Director of Public Prosecutions v Nawalu

[2022] VCC 2100

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-00255

DIRECTOR OF PUBLIC PROSECUTIONS

v

GARY VICTOR NAWALU

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2022
DATE OF SENTENCE:	17 November 2022
CASE MAY BE CITED AS:	DPP v Nawalu
MEDIUM NEUTRAL CITATION:	[2022] VCC 2100

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentence

Catchwords:  Intentionally cause serious injury – no exceptions to    category two offence - alcohol-fuelled offending– savage   attack to victim

Legislation Cited:  Sentencing Act 1991; s5(2H)

Cases Cited:  Worboyes v R [2021] VSCA 169

Sentence:  Convicted and sentenced to eight years’ and six months’   imprisonment with a non-parole period of six years’ and   three months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. O'Toole	Director of Public Prosecutions
For the Accused	Mr J. Barreiro	James Dowsley & Associates

HIS HONOUR: 

1Gary Nawalu, on 5 August 2022 you were arraigned on indictment No.M10439974 and you pleaded guilty to Charge 1, causing serious injury intentionally to Baris Buyukbilgin.  The plea followed a sentence indication hearing conducted on the same day. This charge has a maximum penalty of 20 years' imprisonment.  This charge is a category 2 offence. 

2You have admitted your prior criminal history.  Your Children's Court appearances began in March of 1996 and continued through until February 1998.  In total there were 10 separate court appearances in that time, mainly for breaking and entering charges, as they are called in New South Wales. Your first term of imprisonment as an adult commenced on 13 January 1998.  The most serious of the charges was robbery in company.  That offence occurred on 13 January 1998. 

3On 17 March 2003, you were sentenced to serve six months imprisonment for assault occasioning actual bodily harm and stealing from person. On 11 June 2004, you were sentenced to five years imprisonment for aggravated break and enter in company.  On 13 February 2009, you were sentenced to six years imprisonment for break and enter a building. You have a long history of dishonesty and burglary offences that are not directly related to this sentencing process. 

4You have served 628 days of pre-sentence detention. 

Circumstance of the offending

5The prosecutor tendered a Summary of Prosecution Opening at the time of the sentence indication, dated 2 August 2022.  An Amended Prosecution Opening for Trial dated 17 August 2022 was tendered today and that is Exhibit “A”. 

6At the time of the offending you were 41 years of age.  Your victim, Baris Buyukbilgin was a 22-year-old man.

Background

7On the evening of 26 February 2021 and the early hours of 27 February 2021, Mr Buyukbilgin was with a group of friends, including two Onal sisters and Mr Baksmarty and Mr Al Saidi.  The group were out celebrating the 18th birthday of one of the Onal sisters. 

8On the same night you were out with and in the company of Lewis Morris.  You nor Mr Morris knew any of these people.

9Just after 3 am on 27 February 2021, all the aforementioned people, including yourself were in the food court of the Crown Casino.  Mr Buyukbilgin and his companions left the food court and walked out onto the Yarra Promenade.  You and Mr Morris remained in the food court waiting for your food order.

10As Buyukbilgin's group left the food court a verbal exchange occurred between Mr Morris, your friend, and Mr Baksmarty.  Mr Buyukbilgin escorted Baksmarty out onto the Yarra Promenade. The two parties then came together again at the intersection of Clarendon Street and Yarra Promenade, which is at Southbank. 

11Mr Buyukbilgin was restraining Mr Baksmarty from engaging in physical altercation with Mr Morris. At this time Mr Morris told Buyukbilgin's group to, 'Empty your pockets and we're all good.'  Mr Buyukbilgin told you to, 'Grab your mate and fuck off,' as you were attempting to separate Mr Morris from the other group.  Mr Morris then called out, 'Fucking lebos' as the two of you walked towards the taxi rank.  Mr Al Saidi then chased after Mr Morris.

12What followed was an all-in fight between the two groups of males.  The two Onal sisters had stepped back and out of the way of the fight.  The fighting ceased and the verbal altercation continued between Mr Morris and Mr Buyukbilgin group.

13You went over to a rubbish bin and started throwing items from the bin onto the ground.  You left the bin empty handed, and then returned to where Mr Morris, you, and the Buyukbilgin group resumed fighting. 

14At this stage the fighting was on the driveway of the taxi rank at Crown Casino.  The fighting then stopped. You were on the taxi driveway, that is on the ground, but not materially injured.  Mr Buyukbilgin's group then made their way to a taxi with the two Onal sisters. Mr Buyukbilgin was ushering his companions into the taxi to leave.

15You have then proceeded to walk directly back to the same rubbish bin you had  been looking through earlier, where you continued to search through the rubbish bin before eventually locating a glass bottle from that rubbish bin, which you then threw on the ground. You then retrieved the glass bottle, smashed it further, causing it to become jagged before you walked over to the Buyukbilgin group who were still getting into the taxi.  You then specifically targeted Mr Buyukbilgin who backed away from you with his hands up in front of his face.

16You fought your way past and shrugged off Mr Morris, who was then trying to stop you, and proceeded using your right hand to strike Mr Buyukbilgin with the jagged glass bottle directly into the left side of his face in a forceful blow.  The entirety of that incident is captured on CCTV.  That is Charge 1.

17You then walked back over to Mr Buyukbilgin who was on the ground and visibly bleeding from his face.  You have grabbed him by the head and shoulders, with both hands, and kicked him in the upper head and body area with your right foot or leg.  Mr Morris has then pushed you away from Mr Buyukbilgin.  However, you returned to the same rubbish bin for the third time, continued to look for, as the prosecution allege, another weapon.

18You then threw Mr Morris to the ground as you were doing so, and continued to try and walk towards the area where Mr Buyukbilgin was.  However, you were ultimately stopped by Mr Morris.

19Mr Buyukbilgin was bleeding heavily from his face.  The Onal sisters, Mr Baksmarty and Mr Al Saidi left in the taxi and went straight to the Royal Melbourne Hospital.  During that journey, one of the Onal sisters contacted Triple zero reporting the incident.

20You had suffered a number of lacerations to your hand as a result of either breaking the glass bottle on the ground or, more likely, from striking Mr Buyukbilgin with the glass bottle.  You had remained at the taxi rank where you had ultimately collapsed before being assisted by members of the Crown Casino security. You were taken to the Alfred Hospital under police guard. 

21On 2 March 2021, you were released from hospital and interviewed by the police.  You told police you had been drinking alcohol for a long time prior to the fighting.  You otherwise exercised your right to make a no comment record of interview.

22The police at the scene seized a glass bottle neck at the scene, and also took photographs of the scene and photographs of Mr Buyukbilgin's injuries to his head and face, which are part of the exhibits. 

23Mr Buyukbilgin suffered the following physical injuries as a result of your savage attack:

(1) multiple lacerations both complex and deep to his left cheek and lower      eyelid area;

(2) loss of his left eye;

(3) a fracture of his left medial orbit wall;

(4) permanent facial scarring;

(5) now has an artificial left eye and;

(6) ongoing pain and need for medication to ameliorate that pain.

Victim impact statement 

24Mr Buyukbilgin filed a victim impact statement which was dated 3 August 2022.  It was Exhibit “C”.  A summary of the victim impact statement will not do justice to the extent of your criminal act has had on the life of your victim.

25He was a 22-year-old man when you savagely attacked him.  He was half your age.  He has lost the sight of his left eye.  He was working as a carpenter and had two people working for him at the time.  He can no longer work as a carpenter due to his inability to see things appropriately.  He has lost his business and he has lost his trade. He has lost his independence and freedom as he is unable to drive at night. 

26He suffers migraine headaches requiring the use of Endone and Panadol to manage the pain.  He has also lost weight and he is fearful to go out into the community.  He has a prosthetic eye, as I have said, and now requires glasses to see, particularly in certain lighting settings. He has the constant reminder of the facial scarring and made the comment that people look at him strangely when he is out in the public. 

27The impact on your victim has been physical, emotional, and financial.  You have turned a young man's life upside down in your drunken rage.

Your personal circumstances

28You are now 43 years old.  You were 41 at the time of the offending.  I have previously referred to your criminal history and will not repeat it here.  In your report to Marlese Bovenkerk, a forensic psychologist, you indicated that you have never had formal employment due to your ongoing criminal activity.

29Your parents are Fijian who migrated to Australia in the 1970s.  You were the youngest of their three children.  Your older brother has a disability which requires constant care.  Your family upbringing took place in the northern beaches of New South Wales.  You describe your childhood and upbringing as, 'pretty good.'  You still have regular contact with your family.

30You struggled academically at school, and you were subjected to being teased for having darker skin than the other children at school.  You got into trouble at a young age at school.  You struggle with reading and writing and did not do the homework.  You started engaging in truancy and ultimately left school at Year 8.

31You became a gang member and started abusing alcohol and drugs.  As young as 14 you were smoking cannabis and heroin.  You were already drinking alcohol heavily by that time.  Your whole life from the earliest time has been drug and alcohol abuse, criminal offending to pay for it, and your incarceration as penalty for your criminality once you were caught.

32In 2014 you became eligible for a disability support pension due to your learning difficulty.  That is also the time when you were released from custody.  You have never had a long-term domestic relationship.  You have no children or dependents.

33You have been assessed by Marlese Bovenkerk, a forensic psychologist, for the purposes of this plea proceeding.  The report is dated 2 August 2022 and is Exhibit 2, You have been diagnosed as having mild symptoms of depression.  In Dr Bovenkerk's opinion you have also traits of personality disorder and a suggestion of a closed head injury.

34The plea heard in August 2022 was adjourned to this date to allow for further medical material and opinion to be filed in respect of the mentioned head injury.  No further medical reports have been filed in this case.

35You have served a total of 628 days of pre-sentence detention in respect of this charge.  

36The references that have been tendered this morning speak of a person who is kind, considerate, and generous.  The referees state you had tried to move on from your prior criminal life once you were released from custody in 2014.  Unfortunately, the events in  February 2021 are inconsistent with that assessment by your referees.

Sentencing considerations 

37The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions, and the protection of the community.  In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it, and your personal circumstances.

38I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society.

39I am also required to take into account current sentencing practices in fixing your sentence.  That inquiry is directed particularly, but not exhaustively, to the kinds of sentencing imposed in comparable cases, and the statistics for the sentences at that time.

40I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case as indeed they are from one another.  Of course, current sentencing practices is just one of the considerations I have to take into account.

41The offence of intentionally cause serious injury is a category 2 offence. None of the exceptions contained in s5(2H) of the Sentencing Act  have application in your case.  Therefore, the prospect of a combination sentence does not arise.  Your offending is a very serious example of this serious offence. Indicators of the seriousness of your offending are: 

(1) your action of glassing your victim occurred after you had two separate      searches in the rubbish bin looking for your weapon, a glass bottle.  This      indicates some premeditation on your part;

(2) you break the bottle before you approach your victim.  You have changed a bottle into a dangerous weapon;

(3) your victim was retreating from the earlier fracas and was ushering his      group into a taxi in order to leave the vicinity and the problem;

(4) you have struck your victim in the face and eye region with the clear   intent of inflicting the maximum damage on him;

(5) you were acting not in self-defence but as an act of retribution towards      your victim after the initial fighting;

(6) you followed your stabbing action with a kick to your victim's head whilst   he was on the ground and utterly defenceless and;

(7), the injuries to your young victim are for the remainder of his life.  He has lost his left eye, has complex deep scarring to his face, a fracture to his       eye socket with ongoing pain, and loss of his full eyesight.  Your attack and      the resulting injuries to your victim are at the high-end range for this offence.

42You have pleaded guilty to this charge.  Your plea of guilty was indicated, as I say, at the sentence indication hearing.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.

43Your plea allows for the preservation of the court and police resources to deal with other matters, and your plea vindicates the public confidence in the legal process set up to protect the community.  Your plea has alleviated the necessity for Mr Buyukbilgin to give evidence in this case and relive the event itself.

44Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion, and your plea also recognises you are willing to facilitate the course of justice in the community. I accept that your plea of guilty to this charge indicates and demonstrates some remorse on your part.

45I have taken into account your letter today to the court, which is Exhibit 5.  You clearly express remorse and regret for your actions on the day of this offending, and I accept that to be genuine. 

46Your plea is also given at a time when the COVID-19 pandemic has caused considerable delay in the listing of trials.  You are entitled to a perceptible amelioration of sentence as a result of your plea of guilty.  This discount in sentencing is consistent with the pronouncements made in Worboyes case.

47The whole of your time in pre-sentence detention has been during the restrictions imposed by Corrections due to the COVID-19 pandemic.  Your family are in New South Wales and have been unable to visit you.  The lockdowns and the cell confinement have, and will, continue to make your time in custody more onerous than in normal times.

48Your prospects of rehabilitation are guarded.  You have spent your life in the criminal world, with long term and severe addiction to alcohol and drug dependence.  There was a window period, that is between 2014 and 2021, when you remained in the community, and on the basis of the references tendered in this case where you successfully lived in the community.  That gives some hope for rehabilitation for you once you are released from custody.

49The sentencing principles of general and specific deterrence, protection of the community, and denunciation of your actions and rehabilitation dictate that the only just sentence is a term of imprisonment with a non-parole period. 

50Would you stand, please.

51On Charge 1, you are convicted and sentenced to eight years and six months' imprisonment. I set a non-parole period of six years and three months. Pursuant to s6AAA of the Sentencing Act,  but for your plea of guilty I would have sentenced you to 12 years with a nine-year non-parole period.  I declare you have served 628 days pre-sentence detention in respect of the sentence I have just pronounced.

52HIS HONOUR:  Mr Nawalu, what that all means is you've got - your head sentence is eight years, six months.  Your minimum term is six years, three months, and of that you've served 628 days pre-sentence detention.

53All I'll say is I've finished, and you don't have to listen to me anymore.  All I'll say is that you had a window of 2014 to 2021 when you lived out in the community.  When you get out this time go back to that way of living.

54OFFENDER:  Yep.

55HIS HONOUR:  Thank you. You can remove the prisoner.  Counsel, thank you for your assistance.  Very difficult case, this one.

56MR BARREIRO:  Indeed.

57MR O'TOOLE:  As Your Honour pleases.

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