Director of Public Prosecutions v Mihailidis

[2022] VCC 1826

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02332

DIRECTOR OF PUBLIC PROSECUTIONS

v

TERRY MIHAILIDIS

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JUDGE:	Her Honour Judge Ellis
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2022
DATE OF SENTENCE:	3 October 2022
CASE MAY BE CITED AS:	DPP v Mihailidis
MEDIUM NEUTRAL CITATION:	[2022] VCC 1826

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              one charge causing serious injury recklessly- youth- primacy of rehabilitation- delay- plea of guilty

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Boulton v The Queen [2014] VSCA 342; 46 VR 308; Azzopardi v The Queen [2011] VSCA 372; 35 VR 43; DPP v Malikovski [2010] VSCA 130; Worboyes v The Queen [2021] VSCA 169.

Sentence:                  Community Correction Order for a period of 3 years, with 350 hours of unpaid community work, supervision, treatment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M White	Office of Public Prosecutions
For the Accused	Ms N Kaddeche	Garde Wilson Lawyers

HER HONOUR:

1Terry Mihailidis, on 30 August 2022, after receiving submissions at an earlier hearing, I granted your application for a sentence indication. I indicated that, should you plead guilty to recklessly causing serious injury, then pursuant to section 207(1)(a) of the Criminal Procedure Act 2009, I would impose a sentence of a specified type, being a community correction order alone. You then pleaded guilty on arraignment. A plea hearing took place on 5 September 2022.

2Terry Mihailidis, you have pleaded guilty to one charge of causing serious injury recklessly, contrary to s 17 of the Crimes Act 1958 (Vic) which carries a maximum penalty of 15 years imprisonment.

Circumstances of offending

3The circumstances of offending were set out in a Summary of Prosecution Opening tendered as Exhibit A on the plea.

4On 1 November 2019 at approximately 5:00pm, the victim Mr Sean Murphy was driving home from work. As Mr Murphy approached his street, he came across a silver Holden Commodore which was stopped in the middle of the street. The Commodore was driven by your partner, Ashlea Ratcliffe. Mr Murphy tooted his car horn, the Ms Ratcliffe drove away and Mr Murphy then proceeded to return home.

5Following this incident Ms Ratcliffe contacted you via telephone and informed you that she had been subjected to road rage by a man driving a burgundy ford. You stated that you would sort it out.

6Approximately 10-15 minutes later, you attended at Mr Murphy’s home and knocked loudly on the door. When Mr Murphy opened the door, you asked “Are you the one that drives that Ford?” gesturing to his vehicle. Mr Murphy stated that it was his vehicle and a verbal argument began. You stated that Mr Murphy had abused Ms Ratcliffe, which Mr Murphy denied. You then said “Don’t lie to me, you’re a rat, you’re a dog. I’ll kill you”.

7My Murphy demanded that you leave his property and came outside of his house. You grabbed Mr Murphy by the front of his shirt, and he pushed you and again demanded that you leave. Mr Murphy turned to go back inside, at which point you punched him forcefully to the left side of his face, causing Mr Murphy to suffer a broken and dislocated jaw. This injury would later require surgery and a titanium plate with hinge to be installed into Mr Murphy’s jaw, as well as two molar teeth to be removed. After punching Mr Murphy you stated “This is a warning, I'm gonna come back and kill you, you dog”. You then left the property.

Victim Impact

8Sean Murphy has prepared a victim impact statement in which he describes the profound impact this offending has had on him, both physically and psychologically.  Prior to the assault inflicted upon him, Mr. Murphy ran a busy gardening business and was very physically active.  He can now barely lift a third of the weight he could previously lift, and feels exhausted due to the limited amount of sleep he now has as a result of the pain and anxiety he has experienced.  He has lost weight and his fitness has suffered.  Mr. Murphy was unable to run his business and had to stop working for the many clients he had built up over the three years of running his business.  As a result of the injury to his jaw, Mr. Murphy has considerable nerve pain.  He cannot eat and enjoy food like he used to.  Both hot and cold drinks cause him pain.

9Furthermore, as a result of this attack, Mr. Murphy has lost confidence and the joy he used to experience in life.  He now feels stressed, worried and confused and has experienced thoughts of suicide.  Your action on that afternoon has had long lasting consequences.

Procedural History

10You were arrested on 9 December 2019 and participated in a record of interview.  However, you were not charged until 8 May 2020, when you were bailed to appear in the Magistrates’ Court at Sunshine.  Initially you were charged in the summary stream, and the matter later moved into the indictable stream.  You ran a contested committal and were then committed to stand trial on 29 October 2021.  You sought a sentence indication, the first listing of which was in late July this year.  For various reasons the hearing did not proceed until 17 August 2022 and the sentence indication was given on 30 August 2022, at which point you indicated your preparedness to plead guilty to this charge.  The plea hearing proceeded on 5 September.

Personal circumstances

11At the time of the offending you were 20-years old, and have since turned 23. You were born and raised in Melbourne and report having a close relationship with both your parents and your brother. Your mother is continues to experience poor health following a breast cancer diagnosis some 10 years ago, and is currently on a waitlist to receive a kidney transplant. Your father has recently retired from work due to ongoing issues with his vision. Both your parents continue to provide you and your partner with practical and emotional support.

12You suffered from delayed speech in early childhood, which ultimately resulted in you repeating grade 3. You continued your schooling up until year 9 at which point you gained employment in various jobs including as a panel beater, furniture removalist and as a plasterer. You have been working as a concreter over the past three years and have maintained full-time employment since the birth of your children. Your employer at Westgate Bobcat Hire describes you as a valuable member of staff.  You are said to be reliable and responsible and willing to take direction, and take pride in your duties.

13You have been in a long-term relationship with Ms Ratcliffe for approximately 7 years. You have been living together for three years, and you now have a 9 month old and an almost 3 year old child together.  You are the sole financial provider for your partner and two children.

14A report and addendum report from July were prepared by clinical neuropsychologist Mathew Staios who assessed your cognitive functioning.  You were assessed as borderline range for premorbid level of verbal intellectual functioning and extremely low range for verbal intellect.  Your vocabulary and general knowledge fell within the borderline range and verbal reasoning skills within the extremely low range.  Mr. Staios considers the relationship between your psychological functioning and general intellect reflects a limited level of education and general intellect.  You do not present with any personality disorder or issues with substance abuse or relationship issues.

Nature and gravity of the offending.

15The offending was very serious.  You should not be under any illusions that I regard your conduct as anything other than serious.  Your conduct was appalling.  On the basis of information conveyed to you from your partner regarding what seems to have been a very minor road incident, you took it upon yourself to travel from wherever you were to Mr. Murphy’s house for the purpose of confronting him.  You arrived there angry, aggressive, which is illustrated by your demand for the victim to come outside so you could deal with him.

16Although not the subject of a separate charge, you threatened the victim and there ensued a physical altercation whereby there was some pushing and shoving.  However, just when Mr. Murphy thought the incident was over, and was turning to walk away, you struck him from behind.  Your attack on Mr. Murphy, who had his back to you was both cowardly, and incredibly dangerous.  As a consequence, the victim sustained a serious injury.

17You told Mr. Staios that it was not your intention to harm the victim, and claimed the situation escalated.  You reported that you have difficulty regulating your emotions and at times can be quick to react.  By your plea, you accept that you did cause harm to the victim, and from the evidence, it does not suggest you acted in self-defence.  Rather, you were the aggressor and at no point did you appear to have calmed down.

18As serious as it was, and as painful as it must have been for Mr. Murphy, it is indeed fortunate that you did not cause even more serious damage.  The potential for significant injury and even death to follow from an assault to an often unsuspecting victim’s head area is becoming well known.

19The injury that Mr Murphy sustained has had a considerable impact on him.  Although the nature of the injury was towards the lower end of serious, the context of the offending makes it very serious.

20At the sentence indication I expressed my reservations as to whether a Community Correction Order would be appropriate in the circumstances of this case.  My preliminary view was that an immediate jail term was warranted.  Indeed the prosecution submitted that a term of imprisonment, with a head sentence and non-parole period is warranted here.

21However there are a number of facts that must be considered.  The starting point is that the law says that a court must always regard imprisonment as a disposition of last resort and may consider, even in cases of serious offences, that a Community Correction Order is a punitive disposition which is capable of addressing all relevant sentencing considerations.

22As the Court of Appeal noted in Boulton v The Queen,[1] a community correction order ‘may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.

[1] Boulton v The Queen [2014] VSCA 342; 46 VR 308.

Youth

23You, at the age of 23 are still young.  You were 20 at the time of the offending.  Although police spoke with you in December 2019, you were not charged until May the following year.  By this time you had turned 21, and so certain sentencing options available to offenders under the age of 21 were no longer available to you.  Initially you were charged in the Magistrates’ Court with less serious offences.  Had you been charged closer to the date of offending, and bearing in mind you were charged with recklessly cause serious injury in the Magistrates Court, and had you accepted responsibility for your offending at that stage, you would likely have been sentenced as a young offender.

24To that end, rehabilitation would have assumed primacy in the sentencing exercise.  Even if the court considered the offending too serious for a Community Correction Order, you may have been eligible for Youth Justice, and this is a relevant consideration.

25As the Redlich JA recognised in Azzopardi v R[2] at paragraphs 24 to 35;

First, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’.  They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’.  They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.

Secondly, courts ‘recognise the potential for young offenders to be redeemed and rehabilitated’.  This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour.  No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’.  The added emphasis for the purposes of sentencing on realisation of a young offender’s potential to be rehabilitated is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending.

Thirdly, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation.  While in prison, a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed.  Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated.  The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community.

[2] [2011] VSCA 372; 35 VR 43.

26There is a community interest in rehabilitating young offenders. As Nettle JA observed in DPP v Malikovski;[3]

There is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime.  The prospect of an offender being rehabilitated represents the best hope for the community that the person will never again engage in violent behaviour.

[3] DPP v Malikovski [2010] VSCA 130.

27Having said that, Mr Mihailidis, the courts are also less tolerant of young people committing violent offences.

28You are the sole breadwinner to your wife and young children.  I accept that if you were incarcerated this would place an incredible financial strain on your family which would make your time in custody more difficult knowing that your partner would need to provide for the children alone, and raise them without you.

29Given your age, as I said, rehabilitation still assumes significance.  However, the need for rehabilitation must be balanced against the need for the court to denounce your conduct, and in particular, to address the principle of general deterrence.

30I accept that there has been a considerable delay.  Whilst some of the delay can be attributed to you contesting the charges, there have been delays both with charging you, and as a consequence of the COVID-19 pandemic and associated delays.  Whilst these matters have been hanging over your head, you have managed to continue to lead your life and have not attracted any further charges.

Prospects of rehabilitation

31Corrections have assessed you as a medium risk of reoffending.  To that end, a condition involving supervision is recommended.

32I note that the only evidence of your remorse appears to be that Corrections indicated that you showed remorse for the impact this offending had on your victim.  Likewise you expressed something similar to Forensicare.

33Given your age, the fact that you have been in steady employment, have the care and support of your family, and the fact that you have no prior criminal history, I consider that you have fairly strong prospects of rehabilitation.

Plea of Guilty

34This was not a plea of guilty entered at an early stage.  The matter proceeded with a contested committal, and the victim was required to give evidence.  There have been a series of listings in this court and the matter only resolved upon an indication from the court that you would receive a sentence of a particular type and one which did not involve imprisonment.  Until this point, you maintained a position that you were acting in self-defence.

35However, the fact that it is not an early plea does not detract from its significance.  Your plea of guilty demonstrates a willingness to facilitate the court of justice and is of considerable utilitarian value.  You have spared the community and witnesses the time and expense form having to give evidence, and particularly, you have spared Mr. Murphy from having to relive the experience of giving evidence again at trial.

36Furthermore, given that your plea was entered at a time when the court has faced a considerable backlog of jury trials and as a consequence of the pandemic, it has an additional utilitarian value.  As the Court of Appeal articulated in Worboyes v The Queen,[4] your plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the pandemic’s effects.  You are entitled to a discount in sentence both for your plea of guilty itself and taking into account that this plea of guilty has occurred during the COVID-19 pandemic.

[4] Worboyes v The Queen [2021] VSCA 169.

Relevant sentencing factors

37The basic purposes for which a court may impose a sentence are just punishment, deterrence, rehabilitation, denunciation and protection of the community.  In determining an appropriate sentence, I must have regard to these sentencing principles and I am required to take into account various factors when formulating an appropriate sentence in your case, including the gravity of the offending, your culpability, the effect on the victims and your personal circumstances.

38The sentence I pass must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated.  I am to have regard to principles of parsimony, and I do so.

General and specific deterrence

39General deterrence is an important sentencing consideration.  Other members of the community must understand that confronting people and then assaulting them will not be tolerated.  In particular, punching a fellow human being when their back is turned will attract significant penalty.  The community should not have to tolerate such violent and anti-social behaviour of people, who for whatever reason, have worked themselves into a state of anger.  There is a need to protect the community from those who carry out the sort of offences for which you have pleaded guilty.  Just punishment and denunciation must also be given primary consideration.

40You have been assessed as suitable for a Community Correction Order.  A Mental Health Advice and Response Service report has been prepared and there are no recommendations that you undergo mental health treatment. 

Sentence

41On the charge of recklessly cause serious injury, you are convicted and sentenced to a Community Correction Order for a period of 3 years.  There are a number of core conditions attached to a community correction order:

·     You must not commit any other offence punishable by imprisonment during the three year period;

·     You must comply with any and all obligations or requirements; 

·     You must report to and receive visits from Corrections; 

·     You must report to your local Community Corrections Centre, which I believe is in Melton,

·     Within two clear working days from today.  I suggest you do that today; 

·     You must let a community corrections officer know within two working days of a change of address or job;

·     You must not leave Victoria without first getting permission; and

·     You must obey all lawful instructions from Corrections. 

42They are the mandatory core conditions that attach to any Community Correction Order.

43In addition to that, I am attaching a number of other conditions as follows:

·     You must perform 350 hours of unpaid community work over three years.

·     You are to be under the supervision of Corrections for a period of 2 years.

·     You must undergo treatment and rehabilitation to address your risk of re-offending.  You simply must learn to manage your anger, Mr Mihailidis.

44Some of the hours of treatment and rehabilitation can be counted as hours for the purposes of the unpaid community work condition.  I am allowing up to 75 hours.

45If you were to breach any conditions of the order - if you were to decide not to do the work or rehabilitation component for example; or if you were to commit any further offences, then it is likely you would be brought back before me on a breach and I would need to re-sentence you for this offending.

46Finally, I should indicate that pursuant to s6AAA of the Sentencing Act, were it not for your plea of guilty, so had you pleaded not guilty and been found guilty at the conclusion of a trial, I would have sentenced you to a term of imprisonment for 18 months with a non-parole period of 9 months.