Director of Public Prosecutions v Maina

[2018] VCC 1444

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-18-01441

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL MAINA

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2018
DATE OF SENTENCE:	6 September 2018
CASE MAY BE CITED AS:	DPP v Maina
MEDIUM NEUTRAL CITATION:	[2018] VCC 1444

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  PLEA – Recklessly engaging in conduct that places or may place another person in danger of a serious injury – Plea of guilty

SUMMARY OFFENCE – Commit indictable offence whilst on bail

Legislation Cited:            Crimes Act 1958; Road Safety Act 1986; Sentencing Act 1991;
Cases Cited:  

Sentence:171 days’ imprisonment; Community Correction Order for 18 months with conditions; Section 6AAA declaration; Driver’s licence cancelled for 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Fernando
For the Accused	Mr J. McGarvie

HIS HONOUR:

1Michael Maina, you have pleaded guilty to a charge of reckless conduct endangering serious injury.  This offence carries a maximum penalty of five years' imprisonment.

2You have also pleaded guilty to a relevant summary offence of committing the reckless conduct offence whilst on bail.  The offence of committing an indictable offence whilst on bail carries a maximum penalty of 30 penalty units or three months' imprisonment.

3You have admitted prior convictions.

Circumstances of Offending

4I turn now to the circumstances of the offending.

5On the evening of 11 March 2018 you were in company with a friend of yours in the vicinity of Chapel Street, South Yarra.  You drove to Chapel Street in your red Jaguar sedan.  At about 11.30 pm you parked your car out the front of Chasers Nightclub at 386 Chapel Street, Prahran.  You and your friend entered Lux Nightclub, which is located at 373 Chapel Street, South Yarra, at about 11.55 pm.

6One of the victims in this matter, Steven Dentakos, was managing an event at Lux on that evening.  He knew you from your regular attendance at Lux.  Sometime during the night you were in a VIP area within the nightclub, Mr Dentakos was of the view that you were smoking a joint, which I have taken to be a marijuana cigarette, and asked him to leave the VIP area.  You apologised and left the VIP area without incident.  However, you were observed to be angry with Mr Dentakos and upset about being asked to leave the VIP area.

7At about 3.40 am you and your friend left Lux and returned to your car.  Around this time Mr Dentakos and the second victim in this matter, Mr Rahman, were standing with a group of people on Elizabeth Street, South Yarra.  Mr Rahman had been working with Mr Dentakos at Lux that night.

8You drove your car alongside them and briefly stopped and yelled verbal abuse at them through an open car window. You then drove away.  Within a few minutes Mr Dentakos called you on your mobile phone and demanded that you return to the area - the implication being that he wanted an altercation with you.

9You were angry and drove back to the intersection of Elizabeth Street and Chapel Street.  Mr Dentakos and Mr Rahman were standing in the middle of Elizabeth Street in the process of crossing the road.  You made an abrupt turn off Chapel Street into Elizabeth Street and accelerated, driving straight towards Mr Dentakos and Mr Rahman.  You swerved at the last minute, but Mr Rahman jumped into the path of the vehicle when he tried to jump out of the way and he was struck by your vehicle.  He was flung onto the bonnet of the car on the left-hand side, he then struck the left side mirror, causing it to fold inwards as he fell towards the road.  He then landed on the road.

10Your driving was captured on CCTV footage, and I have viewed some of the available footage, which was Exhibit B on the Plea.

11You left the scene and headed to your home address.  You received another telephone call from Mr Dentakos on your way home and he told you that you had hit his friend.  Police and ambulance were called by witnesses and they came to the scene.  Mr Rahman was assessed by ambulance paramedics and advised to go to hospital.  He did not wish to do so as he thought it would upset his parents, receiving a call in the middle of the night.

12He attended at the Alfred Hospital later that day and was diagnosed as suffering soft tissue injury and he was treated at home with analgesics.  He reports feeling severe pain in his left knee and his knee was grazed, and his right hand hurt from hitting the road.  His torso was sore all over, his neck strained and he had a headache.  His collar bone hurt and there was pain in his right arm when he moved it.  He felt traumatised and upset by the incident.

13You were readily identified because those involved at the scene knew you.  On 19 March 2018 police attended where you were residing.  They seized items of clothing of yours that assisted identifying you on the CCTV footage.

14You participated in a formal record of interview and as was stated on the plea by the prosecutor your answers were less than forthcoming.  You made some feeble attempts to deflect the blame away from you.

15At the time of committing the offence of reckless conduct you were on bail, having been bailed for failing to attend court in relation to a charge of refusing to undergo a breath test.

16These facts demonstrate that this is a serious example of the offence of recklessly engaging in conduct that places or may place another person in danger of serious injury.

17As I have stated I have viewed the footage that was tendered on the Plea.  The danger to the man you struck was clear and also to Mr Dentakos, who was alongside him.  But there were also others, of course, in the vicinity, as one would expect at that time of night, in that location.

18It is of enormous concern that you were so incensed at such a trivial exchange that you saw fit to use your vehicle as a weapon in the manner that you did.  As was pointed out on the plea, the fact that no one was seriously injured or worse was due to good fortune rather than your management of your vehicle.

19You should consider yourself fortunate that the consequences of your actions were not far worse than what they were, in which case you would have been facing a more serious charge with the prospect of years of imprisonment.  This observation illustrates the appreciable risk of serious injury inherent in your conduct.

20I sentence you on the basis that you deliberately drove at Mr Dentakos and Mr Rahman, attempting to swerve at the last moment.  You did so recklessly, of course, disregarding the appreciable risk of serious injury.

21I now turn to your personal circumstances.

22You are 31 and you were born in Kenya.  Your parents were educated individuals and your personal background growing up could be said to have been comfortable up to a point.

23You witnessed the brutal murder of your father when you were only 11 years of age.  You witnessed firearms being used, your mother screaming and running out.  Your father was a general manager of a large organisation. It is not absolutely clear, but the murder was suspected to have been an armed robbery gone wrong.

24You have two younger sisters and your mother is re-married.  Mr Aylott, your stepfather, attended court; he is present again here today and provided a helpful letter about you, which was Exhibit 2.  I received a letter from your mother, Exhibit 3.

25Your mother is an educated woman, as I have stated. She has a Masters of Business Administration, Masters of Science in Public Relations.  She has been the vice chairperson and commissioner of the independent electoral and boundaries commission in Kenya, and has also worked as director of the national museums of Kenya, and director of communications and fundraising at the Kenya wildlife service.  She was not present during your plea, as I was told she was working in a public relations capacity and had to travel to Kenya.

26I will come back to the great suffering and trauma resulting from you having witnessed your father's murder as a child.  There is no doubt the impact on you would have been severe and you have carried that with you to this day.

27You family migrated from Nairobi to America, before ultimately settling in Australia.  You excelled at school and continue to apply yourself at University.  Prior to your remand in March of this year you were studying chemical engineering and business management at RMIT.  At the same time you were enrolled at Monash University, studying a Bachelor of Medical Science.

28I have been shown your academic records from Monash University and from RMIT and they formed Exhibit 5 on the Plea.  They indicate generally that in terms of academic achievement you are a high achiever.

29You also have prior convictions, and as I noted during the Plea, the juxtaposition of your significant tertiary education achievements, alongside your criminal history is an extremely odd one and one that provides some concern.

30You have a prior conviction for aggravated burglary, for which you were placed on an intensive corrections order.  As I understand it, your history of compliance with that corrections order has not been ideal, and the order was extended in the past.  You have other convictions for driving matters, which when one considers the main offence that is the subject of this sentence, that driving history and your attitude toward being in charge of a vehicle is of concern.

31You were on bail in relation to a charge of refusing a breath test at the time of this offence.  You were therefore remanded in custody.  You were refused bail at a bail application.  You were also refused summary jurisdiction, when you attempted to have this matter dealt with by way of plea at an earlier stage in the Magistrates' Court.

32Whilst in custody you have completed courses and the certificates of these were tendered and formed Exhibit 7.  It is to your credit that you have, in a relatively short space of time in custody, endeavoured to complete as many courses as you have.

33You have also been assaulted twice, I am told, in custody and whilst there was some discussion as to the particulars and circumstances of those assaults, on the Plea, I have subsequently received written advice from the Office of Public Prosecutions in relation to the circumstances of you being assaulted in prison. That advice makes it abundantly clear that you did not provoke any assault, that you were instead a target of others.  I take into account these assaults on your person whilst in custody when I consider the effect of that period of incarceration on you.

34I do accept that for someone who has not been incarcerated previously that your experience in custody, 171 days - not including today, has been a sobering one; a salutary lesson; a shock, no doubt and a significant specific deterrent.

35The thrust of the submission on your behalf, in a realistic and very able plea conducted by Mr McGarvie, was that the period of time you have served in custody is sufficient to serve the purposes of specific deterrence and that it also goes a long way toward meeting the sentencing requirements of general deterrence, just punishment and protection of the community.  It does not go all the way, however, in meeting those factors and therefore, I will impose a community corrections order in addition to the time in custody you have served.

36The community corrections order is also aimed at your rehabilitation.  I consider that your prospects of rehabilitation are good.  You are clearly an intelligent man, you have excelled academically.  You have excellent role models in your mother and your stepfather.  I am told you have worked as an intern at various petro chemical companies, including Woodside Petroleum and others.  You have a prospect - it is a bit unclear if it still remains a prospect, but a prospect of receiving a similar position at BHP Billiton.  You have a clear understanding of where you are heading professionally.

37Against that your criminal record is disturbing.  Your criminal record and your academic record tell two divergent tales.  Viewed separately, one would assume they relate to two separate individuals.  As I stated on the Plea, you have the ability, the support and the opportunity to excel in this community, and in particular in your chosen field.  It is up to you which path you choose:  the productive path with all its benefits and satisfaction or the wasteful path, typified by incidents like the one before this court.

38There are issues personal to you that arise from the facts of this case, and your antecedents, and the matters raised by your counsel, Mr McGarvie that need to be addressed.  I will attach conditions to the community corrections imposed aimed at addressing these issues.  Your history of abusing cannabis, the impact of significant trauma in your youth, arising from the violent murder of your father and your witnessing that tragedy.  But also other matters personal to you that professionals may be able to identify, in particular, dealing with anger management.

39I accept in mitigation your plea of guilty has been at an early stage and you are entitled to a significant discount for having done so.  I also accept that the plea of guilty is consistent with what I accept to be some remorse albeit belated.  But the plea of guilty has a substantial utilitarian benefit, saving the community the cost a trial, sparing witnesses from giving evidence.  As I have stated, I accept your prospects for rehabilitation are reasonable if your personal issues, as I have described them, in particular, lifestyle issues and anger issues are addressed.  I am a little guarded about your prospects, given your history and given the matter before the court.  But on balance I consider your prospects to be reasonable.

40I do accept that your experience in custody, given your background, given the assaults that have occurred, and given it is your first time in custody, has had a significant impact upon you and it is likely that it has had the effect that you are specifically deterred from placing yourself in a situation where you could face a gaol term again.

41The prosecutor, Ms Fitzgerald, rightly pointed out the matters of concern in this matter.  In particular, some of which I have already referred to:  the level of danger that people were placed in as a result of the manner in which you used your vehicle was at a significant level.

42Ms Fitzgerald conceded, however, that a combination sentence comprising the period of time you have already served in custody, together with a community corrections order, would meet all of the sentencing requirements.  I agree with that submission and I sentence you as follows.

43Will you stand, please, Mr Maina.

44On Charge 1 on the indictment, reckless conduct, you are to be imprisoned for a period of 171 days, and I also impose in respect of that charge a community corrections order of 18 months duration.  I will come to the conditions in a moment.

45I declare that you have served as pre-sentence detention 171 days, not including today.  I also, in relation to the relevant summary offence of committing an indictable offence whilst on bail, sentence you to the same community corrections order.  In other words, the community corrections order component of the sentence on Charge 1 covers the relevant summary offence of committing an offence whilst on bail, also.

46That community corrections order is of 18 months duration.  In addition to the normal conditions, I impose a condition of supervision.  I impose a condition that you attend for drug and alcohol counselling.  There will also be a condition that you attend for a mental health assessment and treatment as required and also attend as required offending behaviour programs.

47I do not make a specific condition relating to attending an anger management course.  Although, as I said during the plea, much of this is up to you.  It seems you know you have got a problem.  As part of your rehabilitation you should seek out such a course and do it yourself.

48I will impose a condition of judicial monitoring.  And what judicial monitoring means is that during the course of the 18 month community corrections order you will have to come back before me so I can find out how you are going.  I am not going to make it regular, but I want to know that there have been programs put in place and that you are doing them.  So I am going to make it, during the course of the 18 month community corrections order, at the nine month period.  So nine months from today.  I will probably have to set a date.  Nine months from today at 9.30 am you will come back here and I will find out how you are doing on that order.  So that is the community corrections order.

49I also make an order against your licence, pursuant to s.28(1B) of the
Road Safety Act.  That is because of the use of the vehicle in this case.  I cancel your licence and disqualify you from obtaining another for a period of two years. 

50But for your plea of guilty I would have sentenced you to a period of two and half years' imprisonment with an 18 month non-parole period. And I declare that pursuant to s.6AAA of the Sentencing Act.

51The community corrections order will be with conviction.

52Now, Mr Maina, that order will be typed up and you will be asked to sign it.  The conditions will be there if any clarification is needed, you can seek it.  But I will formerly ask you now, do you consent to entering such an order?

53OFFENDER:  Yes, Your Honour, I do.

54HIS HONOUR:  All right.  Well, it might take some time for it to be produced.  As in a few minutes.  You will then be asked to sign it.  The effect of the sentence is that you have served 171 days, that is up to and including yesterday.  I have declared that you have served 171 days of the sentence for imprisonment that I imposed, which means you will be released and once you have signed the community corrections order you then have to attend the office of corrections at Sunshine within two days.  It is probably best to go there sooner than that.  The address will be on the form.

55I have not imposed any unpaid community work component on the order.  The reason for that is an order is punitive whether it includes unpaid community work or not.  You have to attend, you are supervised, you have to go for counselling, it hangs over your head for 18 months.  In combination with the period of prison you have served I formed the view that unpaid community work was not necessary.

56But you will have to understand carefully what the conditions are and make sure that you complete them.  Because if you breach an order you are back here, and we start talking about gaol again.  But I will now, if it is ready, I will have my associate show you the order and ask for your signature.

57I mentioned judicial monitoring and I will be more specific about that now.  You will have to reappear at court for review on 6 June 2019, at 9.30 am.  I have signed that order.

58Ms Fernando, Mr McGarvie, is there anything else I have overlooked; have I got that right?

59MR FERNANDO:  That's correct, yes.

60HIS HONOUR:  All right.

61MR McGARVIE:  Your Honour please.

62HIS HONOUR:  All right, Mr Maina, good luck.  I expect that you will be able to complete those 18 months, do what you have got to do, continue on with your studies and leave all these negative activities well behind you.

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