Director of Public Prosecutions v Overhoff

[2024] VCC 388

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
 Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-23-01993

Indictment No. C2316419

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZACAHRIAH OVERHOFF

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	12 March 2024
DATE OF SENTENCE:	4 April 2024
CASE MAY BE CITED AS:	DPP v Overhoff
MEDIUM NEUTRAL CITATION:	[2024] VCC 388

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Causing serious injury recklessly in circumstances of gross violence – Affray – Group attack - Whether all offenders are equally culpable – Where degree of culpability distinguishable - Verdins principles – Early guilty plea

Legislation Cited: Crimes Act 1958, s15B; s195H; Sentencing Act 1991

Cases Cited:R v Guthrie and Watt [2003] VSC 323; DPP v SKJ; DPP v GAS [2002] VSCA 131; R v Verdins (2007) 16 VR 269; R v Mills [1998] 4 VR 235; DPP v Lawrence (2004) 10 VR 125; Hussein v The Queen [2010] VSCA 257; Azzopardi v R (2011) 35 VR 43; R v Yaldiz [1998] 2 VR 376

Sentence:                  22 months in a youth justice centre

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr B Sharp	Solicitor for the Office of Public Prosecutions
For the Offender Overhoff	Mr S Casey	Dib & Associates

HIS HONOUR:

1Zachariah Overhoff, you are to be sentenced in respect of one charge of causing serious injury recklessly in circumstances of gross violence, in contravention of s15B of the Crimes Act 1958 (“Crimes Act”) and one charge of affray, in breach of s195H of the Crimes Act. Pleas of guilty have been entered in respect of both of the charges. I particularly record that the charge in respect of s15B of the Crimes Act has been pleaded guilty to on the basis of a plea of complicity with the other co-offenders.

2The maximum applicable penalties in relation to:

(a)   causing serious injury recklessly in circumstances of gross violence, Level 4 – fifteen years’ imprisonment or 1,800 penalty units;

(b)   affray, Level 6 – five years’ imprisonment or 600 penalty units.

3The circumstances of the offending are set out in the Summary of Prosecution Opening Upon Plea, dated 6 March 2024.  You agree with the facts alleged in the summary.  The offending occurred in the following circumstances.  You, Valiant Farquhar, and also Levi Terepo, were at or about Crown Casino in the Melbourne CBD shortly after midnight on 18 June 2022.  You, and the group you were with, particularly Mr Terepo, were harassing a number of homeless people on Southbank Promenade in Southbank.  The victim in relation to the first charge, Mr Rose, was also present.  Mr Rose had come to Melbourne with his employer for a weekend of socialising.  Mr Rose was essentially minding his own business when he noticed the group you were with harassing the homeless people.  A short interchange between your group and Mr Rose then occurred.  Mr Terepo began to chase Mr Rose, in company with you and Mr Farquhar.  A number of unknown co-offenders followed close behind.  Your group charged at Mr Rose and brought him to the ground.  The group surrounded Mr Rose and proceeded to kick and stomp on him for at least fifteen seconds.  During the assault, Mr Rose felt immense pain and feared for his life.  Your group then left Mr Rose on the ground and began walking back to Crown Casino.  Mr Rose was in significant pain, however managed to make it back to his hotel.  He was struggling to weight bear and an ambulance conveyed him to The Alfred hospital.  He suffered from a fractured right hip and a comminuted fractured left ankle.  He was discharged the following day. 

4Those are the circumstances in respect of the first charge.

5In relation to Charge 2, this occurred at approximately 1.36am on 18 June 2022.  That is, about an hour and a half after the first incident.  You, Mr Terepo and Mr Farquhar, and unknown co-offenders, were at the food court at Crown Casino.  At that time, Mr Terepo pushed past the second victim of the night, Mr Coleman.  Mr Coleman exchanged short words with Mr Terepo and began walking in the opposite direction.  That is, Mr Coleman walked away from Mr Terepo and your group.  You and an unknown offender followed Mr Coleman and stopped him from walking further.  Mr Farquhar approached shortly afterwards.  Mr Terepo then joined the group and punched Mr Coleman in the face.  Mr Terepo threw a further three hook punches and then pulled Mr Coleman to the ground.  You kicked Mr Coleman at this time.  You, and the unknown co-offender grabbed Mr Coleman by the shirt and dragged him across the ground.  You then struck Mr Coleman four times with your clenched fist while he was on the ground.  Mr Terepo kicked him twice.  A passerby, Ms Gallagher, the third victim of your group on the night, attempted to intervene at this time.  Ms Gallagher pushed Mr Terepo away from the fight and Mr Terepo responded by pushing her and slapping her to the jaw with an open palm.  Your group then left the food court. 

The victims’ injuries

6Dealing with Mr Rose first.  The injuries to Mr Rose are ongoing.  Mr Rose was unable to return to his work in hospitality until February 2023. As of 15 August 2023, his ankle movement was limited, he experienced calf muscle weakness and pain when walking.   An MRI scan from 26 September 2023, noted a non-union of the fracture and that Mr Rose was at risk of ongoing foot pain, stiffness and instability.  I have read and considered Mr Roses’ victim impact statement.

7As to Mr Coleman and Ms Gallagher, both did not sustain permanent injury.

Investigation

8You, Mr Terepo and Mr Farquhar were identified through CCTV footage.  You and Mr Farquhar were arrested in Queensland on 13 August 2023.  You were both extradited to Victoria on 16 August 2023.  You have five days of pre-sentence detention available to you, otherwise you both have been on bail with reporting responsibilities three times per week. 

Gravity of offending

9As to the charge of recklessly causing serious injury in circumstances of gross violence.  This is a serious offence.  So much can be inferred from the maximum applicable penalty. 

10It was put by your counsel, Mr Casey, on the plea, that your level of responsibility was less than your co-offenders in relation to charge 1 and that your involvement was limited to standing next to the victim while others, particularly Mr Terepo, can be seen engaging in punching and kicking.

11Counsel were invited to provide case law in respect of whether it was possible to assess different levels of culpability where a plea to this charge had been entered on a complicity basis.  That is, whether you could be determined to have a different level of culpability to Mr Terepo, who was more actively involved.  In considering this issue, it is relevant to note what his Honour Redlich J said in R v Guthrie and Watt.[1]  There, his Honour said:

“… One who aids and abets is linked in purpose with the person actually committing the crime and is by word or conduct doing something to bring about or render more likely the crime's commission. … .”[2]

[1][2003] VSC 323

[2](Ibid) at paragraph [30]

12And, then, at paragraph 31, he stated:

“… The circumstances of a particular case may justify regarding an aider and abettor as equally culpable with and sometimes even more culpable than the principal. … .”[3]

[3](Ibid) at paragraph [31]

13It is clear, then, that any suggestion an aider and abettor would receive a lesser penalty is a proposition which must be considered with considerable circumspection.[4]  However, in contrast to the facts of DPP v SKJ; DPP v GAS (“SJK”), [5] where it was completely unclear who had caused the fatal injuries, the CCTV of the assaults on Mr Rose, Mr Coleman and Ms Gallagher does allow some analysis of different roles to be made.

[4]DPP v SKJ; DPP v GAS [2002] VSCA 131 at paragraph [47]

[5][2002] VSCA 131

14Mr Terepo was obviously the lead instigator and attacker in the assault on Mr Rose. However, in forming part of the group that chased Mr Rose, you perpetrated a circumstance where he was confronted with a number of males physically assaulting him.  This simply rendered more likely the crime’s commission, to use the words of Redlich J.  In that circumstance, I consider that the gravity of the offending cannot be low.  Rather, I consider it to be moderate.  In support of that finding, I consider that this appears to have been a reasonably spontaneous act brought about by the minor verbal altercation which occurred between Mr Rose and the group.  What happened next occurred spontaneously over a very short period of time.  While no weapons were used, as a group Mr Rose was chased indicating real intent, then brought to the ground and even after he was vulnerable and defenceless he was kicked and stomped on.  While it can be seen you made little or no physical contact with Mr Rose, you nonetheless chased him and stood by while he was assaulted, in a manner that could be said to be providing support to your group.

15Then, as to the incident of affray.  I consider the gravity of the offending to be moderate.  In this incident, you, Mr Overhoff, took a much more active part than Mr Farquhar.  You were the first to follow and confront Mr Coleman.  True it is that, once again, Mr Terepo was the instigator of the violence.  However, you engaged in a rolling maul in a public place, setting upon Mr Coleman, dragging him to the ground, punching and kicking him.  The CCTV shows you dealing particularly forceful blows and kicks to the victim.  But for the intervention of good Samaritans, the consequences could have been dire.

Background personal history

16Mr Overhoff, you were born in Queensland in April 2003 as the youngest of seven siblings.  You were 19 at the time of the offending and will turn 21 this month.  You completed high school and worked as a labourer and in factory and warehouse work.  You are currently employed by Action Workforce as a picker/packer at Coles Warehouse.  You reside with your mother, father and siblings.  You have been on bail since your arrest.  Subsequent to the offending, you were charged with contravening a police banning notice excluding you from licensed premises on 10 July 2022, for which you were sentenced on 29 July 2022.  No conviction was recorded, you were fined $300 and were ordered to be of good behaviour for three months.  Your counsel states that you have abstained from drinking alcohol, taking recreational drugs and associating with negative influences since your arrest.

Plea in mitigation

17In comprehensive plea submissions made by your counsel, Mr Casey, there are a number of factors which were said to arise, which moderates your sentence.  These are, in order:

(a)   Your youth.  You are only 20 years of age now.  You have had no prior interactions with the law.  In short, this was said to be the dominant factor in your case, as your prospects for rehabilitation were very strong, particularly given your work;

(b)   Your early guilty plea.  There was some debate as to whether or not this was entered at the earliest possible opportunity, but I take note of the fact that you pleaded guilty at a very early stage.  This is also some evidence of your remorse.  You have also written a letter apologising to the Court and victims, as well as expressing guilt and remorse for your offending.  I note that you expressed similar sentiment in your psychological assessment with Mr Albassit.  I accept these are genuine expressions of remorse.  Your engagement during your Youth Justice assessment was limited, though it was suggested that this may be due to your youth and your shy and reserved nature.

(c)   You have largely complied with the conditions of your bail, save for the unrelated subsequent offending you have kept a good record.

(d)   Your prospects for rehabilitation:

(i)you have completed an anger management course over four sessions;

(ii)you have full time work as a picker/packer at Coles under the employ of Action Workforce;

(iii)you have strong family connections and community support.  I note that you have received a significant number of character references from Helen Overhoff, your mother, Rochelle Kasega, your aunt, Jennifer Mase, you cousin, Rota Aloalii, your church pastor, Dr Inez Fainga’a-Manu, a member of your church community, Leonie Rikiau, your aunt, Michael Tufele, your former supervisor;

(e)   Your psychological issues, detailed in the psychologist report by Mr Sam Albassit dated 10 March 2024. You reported to Mr Albassit your father being a violent and inconsistent presence in your life growing-up, and that this continues to affect you.  You stated you sometimes lit fires on school grounds and nearby parks, regularly got into fights and had behavioural issues at school.  You have a history of alcohol and drug abuse.  Mr Alabassit reported that you had symptomatology of Cyclothymic Disorder with Generalised Anxiety and Substance Disorder (in partial remission).  Mr Albassit opines that there is a correlation between your mental health issues and offending behaviour and that you were intoxicated at the time of your offending.[6]  This was said to have led to you feeling overwhelming anxiety and agitation. In the context of your offending Mr Albassit considered that you “lacked the ability to regulate your emotions”. In light of Mr Albassit’s report, your counsel submits certain principles of Verdins[7] ought be taken into account, being:- principle 1 as to lessening moral culpability and the lessened importance of denunciation, and principle 3 as to general deterrence.  As to this, I can accept that you acted on the night in question in a state affected by your Cyclothymic Disorder.  On the material before me, I cannot form a view about the severity of the condition. The background history taken by Mr Albassit certainly talks about difficulties at school - such as fighting and lighting fires –  which could be examples of the disorder at work. But against this is the fact that you have successfully negotiated entry into adult life and a job for some time with no effect of the Cyclothymic Disorder. That is save for this offending. Your condition then I consider is mild. In so finding I am prepared to accept that there is some slight lessening in your moral culpability as you were in a mentally unwell state. I moderate your sentence in this regard. I do consider there is a related effect on the use of the sentence in terms of denunciation and I similarly moderate the sentence in this regard. As to general deterrence I would simply reiterate that I have sensibly moderated the application of this principle by reason of your Cyclothymic condition.[8]

[6]Report of Mr Albassit at [29-32]

[7]R v Verdins (2007) 16 VR 269, 271 [8] (Verdins)

[8]R v Yaldiz (1998) 2 VR 376

Assessment

18The Crown submitted that a period of imprisonment with a non-parole period was appropriate.

19Your counsel contended that a period in youth detention, combined with a period on a community correction order, was appropriate.

20When I step back to assess your case, I am conscious that there is a real tension in the application of the sentencing principles.  As his Honour Batt JA noted in R v Mills,[9] youth and rehabilitation should be “a primary consideration”.

[9][1998] 4 VR 235

21The Court of Appeal noted, however, in SJK issues of punishment and general deterrence also have a role to play.  To this extent, what Batt JA said DPP v Lawrence,[10] another case involving causing serious injury recklessly involving gross violence, is relevant:

“… There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance. This is that, as this very case exemplifies, the persons who commit the offence and wreak appalling injuries, very often by kicking and stomping upon their prone or supine victims, are predominantly youths and young men acting under the influence of alcohol or drugs or both.”[11]

[10](2004) 10 VR 125

[11](Ibid) at 125

22I am also aware that principles of parity arise, though this can only have limited application given Mr Terepo will be sentenced in the adult justice system.[12]

[12]Hussein v The Queen [2010] VSCA 257 at [16]

23I accept the Verdins’ principles 1 and 3 apply.  I note that while Mr Albassit opines your psychological state significantly contributed to your offending.  This plays some role in moderating, albeit in a limited way, the weight I ought give to general deterrence and your moral culpability in your case.[13] In supplementary submissions the prosecution have submitted the reduction in your moral culpability should be appropriately moderated as you were aware of the probably consequences of becoming intoxicated. While Mr Albassit's report states your mood fluctuates after consuming alcohol and that you regret becoming intoxicated, I am not satisfied that as a young man with no history of psychological treatment that you were aware at the time that there may be a nexus between intoxication, your disorder and the risk of offending behaviour.

[13]Verdins 274-276, [32]

24However, in considering your prospects of rehabilitation, I consider your history of behavioural issues and particularly fighting.  I balance this against the insight and you have begun to display into the behaviour that led to your offending, evident in the report of Mr Albassit, as well as your abstinence from drugs and alcohol.

25As in most cases, all factors that are relevant must be synthesised then.  In this particular case, I still do consider that youth and rehabilitation are the most important factors.  This is not a case like Azzopardi v R,[14] because you are a first-time offender, with no relevant subsequent offending, with generally good compliance on very strict bail conditions for a considerable period of time.

[14](2011) 35 VR 43 at paragraphs [53]-[57]

26In those circumstances, particularly with employment available and a very supportive family, rehabilitation remains the primary protective factor for the community.  I do not accept that the application of the Verdins principles in your case requires that deterrence, specific and general, can simply be put aside.  A length of a sentence can operate as a way to demonstrate to an offender, but also to the broader community, that behaviour like this, visited on innocent members of the community, will not be tolerated. 

27For this reason, I sentence you to a period of 22 months in a youth justice centre[15] as an aggregate sentence in accordance with s32A of the Sentencing Act. Given your more extensive role in the affray than Mr Farquhar I consider an additional component of punishment is required. This is offset by your complicity in the Charge 1 offending. I have moderated your sentence on account of the application of Verdins principles as set out above.

[15]You were assessed suitable for detention within a Youth Justice Centre by Youth Justice in a report dated 28 March 2024

28I do so as it reflects your overall criminality in the two hour period when these offences occurred. This is not normal behaviour for you.

29I declare that, but for you early plea of guilty, I would have sentenced you to 31 months imprisonment in youth justice.  In that event I would have sentenced you to 26 months on Charge 1 and 5 months on charge 2 to be served cumulatively given the offending was separated by time, location and victim.

30I declare five days of pre-sentence detention.