Director of Public Prosecutions v Leveni

[2017] VCC 1916

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01416

DIRECTOR OF PUBLIC PROSECUTIONS

v

KUINA LEVENI

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 December 2017
CASE MAY BE CITED AS:	DPP v Leveni
MEDIUM NEUTRAL CITATION:	[2017] VCC 1916

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Offender	Ms R. Greensill
For the Director of Public Prosecutions	Mr S. Ballek

Pages 1 - 13

 

 

HER HONOUR:

1Kuina Leveni; you have pleaded guilty before me to one charge of intentionally cause injury and one charge of robbery.  I attach the very full prosecution opening as an exhibit to my sentencing remarks.

2In very short compass, you went with a friend to the Trill nightclub in Bank Place, Melbourne, on 26 February 2016 to help a friend, Sibomana, who had an ongoing fight with one Mr Saeed, who worked as a promoter and was managing and securing the door at the Trill nightclub.

3At about 11.30 pm he saw the two of you yelling at him to come over.  He went inside, and eventually, on Saturday 27 February 2016, in the early hours of that morning, came out of the club to check on the welfare of a drunk female patron when he was approached by Mr Sibomana, who asked him to go for a walk.  The two of them walked to a dead end from Bank Place, and into Mitre Lane, and then you went into the lane after them.  Mr Saeed was then hit to the face with a bottle by you.  Mr Sibomana then punched him to the face.  Mr Saeed fell to the ground and the two of you continually attacked him; stomping and kicking him in the head, face, ribs and chest.  Those actions underline Charge 1 on the indictment; intentionally cause injury.

4While on the ground one of the two of you held Mr Saeed down and another went through his pockets and took his iPhone - and those actions underline Charge 2; robbery.  Mr Saeed then lost consciousness.  Eventually police and ambulance attended and Mr Saeed was taken off to hospital.  Your actions were captured on CCTV footage, to some extent.  Mr Saeed was spitting up blood.  He was in considerable pain and had trouble breathing.  He had bleeding from the mouth, he lost an upper front left tooth and a partial Crown and all his frontal teeth were loosened.  He had tenderness on the side of his chest and tenderness to his upper abdomen.  There was some injury to his bowel and he eventually lost the two teeth, as I have said.  In particular Mr Saeed continues to suffer from ongoing dental pain when eating hot or cold food or drink.  He can only use his back teeth to eat.  Six to eight of his front teeth may have to be replaced and his jaw is no longer straight and he may need braces.

5I received a victim impact statement from Mr Saeed where he said the crime committed against him had changed his life.  He said he has completely lost his confidence, he no longer knows how to interact with people, he does not trust people anymore.  He feels like he always has to watch his back.  He said he isolated himself for months and he did not like going to certain places.  He said he lost a huge number of friends because he did not know who his true friends were, and other friends he lost because he no longer had the confidence to contact them.  He had trouble sleeping, he has trouble sustaining work.  He has a fear of being in the open, he has nightmares of people chasing him and wanting to kill him.  He talked constantly about the damage to his teeth, the ongoing pain, the treatment that he has to have.  He is embarrassed because of his appearance as a result of problems with his teeth.  He said he no longer feels safe.  And that was a victim impact statement which I received in 2016, but it is the common experience of this court that people who suffer the sort of attack that he did continue to feel that lack of confidence, that lack of safety in their surroundings, (and for someone like this man, with the expensive dental treatment and the painful, ongoing dental treatment that he has to undertake) it can be confidently expected that this would have been ongoing, and possibly not resolved to this day.  So you have caused this man a lot of damage.

6You are a person with a long history of criminal offending going back to 2008.  Lots of prior convictions for unlawful assault.  You have been in trouble for robbery, intentionally causing injury, recklessly causing injury, thefts and driving offences.  You have been given opportunities via non-custodial rehabilitative orders.  In 2009 you were placed in a youth justice centre on charges of aggravated burglary, armed robbery, theft of motor vehicle, recklessly causing injury, unlawful assault, theft, and so on.  There has been more offending in 2010 - that is, intentionally causing serious injury, affray - which is fighting in a group to the terror of the public - then again in 2011, still in the Children's Court, you were dealt with for armed robbery, and for robbery, and again placed in a youth justice centre.  Again, 2012; attempted armed robbery, when you received 20 months in a youth justice centre.  Another robbery in 2012; you have been picked up for being drunk in a public place.  In 2014; theft of motor vehicle, aggravated burglary, shoplift, carrying a prohibited weapon, intentionally causing injury, theft of motor vehicle - for which you were gaoled.  So you have a long history, and it is a history which reveals quite a lot of violence by you, and at least an indication of your problems with substance abuse.

7I now turn to your personal circumstances.  You are now 24 years of age.  Unsurprisingly, given your criminal history, you had a very difficult childhood.  Your parents separated when you were young.  You are of Aboriginal descent.  Your parents have had a number of other children with different partners.  There has been alcoholism and drug abuse by your parents, there has been a lot of mental illness.  You have a brother who suffers from schizophrenia.  After your parents separated you were placed with your father, but then you were removed from him - you and your younger brother-apparently after suffering physical and sexual abuse.  You lived with a maternal uncle for six years.  You then went back to your father when you were 13.

8Psychologist Bernard Healey, whose report is dated 28 September 2016, stated that:  "His developmental years were clearly disturbed and distressed", and he noted that you were very anxious to make sure that this did not happen to your own children.

9You have been using and abusing drugs and alcohol for a long time.  You were only 10 when you began smoking cannabis and you had a daily habit by the time you were 13.  You were then introduced to Xanax and Seroquel, and then, in 2011, began using Ice.  After you were released from gaol in 2012 your major substance problem was alcohol, but by 2015 you had relapsed into use of cannabis and ice, and it was always in that environment, and in that context, that your offending went on and on as it did - so often involving very nasty violence such as armed robbery, fighting and assaults - and serious assaults.

10Ordinarily when someone like you, Mr Leveni, comes to court with this sort of record - charged with the offences that this court is dealing with - almost automatically a court would be looking at gaol as the first option.  Luckily you were released on bail.  You undertook a CISP program, and through that were referred to YSAS, and I received positive reports about your response to the YSAS program in May of 2016.  The report dated 20 September 2016 from Jackie Green and Lauren Stuckey noted that you were referred to the Wilum Supported Accommodation Program in early May, which is a residential program.  They said you showed motivation towards addressing your substance abuse issues and showed a desire to make significant changes to your lifestyle.  The report stated:

"Kuina has been incarcerated prior to Wilum and is now committed to being crime free and engaging with the supported drug and alcohol housing program".

11They said you engaged well with services, that you met on a weekly basis.  They said that you worked hard to achieve abstinence from all substance abuse.  I know there is a bit of a problem about finally letting go of cannabis, and it is often the last one to go, but to your credit, you have continued on that early path and the early steps that you took back in 2016.  The situation is now that you are living with your partner, Connie, and your 13 month old daughter, Serenity, in Werribee. 

12Apart from one matter you have simply not gone back to your old offending pattern.  Had there been any hint that you were going back to substance abuse, and the accompanying violence that seemed to go with it, we would not be looking at a community corrections order in any shape or form.  However, there is apparently one unlicensed driving matter which is unresolved.  I do not regard it as particularly relevant to the sentencing exercise before me.  It is so very different to the offending that this court is dealing with, and the offending that you have engaged in in the past.

13You have taken a number of positive steps.  You have registered with a job placement agency.  You have, most importantly, engaged with Narcotics Anonymous, and of extreme significance - insofar as this court is concerned - have the assistance of Mr John Chepkema, who is the father of friends of yours.  He is your sponsor at Narcotics Anonymous.  You are attending there twice a week, and sometimes a third time on a Wednesday, and you have very regular contact with Mr Chepkema on a one to one basis.

14The steps that you have made, and the progress you have made, are reflected in the fact that I have had you assessed for suitably for placement on a community corrections order.  If we had done that back in February 2016,
Mr Leveni, I can tell you that there would have been no way that you would have been found suitable for placement on a community corrections order.  You have, however, been found suitable.  Again, this is as a result of your determination and the amount of time and work you have put into getting onto the right track, and most importantly; staying on it.  The position is now one where you are attending more frequently on your job placement agency.  You are expecting a second child.  Your partner, Connie, has attended court on all occasions bar this.  She has been most helpful in speaking to the court about the progress that you have made.  And finally; this matter having been deferred on a number of occasions because I simply felt that not enough had been done, and not enough time had elapsed for me to feel comfortable about even placing you on a community corrections order in the expectation you would be able to undertake the conditions, I now am at that stage where I do feel confident - both in the CCO as an appropriate response to the offending, the rehabilitation you have undertaken and your capacity to undertake a CCO.  You present very differently in court today to the way you did even six months ago, Mr Leveni, and I congratulate you on that.

15Now, as I have said, the prosecution submission is that whilst a community corrections order combined with a gaol sentence is not necessarily out of the picture, your offending is too serious for me to deal with it by imposing the 34 days that you spent on remand in relation to this matter in combination with a community corrections order.  Again, I can entirely understand that submission.  However, after much consideration, and after regular contact with you over an extended period of time, I am not going to take that course.

16When I was referring to the prosecution opening I failed to refer to the fact that although you made a "no comment" record of interview, this matter ultimately resolved by way of one of the directions hearings.  No committal was conducted, and so a plea of guilty was entered at a stage such that no witnesses had to be called or cross-examined.  I also should note that the maximum penalty for robbery is - sorry, is it ten years?

17MR BALLEK:  Fifteen years for robbery.

18HER HONOUR:  Fifteen years' imprisonment.  And the maximum penalty for intentionally causing injury is ten years' imprisonment.

19I accept that you are genuinely remorseful for your offending.  Had I been sentencing you at an earlier stage I do not believe I would have been able to find that to be so.  However, I am satisfied, given the enormous efforts you have made to clean up your life, the fact that you have finally composed a letter of apology to your victim, which I regard as genuine, and in keeping with the 12 step program implemented by Narcotics Anonymous, I am satisfied, as I have said, that you are genuinely remorseful for your offending.

20Given your background, your entrenched drug and alcohol abuse and accompanied constant offending over many years, I regard the fact that you have managed to pursue a substance free, crime free lifestyle for almost two years as most significant, and I regard your prospects of rehabilitation as pretty good.  I am not going to go any further than that, because you have still got a way to go, and you have been assessed by Corrections as a high risk of reoffending.  However, it is my view that you have made sufficient gains, such that the principle of community protection is not one which dominates the exercising of the sentencing landscape before this court.  Nevertheless, the principle of general deterrence - sending out a message to others in the community that if they behave in the way that you do they will get a stern response from court - is still a very live issue, but in my view the imposition of a community corrections order satisfactorily answers the issues of general deterrence as well as denunciation of your conduct and the rehabilitative steps that you have made.

21I am going to impose a combination.  I am going to impose a term of imprisonment combined with a community corrections order for both offences, as in my view they arise out of the same set of circumstances, but the gaol will be thirty-four days; which I declare as having already been served by way of pre-sentence detention, followed by your release on a community corrections order for a period of two years, all right?

22Now, I cannot place you on a community corrections order unless you agree to it, Mr Leveni, so I have to outline the conditions that are attached to it, all right?  They are that, one; you must report to the Community Corrections office, which will be in Werribee for you, within two working days of the making of this order - that is, by Monday of next week.  Whilst on the order you must not commit any offence punishable by imprisonment.  That does not mean you have to commit an offence and then be gaoled for it.  If you commit an offence which theoretically you could be gaoled for, right?  Knocking off a box of matches from Woolworths - that will breach the order.  You must obey all the conditions of the order.  You must report to and receive visits from the Community Corrections office.  You may not leave Victoria without the consent - that is, the permission - of the Community Corrections office.  You must not attend upon the Community Corrections office under the influence of drugs or alcohol and you must report any change of address or employment to the Community Corrections office within 48 hours of that change, and you must obey all the lawful directions of the Community Corrections office.

23Now, I am also going to order that you undertake 150 hours of unpaid community work.  You are also to undertake assessment and treatment for alcohol abuse and for drug use.  I am also going to order that you attend for assessment and treatment for mental health difficulties.  I am not saying that you are suffering from any mental illness, Mr Leveni, but, you know, life has not been easy on you.  You are carrying things around with you and I do not think talking to a therapist is going to hurt you too much, although I am sure you regard Mr Chepkema as your main therapist in life, but nevertheless, I am going to order that you do those things.  I am going to order judicial monitoring as well.  I want to see how you go.  I want to make sure that you are getting the right services and I want to make sure that you are doing the right thing, so I am going to order that you come and see me at regular intervals while you are on the order, okay?  Do you reckon you could try and be on time?

24OFFENDER:  I can.  Yes.

25HER HONOUR:  You can?

26OFFENDER:  Yeah.

27HER HONOUR:  All right.  Because I usually have a pretty busy day, all right?  And it's really annoying to have to chop you into the middle of the next thing that comes along.  So I do judicial monitoring at 9.30 in the morning, okay?  The other thing you can do; if it's too hard to get here - and we'll make a note of it - you can go to the Corrections office and they can beam you in with a Corrections officer from Werribee, so you don't have to come trooping into town.  So bear that in mind.  So what date will we look at, Susie?

28ASSOCIATE:  19 February.  That's two months.  Do you want a bit longer?

29HER HONOUR:  No, I think we'll do 19 February.  I don't think it'd hurt.  We'll just do an early start; make sure how you're going in the first two months to see if it needs any tweaking, and just to check how you're going.  So we'll see you at 9.30 on 19 February 2018, but I will - do it; go to the Werribee office.  Your chance of getting there on time are a lot better than you getting here, all right?

30I'm going to order supervision, which means it's a bit more intensive supervision of you, okay?  That doesn't necessarily last.  I'm going to order that for the first six months of the order, all right?  And I'm going to order that you undertake programs designed to reduce re-offending, and there's a large number of those, okay?  Do you reckon you can manage all that?

31OFFENDER:  Yeah.

32HER HONOUR:  I'm going to give you a piece of paper with it all written down and Corrections will know all about it.  Yes.  I'm also going to order that the work hours can be offset by your attendance for drug and mental health.  So what that means is I've given you 150 hours of unpaid community work, but if you're attending for those other programs that can come off your community work.  All right?  Are you prepared to enter this order?

33OFFENDER:  Yes.

34HER HONOUR:  Have I made it clear?  Do you understand what your obligations are?

35OFFENDER:  Yes.

36HER HONOUR:  Yes, good.  Thanks, Mr Leveni.  We'll just print out the paperwork for you, all right?

37Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of two and a half years and order that you serve 18 months.

38In sentencing you I also take into account that although not strictly speaking a youthful offender pursuant to the Sentencing Act, you are still a young man, and that in those circumstances it is important to foster and encourage the rehabilitative steps you have taken.  Thank you very much.

39Okay, that's good.  We'll get you to sign that.  Thank you very much.  You know what I'm also thinking, Mr Leveni?  I sit on Koori Court.  One of the things that's happening with Koori Court is most of the elders are women, and most of them are getting pretty old.  We need more blokes on it, and it'd be good to have some younger blokes on it.  You know, you keep this up for the next few years and learn more about your culture, because I know you haven't really along the way, you could be a big help to us.

40OFFENDER:  One day, Your Honour.

41HER HONOUR:  Yes, have a think about it.  It's really worth going down that ‑ ‑ ‑ 

42OFFENDER:  No, I understand that.  And my history is a really good thing, although ‑ ‑ ‑ 

43HER HONOUR:  It's a really good thing.  But, you know, your community needs people like you, and the Koori Court needs people like you.

44OFFENDER:  I just need to look at myself first, you know?

45HER HONOUR:  Pardon?

46OFFENDER:  I just need to look at myself first.

47HER HONOUR:  Absolutely.  I'm not asking you to do it tomorrow, I'm talking about ten years' time.  Something like that.

48OFFENDER:  Yeah.

49HER HONOUR:  But down the track, if you keep this up, that's something eventually you could do.  Narcotics Anonymous is into this - the giving back - and it's a long way down the track, I'm not asking you to do it tomorrow, but, you know, we're running into trouble.   The elders who help us on the Koori Court are old and they're tired, and there are not a lot of young people coming forward and filling up spaces.  It'd be a nice thing, in ten years' time, to see someone - I'll be retired by then - but it'd be nice to see someone like you, all right?  That's a long term thing.  Thank you very much.  Very well.  I thank counsel very much.

50MR BALLEK:  Just one other matter, Your Honour?

51HER HONOUR:  Yes?

52MR BALLEK:  Sorry.  Disposal order sought for (indistinct words).

53HER HONOUR:  Yes, I saw those.  Thank you.  Thanks, Susie.  Now, I've got these here, haven't I?  Yes.

54MR BALLEK:  I've got some current ‑ ‑ ‑ 

55HER HONOUR:  I think I've actually managed to not lose the ones we had, which is ‑ ‑ ‑ 

56ASSOCIATE:  I think that these ones would be dated.

57HER HONOUR:  Okay.

58MR BALLEK:  They're dated today's date.

59HER HONOUR:  Good.  It's a shame I usually lose them between hearings, so thank you very much.  I'm signing it.  So that's a disposal order for the shoes, the pants and the telephone.

60MR BALLEK:  That's right.

61HER HONOUR:  Thank you.  I thank counsel very much for their assistance in this matter.  It's been a long time.  Thank you very much, Ms Greensill, for all your work.  And Mr Ballek, I just thank you very much for your patience and your understanding through the very drawn out nature of this, and what would have seemed to be a black and white, "any goes", type of exercise, and it's been really helpful and important to have had the support and the understanding of the prosecution during this time, so thank you.

62MR BALLEK:  Thank you.

63HER HONOUR:  I wish everyone a very happy Christmas and new year.

64MR BALLEK:  You too, Your Honour.

65HER HONOUR:  Thank you.  We will adjourn to 9.30 tomorrow morning.  Thank you.

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