate that no greater injury resulted. Such conduct in my view ordinarily calls for a custodial sentence. General deterrence and denunciation are in such cases the most significant sentencing considerations.
14 It was submitted by Mr Toohey that any sentence I impose should be non-custodial and recorded without conviction. Mr Batten, for the DPP, submitted that a non-custodial disposition was within the range of sentences properly open to me. He also said that wether or not a conviction was recorded was also a matter for me.
15 I am satisfied that in the particular circumstances of this case and the fact that you have not previously been before the courts, you’ve come from a hard working and supportive family, are hard working yourself, have excellent prospects of rehabilitation and are unlikely to re-offend, that a term of imprisonment is not warranted.
16 In determining whether or not to record a conviction, section 8 of the Sentencing Act 1991 requires me to have regard to all the circumstances of the case including the nature of the offence; the character and past history of the offender; and the impact of the recording of a conviction on the offender's economic or social well-being or on his or her employment prospects.
17 Mr Toohey relied on the evidence of Dr Davison that a conviction might present a difficulty for your entering the USA and might therefore be detrimental to your career prospects. Much of what Dr Davison said lacked certainty. In Victoria, almost all professional and trade organisations concerned about the conduct of a member would look to the finding of guilt rather than whether a conviction was recorded or not. I do not know that the situation overseas would be otherwise but, in any event, I am satisfied that the seriousness of the assault demands that a conviction be recorded. The recording of a criminal conviction is itself a proper sanction. It reflects the seriousness of the conduct and is a component to be properly weighed in the assessment of a proportionate penalty.
18 On the charge intentionally causing injury I propose to release you with conviction on a Community Correction Order with an unpaid community work condition for a period of 24 months. As no additional program conditions were being considered, a report from Community Correctional Services was not required. The order commences today.
19 The core conditions of the order are:
(1) that you not commit whether in or outside Victoria during the period of the order, any offence punishable on conviction by imprisonment;
(2) that you report to a specified Community Correction Centre within two clear working days after the coming into force of this order, in your case that place is Moorabbin Community Correctional Service at the Moorabbin Justice Centre, 1140 Nepean Highway, Highett, Victoria;
(3) that you report to and receive visits from a Community Corrections Officer;
(4) that you notify an officer at the specified Community Correction Centre of any change of address or employment within two clear working days after the change;
(5) that you not leave Victoria except with the permission of an officer at the specified Community Correction Centre; and
(6) that you obey all lawful instructions and directions of the Community Corrections Officer.
20 In addition, I propose to impose the condition that notwithstanding that you are fully employed, I believe that it is appropriate that you undertake 300 hours of unpaid community work.
21 Do you agree to comply with the order?
22 OFFENDER: Yes
23 HIS HONOUR: Very well, I’ll make that order.
24 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non-parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial I would have sentenced you to six months imprisonment.
25 Finally, I make the compensation order pursuant to section 85B of the Sentencing Act 1991.
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