Director of Public Prosecutions v Matar

[2018] VCC 609

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01683

DIRECTOR OF PUBLIC PROSECUTIONS

v

JANO MATAR

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	5 December 2017,  22 February & 27 April 2018
DATE OF SENTENCE:	4 May 2018
CASE MAY BE CITED AS:	DPP v Matar
MEDIUM NEUTRAL CITATION:	[2018] VCC 609

REASONS FOR SENTENCE

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Subject:Plea - sentencing

Catchwords:            Causing serious injury recklessly - commit indictable offence whilst on bail

Legislation Cited:     Sentencing Act 1991

Cases Cited:

Sentence:5 years' imprisonment with 3-year non-parole period

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APPEARANCES:	Counsel	Solicitors
For the DPP at hearing For the DPP at sentence	Mr M. Fisher Mr A. Godleman	Office of Public Prosecutions
For the Offender	Mr J. Williams	Papa Hughes Lawyers

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Pages 1 - 10

 

 

HIS HONOUR: 

1Jano Matar, you have pleaded guilty to one charge of causing serious injury recklessly and a transferred summary charge of committing an indictable offence whilst on bail. 

-   Causing serious injury recklessly carries a maximum penalty of 15 years’ imprisonment. 

-   Committing an indictable offence whilst on bail carries a maximum penalty of 3 months’ imprisonment or 30 penalty units. 

2You were born on 11 September 1977, so you are now aged 40.  You were aged 39 when this offending occurred some 16 months ago. 

3You have an extensive criminal history, about which I will go into more detail later.

4The victim in this matter is Finau Kalonihea.  He was aged 34 at the time of the offence.  The victim was a friend of yours for a number of years and you also knew his partner at the time, Belinda Knight.

5On the morning of 31 October 2016 you agreed to meet Mr Raim Balla at the Sunshine Marketplace in Hampshire Road, Sunshine.  A little after noon you drove a blue Mitsubishi Lancer coupe to a car park near the National Australia Bank at the entrance to the market.  A short time later Mr Balla drove a silver BMW coupe to the market and parked in the same car park as you.  Mr Balla got out of his car and went to and sat in your car.

6At 12.48 that afternoon you got out of your car, walked through the car park and entered the market through the NAB entrance. 

7At 1 o'clock that afternoon a silver Ford Focus hatch driven by Belinda Knight stopped near the entrance to the market.  The victim was seated in the front passenger seat and two unknown females sat in the rear seat.  The back seat passengers alighted from the car and walked into the market.  Ms Knight did a U-turn and double-parked in the car park.  Shortly afterwards, she walked towards the market. 

8Just after 1 o'clock that afternoon, Ms Knight drove forward a short distance.  When she did so, Mr Balla followed in the Lancer and blocked her car.  At about the same time you came from the market towards the car park and saw Mr Balla blocking Ms Knight's car.  You started yelling and ran toward Ms Knight's car. 

9You ran straight to the front passenger door.  The door was opened, and you and the victim immediately started exchanging punches.  At that point Mr Balla got out of his car.  He was armed with a screwdriver.  Mr Balla approached you and the victim, who had separated but were still close to each other.  The altercation between you and the victim continued sporadically at the far side of the Ford. 

10You yelled to Mr Balla to get the keys.  Mr Balla then opened the driver's door of the car where Ms Knight was seated.  There was a brief struggle between the two of them before Mr Balla removed the keys from the ignition. 

11You and the victim moved away from the Ford towards a ramp that leads to the car park.  There is no CCTV footage of that area.

12Meanwhile, Mr Balla had returned to the Lancer, reversed it and performed a U-turn.  You approached Mr Balla and had a discussion with him through the open passenger window.  The victim talked to a witness, a Mr Ofamooni, before walking in your direction. 

13Somewhere in the vicinity of the ramp you stabbed the victim to the chest with a screwdriver.  There was debate at the plea hearing as to the circumstances.  I am satisfied beyond reasonable doubt that you had possession of the screwdriver on your person from the initial stage of the altercation with the victim and did not collect it between the time of the initial altercation and the time of the act of stabbing. 

14I am further satisfied beyond reasonable doubt that at the time you stabbed the victim you were not under any threat from the presence of the victim, and that at some stage you had said to him "I will stab you" before committing the act.  My reasons are set out in the ruling I made at the time of the plea hearing.

15You then got into the Lancer and Mr Balla drove away from the market. 

16After initially being unaware, the victim soon realised that he had been stabbed and was taken straight to hospital.

17At about 1.03 that afternoon an anonymous caller contacted the Sunshine police station and reported an assault at the market and police attended the scene.

18At 1.11 pm you returned to the scene while Mr Balla parked the blue Mitsubishi Lancer about 200 metres away.  He then also returned to the scene. 

19At 1.14 pm the victim arrived at the Emergency Department of the Sunshine Hospital.  He received immediate treatment for his injuries.  He was intubated and taken to theatre for an urgent laparotomy, where a pericardial window was performed and 300ml of blood was drained from the area around his heart.  Later that day the victim was transferred to the Royal Melbourne Hospital for further treatment.

20As a result of the assault the victim suffered numerous injuries, including a left anterior chest stab wound, a pericardial haematoma and the presence of pericardial fluid.  Injury was also noted as being a compromised abdomen and liver.  The injuries were described as severe and life-threatening, and that without treatment the victim would be dead.

21At 1.34 pm police were informed by staff at the Sunshine Hospital that a male had presented to the hospital with a stab wound.    

22Whilst at the scene, police noticed some dried blood below your left nostril as well as a blood stain on the right leg of your pants.  You were also arrested and taken to the Sunshine police station, where some items were seized from you.

23Police obtained closed-circuit television footage from the Sunshine Marketplace and from Armaguard, to which I have already referred. 

24The Ford driven by Ms Knight was examined by police.  A number of blood swabs were taken from inside the car.  Blood was also located on a high-visibility vest and the light-coloured camouflage pants that had been seized from you. 

25The Lancer driven by Mr Balla was also examined by police.  Inside the car police discovered numerous cigarette butts, an orange and black-handled screwdriver, a black and yellow-handled Stanley screwdriver, a black and yellow handled flathead screwdriver, and a red and yellow-handled screwdriver.

26Subsequent forensic analysis of the black and yellow-handled screwdriver revealed your DNA on the handle, and the DNA of the victim in blood located on the blade of the screwdriver.

27You participated in a formal record of interview.  During your interview you stated that you had attended the Marketplace after catching a bus from your home.  You stated that your car had been stolen prior to that day, and that by chance you saw your car and just wanted it back.  You stated that you were assaulted by the victim.  You made admissions to punching the victim after you both argued about you wanting your car back.

28On the plea hearing your counsel explained the further background.  You knew the victim through him having been a friend of your partner.  For a time the victim had been homeless and had stayed with you.  A dispute had arisen between you and the victim about money, there had been an exchange of text messages with accusations and counter-accusations.  The victim had taken the Ford and, in that context, your state of mind was one of unhappiness and anger towards the victim. 

29You also said that at the time of the initial altercation you did not know where Mr Balla came from and that he "just popped up out of nowhere".  During the interview you told police that Mr Balla had tried to stop you and the victim from arguing and fighting.  You stated that there were only punches exchanged between yourself and the victim, and that you "didn't do anything else". 

30You denied having a screwdriver and you denied striking the victim with a screwdriver.  You further stated that you did not know how the victim came to be injured with a stab wound.  When some CCTV images were shown to you that depicted you appearing to hold a screwdriver in your hand, you refused to answer any further questions. 

31Towards the end of the interview you were asked by investigators if your version of events was accurate.  You responded by saying "none of it" was accurate.

32I now turn to your personal circumstances. 

33As I noted earlier, you are aged 40 years now, you were 39 at the time of the offending and you do have an extensive prior criminal history. 

34Your first court appearance was at the Williamstown Magistrates' Court at the age of just 20, when you were fined $100 without conviction for using indecent language in a public place. 

35Your second court appearance was in this court, the Melbourne County Court, still at the age of 20, when you were convicted and fined $1,000 for recklessly causing injury. 

36In three further appearances in the Magistrates' Court over the next two years you were variously fined, with or without conviction, for minor offending.  The last instance was for, again, recklessly causing injury.

37From February 2002 to August 2003 you received three wholly suspended prison terms for driving offences. 

38There was then a hiatus with your appearing in our Victorian Courts until October 2010.  You apparently left the State for some time, as you were fined in the Southport Magistrates' Court for possessing dangerous drugs and assault occasioning bodily harm.

39October 2010 saw you back in the Sunshine Magistrates' Court on a driving charge, then again some two years later for various offences, including assaulting a policeman.  You received two terms of imprisonment, the first wholly suspended and the second partly suspended. 

40Just over a year later, in that same court, you were put on a community correction order for 18 months for multiple summary offences, including drug, driving and dishonesty offences.  I note that attending for judicial monitoring was one of the conditions of the community correction order. 

41Less than nine months later you were before that court again, both for breaching the community correction order and for further offending.  You were put on another 18-month community correction order for those offences and given a two-month prison term for the new offending.

42One year later, in August 2015, you were before the Melbourne Magistrates' Court for drug and dishonesty offending and for breaching your latest community correction order.  For the latter you received yet another community correction order (again with a judicial monitoring condition) which I note has been breached by the current offending.  On the drug and dishonesty charges you were given a 246-day prison term, that is, about eight months' gaol. 

43You were brought up in a family with two brothers and two sisters.  You were educated to Year 12 standard, but left halfway through that year.  You describe your childhood and adolescence as quite disrupted, with a lack of motivation at school and often not living at home.  After leaving school you obtained an apprenticeship as a plumber, and you have worked intermittently in that trade.

44You commenced drinking alcohol at 11 years of age and smoking cannabis on a daily basis from 15 to 24.  You used ‘speed’ and ecstasy on a daily to weekly basis until your mid-20s, and since then regularly used ‘ice’ and occasionally cocaine.  You have acknowledged that your introduction to ice "took everything away from me", and your life became one of instability, dominated by drugs and the drug scene.  Your criminal offending history is an eloquent reflection of that circumstance.

45A psychological report from Ms Emma Burrowes, clinical psychologist, was tendered on your plea.  Ms Burrowes reports that you presented with self-reported attention and memory difficulties against a background of long-standing substance abuse from 11 years of age.  You had said that you have had a life-long difficulty concentrating and paying attention since commencing primary school.  You stated that you get bored easily, have memory difficulties and have always struggled to concentrate.

46A formal assessment revealed executive functioning difficulties in the areas of spontaneous idea generation, planning, organisation, reasoning and problem-solving, and below-average-range new learning and memory abilities across visual and verbal domains.

47As a result of the information provided by you, Ms Burrowes opined that your symptoms might suggest that you suffer from Attention Deficit Hyperactive Disorder (ADHD), possibly pre-existing from childhood, but compounded by your long-term substance abuse.  You were not, however, formally assessed for ADHD.

48You have been in custody from 31 October 2016 to the present date, approximately six months of which was your serving of a sentence in another matter.  The pre-sentence detention on this matter is a total of 369 days not including today.

49You were on bail at the time of the commission of the offending in Charge 1, bail having been entered at the Melbourne West police station on 4 September 2014.  The commission of the act represented by Charge 1 whilst you were on bail constitutes the facts upon which you have been charged on the transferred summary charge, and is an aggravating feature of your offending on Charge 1. 

50You were also subject to the conditions of a community correction order imposed by the Magistrates' Court at Melbourne on 18 August 2015 at the time of offending.  This is also an aggravating feature of your offending.

51Your counsel submitted that the psychological evidence of your mental health at the time of offending is such as to reduce your moral culpability for the offending.  In my view the evidence is insufficient to accept that submission.  Whilst I accept that your executive functioning assessment demonstrated difficulties in spontaneous idea generation, planning, organisation, reasoning and impulsivity, and lack of consequential thinking, there is an insufficient link between that condition and the circumstances of the offending, where you had time for calm reflective thinking between the time of the commencement of the assault and before committing the ultimate act of stabbing.

52Furthermore, on the evidence of Ms Burrowes, your cognitive difficulties are likely to be contributed to by your prolonged history of self-induced substance abuse throughout adolescence and early adulthood.  I note that the possibility of ADHD was not fully evaluated and on the evidence remains wholly speculative.  There is insufficient evidence to establish that symptoms of depression and anxiety relate to any long-term underlying condition and they are otherwise explicable as reactive to your present circumstances.

53Your assault on this occasion with use of an instrument as a weapon with deep piercing capacity amounts to a serious example of this offence.  The stabbing was directly to and through the chest wall and pierced the outer surrounding wall of the heart.  There was a serious possibility of death arising out of the act. 

54There is understandable community concern at the incidence of violent attacks, and the circumstances attending this incident occurred in broad daylight and a busy shopping centre, and much of the action was witnessed by a number of people.  Principles of punishment, denunciation by the court and general deterrence assume emphasis in sentencing.  Specific deterrence is also important because of your history of re-offending, particularly in spite of the opportunities you have been given for rehabilitation in the past through court-directed community correction orders.  I regard your prospects of rehabilitation as low and will only be enhanced if you commit yourself with intensive application to your illicit drug habit.

55In mitigation I accept a number of matters urged on your behalf by your counsel, including:

·     that you did not arm yourself specifically for this altercation;

·     your remorse as evidenced by the plea of guilty;

·     your family support;

·     the commitment you have shown to rehabilitative courses whilst in custody;

·     that you have spent a long period in remand custody;

·     that your prior offending mostly reflects drug and road traffic offending rather than matters of serious violence;

·     that you have spent six months whilst on remand serving a sentence for another matter - I accept that some time in custody should be allowed in reduction for this circumstance; and

·     your long-term drug addiction as part of your personal circumstances.

56Mr Matar, could you please now stand.  Thank you.

57On Charge 1 of causing serious injury recklessly you are convicted and sentenced to five years' imprisonment.

58On the transferred summary charge of committing an indictable offence whilst on bail you are convicted and sentenced to one month's imprisonment.

59The total effective sentence is five years' imprisonment.

60I have made no order as to cumulation on the transferred summary charge, on the basis that I have treated the offending whilst on bail as an aggravating factor of the offending on Charge 1.

61I direct that you serve a minimum period of three years' imprisonment before being eligible for parole.

62Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty the sentence that would have been imposed is six years' imprisonment with a minimum period of four years to be served before eligibility for parole.

63Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 369 days, not including today, be reckoned as time already served under this sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.

64You may be seated, Mr Matar.

65Are there any other matters from either counsel?

66COUNSEL:  No, Your Honour.

67HIS HONOUR:  Thank you.  All right, just adjourn the court sine die.  Mr Matar should now be removed, thank you.

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