Director of Public Prosecutions v Mustafa

[2014] VCC 1355

THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00665
CR 14-00666
CR 14-00667

DIRECTOR OF PUBLIC PROSECUTIONS

v

VEDAT MUSTAFA
NIKOLA NAUMOVSKI
ROBERTO STOJANOVSKI

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	12 August 2014
DATE OF SENTENCE:	21 August 2014
CASE MAY BE CITED AS:	DPP v Mustafa & Ors
MEDIUM NEUTRAL CITATION:	[2014] VCC 1355

REASONS FOR SENTENCE
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Subject:  Sentencing; affray

Catchwords:             Pleas of guilty; young and youthful offenders; no prior convictions; serious injury caused to victim

Legislation Cited:     Sentencing Act 1991

Sentence:Mustafa: CCO of 2 years, 200 hours, without conviction, assessment and treatment for cannabis addiction; Naumovski: CCO of 2 years, 200 hours, without conviction; Stojanovski: CCO of 2 ½ years, 250 hours, with conviction.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Duckett	Office of Public Prosecutions
For Accused Mustafa	Mr S. John (for plea) Mr V. Azzopardi  (for Sentence)	Tony Hargreaves & Associates
For Accused Naumovski	Mr M. Page	Leanne Warren & Associates
For Accused Stojanovski	Mr Ristivojevic (for plea) Mr N. Marcevski (for sentence)	C. Marshall & Associates

HER HONOUR: 

1Nikola Naumovski , Roberto Stojanovski and Vedat Mustafa, you have each pleaded guilty to one charge of affray.  The crime of affray has a maximum penalty of five years' imprisonment, which I must take into account as indicating the level of seriousness with which this offence is regarded by Parliament.

2This offence occurred on 8 April 2012.  At that time you, Mr Naumovski  and Mr Stojanovski, were both aged 18, and Mr Mustafa, you were 21.  The victim of this offence, Jake Millar, was aged 17 at the time. 

3That evening there was a house party in Taylors Lakes attended by Mr Millar and also by you, Mr Stojanovski and Mr Naumovski , but you two were not together.  At some stage there was a verbal altercation involving Mr Millar and he was told to leave the premises by the people whose house it was.  On the summary of facts given to me, none of you were involved with those events.

4Shortly afterwards, Mr Millar walked back to the house with some friends he had called.  He was again told to leave as he approached the front of the house and he was told that by many people.  He and his friends started walking away but you, Mr Stojanovski, approached Mr Millar and there was an altercation between you, ending with him punching you in the face.  You were not seriously hurt and, with others still yelling at him to leave, Mr Millar and his friends departed.  You had not met him before.  That could have been the end of any trouble that night. 

5However, you, Mr Stojanovski, rang a friend called Asstah whom you knew was also a friend of Mr Millar.  You told Asstah of the incident and asked him to come to pick you up, and when he did you asked him to set up a meeting with Mr Millar that night.  He did this by phone and arranged a meeting shortly afterwards between you and Mr Millar at a nearby milk bar.  This was said to be to "sort out" what had occurred.  It seems both you and Mr Millar assumed you would be taking supporters to this meeting.

6You were driven to the milk bar meeting by Asstah.  Mr Naumovski  and Mr Mustafa, you went to the meeting to support Mr Stojanovski.  You arrived there in a carload of five young men.  Meanwhile, Mr Millar had walked to the milk bar accompanied by six or seven supporters.  This was at about 11.30 pm.  On the facts provided in the prosecution summary, it seems that you, Mr Stojanovski, got out of the car in which you had arrived, and were approached by a couple of boys, including Mr Millar.  There was some heated talk and Mr Millar, who had been drinking, started closing in on you with a loud voice, although according to Asstah no one was getting violent at that stage.  You, Mr Stojanovski, had also been drinking. Asstah tried to calm down Mr Millar but later told police that "in the blink of an eye" a number of others, to quote him, "rocked up and just started fighting with Jake and there was a big fight".  Another youth's version was that five boys arrived in a silver Suzuki Swift and the fight started.  That would include you, Mr Mustafa, and Mr Naumovski .

7Although all of you deny bringing any weapons or knowing that any weapons were being brought by your group, one of the combatants applied a taser to Mr Millar's neck.  Mr Millar was subsequently hit to the top of his head by another combatant, who used a knuckle duster.  He fell to the ground and while on the ground was repeatedly punched and kicked to the head and body.  None of you claim to know who struck any of those blows. However, by your pleas of guilty you admit to active participation in this affray.

8As the prosecution cannot prove exactly who struck Mr Millar to the top of his head nor who applied the Taser, nor for that matter who struck other blows the signs of which are visible on photos of him taken subsequently, I sentence each of you on the basis that you were part of the affray but did not apply those weapons or significant blows to Mr Millar. 

9The fight is said to have broken up quite quickly, leaving Mr Millar badly hurt in company with his friends.  Asstah, who knew both sides, stayed to assist.  All three of you departed in the silver Suzuki with its driver and two others.

10Mr Millar was helped by his friends to his feet but he could not walk, and was driven to Sunshine Hospital.  After preliminary examination and dressing of his open wounds, being a 2 cm laceration to his left forehead and a U-shaped laceration to the top of his head, he was transferred to the Royal Melbourne Hospital because it was deemed he needed emergency surgery.  He had suffered a U-shaped scalp laceration with underlying haematoma to the left parietal region of his skull.  More significantly, CT scans of his head led to a diagnosis of an open depressed left parietal skull fracture, and he underwent an emergency craniotomy at the Royal Melbourne Hospital during which a titanium plate was inserted.

11I take this to have been a very serious injury to Mr Millar.  Fortunately he recovered sufficiently to be released home after three nights in hospital.  He was reviewed in the neurosurgery outpatient clinic at Royal Melbourne Hospital until eventual discharge on 18 June 2012, when he was recorded as having recovered well.  He has declined to make a victim impact statement but his mother has made one.  Although not accompanied by medical reports, I accept the information from her that Jake Millar has been advised that he will be susceptible to epilepsy, and will have long-term vulnerability to further head injury, so has had to stop contact sports.  He has a significant scar from where the wound was stapled on the top of his head, as shown in photographs tendered, and he has a titanium plate left in his skull, and still suffers headaches.  I also accept that for some weeks after the incident he was unable to work and lost wages and so did his mother.

12I recognise that the charge against you three is affray, and not one of causing Mr Millar serious injury.  Nevertheless, the serious nature of the injury he suffered in this incident indicates both the objective seriousness of the affray, and the potential the incident had for very serious harm.  It is fortunate for all of you, as well of course as for him, that he has made as good a recovery as he apparently has.

13I have very limited facts on which to assess your respective roles in this offence or on which to assess your individual levels of blameworthiness.  This is at least partly because none of you was prepared to answer questions for the police, at the time of their investigations or ever since.  I shall deal with those issues when addressing your individual circumstances.  As I have said, I sentence you all on the basis that none of you had brought a weapon or used a weapon.  However, I reject the submissions put on behalf of each of you that you each went to this confrontation not expecting violence.  Notwithstanding that none of you has a history of violence, I do not accept that you would set off as a group of some seven young men, some drunk, most not having been present at the precipitating incident, to meet at 11.30 pm for a purely oral discussion to sort out a physical altercation that had occurred a short time earlier with a young man not known to you.

14Further, as Ms Duckett points out, there was only one person hurt in this affray, and that was the young man who had punched Mr Stojanovski earlier and whom the plan was to confront.  From these circumstances and the very numbers with whom you went as reinforcement, I am satisfied beyond reasonable doubt that each of you did expect there to be some physical and therefore violent confrontation, although as I say I do not find to that level of certainty that you knew that there were weapons being brought to the confrontation.

15Confrontations of this type, especially amongst young men in numbers, create understandable apprehension and potentially real danger.  First there is the potential danger of injury for those involved, even if they are participating willingly, and Mr Millar will bear for the rest of his life the result of such danger eventuating in this instance.  It is clear that he was willing to attend a confrontation from which he, like you, would have expected physical confrontation.  But the community ultimately suffers if people in his position or yours are seriously injured.  Also there is risk to people nearby.  The fact that on this occasion a meeting place was chosen which was likely to be deserted at that time meant that that risk was lower, but the offence of affray is based on longstanding recognition that if fighting or other disturbance of the peace occurs, it may well create apprehension of fear in people in the vicinity who observe it.  There is nothing to indicate that neighbours in the vicinity saw or heard this event occur but that does not mean that there was no risk of people seeing and being frightened by it and by you and your group.

16I accept that all of you were young and none of you has any prior offences, and in particular no history of violence.  There is well established authority that in cases of young or youthful offenders with no other history of offending, rehabilitation should be given priority over other sentencing factors and general deterrence should be subsumed or at least heavily moderated to enable rehabilitation to take priority.  However, is this case I am of the view that other sentencing factors should still have some significance, even if considerably moderated to facilitate the community's interest in the rehabilitation of you as youthful offenders.

17First, the sentence should reflect the community's condemnation of such behaviour.  Further, in my view my sentencing of each of you must carry an element of general deterrence - that is, to send a message to others who might be tempted to become involved in such incidents that they can expect to receive stern punishment for doing so.  I agree with the prosecution submission that the court in weighing sentencing factors in this case should take into account that the nature of the offence of affray is that all too often it occurs amongst groups of young persons, particularly young men.  I would add that it also often includes youthful males behaving with violence that is otherwise not characteristic of them as individuals, but prompted or fueled by peer involvement.  For that reason I consider that general deterrence should still be a significant factor in your sentences, although I should undoubtedly moderate it to give greater weight to your prospects of rehabilitation in light of your ages and absence of prior offending.

18There are some mitigatory factors which you all have in common so I mention them at this stage.  First, you have each pleaded guilty to this charge and thereby accepted responsibility for your participation and actions.  While none of you could be said to have assisted the police investigation by each exercising your legal right to refuse to answer questions, I accept that that may well have been on advice, and also reflective of youthful adherence to some code of silence.  Nor did any of you indicate a plea of guilty immediately after being charged, but I accept that originally there was a more serious charge involved.  You did each indicate a plea of guilty at a stage of the committal process that avoided the need for witnesses to have to give evidence or be cross-examined.  Your pleas of guilty also have saved the community the time and cost of a trial, as well as saving witnesses, and in this case in particular Jake Millar, the stress of having not only to attend to give evidence and be cross-examined, but also to relive the events. 

19You are each entitled to some leniency for having pleaded guilty, and I shall state after each of your sentences what those sentences would have been had you not pleaded guilty but been found guilty by a jury of this charge.

20I must also take into account the delay that has occurred between the time of this incident and this matter coming to this point at which I am to sentence you.  It is unclear why it was almost 18 months before charges were laid at all.  Further, delay was caused by the charges originally being more serious.  It is now more than two years and four months since the incident that gives rise to this charge, and I accept that in the lives of people of your ages that is a considerable time.  I should and do take that delay into account in this case as mitigatory.  First, the possibility of criminal charges and then the reality of them, hung over each of you for this period, and will inevitably have created concern and uncertainty about your futures.  Further, I accept that your behaviour since the time of the offence reflects well on each of you in your own circumstances.  You have not engaged in any further violent offending, you have each gone on with establishing yourselves, through study or work or both, in responsible and constructive pursuits, and also interacting with your communities.  You are entitled to have these matters considered as going to your credit, as well as showing that prospects of continuing to behave responsibly are good.  Each of you is engaged in activities that there is good reason not to interrupt with a custodial sentence, and as I announced after the hearing last week, I have decided for this as well as a variety of other reasons that a custodial sentence is not necessary in any of your circumstances.

21I turn now to your individual circumstances, and here I depart from the order that was on the indictment. 

22First, I turn to your circumstances, Roberto Stojanovski.  You are now aged 20 and were 18 at the time of this incident.  You grew up in Melbourne in a stable household with your parents and two sisters.  Your mother and your two grandfathers were in court to support you.  You completed school, obtained your VCE, and then commenced a tertiary course in 2012 at Navitas College of Public Safety.  That was to be a course in criminal justice . You deferred it at about the time of this incident, but I am told for reasons not connected with this incident.

23Last year you undertook courses in security, including one in aviation screening, because you were interested in a career in customs security.  I am told that any path into the latter is on hold at present because a national police record screen showed charges for this incident pending against you.  There was no information before me as to whether there is any possibility of you being accepted into that work with either a finding of guilt in this matter or a conviction. 

24You are now working fulltime in your family's bakery business, where apparently you have also worked part-time as a student.  In the immediate future you are likely to manage a planned second outlet of the business, and that reflects not only your own family's confidence in you and your role but that you have a planned future there.

25As I have said, you come before the court with no prior convictions and I am further informed that there have been no subsequent ones and no further charges pending.  All of those matters are consistent with the information I have been given that you have otherwise been a sensible and responsible young person.  As well as studying and working in your family's bakery business, you have been a committed soccer player, playing for four clubs over more than ten years. 

26I have read the significant bundle of nine character references tendered from persons ranging from your parish priest, and family doctor, to family friends, your friends, relatives, and a youth team coach.  These between them speak highly of your being a caring and compassionate person, being trustworthy and honest, involved in assisting with a junior soccer team and entrusted with mentoring and leadership roles with younger players.  They also speak of you being from a hardworking and law-abiding family with whom you are close.  I accept that with your absence of other offences these all reinforce that you have otherwise been of good character.  They also indicate that you have strong prospects of pursuing a responsible lifestyle, and as an involved member of the community.  Further, although you had been drinking on that night, and it is said that your judgment was affected by alcohol, there is nothing to indicate that you have any entrenched or serious problem with alcohol abuse, nor with drugs or any mental health condition, so there are no such impediments to you pursuing a responsible and productive future.

27Some of the references refer to you expressing remorse for this incident.  It seems to me that it is more in the nature of regret and concern for the trouble you have found yourself in, and also for bringing that trouble upon your family, but given your youth I accept that it can be difficult for someone your age to fully accept or appreciate the impact of your actions on your victim and his family and to emphathise with those.

28I come now to assess your role in and reason for offending.  I am told that your judgment was impaired by alcohol consumption.  I am also told that you did not know that anyone coming to support you when you met up with Mr Millar outside the milk bar had brought any weapons.  I am told that throughout the incident you did not see a taser or knuckle duster, although other witnesses clearly did see them.  I am told that your reason for asking for this meeting to be set up was to sort out why Mr Millar had punched you, because you did not want it hanging over any future potential meetings you might have with him.  As I have already said, you did not know him at all before this night.

29I do not accept that you came to this meeting solely for a calm talk to sort out any future potential meetings or relationship you might have with Mr Millar.  I would have to be satisfied of that on the balance of probabilities to accept it in mitigation of your role, and I am not satisfied that it is likely. 

30Despite the very limited information revealed by you and your supporters as to respective roles in this incident, I take into account the following.  You had not met Mr Millar before that night and yet you took it upon yourself to approach him and at least verbally confront him as he was leaving the party premises.  He punched you in response.  You were at that party with two other friends, yet it was not them whom you called upon for support.  I am not satisfied that your calling on Asstah to set up a meeting with Jake Millar that night, and going there with several other supporters, was for anything other than a physical confrontation.  You were the person who instigated the confrontation and it was to sort out your personal grievance against Mr Millar.  You instigated the contacting of Mr Mustafa and the group of five who came with him, who apart from Mr Naumovski  had not even been at the party.  I infer that their role was to be a show of physical support.  I do not have sufficient information to make a finding beyond reasonable doubt that you actually intended to cause Mr Millar serious injury, nor that you knew of weapons being brought, but I am satisfied to the standard beyond reasonable doubt that you intended a physical confrontation with him.

31I have already said that your youth, otherwise good character, stable family and lifestyle and strong prospects of establishing yourself in a responsible lifestyle, satisfy me that it is not in the interests of the community generally and not necessary to achieve all sentencing purposes, to impose any type of custodial sentence on you.  However, I do regard the seriousness of this offence and your role as one of the two principal protagonists, and indeed as the instigator of the actual meeting to confront Mr Millar, as warranting a stern enough sentence to punish you for that role and also to deter you and others from engaging in such confrontations.  I regard you as bearing the most blameworthy of the roles of the three people before me here.  Even significantly moderating factors of general deterrence and conveying the community's condemnation of such an incident, due to your youth and to further your rehabilitation, I consider that a community corrections order which imposes a penalty of unpaid community work is appropriate.  I intend such an order to last for what for you will be a considerable time, although I must take into account in setting that time what the potential maximum penalty of imprisonment would have been.

32I shall impose supervision as a condition additional to unpaid community work, which will mean that the order will last its specified duration and not cease when the unpaid community work is completed.  It does not seem to me that you need any rehabilitative conditions notwithstanding that you are said to have been affected by alcohol on the night.

33The final consideration is whether a conviction should be recorded.  For this I must have regard to all the circumstances of the case, including the nature of the offence, your character and past history, and the impact of the recording of a conviction on your economic or social wellbeing or on your employment prospects.  I have already spoken of the general circumstances of the case and said that I regard both the nature of this offence and your role in it as serious, and in particular that you instigated the confrontation.  I am told that your chosen career in customs was put on hold due to the charge you were facing.  The documentation provided indicates that that was at a time when the more serious charge of intentionally causing serious injury was contemplated, and I have no information as to whether the charge of affray would bring about the same consequences as it carries a much lower penalty. Nor do I have any information as to whether there would be any difference in effect on your potential career in customs between a finding of guilt or the recording of a conviction.

34I recognise that in general for someone your age there may very well be some implications in the future if a conviction is recorded, including obtaining a visa to enter some countries.  It can also affect various career prospects.  With  rehabilitation of a youthful offender as a primary consideration, the general likelihood of some negative effects of a conviction should not be lightly overlooked, even without specific information about any likely impact on you.  However, given that you precipitated this offence, and in light of the serious effect on Mr Millar, I have decided that the recording of a conviction is required in your case to adequately denounce your level of involvement in an offence that had very serious consequences for another youth.

35I turn now to Vedat Mustafa.  You are now aged 24.  You grew up in Melbourne in a family with Turkish migrant parents who both worked to establish their family here and both have a law-abiding record.  You have two older brothers, one employed and one running his own business, both I am told with no history of offending and having established themselves as responsible members of the community.

36You attended school and completed your VCE.  You apparently had a very promising future playing soccer and had won a scholarship to an American university through soccer.  However, in year 12 when playing soccer you collapsed and were diagnosed with a genetic blood disease and also a heart condition.  As a result you had to cease playing soccer and abandon your scholarship.  I accept that in addition to the health concerns and implications,  this would have been a severe blow to your plans and ambitions for your future and must have left you both disappointed and uncertain as to your future. 

37You obtained employment on leaving school with a family friend, working in plastering, and worked there for about three years.  Then in 2012 you undertook studies at Victoria University in business development and marketing.  You were engaged in those studies at the time of this incident.

38The following year, and prior to being charged with this offence, or indeed the more serious charge that was first applied, you set up a business in partnership with a friend who is the son of the plasterer who had employed you.  He is also the friend who drove you to the confrontation that led to this incident.  You opened Derrimut Indoor Soccer Centre, in which you were able to utilise your skills and experience in playing soccer, promote the playing of soccer amongst children and, of course, build a business.  Although in its first year, the business is apparently doing well and I have been provided with various photographs and documentation in that regard. It is to your credit that you have found and are working hard to establish an occupation which can provide you with a livelihood and keep you involved in soccer, which you love, despite being unable to play professionally any more due to your health.

39I have read a psychological report on you by Mr Patrick Newton.  As well as setting out your history as you explained it to Mr Newton, it contains his opinion that you have been experiencing significant anxiety, partly traced back to some childhood experiences but mainly manifested and made worse by your reaction to your current legal predicament.  Mr Newton considers your symptoms sufficiently severe to satisfy diagnostic criteria for an adjustment disorder with anxiety.  He recommends personal counselling to assist you to work through ongoing emotional effects of problems in your childhood. 

40Mr Newton also discloses that you have revealed using cannabis as a result of facing criminal charges, and using it to such an extent that he diagnoses you as meeting criteria for a moderate cannabis use disorder.  This he considers requires drug-related education and counselling to assist you to eliminate the use of cannabis from your lifestyle. 

41I note that the adjustment disorder with anxiety is not said to have influenced your behaviour in participating in this offence, and you are said to have only started using cannabis since being charged.  Neither, therefore, can be put as relevant to causing you to become involved in this offending or reducing your culpability for your role in it.  Both, however, would be best addressed with recommended treatment and Mr Newton suggests structured intervention to achieve this.

42Mr Newton's report on those conditions is relevant in your case on the issue of delay.  It indicates that the delay I have already mentioned as mitigatory in being likely to have caused concern and uncertainty for all three of you, has apparently borne heavily on you, and led to clinical anxiety, and on your version driven you to seek refuge in cannabis use.  I take it as relevant in that context.

43Although you are not as young as your offenders, indeed three years older than them, you are still to be regarded as a youthful offender, and as this is the first time you face criminal charges, an important factor in your sentence as for the others should be the promotion of rehabilitation and your future in the community.  You, like them, have no prior criminal history. 

44I accept that there are no subsequent charges against you.  Given what you disclosed to Mr Newton, however, about engaging in cannabis use and to a considerable degree, it is not strictly true that you can claim not to have engaged in any offending since this incident because possession and use of cannabis are, of course, offences.  I do not suggest you would be charged for that and do not count them as subsequent offences.  More importantly, there is nothing to indicate any further offences of violence by you, and nothing to suggest that you are prone to violence.  That is consistent with the references submitted on your behalf which, as well as indicating no history of violence, through a number of friends and people with whom you have worked talk of you being a nice person, quiet amongst your friendship group, and that you have kept out of trouble such that this incident surprised them and they felt it uncharacteristic of you.

45I have difficulty with you, as with the others, in assessing your level of involvement and blameworthiness in this offence.  I am informed that you received a phone call from Asstah, who had Mr Stojanovski with him at the time, and you understood from this call that there had been an altercation involving Mr Stojanovski and there was to be a confrontation to sort it out.  I have not been told why that prompted you to go where the confrontation was to occur.  You were not even at the party where the precipitating event occurred.  Nor am I told how it came about that not only you but three others who had not been at the party went in the car driven by your friend and now business partner, Goran Apostolovski.  Together, four of you in that car collected Mr Naumovski  from the party and then headed straight to the place where the confrontation was to occur. 

46Your counsel submitted that once there the situation ignited but was over quite quickly, at least on your part.  You apparently admit that you shoved someone aside but say you were not aware of weapons.  It is said that you saw someone go down without knowing whom, and departed with the others and only learned later of the serious injury to Mr Millar.  In pleading guilty you admit involvement to an extent that was wrong of you; indeed, criminally wrong of you.  Being older than the others and being there, you apparently also acknowledge that you should have been able to prevent the violence by encouraging talk.  Apparently you knew all of these people, or at least those on your side of the fight, from soccer and all were friends. 

47As already stated, I am not satisfied that it is likely that you or any of the others were not expecting a physical confrontation and inevitably some violence.  I therefore consider that there is considerable blameworthiness on you for your role in this event, although I do not take you to have been the instigator of it, nor to have struck any of the serious blows to Mr Millar.

48I consider that all sentencing factors in your case can be achieved without imposing a term of imprisonment.  On you, as with the others, I intend to impose a Community Corrections Order.  It will require you to perform unpaid community work to give back to the community, and as punishment, and will require you to submit to supervision to enable monitoring of your behaviour if considered necessary by community corrections officers.  Although your mental health and drug use did not cause your offending, in my view there is a connection between your cannabis use and the consequences of the offending and it would be appropriate for you to receive some drug-related education and counselling in a structured environment and subject to the supervision of a Community Corrections Order along the lines proposed for supervision by Mr Newton.  I am therefore going to impose a condition to that effect.

49For you, too, I have considered carefully whether or not to record a conviction against you.  As I have already said in relation to Mr Stojanovski, I recognise that in young people with aspirations in future careers and possibly wanting to travel to countries where it would need to be disclosed, the recording of a conviction can have detrimental effects.  I have considered whether, because of your youth and the fact you have no prior offences and are otherwise of good character, a conviction was not warranted.  In your case, taking all of these considerations into account, I have decided that a conviction need not be recorded against you so the Community Corrections Order will be without conviction. 

50I turn now to Nikola Naumovski .  You, Mr Naumovski , are now aged 20 and were 18 at the time of this incident.  You are the oldest of three children, having two younger sisters, the youngest being about ten years younger than you.  Your father apparently left the family many years ago, so you have mainly been raised in a single parent household where, as the eldest and only male, you have taken some extra responsibility and still assist your mother with your sisters, especially with helping to take your younger sister to school and other activities. 

51Your mother and girlfriend were in court to support you and have provided references which I have read.  Notwithstanding their natural tendency to be supportive of you, I accept that they are genuine in describing you as bright and conscientious, thoughtful and not being inclined to violence.  Both say this incident was uncharacteristic for you.  They say that you are influenced by your peers.  Further, they both say that realising the consequences of what occurred, you have not only been upset about that but have distanced yourself from the peers with whom you were involved in that offending.  I take that as reflecting some maturity on your part, and some genuine appreciation and recognition of the seriousness of the offence in which you became involved, and the adverse influence of those friends.

52You also attended school in Melbourne and completed your VCE.  You then commenced a marketing course part-time and have also worked, at times fulltime and I believe more recently part-time.  Leading up to the time of the hearing you were said to be working 9am to 4 pm on telephone sales.  You are also a soccer player and have apparently been playing semi-professionally.  You apparently travelled overseas playing soccer before completing your VCE.

53As to your involvement in this offence, you were apparently at the party but not with Mr Stojanovski and did not see any of the initial incidents.  You heard that there had been an altercation and went to the front of the house and saw your friend Robbie, that is Mr Stojanovski, but did not see what had occurred there.  It is unclear to me how or why it was arranged for you to be picked up on a special trip to this house by the car containing Mr Mustafa, but you were collected in that manner and driven straight to the milk bar meeting.  Through your counsel it is said that you knew there was to be a meeting to "sort it out" and you went to support your friend Mr Stojanovski, but did not intend physical confrontation, although your counsel does concede the possibility of physical confrontation must have been known to you.  Your accompanying of the others is said to have been part of being with a group and wanting to support your mates.

54It seems to me that as you were not connected with the initial incident, you were there to provide numbers to intimidate rather than support.  I am told that you were affected by alcohol at the time and infer that this did have some effect on your judgment.  It is submitted that your involvement was out of character for you and more a matter of peer effect.  I do not have any account of what role you admit to. You, like the others, deny that you brought or used any weapons or knew that they were to be used.  Your recollection is said to have been that when you left the scene with the others in the silver car, Mr Millar was on his feet.

55Your plea of guilty, as with the others, is a sign of you taking responsibility for your actions, in that you take responsibility for having participated in an affray, but quite what those actions were or what role you took remains unclear. 

56As with the others, I very much doubt that you did not actually anticipate and expect there to be some violence in the confrontation with Mr Millar.  As with the others, I am satisfied that sentencing purposes in your case can be achieved without imposing a custodial sentence, and that you should be allowed to stay in the community where you have stable and supporting living arrangements, in which you take responsibility for your family and are engaged in both study and employment to build yourself a responsible future.  A Community Corrections Order will be imposed with conditions of unpaid community work to form a punishment and as a means of you giving back to the community and also with supervision.  Although you are said to have been drinking alcohol and had been affected by it on the night, there is nothing to indicate an entrenched problem with alcohol abuse or for that matter with drugs or any other underlying problems, so I am not going to impose any rehabilitative conditions in your case.

57Finally, in your case also it is put on your behalf that I should not record a conviction as it might  be detrimental to your future.  It is specifically submitted that with your hopes to pursue a soccer career, including possibly travelling overseas for that, it may have an adverse effect.  I have no information as to whether a conviction is likely to have any effect on your being accepted into soccer teams, which I tend to doubt, or what countries might need to be visited which require the revealing of a conviction.  Nevertheless, as with the others I accept that for young people it may well be that certain future activities would be affected by the imposition of a conviction.  I have taken into account your youth, your comparatively limited role, at least to the extent that anyone is prepared to reveal it further to me, and that your role was supportive of a friend rather than instigative in the offence. As I have already said, your rehabilitation must be a prominent factor in my sentencing of you. I have decided that in your case a conviction will not need to be recorded against you.  Again, that is not to reflect that your participation should not be regarded as serious, but I accept in particular in your case that you have recognised the risk of involvement and the effect of peer pressure or peer effect and excitement, and have disassociated yourself from that peer group.

58I come now to the individual sentences and I will take them one at a time. 

59Roberto Stojanovski, would you stand please.  On the charge of affray I make a Community Corrections Order, with conviction, to last for two and a half years, with conditions that you perform 250 hours of unpaid community work and undergo supervision.  That means that even if you complete the community work in less than the period, the supervision lasts for the full two and a half years to make the order last that long, although how often it occurs is in the discretion of community corrections officers. 

60In addition to those conditions the usual terms of a Community Corrections Order apply.  I know they have been explained to you but I must briefly summarise them again.  The most important is that you must not commit any offence punishable by imprisonment during the whole period of that order.  Further, you must comply with any lawful direction of community corrections officers and accept visits from them as they require.  You must not leave Victoria without prior permission from Community Corrections.  You must notify them of any change of address or change of employment within two clear working days after that change.  You must report within two clear working days of today to a community corrections office.  That strictly means by 4 pm of Tuesday of next week, but I believe that an appointment has been made for you for tomorrow, Friday 22 August at 11 am at the Sunshine office and the address of that will be on the document you will receive.

61Do you understand all of these terms and conditions that I have imposed?

62OFFENDER STOJANOVSKI:  Yes, Your Honour.

63HER HONOUR:  Do you agree to comply with the Community Corrections Order in those terms and with those conditions?

64OFFENDER STOJANOVSKI:  Yes, Your Honour.

65HER HONOUR:  I state that had you not pleaded guilty but been found guilty by a jury of this charge and all other circumstances having been the same, I would have made a Community Corrections Order with conviction to last three years with 300 hours of unpaid community work and supervision.  You can take a seat now.

66Nikola Naumovski , will you stand please.  Nikola Naumovski , on the charge of affray I make a Community Corrections Order without conviction, to last two years, with conditions that you perform 200 hours of unpaid community work and also that you undergo supervision.  As with Mr Stojanovski, how often the supervision is required depends on the discretion of community corrections officers but that condition will mean that the order will last the full two years, even though you might complete the unpaid community work sooner than that.

67In addition, the usual terms of a Community Corrections Order apply.  I know they have explained to you, I have just outlined them again, but they are again most importantly not to commit any offence during that period which could be punished by imprisonment.  You are to accept directions from and visits if required from community corrections officers, you are not to leave Victoria without their prior permission, you are to advise within two working days of any change of residential address or change of employment, and you are to report within two clear working days to a community corrections office.

68In your case I do not believe an appointment time was in the report as I read it, but you may know what it is.

69OFFENDER NAUMOVSKI :  My appointment is today.

70HER HONOUR:  I beg your pardon?

71OFFENDER NAUMOVSKI :  I have an appointment for today at two o'clock.

72HER HONOUR:  All right.  You are well aware of that.  If you meet that today you will have met that condition.  I must ask do you understand all of these terms and conditions?

73OFFENDER NAUMOVSKI :  Yes, Your Honour.

74HER HONOUR:  Do you agree to comply with an order containing those terms and conditions?

75OFFENDER NAUMOVSKI :  Yes, Your Honour.

76HER HONOUR:  In your case I state that had you not pleaded guilty but been found guilty by a jury on this charge, I would have imposed a Community Corrections Order with conviction to last two and a half years and with 250 hours of unpaid community work and supervision.  You can take a seat now.

77Mr Mustafa, will you stand.  Vedat Mustafa, on the charge of affray I impose a Community Corrections Order without conviction to last two years, and with conditions that you perform 200 hours of unpaid community work, that you undergo supervision, and in your case I impose a condition for you to undergo assessment and if appropriate treatment as directed by community corrections officers for cannabis addiction.  Also the usual terms, which I have outlined and repeat again in summary to you.  Not to commit any offence during the whole of that order that could be punished by imprisonment; not to leave Victoria without prior permission; to notify any change of address of your residence, where you live or of you work, within two workings days to community corrections officers; to accept all lawful directions or visits from community corrections officers.

78Do you understand all of those terms and conditions?

79OFFENDER MUSTAFA:  Yes, Your Honour.

80HER HONOUR:  Do you agree to comply with an order with those terms and conditions?

81OFFENDER MUSTAFA:  Yes, Your Honour.

82HER HONOUR:  In your case you are to report to Sunshine Community Corrections Office, you have an appointment for Monday 25 August at 10 am.

83OFFENDER MUSTAFA:  Yes, Your Honour.

84HER HONOUR:  If you meet that you will have complied with the condition that you must attend within two clear working days. 

85In your case I state that had you not pleaded guilty but been found guilty of this charge by a jury and all other circumstances had been the same, I would have imposed a Community Corrections Order of two and a half years with conviction, with 250 hours of unpaid community work and supervision. 

86In your case there was application made by the prosecution for an order for the taking of a forensic sample which would have enabled your DNA details to be placed permanently on the state's databases.  Although older than the other two, I do not regard your role as any more serious than theirs, in particular Mr Stojanovski's.  You have no prior criminal record and I consider that while still youthful you should have the chance to show that this was indeed a one and only involvement in violent offending.  As it is a matter of discretion as to whether I make that order, I have decided not to do so in this case as I am not satisfied that it is necessary in the public interest, nor for each of those other reasons I have just mentioned.  You can take a seat now.

87OFFENDER MUSTAFA:  Thank you, Your Honour.

88HER HONOUR:  I do need to mention to all three of you, and indeed to make very clear to you, that if you breach these orders, if any of you breaches your Community Corrections Order during the period it is operative, that is two and a half years for Mr Stojanovski and two years for the other two of you, and if that breach is either by not complying with the conditions or terms or by further offending, you can expect to have your case brought back before me to deal with that breach. Depending on the circumstances I may impose a penalty for any breach of the order, and I may also vary the order or cancel the order and re-sentence you on the original charge of affray.  You must all understand those consequences.

89The orders have to be created and each of you has to sign, so I will have you wait there.  I will first ask Ms Duckett, have I covered everything I needed to?

90MS DUCKETT:  Yes, Your Honour, they are the matters.  There are no other orders required.

91HER HONOUR:  Thank you.  There is no adding up of figures and the like, but there is nothing that I have left out from the defence side?

92COUNSEL:  No, Your Honour.

93HER HONOUR:  All right.  I will just ask for those orders to be created and that requires communication with a sometimes recalcitrant computer system.  I will just have the orders for Mr Naumovski  shown to the prosecutor and to Mr Naumovski 's counsel just to check.

94MR AZZOPARDI:  Your Honour, may Mr Mustafa leave the dock?

95HER HONOUR:  They can wait there until they have signed their orders.

96MR AZZOPARDI:  Yes, Your Honour.

97MR PAGE:  That is fine, Your Honour.

98HER HONOUR:  My associate has got to work on all three of them, so we will shortly have to take the completed orders to each man in the dock, but till they have signed up the orders are not completed, and then I have to sign.

99MR MARCEVSKI:  The order is fine, Your Honour.

100HER HONOUR:  What I will do is I will have my associate bring a copy of each of the Community Corrections Order to each of you respectively.  You have seen that your counsel have checked them but I want each of you to read them carefully.  They do reflect as we understand it the conditions and terms I have already explained, but you should each read them and then sign your agreement to comply and then I will sign those documents too and you will each get a copy to take away with you.

101(Orders signed and acknowledged.)

102I have now signed each of those orders.  As my acting associate - and I thank her for dealing with this complicated one in terms of juggling these matters with the computer and the system I adopt - but you will each be given a copy of the order that you have signed and I have countersigned.  It will also, of course, go by formal channels to Community Corrections and so you should wait as you have been asked to receive your copies and the prosecution also, of course, gets a copy.

103Unless you breach your orders, I should not see any of you three again and the best thing you can do for yourselves and your families is comply with this order and go ahead with your stated intentions to not become involved in any of these sorts of incidents again.  I will now adjourn the court and you are all free to leave the dock, but I ask you to stay to receive a copy of your orders.

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