Director of Public Prosecutions v Momia
[2025] VCC 1123
•6 August 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 23-01848
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CLEVELAND MOMIA |
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JUDGE: | HIS HONOUR JUDGE KELLY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 June 2025 |
DATE OF SENTENCE: | 6 August 2025 |
CASE MAY BE CITED AS: | DPP v Momia |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1123 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Cause Injury intentionally — Affray — Common Assault — Three co-accused — Youthful offender — Pleas of guilty — High objective gravity — Two victims — Guarded prospects of rehabilitation — Bugmy principles — Verdins principles — Parity
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:DPP v Abdulrahman & Ors [2025] VCC 353; R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43; R v Verdins (2007) 6 VR 269; Bugmy v The Queen (2013) 169 CLR 571; Director of Public Prosecutions v Drake [2019] VSCA 293;
Sentence:Total effective sentence of 1 year 6 months imprisonment followed by an 18-month community correction order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Plummer | Office of Public Prosecutions |
For the Accused | Mr J. James | Marshall Jovanovska Ralph Criminal Lawyers |
HIS HONOUR:
Introduction
1Cleveland Momia, you have pleaded guilty to one charge of causing injury intentionally, one charge of affray, and one charge of common assault.
2The maximum penalties for these offences are as follows:
a)Causing injury intentionally, 10 years' imprisonment;
b)Affray, five years' imprisonment;
c)Common assault, five years' imprisonment.
Summary of offending
3I sentenced three of your co-accused on 31 March 2025.[1] In that sentence I was provided with a prosecution opening, which asserted that a fourth accused, namely you, threw the first punch to Mr Fisher's head. You deny striking Mr Fisher in that way and the prosecution in this opening does not assert that you were the first to strike him. I do not intend to sentence you as the first to strike Mr Fisher, but you were complicit in the actions of your
co-offenders and they in yours, so little turns on this distinction.[1]DPP v Abdulrahman & Ors [2025] VCC 353, (‘March sentence’).
4Your offending took place on 31 December 2022 at Jacksons Hotel in Toorak. You and your three co‑offenders, Messrs Abdulrahman, Nous and Buram, became involved in an altercation with the victim when he emerged from the nightclub with his girlfriend, Ms Conroy to find you and your associates either on or at his car. Mr Fisher was repeatedly punched to his body and head, falling to the ground, where the four of you kicked and punched him. A bystander attempted to separate your group from Mr Fisher, to enable him to stand. The four of you resumed your assault of him until he fell again. The victim's girlfriend attempted to protect him by laying over the top of him. She was also assaulted. The four of you continued to attack Mr Fisher, walking away and returning to kick and punch him while he lay immobile on the ground.
5Mr Fisher sustained significant injuries including a haematoma to his forehead, a fractured spine, bruising to his fingers and back, and scarring to his face. He has had to undergo surgery to have an intracranial pressure monitor inserted.
6I was provided a victim impact statement by Mr Fisher dated 26 February 2025. He did not wish to have it read aloud in court and I will not set out its contents here. He suffered injuries which have had devastating entrenched consequences to his mental health, physical wellbeing, and his capacity to navigate life and find enjoyment and trust again.
Circumstances of offender
7Daniella Kocic's psychological report dated 17 June 2025 sets out your personal circumstances. You have had a difficult upbringing. You were born in Papua New Guinea and grew up in a family environment mired in alcoholism, conflict and abuse. You were exposed to gang related violence and witnessed its savagery constantly, including one instance where you observed the violent machete killing of your cousin at age 12.
8You migrated to Australia when you were 14 years old, but conflict with your mother rendered you homeless for a year. You have reconciled with your mother but your living arrangements are still unstable. You told Ms Kocic that your relationship with your family improved when you moved to Australia and it is now positive. Your mother has been diagnosed with stomach cancer and you anticipate taking on greater responsibility to support your family during her treatment and convalescence.
9You completed Years 11 and 12 through the Victorian Certificate of Applied Learning at Chisholm TAFE, and you report having made efforts to pursue education in other fields including enrolling in a Diploma of Architecture and completing a Certificate IV in Building and Construction. In 2024 you successfully completed a six month Certificate III in Civil Construction. You reported to Ms Kocic that you have had regular employment since the age of 15, including at McDonald's, hospitality work, and as a kitchen hand in local restaurants. You have been unemployed since December 2024, marking your longest period of unemployment. You told Ms Kocic you wished to complete your electrical apprenticeship or re-enter the concreting industry. In the long term you hope to establish your own business.
10Mr James submitted on your behalf that a combination order was appropriate having regard to all the relevant circumstances.
11Mr Plummer on behalf of the Crown conceded that a combination order was open.
12Your counsel conceded that this offending is objectively serious however, relied on the following factors to distinguish your role in the offending:
(a)you did not initiate the altercation;
(b)determining how involved you became in Mr Fisher's assault is difficult to ascertain;
(c)you did not touch Ms Conroy-Green;
(d)you did not assault Mr Olan;
(e)you were not involved in the secondary assault on Mr Fisher.
13It is to be noted that you have pleaded guilty to one charge of assaulting
Ms Conroy-Green. By your plea you accept at least that you were complicit with your co‑offenders in their assault of her. You were also complicit in your co‑offender's assault of Mr Fisher.14When I sentenced your co-offenders, I noted that there was little to distinguish their roles. They were sentenced on the basis that Mr Nous delivered the blow which brought Mr Fisher to the ground, but the attack on Mr Fisher was a group effort and you, Mr Momia, were a part of that group. You may have desisted before your co‑offenders, but your moral culpability remains significant. You were part of a group that repeatedly assaulted Mr Fisher, even when he was prone and incapable of defending himself. As I said when sentencing your co‑offenders, you knew Mr Fisher could not defend himself against four of you, and you were emboldened by the presence of your friends to engage in a ferocious and cowardly attack.
15Mr James relied on the following factors to submit that you have positive prospects of rehabilitation:
(a)There have been periods where you have been a productive hardworking member of society;
(b)Your pleas of guilty are indicative of remorse and rehabilitation;
(c)Your youth; and
(d)The availability of stable accommodation with your family.
16Concerningly, you were at the time of your plea, in contravention of a community correction order imposed on 12 June 2024 in the Dandenong Magistrates' Court. You previously failed to appear in the Magistrates' Court on 25 May 2025 and a warrant for your arrest was issued. During the operational period of that community correction order, you absconded to New South Wales and offended in March 2025. You and a friend attended a BWS whilst intoxicated. A female staff member approached you to advise that she could not serve you. You became aggressive and accused her of being racist. She asked you to keep your distance, but you refused. You levelled a torrent a vile degrading racist abuse at her. You assaulted her by pushing her with your chest. Staff members intervened. You stole your victim's phone on your way out. You were sentenced to seven months' imprisonment with a non-parole period of one month for this offending.
17I was also provided a CCO assessment report and a Mental Health Advice and Response Service report, both dated 27 June 2025. When asked by a community corrections officer about your New South Wales offending and your previous community correction order, you gave answers that were vague and self-serving.
18You were given permission by New South Wales Corrections to live with your family in Victoria during your New South Wales parole period. That was done to facilitate access to rehabilitative programs and treatment in a supportive environment, to optimise your prospects of success. No engagement occurred. You told the Victorian Office of Corrections that your New South Wales parole order had been transferred to Victoria. That was not true. The author of the pre‑sentence assessment report noted no change in protective factors or circumstances from the time of your last unsuccessful community correction order, and you were therefore assessed as unsuitable for a further community correction order. You were assessed as a high risk of general reoffending.
19Your prospects of rehabilitation are guarded.
20I should also note that I have been provided in the last couple of minutes with a letter from the State Parole Authority which notes the comments made in the Correction report, and interpreting the contents of that letter in the light most favourable to you, Mr Momia, it does not appear as though the State Parole Authority in New South Wales is intending to institute breach proceedings for your removal from New South Wales to Victoria.
21There is limited evidence of shame or regret for your offending. You pleaded guilty six days prior to your trial, though your counsel submitted that you gave instructions to plead guilty after your initial in‑person conference with your legal representatives.
22I accept that your pleas entitle you to a discount, acknowledging the time and expense that you have saved the court.
23You were 23 at the time of the offending, the oldest of the group. Counsel on your behalf submitted that though you are not a young offender, your relative youth attracts the principles in R v Mills,[2] as restated in Azzopardi.[3] I accept that you are youthful and that your rehabilitation ought to be accommodated in the sentence I impose.
[2]R v Mills [1998] 4 VR 235
[3]Azzopardi v The Queen (2011) 35 VR 43, 53-5 [34]-[36] (‘Azzopardi’).
24Counsel referred me to the report of Ms Daniella Kocic dated 17 June 2025 to submit that your diagnosis of Post Traumatic Stress Disorder was materially operative at the time of the offending. Ms Kocic opined:
Mr Momia's violent offending was likely predisposed by his early life experiences (fights with peers and other adolescents and exposure to violence, bloodshed and brutality which desensitised him to violence, increased his likelihood of perpetuating intergenerational transmission of violence, and contributed to the development of cognitive distortions and implicit offence supported attitudes such as 'violence solves problems'( and is justifiable) and 'violence as self-defence'.
25I accept that your moral culpability is lessened somewhat, but on your version you had the wherewithal to withdraw from the attack earlier than your
co-offenders, which denotes some capacity to regulate your conduct and appreciate the wrongfulness of the assault you and your co-offenders had engaged in.26The prosecution disputed that Ms Kocic's report provides an adequate foundation for the engagement of limbs 1-6 of Verdins. I accept that there is an inadequate foundation for finding limbs 2-6 are engaged.
27Mr James submitted that the Court of Appeal's articulation of Bugmy[4] principles in the case of Drake is apposite to you.[5] He submitted that you began your life in an unstable family environment and witnessed reciprocal family violence within the home. You describe repeated and extreme instances of violence and verbal, physical and sexual abuse targeting you and your siblings.
[4]Bugmy v The Queen (2013) 169 CLR 571.
[5]Director of Public Prosecutions v Drake [2019] VSCA 293
28You witnessed the death of your cousin at the age of 12, and experienced homelessness and exposure to drugs from a young age. Your childhood has been marked by adversity, deprivation and trauma. The lesson imparted to you by those charged with rearing you, is that conflict should be met with violence. Violence begets violence.
29I accept that Bugmy applies to reduce your moral culpability for this offending and your sentence will be moderated to account for that reduction.
30As I have already mentioned, I sentenced your three co‑offenders in this matter in March 2025. Mr Buram received a total effective sentence of 10 months' imprisonment followed by an 18 month community correction order.
Mr Abdulrahman received a total effective sentence of six months' imprisonment followed by an 18 month community correction order. Mr Nous received a total effective sentence of one year four months' imprisonment followed by an 18 month community correction order. Mr James sought to rely on the principles of parity and submitted that you have a limited criminal history and have not previously been sentenced to a term of imprisonment. He said these two factors differentiated you from Mr Nous and Mr Buram. I remind myself however, that you were the oldest of the group and that Mr Buram performed well on bail and had not reoffended. That is in stark contradistinction to your history of contravening your community correction order, absconding, and reoffending in New South Wales, serving a prison term there.31I sentenced Mr Nous on the basis that his childhood deprivation reduced his moral culpability. I have made the same finding for you. Mr Abdulrahman was assessed as a low risk of general reoffending. He had not reoffended in the two years since being charged. I assessed Mr Buram and Mr Abdulrahman as having better prospects of rehabilitation than Mr Nous. Their prospects are also better than yours. In addition, your three co-offenders pleaded guilty at an earlier stage than you.
32There is therefore a sound basis for distinguishing the prospects of Messrs Buram and Abdulrahman on the one hand, from yours and Mr Nous on the other. I intend to acknowledge that disparity in the sentence I impose.
33Pursuant to s5 of the Sentencing Act 1991, the purposes for which you are to be sentenced are:
(a)To punish you in a manner and to an extent which is just in all of the circumstances;
(b)To deter you or others from committing similar offences in future;
(c)To facilitate rehabilitation;
(d)To manifest the denunciation of your conduct;
(e)To protect the community; or
(f)A combination of two or more of these purposes.
34I told your co-offenders that pack violence needs to be denounced. Your actions, and those of your co‑offenders, were despicable and cowardly. You need to be deterred from behaving like this again. It is alarming that even after you were charged with this offending, you breached the community corrections order you were then undergoing, travelled to New South Wales, and committed further violent offences there. Your rehabilitation has been provided for in the community correction order I intend to impose as part of your sentence. I have had regard to the principles of totality, parsimony, parity and proportionality in fixing your sentence. The community needs to know that kicking and punching an immobile, defenceless victim, especially when committed in company and at night, will result in the loss of liberty.
35What I am proposing to do at this stage as part of your sentence is to record convictions and place you on a community correction order for a period of 18 months from the completion of your sentence.
36Before I ask you to consent to such an order being made, I have to tell you a bit about the order so that you know what it means.
37The following Core conditions apply to all community correction orders:
(a), You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.
(b), You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the Order.
(c), You must report to the Community Correction Centre at Dandenong within two clear days following your release from custody.
(d), You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change.
(e), You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.
(f), You must comply with any direction given by the Secretary, that is necessary for the Secretary to give, to ensure that you comply with the Order.
38Now, do you understand all of that?
39OFFENDER: Yes, Your Honour.
40HIS HONOUR: You were, you understand, on a community correction order which you breached by travelling from Victoria to New South Wales. Any community correction order I impose includes a condition that you not travel interstate without the authority of the Corrections Office. You understand?
41OFFENDER: Yes, Your Honour.
42HIS HONOUR: There are a number of other conditions attached to this Order, and they apply to you:
(a), You each have to perform 300 hours of unpaid community work over a period of 18 months as directed by the Regional Manager. One hundred hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
(b), You must be under the supervision of a Community Correction Officer for a period of 18 months.
(c), You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee.
(d), You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager.
(e), You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager.
(f), You must undergo mental health assessment and treatment including but not limited to mental health, psychological, neuropsychological and psychiatric treatment in a hospital or a residential facility, as directed by the Regional Manager.
(g), You must undergo programs or courses aimed at addressing factors relating to the offending, as directed by the Regional Manager.
(h), You must attend for review of your progress and compliance or otherwise with the conditions of the order, and you have got to come back before me 28 September next year at 9.30 am.
43I direct that I be advised by your Corrections Officer of any non-compliance of these conditions and I will then determine if the matter should be brought back before me.
44I should also advise that if you contravene or breach that order by committing further offences, you can be charged, and a sentence of imprisonment is one of the options that can be imposed for that breach.
45You can also be resentenced for the charges that are before me. One of the options available includes a term of imprisonment.
46You need to be especially careful during the 18 months of your community corrections order. You cannot commit any further offences which might incur a term of imprisonment, otherwise you come back before the court, and you fall to be resentenced on these charges.
47I also advise that if you fail to comply with any direction of the Secretary of the Department of Justice, that is a Community Corrections officer, worker, et cetera as part of this order, a substantial fine can be imposed. Now, are you aware of all of that?
48OFFENDER: Yes, Your Honour.
49HIS HONOUR: Do you consent to being placed on a community correction order?
50OFFENDER: Yes, Your Honour.
Sentence
51HIS HONOUR: On Charge 1, causing injury intentionally, you are convicted and sentenced to 14 months' imprisonment with an 18 month community corrections order.
52On Charge 2, affray, you are convicted and sentenced to two months' imprisonment to be served concurrently with the sentence in Charge 1.
53On Charge 3, common assault, you are convicted and sentenced to three months' imprisonment to be served concurrently with the sentence in Charge 1.
54You have served 93 days by way of pre-sentence detention and I declare these days as time served against the sentence I have imposed.
55Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty I would have convicted you and sentenced you to 22 months' imprisonment with an 18 month community correction order.
56Now we have the order ready to sign.
57ASSOCIATE: I have just got to print it, Your Honour.
58HIS HONOUR: Very well. I will stay on the Bench while that's signed.
59Mr Momia can be removed.
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