Director of Public Prosecutions v Meagher and Serecen
[2015] VSC 28
•9 February 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0086
S CR 2014 0087
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| JASPER MEAGHER | First Offender |
| & | |
| NARADA SERECEN | Second Offender |
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 & 5 February 2015 |
DATE OF SENTENCE: | 9 February 2015 |
CASE MAY BE CITED AS: | DPP v Meagher & Serecen |
MEDIUM NEUTRAL CITATION: | [2015] VSC 28 |
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CRIMINAL LAW – Sentence – Conduct endangering person – Offenders pursued deceased, who had stolen a wallet belonging to the first offender – violent altercation resulted in death – Offenders cannot be sentenced for manslaughter –Not a case of random street violence – Guilty plea – Demonstrated remorse – Excellent prospects for rehabilitation – Little need for specific deterrence – Punishment and general deterrence -Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Rose QC with Mr J. McWilliams | Office of Public Prosecutions |
| For Jasper MEAGHER | Mr G. Steward | Tony Hargreaves & Partners |
| For Narada MOON | Ms C. Gwynn with Ms K. McKay | Victoria Legal Aid |
HIS HONOUR:
Jasper Meagher and Narada Serecen, you have both pleaded guilty to one count of recklessly engaging in conduct that places or may place another person in danger of serious injury, contrary to s 23 of the Crimes Act 1958.
The background to your offending commenced at the Evelyn Hotel, Fitzroy in the late afternoon of Monday 16 December 2013. You were work colleagues and met to have a social drink at the hotel. You were both part of a larger casual group of friends and acquaintances. I accept that both of you had consumed perhaps three or four pots of beer over about three hours.
The deceased man, Adrian Kambeck, was not known to either of you before 16 December. He was a Carlton resident and then 36 years old. He and his friends sat at an outside table near your group. Some benign interchange occurred between the two groups, the upshot of which was that Mr Kambeck sat for a time with your group. Your exchanges were entirely cordial at that stage. You, Mr Meagher, had placed your wallet on a heater near your table.
At around 8.40pm, Mr Kambeck took this unattended wallet and walked away with it. It was later recovered in the ladies toilet of the hotel. When you, Mr Meagher, realised that your wallet had been stolen you became agitated. You asked those around you whether they had seen your wallet. Shortly after this, Mr Kambeck left the hotel after saying goodbye to his friends. Your table area was within the cover of a CCTV camera monitored from within the hotel. You went inside and viewed the CCTV footage – it showed Mr Kambeck taking your wallet. I consider it certain that you, Mr Meagher, told Mr Serecen of what you had seen on that footage.
I shall now read from paragraphs 14-20 of a statement of facts that is agreed between the parties for the purposes of sentencing.
14) The accused Meagher, having just watched the CCTV vision, approached the accused Serecen and spoke with him briefly before they both followed after the deceased. They followed the deceased up Brunswick Street and caught him about a block up Brunswick Street in the vicinity of Rose Street.
15) The accused Meagher’s housemate, Bayliss, had followed after the two co-accused in an effort to find out what was going on.
16) The two co-accused confronted the deceased immediately regarding the missing wallet. The two co-accused were yelling and aggressively demanding that the deceased return the wallet. The deceased initially denied having taken the wallet.
17) The incident became physical with the two co-accused assaulting the deceased by slapping, pushing and grappling with the deceased. The deceased did not fight back, but tried to protect himself. The incident spilled into the alcove doorway of number 91 Rose Street. The accused Meagher continued to assault the deceased in the doorway by slapping him while the accused Serecen went through a plastic shopping bag that the deceased had with him. Residents of that address heard several loud bangs against their front door while the incident was occurring.
18) The deceased admitted that he did take the wallet, but that he no longer had it. He produced a ten dollar note and offered it to the accused Meagher and said that his wallet was in the bathroom at the Evelyn Hotel.
19) The accused Meagher dragged the deceased out of the alcove and back onto Rose Street by the hair. The deceased got loose and stumbled out of the accused Meagher’s grip. Meagher then forcefully pushed the deceased to the upper body, propelling him backwards. The force of the push caused the deceased to fall backwards and in so doing he caught his heel on the curb and fell. As the deceased was falling to the ground he struck his head against the brick wall of number 91 Rose Street. The impact of the deceased’s head against the wall made a loud cracking noise heard by several witnesses. The deceased immediately lost consciousness and began bleeding heavily from his ears. At the time the deceased struck his head accused Serecen was positioned to the side and going through the deceased’s plastic bag.
20) The conduct set out in paragraphs 17, 18 & 19 constitutes the offence of reckless conduct endangering serious injury contrary to s.23 of the Crimes Act 1958 on the basis that in committing an unlawful assault upon Mr Kambeck in an environment comprised of bricks, concrete and bitumen the accused placed Mr Kambeck in danger of sustaining serious injury by exposing [him] to an appreciable risk of serious injury of falling and striking a hard surface.
In discussion, I made the observation to counsel that I considered both of your offending to have some features that distinguish it from the mindless random street violence that is often seen in this Court. Firstly, I do not consider that alcohol was a factor in the offending. Both of you had consumed a relatively modest amount of alcohol over a three hour period. Secondly, I consider your agitation, Mr Meagher, at discovering your wallet had been stolen was understandable in the circumstances. I consider that you both left the hotel for a legitimate purpose – to recover the wallet. Knowing what you both knew, it was reasonable for you to approach Mr Kambeck and seek the return of the wallet. Given your disabled physical condition,
Mr Meagher, it was reasonable for Mr Serecen to go with you.
In my view, all of these factors provide a context or background to your offending and serve to distinguish it from the alcohol-fuelled random street violence to which I have referred.
In the circumstances, you were entitled to remonstrate with Mr Kambeck. You were entitled to demand the return of the wallet. You may even have been entitled to exercise reasonable force to restrain him while the police were summoned.
What you were not entitled to do was to set about assaulting this gentle, harmless man. In so doing, you engaged in conduct that placed Adrian Kambeck in real danger of serious injury. In a confined space, characterised by hard surfaces and sharp edges, you created the danger that tragically cost this young man his life.
I indicated to your counsel during the plea that I cannot sentence either of you for manslaughter or any other offence that contains the consequence of death as an element.
Having said that, the fact that this young man died as a result of your conduct cannot be ignored. It is a circumstance of your offending that elevates its seriousness.
I consider that some distinction can be drawn between your respective objective criminal culpability. You both participated in the slapping, pushing, and grappling of Mr Kambeck. It was daylight, and you both must have appreciated the unyielding nature of your environs. It seems that you, Mr Meagher, persisted in assaulting Mr Kambeck for a longer period as you, Mr Serecen, desisted, and commenced to search a bag that Mr Kambeck had dropped. Certainly the last two acts of physical aggression perpetrated upon Adrian Kambeck were undertaken by you Mr Meagher – you pulled his hair, he may have stumbled towards you and then you forcefully pushed him in the chest. In so doing, you carried out the action that caused his death. If you are as decent a young man as your referees suggest, you will carry this responsibility with you and it will weigh heavily upon you. I consider your culpability, Mr Meagher, to be greater than that of Mr Serecen's.
I accept that these events have weighed heavily upon you, Mr Serecen, to the extent that you have sought and received quite intensive psychological therapy. You continue to suffer from anxiety, concentration deficits, hypersensitivity to stimuli, insomnia and disordered thoughts. These are symptoms of Post-Traumatic Stress Disorder, although I do not understand that your psychologist, Mr Street, has actually made that definitive diagnosis. He suggests that your remorse and disbelief at your current predicament have aggravated your symptoms. I accept this.
I accept that both of you are genuinely remorseful. I infer it from your pleas of guilty and from your immediate reactions to these tragic events. I refer particularly to the evidence of Mr Bayliss at page 34 of the depositions. Both of you rely on character references which speak of that remorse. Neither of you have had any meaningful prior court appearances, and I accept that offenders who have led decent law-abiding lives up until spontaneous offending are more likely to experience genuine remorse.
I turn now to your individual backgrounds.
You, Mr Meagher, are 27 and have no prior convictions. Your parents separated when you were very young, but notwithstanding this it seems that your childhood was happy and stable enough. You have a younger brother and younger
half-brother. You successfully completed Year 12 and commenced but did not complete a tertiary degree course in media studies. Thereafter, you worked in hospitality for a time and for the last seven years you have worked for an organisation called Show Support. Your company provides stage equipment for concerts, live shows and new-age circuses. You commenced there as a rigger and have done very well, now managing a team of up to 40 riggers; you also pursue new business for Show Support. Whilst on bail, you have continued to work there. You are in a stable, long-term (four years) de facto relationship. Your referees speak of your decency, your work ethic, your reliability and your generosity. I accept that you are not naturally a violent person and I consider your prospects for rehabilitation to be excellent.
Mr Serecen, you are 11 years older than Mr Meagher. Apart from a minor court appearance in 2001 you also have no prior convictions.
You were born in the Nimbin region of New South Wales in 1976 and your family at that time led an alternative lifestyle. Your father died of snakebite when you were an infant. Your upbringing was within a cooperative that fostered environmental sustainability, non-violence and shared loads within the community. You were schooled at the cooperative, then Nimbin Public School and then Byron Bay Secondary College, and you completed Year 11.
You have worked more or less continuously since that time in retail sales or in various capacities in the music industry, including a stint in a reasonably successful band. It was through this interest that you first commenced work in the events industry, particularly in stage and sound engineering. You also were working for Show Support when this tragedy occurred. You have not worked since December 2013 as an unintended consequence of restrictive bail conditions.
You maintain a deep interest in music and poetry and also have lived in a fulfilling relationship for the last four years.
Your referees speak highly of you – I quote from the reference of Linett Pike:
Narada is a bright, intelligent and talented man…He is charismatic and a passionately engaged individual, with a strong sense of social justice and commitment to the world in which he lives. He is a life-long vegetarian and has grown up with, and adheres to, principles of non-violence.
I have noted already the extent to which this incident has weighed upon you. It is hard to reconcile your conduct on this night with the man described by your referees. Both of you will have to live forever with the consequences of that conduct. I regard your prospects for rehabilitation, Mr Serecen, as excellent.
The victims of your offending have prepared Victim Impact Statements. Adrian Kambeck’s brother Gerard spoke movingly of his and his family’s despair. They will never fully recover. The Kambeck family’s suffering is profound and I take it into account.
Your conduct calls for punishment and denunciation. The sentence I impose has as a purpose the deterrence of others minded to offend in a similar way.
I doubt that either of you will offend again and I give the aspect of specific deterrence little weight. As I have said, I consider your prospects for rehabilitation to be excellent and you are both entitled to a benefit for your pleas of guilty. By these pleas you have saved the community the expense and inconvenience of a criminal trial. Additionally, witnesses and the deceased's family have been spared the ordeal of participating in a trial.
After some anxious consideration, I consider that there is a sensible sentencing alternative to a term of imprisonment and I propose to release you both on Community Corrections Orders. I am fortified in that conclusion by the prosecution concession that such an order would be an appropriate sentencing disposition. At the conclusion of the plea hearings I requested, and have since received, two
pre-sentence reports prepared by the Community Corrections Officer at the County Court. Those reports assess you both as suitable for Community Corrections Orders. Although those reports recommend the imposition of an alcohol exclusion condition, I see nothing in either of your histories or the circumstances of your offending that calls for such a condition.
Mr Meagher, the order that I propose to impose upon you is longer and requires you to undergo more hours of community work than the order that I shall impose on Mr Serecen. This is because I assess your criminal culpability as higher than Mr Serecen’s. In all other respects, the factors relevant to your respective sentences are very similar, if not identical.
Please stand Mr Meagher.
You are convicted and, if you consent, will be sentenced to undergo a Community Corrections Order for a period of eighteen months. In addition to the usual terms of such an order, I attach conditions that you complete 300 hours of unpaid community work and that you be supervised for the duration of that order.
You may sit, Mr Meagher.
Please stand, Mr Serecen.
You are convicted and, if you consent, will be sentenced to undergo a Community Corrections Order for a period of twelve months. In addition to the usual terms of such an order, I will attach conditions that you complete 200 hours of unpaid community work and that you be supervised for the duration of the order.
(Short adjournment.)
Jasper Meagher, stand up, please. Do you consent to the order that I have proposed?
OFFENDER MEAGHER: Yes.
HIS HONOUR: Thank you. You may be seated.
Narada Serecen, do you consent to the order that I have proposed?
OFFENDER SERECEN: Yes, Your Honour.
HIS HONOUR: Very well. You may be seated as well. Could you pass the orders up, please? I have made those orders.
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