Director of Public Prosecutions v Matemberere

[2019] VCC 23

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00058

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALLAN MATEMBERERE

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 January 2019
CASE MAY BE CITED AS:	DPP v Matemberere
MEDIUM NEUTRAL CITATION:	[2019] VCC 23

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Lew
For the Accused	Mr C. Pearson

HER HONOUR: 

1Allan Matemberere, you pleaded guilty on indictment to charges of intentionally cause injury and theft.  Each of these charges carries a maximum penalty of ten years imprisonment, reflective of how seriously Parliament regards these offences. 

2The circumstances of your offending are set out in a document entitled, "Summary of Prosecution Opening", dated 15 January 2019.  Post some amendment, it is an agreed document.

3In short compass, your victim, Mark Eden, resided at an address in South Yarra in close proximity to where you were then staying.  You had known each other for some years.  A man by the name of Ashton Bresnehan was residing at the same address as you and was also involved in offending against Mark Eden.  He is charged with armed robbery on a separate indictment.  You and Mr Bresnehan had known each other for about two weeks at the time of the offending.

4On 5 September 2018, Mr Eden was doing laundry in a common area.  At that time, he was able to access, with permission, the premises of Lindsay White, who had a nearby unit.  You also had permission from Mr White to access his premises.  Mr White's unit had an unlockable security door and a wooden door at the front.  The rear wooden door of this unit, or his unit, was always open and access could be gained over a small balcony.  At approximately 1.23 pm, you and Mr Bresnehan left your premises, walking towards that of Mr White. 

5It would appear that Mr Bresnehan had a particular “beef” with Mr Eden, but I could not form the view that you were aware of this.  At the time of your attendance at Mr White's premises, I accept that it was your intention to visit Mr White.  When you arrived at his address, Mr Eden was inside the premises on his own.  You called out to Mr White and Mr Eden did not respond and locked the door.  This fact supports the view that at the time of your attendance at the premises, you had expected to see Mr White.  As it turns out, Mr White was away at the time.

6You and Bresnehan walked from the front of the premises to the rear and went through the back door, something which you had done on previous occasions.  Mr Eden heard someone at the back door of the apartment and saw you walk through the back door with Bresnehan.  Bresnehan was behind you and had picked up a wooden walking stick, with a brass pig's head and brass tip, from just outside the back door of White's unit.  He followed closely behind you into the premises.

7You walked into the lounge room and threatened to hurt Eden.  You say that this was prompted by a racial slur.  I make no finding as to whether or not this occurred, but accept there had been some history between you.  Whether or not there was a racial slur it would not excuse your actions.

8You approached Eden and, with a closed fist, punched him to the left side of his face.  You forced him back on to a mattress.  Bresnehan then hit Eden on the left side of his head with the brass part of the walking cane, causing a cut and for Mr Eden to bleed profusely.  He moved to the bedroom and curled up in a foetal position on a mattress, whilst Bresnehan continued to hit him with the walking stick on his back and whilst Mr Eden was pleading, by saying, "Don't hurt me.  Don't hurt me".

9Mr Eden managed to get up and sit on a chair in the bedroom area.  Bresnehan again hit Eden on the left side of his head with the walking cane and his left wrist, causing a pre-existing wound to split open.  Mr Eden then attempted to lock himself in the bathroom, but you and Bresnehan followed him in.  At some point during the assault, Mr Eden was asked to remove rings that he was wearing and his watch.  This forms part of the charge of armed robbery on which Mr Bresnehan has been indicted and entered a plea of guilty.  You are not charged with that offence and will not be punished for it.

10Mr Eden was made to open the front wooden door on to the balcony and he called out for help.  He then saw the opportunity to get away and slammed the front security door between him and you and Bresnehan.  Eden made his way, to the office of the Housing Victoria in South Yarra and the matter was reported to police and an ambulance was called. 

11An ambulance arrived and transported Eden to the Alfred Hospital and, according to the Crown opening, he presented with lacerations to his head, back and arms.  Photos of his injuries were also tendered.  Eden was admitted overnight for observation.  As part of his treatment, he received one staple in an open wound on his head.

12Meanwhile, you and Bresnehan left the premises, taking the rings and watch that Mr Eden had removed.  You and Mr Bresnehan were arrested by police later that day and interviewed.  You made partial admissions to an assault but denied stealing any property.  In terms of the charge of theft, it is accepted by the Crown that you had not formed the intention to steal from Mr Eden during the assault, but later formed an agreement with Mr Bresnehan to take the property belonging to the complainant, when you both left the unit.  Mr Bresnehan retained the stolen items.  In my view, in terms of your culpability, this is a lower level example of a charge of theft.

13In terms of the charge of intentionally cause injury, you bear criminal responsibility for the blows which you inflicted and for being complicit in the blows subsequently inflicted by Bresnehan.  You therefore bear responsibility for all injuries suffered by Mr Eden, as outlined in the Crown opening. 

14I accept the submission by the Crown that this was a serious assault.  It was committed by two persons against a single victim, during which a weapon was used.  It is perhaps more by good fortune than good management, that the injuries inflicted upon Mr Eden were not more serious than they were. 

15I accept that you did not attend at the premises with the intention of committing such an attack.  Whilst there is no victim impact statement, I accept that Mr Eden was, (1), physically injured; and (2), likely to have been psychologically impacted by the offence against him.  He was in a home environment, at least an environment in which he was comfortable and familiar, at the time of the attack.

16As at 29 August 2018 you were on an adjourned undertaking from the Magistrates' Court, for charges of intentionally damaging property, failing to answer bail, theft and committing an indictable offence whilst on bail.  As such, the offences before me were committed in breach of this adjourned undertaking, representing an aggravating feature to your offending. 

17This fact also raises some concern with me about your ability to abide by court orders, given the nature of the offences which you were dealt with in the Magistrates' Court and your reoffending whilst you were subject to an undertaking to the court.  However, you only have one prior court appearance in your history.  Its close proximity to the matters before me, time wise, would indicate that there were some issues in your life at that time, which were contributing to your behaviour. 

18In terms of your personal circumstances, you are now 28 years of age.  You were born in Zimbabwe and lived there until you were aged approximately 13 years.  Your father emigrated to New Zealand from Zimbabwe in 2003 and it was intended that you, your mother and your two sisters would join your father in New Zealand.  You are the middle child of that sibling relationship.  Most unfortunately, your mother contracted meningitis around 2004 and died around 2004/2005.  By that time, you and your sisters had moved to New Zealand and resided with your father in Wellington.

19Whilst in New Zealand, you obtained a Year 12 education and became a New Zealand citizen.  Your father came to Perth in 2010 approximately and you remained in New Zealand with your sisters, with whom you enjoy a close relationship.  You gained qualifications as a welder and worked in that capacity.  You later moved to Perth, joining your father, where you resided for some four years.  In approximately 2015/2016 you relocated to Melbourne to reside with your sister, Pam, in Prahran.  Your sisters, Pam and Molina - I apologise if I pronounce that incorrectly - presently both reside in Melbourne and are supportive of you.  You are fortunate to be supported by each of them.

20Up until 2017, you had been well educated and that remains the case.  You had been hard working and you had been a law-abiding citizen.  In late 2017, you lost your employment and fell out with your sister, Pam.  This I am told, led to you couch surfing and connecting with less desirable influences.  You began drinking heavily.  It is during this time that your offending behaviour has occurred.  I am told at the time of the offences before me, you had been drinking most of the day.  This, of course, does not excuse your actions.

21Tendered on your behalf was a report authored by Ms Gina Cidoni, consultant psychologist.  It appears to be undated but I accept that she attended upon you, for the purposes of assessment on 28 August 2018 and that the report is current.  I have had recourse to the contents of this report.  Ms Cidoni was of the view that you present with indications relating to past alcohol dependency.  While she forms the view that you are of below average intelligence, personality testing reveals no mood instability, no psychosis and no major disturbance.

22She describes you as immature, with low coping resources.  You did acknowledge to Ms Cidoni the wrongfulness of your actions.  There is nothing in her report, in combination with other matters, that raises any concerns with me, that you do not otherwise present with prospects for rehabilitation in combination with other matters, to which I will later refer. 

23Of course, as a direct consequence of your offending on 5 September 2018, you have been on remand.  An application for bail was unsuccessful.  As such, you have been in custody for approximately 142 days. 

24Given it is your first exposure to that environment and your limited prior criminal history, I am satisfied that the time in custody you have served to date, is capable of acting as both a sanction and hopefully a deterrent into the future. 

25Given this experience, your limited history, your level of education, your trade skills, the continued support of your sister - Pam, who will provide you with accommodation upon release - your lack of any entrenched addiction and the fact that there are no concerns with your mental health, I am satisfied that your prospects for rehabilitation are good. 

26I accept, as is agreed, that your plea of guilty was entered at an early opportunity.  Your plea was entered before any testing of the Crown evidence, at committal proceedings on 15 January 2019.  I accept that your plea of guilty indicates that you accept responsibility for the offence.  I also accept that your plea has spared the time and expense associated with any trial, as well as the trauma to your victim of having to relive the events of September 2018.  Based on the report I have read, I also accept that you are remorseful for your offending and these are all matters which must be factored in your favour into the sentence imposed.

27The Crown submit that the circumstances of your offending and the relevant sentencing considerations can properly be reflected, in what is referred to as a combination sentence.  They further submit that the time that you have done in custody to date, is insufficient to properly reflect the relevant sentencing considerations.  The position of your counsel is that these matters can be properly reflected in either time served, or a community corrections order.  No real issue is taken, as I understand it, with the Crown's submission as to a combination sentence.

28I have had you assessed as to your suitability for a community corrections order.  As a result, I have been provided with an assessment report which indicates that you are suitable for a community corrections order.  That report indicates your desire to engage in full time employment, following your release and you were cooperative with that assessment process.  I am of the view that given your prior matter before the courts and this matter occurring in close proximity timewise and involving alcohol, that you would be assisted by a supported return to the community and supported rehabilitation. 

29Of course, the fact that any such order hangs over your head for a period of time is capable of representing both specific and general deterrence.  I am satisfied that a community corrections order should form part of the sentencing mix. 

30I do make the ancillary orders as sought for disposal of scheduled items and I do now turn to sentence Mr Matemberere, so if I could just ask that you stand.  It is part of the formal process.

31In relation to Charge 1, intentionally cause injury, I am of the view that the offending is so serious that a term of imprisonment must be imposed.  You are convicted and sentenced to 142 days imprisonment.  I reckon 142 days as having already been served, under this sentence.

32In relation to the charge of theft, you are convicted and placed on a community corrections order for a period of 12 months. 

33Now I can only place you on a corrections order if you agree to sign documents to that effect.  So, I will tell you about the terms of the corrections order and you can speak to Mr Pearson.  During that 12 months, you are to complete 125 hours of community work.  That should not overly interfere with any
full-time employment, which I encourage you to seek.  You are to be supervised by the Office of Corrections and to submit for assessment and treatment, including testing for alcohol use and abuse.  Fifty hours of any treatment conditions will be offset against the community works.  So, if you are doing the treatment, it will reduce the community work component.

34In addition to the conditions that I have imposed, there are standard conditions.  You are also to be supervised by the Office of Corrections.  The first and foremost of the standard conditions is that you must not commit any offence during that 12 months for which you could be punished by imprisonment.  You must report within two working days, as of today, to the nearest Community Corrections office, which in your case I understand to be Moorabbin.  You are required to advise your supervising Correction's office of any change of address of where you are living or working, and you must do so within two clear working days.

35It is a term of all community corrections orders that you must submit to visits as directed, and you must obey all of the instructions and directions of your community corrections officer.  You are not able to leave the State of Victoria without the prior permission of your supervising community corrections office.  You should be under no illusion that this outcome presents you with an opportunity to further change your life in a positive fashion, should you choose to take up that opportunity. 

36This order can be breached, if you do not comply with it in terms of the conditions, or if you reoffend during its operation.  Should you do so, you will be required to appear before me for a contravention hearing, which may require me to resentence you for the charge of theft, as well as for a charge of contravening a community corrections order.  So, do you understand the terms of the sentence I have imposed?

37OFFENDER:  Yes.

38HER HONOUR:  All right.  I will let you speak to Mr Pearson ‑ ‑ ‑

39MR PEARSON:  Yes.  Thank you, Your Honour.

40HER HONOUR:  ‑ ‑ ‑ once the orders printed out, Mr Pearson.

41MR PEARSON:  If Your Honour would allow me to approach?  Thank you, Your Honour.  Sorry?

42HER HONOUR:  That is all right.

43MR PEARSON:  Mr Matemberere understands the condition of the order, agrees that that order should be made.  Signed that document, Your Honour.

44HER HONOUR:  All right.  Thank you.  The disposal order only refers to Mr Bresnehan, so ‑ ‑ ‑

45MR LEW:  It does, it does, Your Honour.  Perhaps that could be deferred until the completion of Mr Bresnehan's plea?

46HER HONOUR:  No difficulty with that at all.  As long as we do not forget.  All right.  Well in the nicest possible way, Mr Matemberere, I hope I do not see you again.

47OFFENDER:  You will not see me again.

48HER HONOUR:  All right.  Mr Pearson, thank you for your assistance.  Mr Lew, thank you for your assistance.

49MR PEARSON:  Thank you, Your Honour.

50MR LEW:  Thank you, Your Honour.

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