Director of Public Prosecutions v Mogoai&Ors

[2014] VCC 546

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-00042

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES ALEXANDER
RHIANNON HOCKING
BLAKE MOGOAI
DANIEL MOGOAI
ALMAZ RIOS

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JUDGE:	HER HONOUR JUDGE COTTERELL
WHERE HELD:	Melbourne
DATE OF HEARING:	15 April 2014
DATE OF SENTENCE:	15 April 2014
CASE MAY BE CITED AS:	DPP v Mogoai&Ors
MEDIUM NEUTRAL CITATION:	[2014] VCC 546

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Stefanovic	Office of Public Prosecutions
For Accused Alexander	Mr Dwyer
For Accused Hocking	Mr J. Kelly
For Accused B. Mogoai	Ms O. Trumble
For Accused D. Mogoai	Mr M. Page
For Accused Rios	Mr S. Devlin

HER HONOUR: 

1James Angel Alexander and Daniel Mogoai, you have pleaded guilty before me to one charge of causing serious injury recklessly and one charge of affray.  Blake Mogoai, you have pleaded guilty before me to one charge of causing injury intentionally and one charge of affray.  Rhiannon Lee Hocking, you have pleaded guilty before me to one charge or causing injury recklessly, one charge of affray and one charge of destroying or damaging property, Almaz Rios, you have pleaded guilty before me to one charge of causing injury recklessly and one charge of affray.  The maximum penalty for causing serious injury recklessly is 15 years' imprisonment;  for intentionally causing injury, ten years' imprisonment;  and for recklessly causing injury and affray, five years' imprisonment and for criminal damage, ten years' imprisonment.

2The facts of this matter were opened by the prosecution and a Summary of the Prosecution Opening was tendered as Exhibit A on the plea.  These offences occurred on 25 April 2012 in the early hours of the morning.  The victims in this matter were assaulted by you, James Alexander and Daniel Mogoai in relation to George Demetriovich and by you, Blake Mogoai, in relation to Darko Jackoyevich.  You, Almaz Rios and Rhiannon Hocking, were present during the attack and are charged on the basis that you were aiding and abetting your companions who had been summoned to Chapel Street by a telephone call from you, Ms Hocking.  You are also charged with causing damage to Mr Demetriovich's motor vehicle. 

3The assault was captured on video which was taken by a bystander on a mobile phone and graphically shows what occurred and what was being said at the time of the attack.  The footage depicts a frightening attack which appears unprovoked, particularly the attack on the taller victim, Mr Demetriovich, who suffered a continuous series of blows from you, James Alexander and Daniel Mogoai.  Those blows resulted in him being seriously injured to his face, requiring hospitalisation, surgery and the insertion of metal plates around his eye sockets.  Your victim did nothing apparent to defend himself from your attack, he waved his arms around and was backed against his car.

4Mr Jackoyevich, the other victim, suffered chipped teeth and injury and bruising to his face.  The result of a blow inflicted in an act of gratuitous violence by you, Blake Mogoai, as he stood completely unsuspecting beside Mr Demetriovich.  After the blow, he sought to escape and fell to the road, nothing else is visible on the video but the evidence is that he then fell to the road where you stood over him but there were no further blows struck. 

5Both victims tendered victim impact statements, Exhibits F and G, and Mr Demetriovich, who was the victim of your attack, James Alexander and Daniel Mogoai, describes the catastrophic effect that your actions have had on his life, taking him from a person who was working full time and was stimulated by his work, a person who was fit, a happy member of the community and a productive member who enjoyed sport, playing basketball and keeping fit in the gym.  In contrast, he is now experiencing flashbacks and lack of sleep.  He has undergone regular counselling, he has ceased playing basketball and going to the gym because of the injuries inflicted by you which have resulted in him having the plates around his eye sockets. 

6He describes the deterioration in both his health and his capacity to work as efficiently as he did before he was injured.  He has, as a result of his altered physical, mental and emotional state, decided to move back to New Zealand, having lived in Melbourne for seven years.  As I understand, although his vision has now improved as have the bruises and broken nose obviously, he remains scarred.  He remains scarred also by the experience. 

7His life was taken over by the treatment in relation to his injuries in the period immediately following these offences and, in addition, he suffered a great financial loss involving damage done to his car, medical expenses, on-going treatments and loss of income but he says that nothing has cost him so much as his health, which he believes is irreparable and the metal plates in his face are permanent.

8Mr Jackoyevich indicates in his victim impact statement (Exhibit G) that as a result of the physical injuries he received, particularly to his face, chipped teeth, cut lip, bruised cheekbone, bruised neck, head and jaw, he was forced to stop work for nearly a month and a half as he was a self-employed finance broker who would be unable to deal with his clients with that obvious damage to his face for fear, he said, that clients would question his character on seeing that sort of physical damage.  He indicates that he suffered a loss of close to $30,000 as his work is commission-based and if he is unable to see clients, he simply does not get paid. 

9He further indicated in his statement that he has undergone significant psychological changes being less able to socialise, undergoing anxiety in large groups of people and continuing to have nightmares and visions of the attack of that night - the early morning.

10The victim impact statement was declared on 6 March 2014 and clearly indicates that some two years on he continues to suffer as a result of that blow that you, Blake Mogoai, inflicted on him and from the effects of the general attack including what happened to his friend, the blows that were perpetrated by you, Alexander, and you, Daniel Mogoai.

11I will now deal with your personal circumstances individually.  James Angel Alexander, your personal circumstances are as follows.  Your father left Romania in 1987 to migrate to this country.  Your mother reunited with him in Australia in 1989, together with your older sister, Alexandra, who was born in that year of 1987.  Your mother then returned with Alexandra for the period that she was expecting you and you were then born in Romania in 1990.  You were left with your grandparents to the age of two while your mother and sister returned to Australia.  Your father, who had remained in Australia, met you for the first time in 1992, when he went to Romania to collect you and bring you back to this country.  Your parents separated once you were all back in Australia and you were raised by your mother alone in a Housing Commission high rise housing in Prahran where you also met your co-accused, Blake and Daniel Mogoai. 

12You were educated at Glen Eira College to VCE level, you then returned to Romania for a year but came back to Australia for heart surgery when you noticed symptoms while you were away.  You had to undergo replacement of a valve and artery and it took some two months to recover.  You did a pre-apprenticeship in plumbing for a period of three weeks, and then were an apprentice with a heating and cooling company for some nine months.  In November 2011, you began working with the Petty Housing Commission Work Assistance Programs. Through those programs you were offered work as a plumber with Cook and Dowsett Pty Ltd. and were taken on eventually as a full time employee where you have remained to this day.  Your employer gave evidence during the plea hearing which I will refer to later.

13During your school years, you were a victim also of some attacks.  You were struck to the head with a bottle, you fell and hit your head on the footpath.  That resulted in your spending some three days in hospital with significant bruising to your face and concerns you may have done further damage by striking your head on the footpath.  This violence occurred around the area of the flats where you have lived to the present day. 

14In December 2007, you were a victim of a second assault when multiple males attacked you and you were taken to Royal Melbourne Hospital where you suffered memory loss and also broken eye sockets, ironically similar to what occurred to the complainant, Demetriovich.  However, you did not require the insertion of permanent plants around your eyes. 

15On 11 November 2008, you were dealt with at the Melbourne Children's Court on one charge of robbery and one of recklessly causing injury.  You were placed on probation for eight months without conviction.  This was a moment which should have deterred you from committing one of those same offences some four years later.  Your current offences were committed on 25 April 2012, you were 21 years at the time and are now aged 23.

16Since you have been working as an apprentice, you have also done volunteer work which you commenced in July 2013 with a Stonnington City Mentoring Program where you have assisted in those programs for under privileged children involving soccer, football and music programs.  Materials and photographs in support of that activity were tendered as Exhibit JAA3.  Currently, you are living with your parents after a period where you had lived with your girlfriend and, as I understand it, you have returned home so you can save towards your engagement and the purchase of a house. 

17It appears you have taken steps towards your own rehabilitation by attending an anger management course and concentrating on working.  Your offending has been, according to submissions, alcohol-fuelled, and your earlier offending occurred during a period when your mother was working night shift and you were unsupervised at night.  A submission was made on your behalf that you had shown remorse by attending the police statement voluntarily after the commission of this offending, that you have expressed remorse to your family and work colleagues and to your legal representatives. 

18You continue to have some health issues as a result of your heart surgery and you require monitoring in relation to your heart, in particular in relation to your weight. 

19Your current employer, Nick McCubbin, wrote a reference for you tendered as part of Exhibit JAA2 and also attended at court on the day of the plea to give evidence on your behalf.  Mr McCubbin spoke very highly of you.  He indicated that he and his company had had a high input into your development and training and he also indicated his intention to keep you on when you complete your four year apprenticeship which should occur in the not too distant future. 

20He indicates, in the letter that he wrote, that any interruption to your employment would be inconvenient to his company and any restrictions placed on you including a conviction would have a detrimental effect on your ability to complete your apprenticeship in the future as it would affect your entry into government funded projects.  I understand those concerns, however, Mr McCubbin must understand that these are very serious matters and I am take into account other matters apart from your employment and the effect that that may have on your employer.  He further indicated that even if you were required to serve a term of imprisonment, he would still hope to take you back into employment.  I take all of those matters into account in considering your sentence.

21I also take into account references from your uncle and cousin which were tendered as part of that same exhibit.  Your uncle indicates that he supports you entirely, even having regard to your past offence and says that he sees that you are apologetic for your misconduct and the misery that all parties are experiencing.  I accept from that that you have very good family support.  The sentiments were echoed by your cousin and by Perry Dimos, the husband of your sister, and by your sister herself.  I do accept that you have excellent prospects of rehabilitation and that you should be able to eventually lead a productive and fruitful life in the future.

22Daniel Mogoai and Blake Mogoai, your personal circumstances are that you have grown up as two of four brothers in a large extended family where your grandparents have played an important role as your mother has brought you up alone since 1994 when she separated from your father and he returned to South Africa.  Your mother, Susan Mogoai, gave evidence that you were brought up mainly at the high-rise public housing units in Malvern Road, Prahran.  She was a very impressive witness, she is clearly a very hard working woman and has worked for most of your lives and relied on her parents to assist her with you and your brothers. 

23There are four boys in the family, you are all very close and support each other and you older boys particularly assist your youngest brother who is a talented footballer.  You have both assisted him with this training as your mother was unable to.  I note that a large number of your family are present in court to support you today. 

24You, Blake, have two prior court appearances before the Melbourne Children's Court, one for affray.  You were released on an accountable undertaking to be of good behaviour and that was, of course, without conviction, as is normal in the Children's Court.  Secondly, you were before the court for possessing liquor being under the age of 18 and a robbery and in relation to those matters you were, without conviction, fined $100 and further released on a good behaviour bond in relation to the robbery.  That should also have been a warning to you, Blake Mogoai. 

25You are, as I understand it, now 21, you work full time and have taken considerable steps to rehabilitate yourself.  Tendered as Exhibit BM2 is a certificate stating you have completed the Positive Lifestyle Program and a letter to that effect from Major Kylie Kopp as to your honest and attentive approach to the discussions during sessions.  A further letter from Mr Nick Gab indicates he has known you and Daniel and your family through the Prahran Adventure Playground where you all participated.  He further indicates your expressed remorse and regret in relation to your current offending.

26Also tendered as part of Exhibit BM2 in relation to you, Blake, is a letter from your uncle, Hilary Wijuratne.  He writes of the closeness of your family, your assistance to your younger brother and your desire to return to full time study.  Your schooling ended with you having attended Year 12 but having left school before the exams as your attendance was insufficient.  You are now seeking to address your education deficits and have been accepted at Swinburne University of Technology to enrol to study for a Certificate of Accountancy in August. 

27You have excellent prospects of rehabilitation provided you address your aggression and violence that was so evident in this offending. 

28Daniel Mogoai, you have prior court appearances before the Children's Court in relation, as I said, to one of the same charges that are before the court today, recklessly causing serious injury. 

29You completed your VCE and you are still working with Muckoff Carwash.  He is the employer of both you and Blake and he gave evidence on behalf of both of you.  He wrote a letter and also attended court.  Muckoff Carwash is a car wash and car detailing business and all of your brothers, with the exception of Taylor, have been employed there.  Your oldest brother would take the younger boys and both of you were known to Mr Sidelis before you able, in fact, to work.

30You, Daniel, are a highly trusted employee who has progressed from wash hand to shift manager and trainer over the last two years.  Mr Sidelis stated that you have deep remorse for your actions and that he and his family will stand by you during your future.

31Tendered as Exhibit DM2 is a reference from Holly Marriott of Stonnington Youth Services as to your involvement in a program to assist young people in your area to develop skills and leadership abilities.  She describes you as remorseful for your actions and attempting to educate others as to the importance of using non-violent means to defuse situations of confrontation.  You have also completed the positive lifestyle program and a letter from the same Kylie Kopp, exhibited as Exhibit DM1, attests to your participation in that program and your openness in the discussions during the course of it.

32Tendered as Exhibit DM4 is a letter also in your favour from your uncle, Hilary Witjuratne, which again provides the family background and expresses your work ethic as a personal trainer in addition to working at the car wash, your interest and participation in soccer and your ambitions for the future.  As I understand you hope to change your career path.  It is clear that you, too, have excellent prospects of rehabilitation.

33In relation to Almaz Rios, your personal circumstances are that I note you were accompanied in court by your mother who also wrote a letter which was tendered as Exhibit AR1 which sets out your role in the family and your care of your younger brother in taking him to and collecting him from child care and fitting that in with your studies as Swinburne.

34You have always been a studious and devoted family member and you have no prior appearances before the court.  In her letter, your mother reveals that you have been diagnoses with insulin-dependent Diabetes since the age of seven, which requires rigidity in relation to mean times, medication and sleep and she indicates that you have learnt that it is essential for you to control and manage your Diabetes in order to remain a healthy person.  She says that alcohol has not been a problem in your life. 

35You are described by her as being vital to your small three-person family structure and your mother also described your ambition to follow your new career in fashion and business.

36Tendered as Exhibit AR2 is a letter confirming those studies at the Camden Centre of Fashion and Creative Industries for your second semester in the Diploma of Fashion Textile and Merchandising during 2014.  It would appear from your lack of prior convictions and your background that you, too, have excellent prospects for complete rehabilitation and to continue in your chosen career and to be a successful and useful member of this community.

37Your role in this offending was that you were involved in an exchange with the victim Darko Jackoyevich in a 24 hour convenience store.  You were there with your co-accused, Ms Hocking, and there was a brief interaction between you and Mr Jackoyevich at the counter.  As I understand it, Mr Jackoyevich told you to hurry up.  After leaving you and Ms Hocking and Mr Jackoyevich were walking along Chapel Street and an argument began.  He took offence at your behaviour and called you a name.  You took offence, pushed him, threw chips in his face and hit or slapped him. 

38At that point, Ms Hocking apparently announced she was going to call someone and was saying "You watch what's going to happen now".  You, Ms Rios, continued to push Mr Jackoyevich and at one stage you were nose to nose while he said a number of times "Are you done, are you finished?"  He continued to walk towards his car to friends.  They spoke Serbian and you, Ms Rios, took offence and said "In Australia we need to speak English".  Mr Jackoyevich asked you to leave him alone, he then pushed you aside so that he could get into his friend's car.  They got into the car to leave and you and Ms Hocking continued to verbally abuse him and his friends. 

39I am not entirely sure exactly what occurring during that exchange because there is evidence that someone thought that one of you or Ms Hocking were slapped, Ms Rios, I think you say that you had water poured over you.  None of this is evident from any of the video footage or the filmed footage.  I do accept that there was some dispute between you and Mr Jackoyevich. 

40You then remained in the area waiting for you co-accused, James Alexander and the Mogoais to arrive.  The other victim, George Demetriovich returned to his car which was parked near where the initial argument had taken place.  You apparently saw that he was a friend of Mr Jackoyevich and you began to verbally abuse him and Ms Hocking then kicked his car as he was preparing to get into it to leave.  He then got out of his car, inspected the damage and was trying to talk to you.  Mr Jackoyevich then left the vehicle where he was seated and returned to Mr Demetriovich's car.  There was then some pushing involved between Mr Demetriovich and Ms Hocking which I will describe later when I describe what I noticed in the video.

41When the accused Alexander and Blake and Daniel Mogoai arrived, you, Ms Rios, told them that Mr Demetriovich had poured water over you.  It is clear from the video footage that you and Ms Hocking appeared to be substance affected, as I understand it by alcohol, and you were acting in an hysterical manner, screaming, swearing and encouraging action on the part of Mr Alexander and Daniel and Blake Mogoai.  You, Ms Rios, however, did not take further part in the assault, at that point you appeared to be standing back from the group. 

42Following the assault by your three male co-accused, you are seen to thrown your hand towards the face of Mr Demetriovich but you then leave as a group - you are pulled away and leave.

43As a result of your encouragement at the commencement of the assault and your presence, you are charged with aiding and abetting in that charge of recklessly causing injury.  You are further charged, of course, with affray which is as a result of the five of you behaving as you did on a public street in the presence of members of the public, some of whom were sufficiently concerned to record the events.  You were, at the time of the offending, the girlfriend of Blake Mogoai.

44Rhiannon Hocking, this is the first time that you have appeared in court as a result of being charged with criminal offences.  When this offending occurred you were aged 21, at that time you had been working as a hairdresser from the age of 19.  You had met James Alexander whilst at school and you were with him on the night these offences were committed.  You attended a nightclub in his company until about 2 am when you left with Ms Rios to go to the convenience store.  You were then observed from footage from the CCTV in the convenience store that you and Ms Rios were there for several minutes bantering with the young men behind the counter when Mr Jackoyevich entered, he was waiting and there were some words exchange, as I indicated.

45You allege that Mr Jackoyevich pulled your hair, I have no other evidence of that but I accept that there was some altercation as he walked towards his car and you were both abusing him.  You were the person who kicked the door of Mr Demetriovich's car and you were the person who made the call to Mr Alexander which resulted in the main assault occurring. 

46Your circumstances are that you were born in Adelaide.  You are accompanied to court by your mother.  You are her oldest child and there are three younger siblings who have different fathers.  Your own father was a heroin dealer when he became involved with your mother who was some 15 years old.  She became addicted by the age of 19 and was using daily.  She is currently still addressing her heroin addiction.  You, as a child, witnessed very cruel and degrading behaviour directed towards your mother who has had her jaw broken and her teeth destroyed, and seen your father apply pliers to your mother's thumbs.   

47However, at the age of 11, having witnessed these things, you were, for a period, living with your father when your mother came back and decided to take you away with her.  There was a fight at the time and you went and got a knife from a car, as I understand it, in order to protect your mother.  You were then taken to Queensland and went to school there.  Your two younger brothers were removed from your mother's care by DHS and you were sent to Adelaide by your mother for a period.  You were later collected and moved to Melbourne and I understand an older son is now living with you.  You have clearly had a very difficult childhood and you have also severe reactions to any violence inflicted by men on women and you were heard to say to Mr Demetriovich "Don't ever touch me again" on the video.

48Your counsel submitted that, having pointed out the two men when Mr Alexander arrived, your involvement was marginal.  However, I do note that you were the person who initially kicked Mr Demetriovich's car which seemed to initiate the initial physical exchanges when Mr Demetriovich was pushed and turned round to confront you and then the young men arrived.

49Your counsel also submitted that for two years you have had these charges hanging over your head and you were always willing to plead to the matters for which I am going to sentence you today. 

50Needless to say, given the background that I have described, you attended many schools.  At the end of Year 10 you obtained a hairdressing apprenticeship at the age of 16 and were qualified by the age of 19.  You work at Millennium in the Queen Victoria Building and exhibited as Exhibit RH1 on the plea is a letter from Nick Andreadis who is a director of Millennium Hair Design which indicates that you have been an employee there for approximately nine months.  You have been found to be a fine employee, courteous, calm, professional and you are a valued and important part of that business.

51There is also a letter tendered as Exhibit RH1 from Danielle Mackie who has worked with you and known you for the last seven years.  She describes how she has watched you as a young and dedicated hard-working girl who has blossomed into a confident young woman.  She gives a glowing report of your qualities, gentle, loving nature and extreme reliability.  Given your background, it is obvious that you have had the capacity to overcome many difficulties and you have excellent prospects of being completely rehabilitated and living a rewarding and productive life.

52I note that you are now in a de facto relationship and you and your partner are hoping to buy your own home.  You have also maintained your friendship with Mr Alexander who has also found another partner and you are still friendly with the Mogoais which tends to say something for the loyalty between your group.

53I also take into account that at the time of the offending you had consumed a large amount of alcohol and that appears evident from observing you on the mobile phone footage. 

54Your counsel submitted that you were a low level participant in the violence and there are statements of others who seem to indicate that you were struck, that was the people taking the video.  As I say, I am not able to make a finding that you were in fact struck leading to the outbreak of violence.  It is clear from all of your personal circumstances that by the efforts that you have made since this offending, you all have good prospects of rehabilitation. 

55Your counsel submitted that you should receive a Community Corrections Order which would satisfy the punitive aspects of the sentencing task I undertaken and they have done so on the basis that you, Hocking, and you, Rios, have no prior criminal history and you are still both youthful and remorseful offenders.  You, having indicated a willingness to the charges to which you have in fact pleaded guilty before me at the time of committal, should be given the maximum discount connected with an early plea of guilty.  And I take that into account in relation to each of you as I note that you all offered to plead guilty some two years prior, at the time of committal.

56Submissions were further made on behalf of all of you offenders that you had taken advantage of the two year delay in this matter to continue to get on with your lives and live as constructive members of the community.  I accept those submissions.  However, I do not accept that the submissions made in relation to you, Ms Rios and Ms Hocking, should have a disposition without conviction.  Your roles, although minor in the attack, were highly instrumental in this matter occurring and being before the courts at all.  Your behaviour on that evening was appalling and you, Ms Hocking, set up the circumstances in which the complainants, Demetriovich and Jackoyevic, were attacked and injured.  And that is, Ms Hocking, when you summoned your co-accused to act virtually as vigilantes on your behalf. 

57I further accept the plea of guilty at an early stage in the proceedings in relation to each of you, Daniel and Blake Mogoai and James Alexander, and, as I indicated, you will receive discount for those early pleas.  I further accept that you have all made considerable efforts since the offending, in the two years' delay that has occurred, to continue building your lives in relation to your employment and community involvement.

58I accept that you are all excellent family members and no doubt have a number of very good qualified and I accept that your rehabilitation will enable you to live as constructive members of the community.  However there are other matters that I am required to take into account in sentencing.  Firstly the principle of general deterrence. That is that others in the community must be deterred from acting in the way you did on the early morning of 25 April 2012, so that people who do behave in such a way understand that there are serious consequences. 

59In particular, the physical assaulting of a person in the circumstances in which it occurred in the early hours of that morning will not be tolerated in this community and the type of attack initiated by you, James Alexander and Daniel Mogoai, has very serious consequences indeed when that attack is launched against another single individual who is defenceless and has not, in fact, raised a hand to defend himself or to offend against you. 

60I also take into account specific deterrence in relation to all of you.  Ms Rios and Ms Hocking, although you have always been hard-working, you need to understand that you will never get this opportunity again and I am sure that the possibility of a trial hanging over your heads for a period of two years will have had a very strong deterrent effect on you in the future. 

61In relation to you, Blake Mogoai, you also have a prior history which is relevant, so specific deterrence is more pertinent in your case, although again the experience that you have undergone in waiting for two years with the possibility of going to prison hanging over your head must have also had a significant deterrent effect on you. 

62In relation to you, James Alexander and Daniel Mogoai, you have both appeared before the courts in this State on exactly the same charge, recklessly causing serious injury, the matters were dealt with in the Children's Court and, as I said, it is a completely different sentencing regime.  However, that jurisdiction is designed to give you a warning and make you understand that there are serious consequences in injuring another member of the community.  You have both failed to take that warning and I regard specific deterrence as being an important element in the sentence that I impose in relation to each of you.  Although, as with your co-accused, I am sure that what you have already undergone and the delay between your initial plea and the completion of the proceedings, must have had some significant deterrent effect on you as well.

63In addition to the principles of deterrence, I am required to denounce your conduct on behalf of the community in which we live and I do so absolutely.  Physical violence in public places is rife in this community, usually involving alcohol, people acting irrationally, hysterically and other people getting involved resulting in someone being seriously physically injured.  This community will not tolerate such behaviour and will not tolerate multiple attackers against a single person, motivated by the wishes of someone who wants punishment inflicted for some minor incident.

64I further take into account the effect that this attack has had on the victims, in particular, Mr Demetriovich, who is forced to live the rest of his life being reminded of this attack.  I take into account the damage done to people who certainly were not the aggressors.  Where common sense, had it been available at all, would have stopped this argument when Demetriovich and Mr Jackoyevich went to the vehicles to leave the scene.

65I further take into account all the submissions made by counsel who represented each of you and that is your excellent prospects of rehabilitation.  In relation to you, James Alexander and Daniel Mogoai, your employment records and the efforts that you have made to overcome difficult beginnings, I take into account the support you have in your families.  I also take into account your youth, you are still youthful offenders and had you pleaded two years ago, the outcome may have been different.  I take all of those matters into account.

66However, in weighing all of those matters, I reached the conclusion that the seriousness of this offending means that the only appropriate sentence in relation to you, James Alexander and Daniel Mogoai, is one of a term of imprisonment to be served immediately.  I reached that decision having watched the phone video repeatedly and the observation that I have made as to the roles of you the accused. 

67In particular in relation to you, Daniel Mogoai, and you, James Alexander, although there may have been some preliminary provocation between the girls at the very worst, the incident begins on that video with Ms Hocking pushing Mr Demetriovich from behind as he is bending over his car.  He turns and Ms Hocking advances towards him, attempting to strike him.  Whether or not she did, I am unable to say.  He does nothing to defend himself, his arm is extended.  As you were all standing near the car, the other victim, Jackoyevich, appears and walks up to Mr Demetriovich and takes hold of his arm.  He is standing there holding him by the arm, looking in the opposite direction to you, Blake Mogoai.  They are then surrounded and they are standing with their backs to the car and you, Blake Mogoai, attacked Mr Jackoyevich from the side when he was not even looking in your direction.  He releases the arm of his friend and you then disappear to the front of the car and I could not see what occurred after that. 

68Mr Demetriovich remains standing at the car and is subjected to a steady onslaught of blows.  While that is occurring, you, Blake Mogoai, return but you do not participate.  You, Mr Alexander, have pulled Daniel Mogoai away from Mr Demetriovich and you, Daniel Mogoai, walk away.  As Mr Demetriovich and is standing against the car, clearly injured and dazed, you return and throw an additional punch directly into his face, then you walk away back towards the camera.  It is on the basis of that violence inflicted on two people who do not appear to engage at all, I find that degree of violence is completely indefensible that I reached the conclusion that I have no option but to order a term of imprisonment for you, James Alexander and Daniel Mogoai.

69In relation to Blake Mogoai, Ms Rios and Ms Hocking, I have had you assessed for Community Corrections Orders and you have been found suitable and given your far lesser roles and your other circumstances, I am going to impose Community Corrections Orders on you.

70Daniel Mogoai and James Alexander, on Charge 1, you are convicted and sentenced to two years five months' imprisonment;  on Charge 2, you are convicted and sentenced to nine months' imprisonment.  I order that one month of that sentence be served cumulatively on the sentence I have imposed on Charge 1.  That is a total effective sentence of two years and six months and I order that you serve 12 months before being eligible for parole.

71I further declare that, but for your plea of guilty, I would have sentenced you to three years' imprisonment, with two years to serve before being eligible for parole.

72Blake Mogoai, in relation to Charge 1, causing injury intentionally, and Charge 4, affray, you are convicted and released on a Community Corrections Order for a period of 18 months.  I order that you perform 500 hours of community work during that time and that you attend for supervision as required by your supervising case manager and that you also attend for assessment and treatment in relation to alcohol abuse, although I will hear submission on that because, although that was recommended, I am not totally sure whether that is appropriate.  You understand that it will be 18 months with 500 hours of community work?

73Almas Rios, you are convicted and released on a Community Corrections Order for a period of 12 months with a requirement that you perform 200 hours of unpaid community work and that you attend for supervision as directed.

74Rhiannon Hocking, you are convicted and released on a Community Corrections Order for a period of 12 months with a requirement that you perform 200 hours of unpaid community work and that you attend for supervision as directed.

75Was there any difficulty with that?

76MR STEFANOVIC:  Your Honour, the only thing outstanding is the forensic sample order.

77HER HONOUR:  Yes, are they sought in relation to everyone? 

78MR STEFANOVIC:  Only the two to be imprisoned.

79HER HONOUR:  Very well.  In relation to James Alexander and Daniel Mogoai, I will make the orders sought that an intimate sample be taken, that is a scraping will be taken from your mouth and I am doing so for the seriousness of the offending, the fact that the order is not opposed and the fact that it is in the interests of justice that those orders be taken. 

80I further order that at the time of the request being made, although they are not opposed, if you do not consent to the sample being taken a police officer may use reasonable force to ensure that the procedure is carried out. 

81MR DWYER:  Your Honour, I was wondering when a copy of Your Honour's sentencing remarks would be available for us to consider.

82HER HONOUR:  I will try and get them to you by the end of this week - well I only have tomorrow - it may have to be after Easter.  As soon as I get the transcript, because I change what I say. 

83MR DWYER:  If the transcript today is available, I can work off that.

84HER HONOUR:  We won't get the transcript, the sentence is transcribed properly as a sentence.

85MR DWYER:  Your Honour, I'm not asking for a revised sentence, if you have an unrevised sentence, I can work off that.

86HER HONOUR:  No.  I can give you an unrevised - but you can regard that as notes.

87MR DWYER:  Anything I can work off I'd be grateful for, Your Honour.  I've taken notes but I'd like to have to opportunity to make sure I haven't missed anything.

88HER HONOUR:  Very well. 

89MS TRUMBLE:  Your Honour, can I just address you in relation to Blake Mogoai's Community Corrections Order.

90HER HONOUR:  Yes, Ms Trumble.

91MS TRUMBLE:  It's my submission, Your Honour, that the main thrust or the rehabilitating thrust of that order ought to be more in relation to programs to reduce re-offending.

92HER HONOUR:  Yes I did ask for those and I was given them but I wasn't sure whether because he was doing - the alcohol, you say, is not a problem?

93MS TRUMBLE:  No, Your Honour.

94HER HONOUR:  I'll include the other programs which I had and I took off because I wasn't sure, I thought he was doing pretty well but that's probably appropriate.

95MS TRUMBLE:  Thank you, Your Honour.

96HER HONOUR:  And for Ms Rios and Ms Hocking, just some supervision so there's some control.  I will leave briefly while the Community Corrections Orders are done, I might ask that Mr Alexander and Mr Mogoai be taken down now.

97MR DEVLIN:  Your Honour, I would assist my client, Ms Rios, in relation to signing the form (indistinct).

98HER HONOUR:  Certainly.  Yes, I understand. 

99I just want to say something to the families and Mrs Mogoai, I know this is very difficult for you and to James Alexander's mother, it's extremely difficult but unfortunately that's my job and I have done the very best I can to keep what I consider the minimum term but I feel I had no option and I just hope you understand that and these boys will be get on with their lives when the time comes.  So I just want you to know what a terrible experience this is for both of you.

100(At a later stage)

101In relation to my sentencing remarks, I'm really concerned about this because there are lots of things that I've altered and changed, I'm really concerned about giving them to you, I'll give you to unrevised transcription of what comes back to me from the recording but I don't want to just give you all this.

102MR DWYER:  Yes, I've taken notes of the salient points of your remarks.

103HER HONOUR:  A lot is edited.  So I've left bits out.  I'm sorry I've just thought about it, I don't think it's an appropriate thing to do but as soon as - I will let you have immediately the transcript when it comes through.

104MR DWYER:  I'm grateful, Your Honour.

105HER HONOUR:  Thank you.  These orders are matters that give you the opportunity to continue your life without serving a term of imprisonment but you have various conditions which you must comply with, you need to do the hours of work and you need to attend for supervision or for you, Blake Mogoai, for your programs, because if you breach by failing to attend or, indeed, by committing any further offences for which you could be imprisoned, you will be brought back before the court and you can be re-sentenced and you will be dealt with for any new offending as well as for the breach of these offences.  So it is very important that you think that you still are under the control of the court for the period of time that the order continues and that you will be brought back if there are any breaches. 

106That said, I have signed the orders and I note that you have all signed the orders and hopefully you will be able to get on with your lives.  Thank you.  You can now leave the dock.  I'll make the orders, as I said, I'll go and sign them downstairs, there's no hurry for those - the s.464.

107MR DWYER:  I've handed those up.

108HER HONOUR:  Yes, I'll do them and get them back to you.

109MR DWYER:  Thank you.

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