Director of Public Prosecutions v Muller

[2022] VCC 513

IN THE COUNTY COURT OF VICTORIA

AT SHEPPARTON

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-20-01504

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL MULLER

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JUDGE:	HIS HONOUR JUDGE D SEXTON
WHERE HELD:	Trial – Shepparton; Plea & Sentence - Melbourne
DATE OF HEARING:	8 March 2022 (Plea)
DATE OF SENTENCE:	12 April 2022
CASE MAY BE CITED AS:	DPP v Muller
MEDIUM NEUTRAL CITATION:	[2022] VCC 513

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Recklessly Causing Serious Injury; Common Law Assault

Legislation Cited:      Sentencing Act 1991

Cases Cited:Winch v R (2010) 27 VR 658; Guden v R (2010) 28 VR 288; Dang v R [2018] VSCA 43; Harrington v R [2017] VSCA 307; Director of Public Prosecutions (DPP) v Dalgliesh (2017) 262 CLR 428

Sentence:                  Total effective sentence of three years and nine months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P Triandos	Solicitor for the Office of Public Prosecutions
For the Accused	Mr M Sturges	Slater & King Lawyers

HIS HONOUR:

Introduction

1Michael Muller, on 14 December 2021, at the County Court sitting at Shepparton, a jury found you guilty of the charge of recklessly causing serious injury to Gavin Saunders on 30 June 2019.  The maximum penalty applicable for this offence is 15 years’ imprisonment.

2Furthermore, upon your arraignment at the commencement of your trial, you pleaded guilty to a charge of common law assault on Gavin Saunders on 30 June 2019.  The maximum penalty for this offence is five years’ imprisonment.

Circumstances of the Offending

3At your trial, you were charged with intentionally causing serious injury to Mr Saunders, and recklessly causing serious injury, in the alternative.  By virtue of the jury’s verdict with regard to the recklessly causing serious injury charge, the jury were satisfied beyond reasonable doubt that Gavin Saunders suffered a serious injury, that you caused the serious injury, that you were aware that your acts would probably cause serious injury to Mr Saunders but decided to go ahead anyway, and that you did not act in self-defence. 

4Your victim, Gavin Saunders, did not give evidence at your trial.  However, your offending was captured on CCTV footage which was played at the trial, tendered and marked Exhibit 1, and which I have reviewed closely prior to sentencing.  The surrounding circumstances of your offending were referred to by various witnesses at your trial, including workers and patrons at the Cricketers Arms Hotel in Mooroopna, where your offending took place.

5On Sunday, 30 June 2019, you attended the Cricketers Arms Hotel on McLennan Street in Mooroopna in company with others where you played pool and consumed alcohol from approximately 9.00pm.  Sometime after your arrival, at approximately 10.15pm, Mr Saunders arrived at the Cricketers Arms Hotel.  In the intervening period leading up to your assault upon Mr Saunders shortly before midnight, you were variously described as being jovial, happy, and consuming alcohol.  Mr Saunders was also consuming alcohol.  You were, at times, interacting with each other.  In terms of your interactions with each other, you were variously described as “bagging each other out”, “having shots at each other” and “hanging shit on each other”.  There may have been pejorative terms used by you towards Mr Saunders.  Often you were visibly affectionate towards each other.

6Whilst there may well have been a degree of agitation between the two of you, and a degree of physical remonstrating, I am not satisfied beyond reasonable doubt that, prior to the assault, there was any significant degree of animosity evident between you and Mr Saunders.  In all likelihood, you were engaging in robust, alcohol fuelled interactions, largely with no ill intent.

7The critical incident, as I have indicated, is captured on CCTV footage.  Immediately preceding it, both you and Mr Saunders were seated near the corner section of the bar, both consuming alcohol and seemingly talking to each other.  At one point, Mr Saunders appeared to become agitated, stood up from the bar, removed his jacket, gesticulated towards you with his hands, and then forcefully pushed you in the chest with an open right hand.  As conceded by the prosecution, at this point, Mr Saunders was the instigator of physical contact between you, and at this point was the aggressor.  You then grabbed Mr Saunders around the neck with your right hand, moving Mr Saunders backwards onto the pool table, whilst you were holding a schooner glass in your left hand.

8At this point there appeared to be a momentary pause, before Mr Saunders then had hold of you, and advanced a step or two towards you, with you moving backwards a step, whilst still holding the schooner glass in your left hand.  With you at this point leaning backwards somewhat, you then swung your left hand containing the schooner glass at Mr Saunders’ head on the right side, smashing the schooner glass into the right side of Mr Saunders’ head, sending broken glass flying across the floor.  Your conduct in this regard forms the basis of the recklessly cause serious injury charge. You both then fell to the floor, where the altercation between you continued for a short time, albeit not captured on the CCTV footage. 

9Soon after, Mr Saunders got up from the floor with his white t-shirt ripped and covered in blood, and he walked back to the side of the bar where he had been sitting.  Shortly afterwards, after attempting to clean himself up, Mr Saunders fell to the floor before returning to his feet.  You were then seen on the CCTV footage approaching Mr Saunders, picking up a black barstool, and swinging the stool at the left side of Mr Saunders’ head, narrowly missing his head as he deflected the stool with his arm, and you both fell to the floor.  Your actions in this regard form the basis of the common law assault charge.

10Numerous individuals, including the publican’s partner, Matthew Sleeth, and various patrons, all watched the assault but did not intervene.  Nor it seems, in any meaningful way, did they intervene to assist Mr Saunders after the assault.  The CCTV footage shows Mr Saunders gradually becoming more unsteady on his feet, and you eventually offering a degree of comfort to him.  Ultimately, Mr Saunders’ cousin, Dion Howell, was called to the hotel to collect Mr Saunders, and he was subsequently taken to the Goulburn Valley Hospital, arriving just after midnight on Monday, 1 July 2019.

11Police were later called to the Goulburn Valley Hospital, following reports that Mr Saunders was unconscious on arrival, with significant head injuries and in a life threatening condition.  He was later airlifted to the Alfred Hospital in Melbourne in a serious and life threatening condition, where emergency surgery was required on 1 July 2019, where part of his skull was removed and a shard of glass was removed from the right temporal lobe of the brain. 

12At the Alfred Hospital, Mr Saunders remained intubated and in intensive care until 9 July 2019, and further surgery was required to attempt to remove a remaining piece of glass. That attempt was unsuccessful. During assessments at the Alfred Hospital, Mr Saunders was found to be in post-traumatic amnesia for a period of 16 days.  Mr Saunders was ultimately transferred back to Goulburn Valley Health, where he was subsequently discharged on 11 September 2019.

13Dr Rachel Marr, forensic physician at the Victorian Institute of Forensic Medicine, indicated in evidence at your trial that the injuries to Mr Saunders were life threatening and the recovery from them was substantial and protracted.  According to Dr Marr, Mr Saunders suffered a bleeding injury to the right side of his head, a comminuted skull fracture, and a penetrating injury into the brain involving a piece of glass into the front temporal lobe.  Mr Saunders also suffered a subdural haematoma, that is blood between the brain and the skull, very severe post-traumatic amnesia which caused memory impairment for 16 days following the incident, and damage to the eye, including blurred vision, nerve palsy and injury to the retina. 

14A bundle of medical material with regard to the more recent medical status of Mr Saunders was tendered prior to sentencing and marked Exhibit C.  Collectively, those documents reflect significant and ongoing health issues with regard to Mr Saunders as a result of your offending, including vision problems, dysphagia or difficulty in swallowing, memory impairment and mobility impairment.

Impact on the Victim

15At your plea hearing on 8 March 2022, a Victim Impact Statement from Mr Saunders’ sister, Amanda Saunders, completed on 7 March 2022, purporting to be from both her and her brother Gavin, was tendered and marked Exhibit B and read aloud to the Court.  In that statement, Ms Saunders refers to their lives being turned upside down as a result of your offending.  Prior to the incident, Mr Saunders was an active person, enjoying many pursuits including painting with regard to his Aboriginal cultural heritage.  This was apparently a pursuit that produced income for Mr Saunders, a pursuit which he can no longer continue.  Ms Saunders referred to the significant physical consequences of the assault, together with the psychological impact upon her younger brother, Gavin.  According to Ms Saunders “he is a complete different person and it is very sad to see”.  Mr Saunders is embarrassed with regard to his eating difficulties as a result of the injuries sustained, has lost motivation to engage in life, and isolates himself.  He does not want to attend family gatherings due to his appearance.  He requires help with daily tasks such as preparing meals, laundry and household duties.

16Ms Saunders also referred to the impact of the assault upon her, being fearful as to whether her brother was going to survive the assault given the severity of the injuries.  According to Ms Saunders:

“My life has changed dramatically, I am now his carer.  I now have to coordinate his medical appointments and assist him with daily tasks.  Before the incident I had freedom to do what I wanted to do, now I have to plan my life around Gavin and be home for him.”

17Victim Impact Statements are an important means through which victims of crime can meaningfully participate in the sentencing process, by informing the Court of the often catastrophic consequences of offending upon them.  Clearly, your serious offending has had a profound impact on Mr Saunders and his family.  In formulating an appropriate sentence in your case, I have taken into consideration as one of the sentencing factors, the impact of your offending upon your victim. 

Gravity of the Offending and Level of Culpability

18In my view, your assault upon Mr Saunders with the glass schooner represents a serious example of the crime of recklessly causing serious injury.  The injuries sustained by Mr Saunders were extremely serious.  As conceded by your Counsel, the impact of those injuries upon Mr Saunders was catastrophic. Upon arrival at the Goulburn Valley Hospital, he was in an altered state of consciousness, intubated and airlifted to the Alfred Hospital in Melbourne with a serious penetrating head injury which required emergency surgery to remove a piece of glass from his brain.  He was hospitalised for some time, during which time there were unsuccessful efforts to remove a further piece of glass.  The injuries have been described as life threatening.  The treatment required was indeed substantial and protracted, and Mr Saunders continues, it appears, to labour with considerable impairments.

19You struck Mr Saunders to a vulnerable part of the body, his head.  At the time you were holding an object with obvious capacity to do harm, a glass schooner.  From viewing the footage, you appear to have struck Mr Saunders with some degree of force, given the shattering of glass and indeed the injuries sustained by Mr Saunders.

20In my view, your offending appropriately falls within the description of a glassing, described in the often quoted decision of Winch v R[1] as a scenario where one person strikes another with a glass or bottle, typically to the face or the head.[2]

[1](2010) 27 VR 658.

[2]Ibid at [1].

21In conducting an assessment of the seriousness of this particular instance of recklessly causing serious injury, in accordance with the principles articulated in Winch, I have considered both the degree of probability that serious injury will result, and the degree of seriousness of the injury thus foreseen.[3]  As the Court stated in Winch v R:

“What makes glassing a serious instance of RCSI – almost by definition – is the obvious dangerousness of a glass or bottle (whether broken or not) when used to strike a blow to the face or head. Hence, the offender who is convicted of this offence of recklessness is to be taken to have foreseen a high probability of serious injury.”[4]

[3]Ibid at [36].

[4]Ibid.

22However, in my view, there are some features of this offence which distinguish it from many of the so-called glassing cases.  I am not satisfied beyond reasonable doubt that there was any particular animus from you towards Mr Saunders in the lead-up to the incident.  The initial instigator, indeed aggressor, in the physical altercation between you and Mr Saunders was Mr Saunders himself when he stood up from the bar and aggressively pushed you.  I accept that, at this time, you were holding the glass schooner and kept hold of it throughout the incident.  This is not a case therefore where you have armed yourself with an implement.  Nor is this a case involving any planning or forethought on your part. You reacted instantly, it seems to me, to a perceived threat.

23Whilst Mr Saunders may have been the initial aggressor and, to that degree, you may have acted out of some sense of provocation, as evidenced by the jury’s verdict, your subsequent actions in striking Mr Saunders with the glass schooner to the head were completely indefensible.  Nevertheless, I am satisfied that the critical part of the incident was short-lived.  Whilst it is impossible to step into the mind of the jury with regard to their verdict, I am prepared to accept that you were acting to defend yourself, albeit your response was not a reasonable one in the circumstances as you perceived them.  Put simply, you must have known when striking Mr Saunders to the head with the schooner that there was a high probability of serious injury to him. 

24In all the circumstances, and in particular given the specific matters to which I have referred, I regard the objective gravity of the recklessly causing serious injury offence to be high, and your moral culpability, whilst somewhat reduced, to nevertheless be significant. 

25Leaving aside for a moment the recklessly causing serious injury offence, your conduct in returning to a clearly incapacitated Mr Saunders in the minutes after your serious assault upon him, picking up a barstool and attempting to strike him to the head area was, in my view, reprehensible conduct on your part.  As conceded by your counsel in written submissions, this was a cowardly act.  Whilst you may have not appreciated the degree to which Mr Saunders had been injured through your assault with the schooner, you must have known that he was seriously injured in the circumstances.  That you would assault him in these circumstances, in my view, beggars belief.  I do not accept your counsel’s submission that this conduct represents a lower level example of the offence of common law assault.  A level of cumulation is required with regard to any sentence imposed to reflect the gravity of this conduct.

Personal Circumstances

26You are currently 61 years of age, having been born in Tonga in March 1961.  You are one of six children, describing your upbringing as happy, with loving parents.  Whilst your father is now deceased, your mother, Malia, is still alive and resides in New Zealand.  In Tonga, you resided with your grandparents, who cared for you and your siblings whilst your father worked on eradicating pests from coconut palm plantations.  Your parents left for New Zealand when you were young to try and establish a new life for the family, with your family purchasing a house in Auckland.  You completed primary and some of secondary school before leaving Tonga at the age of 15 in 1975.  You have never returned to your homeland.  When you arrived in New Zealand at this age you could not speak English, and apparently struggled, but ultimately were able to excel academically in subjects that did not require English fluency, such as maths, music and design.

27You obviously showed considerable aptitude, and ultimately you were accepted into university and a degree in fine art.  However, you were attracted to the notion of working in Australia in the mining sector, and wished to work in that area and help your family financially.  You therefore travelled to Australia and worked in the Pilbara for a period of time, doing manual labour.  You ultimately became an electrical serviceman, working hard and funding your grandparents to visit the family in New Zealand.  I was informed that you have obtained work in Western Australia, Queensland and Victoria in the mining area, and as a structural engineer.  You have also worked in steel fabrication and design.

28It is clear that family has always been very important to you.  A number of impressive character references were tendered at your plea hearing and marked Exhibit 2.  Included in those testimonials were references from your mother, Malia, your sister, Clairlene, your brother, Walter, your two daughters, Joelle and Lavina, your son, Daniel, and your partner, Cindy.  They all speak as one with regard to the degree to which you place importance on the concept of family.  Impressively, you appear to have been most generous with regards to your family, by way of example paying off your parents’ mortgage in New Zealand, whilst you were residing in Australia, in the 1980s.

29You now have seven children and 14 grandchildren.  In 2004, you commenced a relationship with Cindy McGee and you have been together in the main for 18 years.  According to Ms McGee, at no time during this extended period has she ever witnessed you in an altercation.  Indeed, these are sentiments expressed by each of the character referees in your case.

30You have never been diagnosed with any mental health issues.  Save for some understandable grief at the age of 26 when your father died and you then commenced drinking alcohol, you do not appear to have any documented history of drug or alcohol issues.  You have a modest criminal history dating back to 1986.  Included in that history are three instances of drink-driving in the 1990s, indicating at least during this period some problems with regards to the consumption of alcohol.  Although you have some minor nuisance or behavioural matters dating from 1990, you do not have any prior convictions or findings of guilt for matters of violence, and for the past 10 years you have been free of prior convictions or findings of guilt.

31In all the circumstances, you fall to be sentenced as a man with reasonably good character in terms of your prior matters, and I am prepared to accept that your offending, in all the circumstances, was very much out of character for you.

Mitigatory Matters

32In helpful written and oral submissions on your behalf, your counsel, Mr Sturges, appropriately submitted that there were a number of significant mitigatory factors relevant to the sentencing exercise in your case.

33As is relatively clear from the CCTV footage, in the course of your altercation with Mr Saunders, you were, it seems, struck by him numerous times.  A few hours after the incident at 5.40am on 1 July 2019, you were located by police at your home address in Gange Street, Mooroopna, where police observed an extensive amount of blood over your clothing, face and hands.  A photograph taken immediately prior to your arrest by police was tendered at your trial and marked Exhibit 4.  That photo shows injuries and blood to your face area.  In evidence at your trial, the police informant indicated that upon your arrest you were assessed by a forensic medical officer for fitness to be interviewed, and ultimately taken by ambulance at 1.55pm to the Goulburn Valley Hospital.  You had complained to police of a sore jaw and a sore eye.  I accept in these circumstances that you have suffered a degree of extra curial punishment due to the injuries sustained by you, warranting a modest mitigatory allowance.

34Whilst you certainly will not be punished for running a trial, there is no sentencing discount applicable with regards to the offence of recklessly causing serious injury, given your not guilty plea at trial.  However, you did plead guilty in front of the jury to the common law assault charge.  As at the date of your counsel’s defence response to the prosecution opening on 15 March 2021, this charge was in issue.  Whilst your plea of guilty to this charge therefore cannot be considered an early plea, a sentencing discount is nevertheless warranted by virtue of your guilty plea to the offence of common law assault.

35I turn now to the issue of remorse.  In my view, your plea of guilty to the common law assault charge, in combination with the sentiments expressed by you in your police interview, provides a foundation for a further mitigatory allowance on the issue of remorse with regards to the common law assault charge.  An assessment of your remorse with regards to the recklessly cause serious injury charge is not straightforward.  You exercised your rights to take this charge to trial, claiming that you were not criminally liable for this offence on the basis of self-defence.  However, as I have previously stated, in the aftermath of your assault upon Mr Saunders, virtually the only person offering support and assistance to Mr Saunders was you, as shown on the CCTV footage.  Whilst you did not accept criminal responsibility for this offence in your police interview, you were, in my view, horrified by what you had done and expressed empathy for Mr Saunders’ state.  I agree with your counsel that your grief with regards to the injuries received by Mr Saunders is palpable at times during the police interview.  Many of your character referees speak of your expressions of remorse for your actions on this evening.  Ultimately, the prosecution in this case conceded that there was a limited degree of remorse evident in relation to the CCTV footage and your police interview.  Notwithstanding your plea of not guilty, your victim, Mr Saunders, was never cross-examined, either at committal or trial, as I was informed he never made a police statement due to his health.  In all the circumstances, I am prepared to make a mitigatory allowance due to your remorse, notwithstanding your plea of not guilty.

36I accept that a further mitigatory allowance is warranted due to the delays associated with this matter reaching a trial and conclusion, and the resulting significant burden upon you.  The incident giving rise to your charges occurred almost three years ago now.  Notwithstanding that you were charged on 2 July 2019, you were not committed for trial until 11 November 2020, and your trial took place over 12 months later, in the midst of the COVID‑19 pandemic and its unprecedented effect on the administration of criminal justice in this State, where the delays and backlogs associated with the disposition of criminal trials have been described as placing the system in a state of crisis.  During this extended period, save for an initial remand period of 10 days, you were subject to stringent bail conditions which included abstinence from alcohol, and prohibiting you from visiting licensed establishments, initially on your own and then later unless accompanied by your partner.  This condition in particular removed you from your circle of friends and associates, and left you essentially alone and at home frequently, where I was informed and accept that you experienced feelings of hopelessness and isolation.  The extensive delays in this matter warrant, in my view, a mitigatory allowance in sentencing.

37You were remanded in custody upon the jury’s verdict of guilty on 14 December 2021.  You have been housed at Fulham Prison.  I was informed that your physical health has deteriorated in custody, as your back and knees are causing you significant pain, and although you have sought the assistance of medical practitioners within the hospital, you have only seen a nurse to date.  A letter from the Shepparton Family Medical Centre dated 28 February 2022, Exhibit 3 at your plea hearing, confirmed various medical conditions and treatments, particularly in relation to the condition of gout.  You have apparently tried to keep yourself busy, undertaking courses for eligibility to obtain work within the prison.  You have been on a waiting list for woodwork and have asked to volunteer at the library within the prison.  You have returned to custody, of course, during the COVID‑19 pandemic, and I accept that you have therefore experienced the many additional hardships that those in custody must face during the pandemic, from reduced programs, reduced visits, reduced time outside of your cell, and the overarching stress and anxiety associated with the consequences of COVID‑19 in the custodial setting, with its compromised demographic.  Any custodial sentence will, for the foreseeable future, be more onerous given the COVID‑19 context, and a further mitigatory allowance is warranted.

38It is clear that you retain the love and support of your family, many of whom, including your mother, were present remotely at your plea hearing on 8 March 2022.  You are held in extremely high regard by your family, as evidenced by the impressive testimonials to which I have referred.  Since being charged, you have not been able to see your extended family in New Zealand and elsewhere.  No doubt that situation has become more difficult since your remand in custody.  Making an assessment as to someone’s prospects of rehabilitation can, it seems to me, be a somewhat abstract process.  However, in your particular case, given your modest and aged criminal history, my finding that this offending was out of character for you, the somewhat extenuating circumstances related to your offending as I have described, your conduct in providing comfort to your victim immediately following the offending, the appropriate expressions of remorse contained within your police interview, and your personal circumstances including strong and ongoing family support, I find your prospects of rehabilitation to be very good.

39I also accept that you have understandable anxieties with regards to the potential for deportation upon release from prison.  You are not an Australian citizen.  You do not hold a visa to be in this country.  You have already been contacted by the Department of Immigration regarding your status.  I accept that there is a real possibility that you may be deported at the conclusion of your sentence.  You have been residing in Australia for approximately 42 years.  All of your seven children and your grandchildren reside here, as does Ms McGee.  Deportation would clearly constitute a significant adverse event for you.  In accordance with the principles articulated in Guden v R,[5] your anxieties in this regard, impacting upon the degree to which any custodial sentence will be onerous for you, warrant a mitigatory allowance.

[5](2010) 28 VR 288 at [25] ‑ [27].

Other Relevant Factors, Principles and Purposes

40In formulating an appropriate sentence in your case, I have had regard to current sentencing practices for the offence in particular of recklessly causing serious injury, particularly in the context of glassing cases.  As conceded by your counsel, glassing cases have been identified as prevalent and serious by the courts, and general deterrence and denunciation must have a role to play in the sentencing process.  Again, as conceded by your counsel, current sentencing practices demonstrate that glassing cases will ordinarily lead to a term of imprisonment.  Indeed, an analysis of current sentencing practices indicates that frequently, significant sentences of imprisonment have been imposed.  In written submissions, your counsel referred me to various decisions, some of which are distinguishable either by virtue of the matter proceeding as a plea of guilty, or relating to the less serious offence of recklessly causing injury.[6]  As has recently been made clear, current sentencing practices are but one of the many relevant sentencing factors in any given case, and they do not represent a dominant factor.[7]

[6]Dang v R [2018] VSCA 43; Harrington v R [2017] VSCA 307.

[7]Director of Public Prosecutions (DPP) vDalgliesh (2017) 262 CLR 428.

41Given the nature of your offending, general deterrence and denunciation are important considerations in sentencing.  The community must know that such serious criminality will be met with a stern response.  Given your age, lack of prior convictions for violence, conduct on bail and other mitigatory matters, I agree with your counsel that specific deterrence and community protection have less of a role to play in the sentencing exercise.

42In my view, your conduct with regards to the common law assault charge warrants a degree of cumulation given the distinct criminality and circumstances, subject as always to the overarching principle of totality.

Sentence to be Imposed

43Mr Muller, in many respects, the sentencing exercise in your case is a challenging exercise.  Essentially, I do not regard you to be a violent person by character.  The circumstances in which you came to assault Mr Saunders were somewhat unusual, and removed, in my view, from the glassing cases commonly seen in these courts.  There is, in my view, a powerful constellation of mitigatory factors impacting upon the appropriate sentence in your case.  However, the fact remains that through your actions, you caused catastrophic injuries to Mr Saunders in circumstances where, in accordance with the jury’s verdict, you were aware that your acts would probably cause serious injury to Mr Saunders and you went ahead anyway.  There remains the need to impose a sentence which appropriately denounces your serious criminality, and reflects the important sentencing purpose of general deterrence.  Consistent with the principle of parsimony, nothing less than a sentence of imprisonment of some length is warranted, in my view.  In light of the substantial mitigatory factors in your case, and in order to facilitate your rehabilitation and reintegration back into the community, I will impose a sentence which includes a substantial parole eligibility component.

44On the charge of recklessly causing serious injury, you are convicted and sentenced to three years and six months’ imprisonment.  On the charge of common law assault, you are convicted and sentenced to nine months’ imprisonment.  I order that three months of this sentence be served cumulatively upon the sentence imposed on the recklessly cause serious injury charge, making a total effective sentence of three years and nine months.  I order that you serve a period of two years and four months before becoming eligible for parole.

45Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of 129 days’ pre-sentence detention, and I order that this amount be administratively deducted from your sentence.

46Finally, pursuant to s6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty with regards to the common law offence but been found guilty, I would have imposed a sentence of 12 months’ imprisonment on that charge.

47Mr Triandos, turning to you firstly, any ambiguities or have I missed anything with regards to the sentence? 

48MR TRIANDOS:  No, Your Honour.

49HIS HONOUR:  Thanks.  Ms King, likewise, same question.  Any ambiguities or has anything been missed? 

50MS KING:  No, Your Honour.

51HIS HONOUR:  Yes, thanks.  I will allow, Ms King, you to speak with your client on the video link after I leave the bench if that suits you. 

52MS KING:  Thank you.  I'd be grateful, Your Honour.

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