Director of Public Prosecutions v Maele
[2018] VCC 81
•12 February 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 17-01552
CR 17-01553
CR 17-01029
CR 17-01027
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAELE MAELE |
---
| JUDGE: | HIS HONOUR JUDGE DEAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 February 2018 |
| DATE OF SENTENCE: | 12 February 2018 |
| CASE MAY BE CITED AS: | DPP v Maele & Ors |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 81 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Piggott | Office of Public Prosecutions |
| For Accused M. Maele | Mr J. Miller | Haines & Polites |
| For Accused L. Maele | Mr S. Andrianakis | Haines & Polites |
| For Accused Apineru For Accused A. Maele | Mr J. Anderson Mr B. Johnston | Stary Norton Halphen James Dowsley & Associates |
HIS HONOUR:
1Maele Maele, Leti Maele, Andrew Apineru and Apisai Maele, you have each pleaded guilty to one charge of recklessly causing serious injury contrary to s.17 of Crimes Act 1958. The maximum penalty for that offence is 15 years' imprisonment.
2You have also each pleaded guilty to three charges of intentionally causing injury contrary to s.18 of the Crimes Act 1958. The maximum penalty for that offence is ten years' imprisonment.
3Committal proceedings were conducted in the cases of Maele Maele and Leti Maele, in which submissions were made as to whether the victims Sylvester, Stephens and Vears had suffered an injury for the purposes of s.18 of the Crimes Act.
4Apisai Maele pleaded guilty at committal mention to four charges and Andrew Apineru proceeded by way of hand up brief. The matters were listed in this court for trial and resolved at a directions hearing on 18 August 2017.
5In my opinion, whilst the pleas in three cases were not made at the first available opportunity, they are nevertheless high value pleas that have spared the community the cost of a complex criminal trial and the witnesses and victims the burden of giving evidence. I also accept they demonstrate remorse in each case and I have taken the pleas into account in your favour in mitigation of sentence.
6Maele Maele and Leti Maele have no prior convictions, subsequent matters or outstanding charges. Andrew Apineru has one prior court appearance for theft and an outstanding charge of no relevance for sentencing purposes in this case. Apisai Maele also has one outstanding charge which is also of no relevance for sentencing purposes in this case.
7A prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows –
8On 18 November 2016, Kane Dulieu was celebrating his 24th birthday at the Irish Bar at Knox Ozone in Wantirna South with friends including Justin Stephens and Ryan Vears.
9Dulieu, Stephens and Vears decided to leave the premises at approximately 1.30 am and walked through a carpark towards a taxi rank about 30 metres away.
10In the carpark they were observed by an off duty crowd controller from the Lou Lou Bar which was also located in the Knox Ozone area. The crowd controller wrongly believed that Dulieu and a friend had damaged the vehicle owned by the proprietor of the Lou Lou Bar. No such damage had occurred at all.
11The four accused who had all been drinking in the Lou Lou bar and were associates of the owner were also in the area of the carpark. They ran towards Dulieu and his friend Chris Wilson who denied damaging the car in anyway. Dulieu walked to the taxi rank with Stephens and Travis Sylvester who had been in the Lou Lou bar and was trying to calm the situation down.
12At the area of the taxi rank Maele Maele approached Stephens and without warning or the slightest provocation punched him in the head. Stephens fell to the ground unconscious. Shortly after regaining consciousness he was then punched and kicked repeatedly by the other three accused.
13Dulieu was then punched in the head from behind by Apineru. He too fell to the ground unconscious and struck his head on the concrete. It was a coward's punch. All four accused then surrounded him and punched and kicked him forcefully as he lay motionless on the footpath.
14Sylvester attempted to protect Dulieu and he too was attacked by the four accused with forceful punches and kicks. A female friend attempted to protect him from the attack. Vears approached the scene yelling as he approached his unconscious friend Dulieu. He too was then attacked by the accused with forceful punches and kicks.
15I have watched CCTV footage of the offending which was tendered in evidence and it depicts a savage and cowardly attack by four big powerful men without any justification whatsoever.
16The punches and kicks delivered by the accused were of significant intensity on their utterly defenceless victims. I have no hesitation in describing these appalling crimes as serious examples of serious offences of violence. These crimes were fuelled by alcohol and took place in public outside licenced premises. The victims bear no responsibility whatsoever for the violence inflicted upon them by the four accused before this court.
17After committing the offences, the four accused then fled the scene while bystanders and security staff attended to the seriously injured Kane Dulieu who was convulsing and choking on the blood flowing from his injuries. He was eventually conveyed to the Royal Melbourne Hospital where he was placed in the intensive care unit in an induced coma. He suffered bruising to the brain, a fractured cheekbone, a fractured jaw, a fractured zygoma, together with bruising and cuts to his face. He remained in hospital for three days and returned for surgery to his cheekbone. His right eyebrow required 30 stitches to repair it.
18Travis Sylvester suffered two broken teeth and bruising to his face and body. His teeth will require ongoing dental treatment and repair.
19Justin Stephens suffered bruising and pain to his body where he was punched and kicked.
20Ryan Vears also suffered bruising, abrasions and pain where he too was punched and kicked.
21I have received in evidence four victim impact statements of the victims attesting to the traumatic effects that the offending has had upon them and I have no doubt that these crimes have significantly disrupted their wellbeing and enjoyment of life.
22I also accept that the offending has had a deeply traumatic effect on Mr Dulieu’s family following his admission to the intensive care unit in a critical condition.
23It is the fundamental responsibility of this court to denounce these serious crimes in unequivocal terms. Violence of this nature has no place whatsoever in our society and our society must be protected from crimes of this type.
24As stated by the Court of Appeal in DPP v Russell [2014] VSCA 308:
"Random street violence is a scourge on our society".
25It is well established that the sentences I impose must also be calculated to deter others from offending in this brutal, cowardly and destructive way. The accused must also be punished for their serious crimes.
26In my opinion, specific deterrence is also an important sentencing consideration in this case. These are serious crimes of violence carried out by intoxicated young men with no concern at all for the fate of their victims. Each of the accused must be deterred from offending in this manner again.
27I now turn to your personal circumstances.
28Maele Maele, you were born in New Zealand on 16 December 1989 and are now aged 28. You are a permanent resident of Australia, not an Australian citizen. You have resided in Australia for six years.
29You were educated to Year 11 level in New Zealand and trained there as a crowd controller. You were also accredited in that regard in Australia and were working as a security guard at the time of your offending, although not on the evening in question.
30In my opinion this elevates your moral culpability for your crimes and it is clear from the CCTV footage that you instigated the violence that took place. Instead of calming the situation, you inflamed it. You are also employed as a tree lopper and you reside with your mother and partner of six years standing.
31I have received in evidence a number of references that speak highly of you and you are an active member of the 7th Day Adventist Church. You have undertaken an anger management course and it would appear that you do not suffer from alcohol or drug abuse disorder, although you were heavily intoxicated on the evening in question.
32When interviewed by investigating police, you stated you had a poor memory of your offending but you were ashamed by what you had done. I accept that you are now remorseful for your offending and that your prospects of rehabilitation are reasonable.
33I also accept that you will face the extra burden in prison of the cancellation of your residency in Australia and possible deportation to New Zealand. Your family reside here and you intended to build a life here and the loss of that will no doubt weigh upon you. It is an additional punishment in your case.
34Leti Maele, you were born on 13 November 1997 in Samoa and are now aged 20. You were 19 at the time of your offending. You resided in New Zealand until you were 15 when you moved to Australia.
35You reside with your uncle and aunt and their four children. You are also employed as a tree lopper. You are a young offender and the principles applicable to the formulation of a sentence in your case are well-established.
36In Azzopardi v The Queen (2011) 35 VR 43, the Court of Appeal stated:
"The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objects of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced.
As the level of seriousness of the criminality increases, there will be a corresponding reduction in the mitigating effects of the offender's youth.
But only in the circumstances of the gravest criminal offending and where there is no prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished."
37In Mogoai v The Queen [2014] VSCA 219, in deciding where two youthful offenders who submitted that a young offender should not be sentenced to gaol, if such a disposition could be avoided, the Court of Appeal also stated:
"So much may be accepted but the charge of recklessly causing serious injury in the present case was a serious example of a serious offence which has significant physical and psychological ramifications for the victim. Thus the appellant's youth and their prospects of rehabilitation must, to some extent, be subjugated to other sentencing considerations such as general deterrence.
As Winneke ACJ said in Wright, 'Youth and rehabilitation must take a back seat to specific and general deterrence where crimes of wanton and unprovoked viciousness are involved, particularly where the perpetrator has been given previous chances.'
This kind of offending that the appellant's engaged in is sadly so prevalent that general deterrence, specific deterrence and denunciation must be given prominence."
38It was submitted on your behalf that having regard to your age and lack of prior criminal history, that a sentence of detention in a youth justice centre was an appropriate sentence in your case. It was also submitted that it would be open to me in the alternative to impose a Community Correction Order.
39Whilst I accept that rehabilitation is an important consideration in your case, and that your prospects in that regard, quite apart from your age are reasonable, in my opinion, the seriousness of your offending means that general deterrence and specific deterrence are prominent sentencing considerations in your case. I do not accept that the purposes for which this sentence is to be imposed would be met by the imposition of either detention in a youth justice centre or the imposition of a Community Correction Order.
40You are now over 20 years of age and the evidence suggests that you are, "very mature" for your age. The reference of Olivia Maele makes that clear.
41You are also remorseful for your offending and I accept that your prospects for rehabilitation are reasonable as I have said. You have undertaken an anger management course and have engaged with youth support in Dandenong.
42Your ongoing rehabilitation is however also dependent on you addressing drug and alcohol abuse. I also accept that the prospect of deportation will weigh heavily upon you as you intended to build a life for yourself in Australia and this is an additional punishment in your case.
43Andrew Apineru, you were born in New Zealand on 2 September 1991 and are now aged 26. You are a permanent resident of Australia having arrived here from New Zealand in 2013. You were educated to Year 11 level and it would appear you were a capable student and athlete. You are also a talented musician.
44In March 2013 you were assaulted in Auckland and suffered a serious head injury that required neurosurgery. You now suffer from an acquired brain injury and I have received in evidence a neuropsychological report of Mr Martin Jackson setting out the effects that injury has had on your cognition.
45I accept that your impulse control and monitoring are impaired by the injury, and there is a connection between this and your offending on the night in question. However your offending was also caused by your high level of intoxication and you must have known that excessive alcohol intake was not advisable having regard to your injury.
46It is also clear from the report of Mr Jackson that you have a history of binge drinking and this too has had an adverse impact on your impulse control. Your counsel submitted that principles 1, 3 and 5 of the decision of the Court of Appeal in R v Verdins & Ors (2007) 16 VR 269 were engaged in your case by reason of the cognitive impairment caused by your head injury. I accept that this is so to a modest degree in respect of principles 1 and 3, as it is also clear that your offending was significantly alcohol fuelled. I accept that imprisonment will also to some degree be a greater burden upon you by reason of your head injury.
47The character and other evidentiary material tendered on your behalf also suggests that your prospects for rehabilitation are reasonable and I accept that you are remorseful for what you have done.
48You too have built a life in Australia and your partner and child, who do not reside with you, are Australian citizens. I also accept that the prospect of deportation will weigh heavily upon you and it is an additional punishment in your case.
49Apisai Maele, you were born on 14 March 1997 in New Zealand and are now aged 20. You will turn 21 in approximately one month. You are a young offender and the principles that I set out in the case of Leti Maele are also engaged in your case.
50You arrived in Australia at the age of 12 and are also a permanent resident here. You reside with your siblings and parents and are also employed as a tree lopper. I accept that the prospect of deportation will also weigh heavily upon you and it is an additional punishment in your case.
51Your formal education is limited and you left school in Year 8. Despite this you have previously assisted your mother in her work as a child educator and you had aimed to complete a Diploma in Child Education.
52I have received in evidence a number of references attesting to your good character and attendance at the 7th Day Adventist Church in Lynbrook.
53You come from a law abiding family and I accept that you too are remorseful for your offending. Your counsel submitted that you did not attack all four victims; that is, you only punched and kicked three of them. Whilst this is so, it does not mitigate your offending to any significant degree.
54You have completed an anger management course, engaged with South East community links and moderated your alcohol use. I also accept that you are also remorseful for your offending. Your prospects of rehabilitation may also be regarded as reasonable.
55It was submitted on your behalf that you are reserved by nature and for that reason more likely to be vulnerable in an adult prison environment. Your counsel submitted in the circumstances of your case, I should impose either a youth justice centre order or a community corrections order.
56But for the reasons that I have already set out in these reasons, in my opinion, such a sentence would not meet the purposes for which this sentence is to be imposed. Your offending is very serious and you will also soon turn 21.
57Would you all stand up please. In the result the sentence of the court is as follows: –
58Maele Maele, on the charge of recklessly causing serious injury, you are convicted and sentenced to be imprisoned for three years and six months;
59On Charge 2, the charge of intentionally causing serious injury, you are convicted and sentenced to be imprisoned for 15 months;
60On Charge 3, the charge of intentionally causing injury, you are convicted and sentenced to be imprisoned for 12 months;
61On Charge 4, the charge of intentionally causing injury, you are convicted and sentenced to be imprisoned for 12 months.
62The sentence imposed on Charge 1 is the base sentence. I direct that three months of the sentence on Charge 2, six months of the sentence on Charge 3 and three months of the sentence on Charge 4 be served cumulatively on each other and cumulatively on the base sentence.
63This makes for a total effective term of imprisonment of four years and six months. I direct you serve two years and nine months before becoming eligible for release on parole.
64But for your plea of guilty, I would have sentenced you to a total effective term of imprisonment of six years and fixed a non-parole period of four years. I declare that you have served seven days by way of pre-sentence detention.
65Leti Maele, in relation to the Charge of recklessly causing serious injury, you are convicted and sentenced to be imprisoned for two years;
66In relation to the charge of intentionally causing injury, Charge 2, you are convicted and sentenced to be imprisoned for nine months;
67In relation to Charge 3, the charge of intentionally causing injury, you are convicted and sentenced to be imprisoned for six months;
68In relation to Charge 4, the charge of intentionally causing injury, you are convicted and sentenced to be imprisoned for six months.
69The sentence imposed on the charge of recklessly causing serious injury is the base sentence. I direct that three months of the sentence on Charge 2, three months of the sentence on Charge 3, three months on the sentence on Charge 4, be served cumulatively on each other and cumulatively on the sentence imposed on Charge 1.
70This makes for a total effective term of imprisonment of two years and nine months. I direct that you serve 15 months imprisonment before becoming eligible for release on parole.
71But for your plea of guilty, I would have sentenced you to a total effective term of imprisonment of four years with a non-parole period of two years. I declare you have served seven days by way of pre-sentence detention.
72Andrew Apineru, in relation to the charge of recklessly causing serious injury, you are convicted and sentenced to be imprisoned for two years and nine months;
73In relation to Charge 2, the charge of intentionally causing injury, you are convicted and sentenced to be imprisoned for 12 months;
74In relation to Charge 3, the charge of intentionally causing injury, you are convicted and sentenced to be imprisoned for nine months;
75In relation to Charge 4, the charge of intentionally causing injury, you are convicted and sentenced to be imprisoned for nine months.
76The sentence imposed on Charge 1 is the base sentence. I direct that three months of the sentence on Charge 2, three months of the sentence on Charge 3, three months of the sentence on Charge 4, be served cumulatively on each other and cumulatively on the sentence imposed on Charge 1.
77This makes for a total effective term of imprisonment of three years and six months. I direct you serve two years and three months before becoming eligible for release on parole.
78But for your plea of guilty I would have sentenced you to a total effective term of imprisonment of five years with a non-parole period of three years and three months. I declare you have served seven days by way of pre-sentence detention.
79Apisai Maele, in relation to the charge of recklessly causing serious injury, you are convicted and sentenced to be imprisoned for two years;
80In relation to Charge 2, the charge of intentionally causing injury, you are convicted and sentenced to be imprisoned for nine months;
81In relation to Charge 3, the charge of intentionally causing injury, you are convicted and sentenced to be imprisoned for six months;
82In relation to Charge 4, the charge of intentionally causing injury, you are convicted and sentenced to be imprisoned for six months.
83The sentence imposed on Charge 1 is the base sentence. I direct that three months of the sentence on Charge 2, three months of the sentence on Charge 3, three months of the sentence on Charge 4, be served cumulatively on each other and cumulatively on the sentence imposed on Charge 1.
84This makes for a total effective term of imprisonment of two years and nine months. I direct you serve 15 months imprisonment before becoming eligible for release on parole.
85But for your plea of guilty I would have imposed a total effective term of imprisonment of four years with a non-parole period of two years. I declare you have served seven days by way of pre-sentence detention.
86I have made s.464ZF orders in each case.
87Are there any further orders required?
88MS PIGGOTT: No, Your Honour.
89HIS HONOUR: Remove the prisoners from the court room now please.
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