Director of Public Prosecutions v Rawiri

[2023] VCC 735

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-02411

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZION RAWIRI

---

JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2023
DATE OF SENTENCE:	3 May 2023
CASE MAY BE CITED AS:	DPP v Rawiri
MEDIUM NEUTRAL CITATION:	[2023] VCC 735

REASONS FOR SENTENCE

---

Subject:   Criminal Law Sentence

Catchwords:             Theft – Unlawful assault - Intentionally causing injury –   Plea of guilty – Application of Bugmy principles

Legislation Cited: Sentencing Act 1991 (Vic),

Cases Cited: Bugmy v The Queen 249 CLR 571; Winch v The Queen [2010] VSCA 151.

Sentence: 10 Months Imprisonment in combination with an 18 month community corrections order and $50 fine.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. White	Office of Public Prosecutions
For the Accused	Ms K. Ljubicic	James Dowsley & Associates

HIS HONOUR:

1Zion Rawiri, you have pleaded guilty before me to a charge of theft and a charge of causing injury intentionally and relevant summary offences of unlawful assault and committing an indictable offence whilst on bail.  The maximum penalty for theft is 10 years' imprisonment, it's also 10 years' imprisonment for causing injury intentionally, unlawful assault three months' imprisonment and the same for committing an indictable offence whilst on bail.

Circumstances of Offending

2The facts of the matter is set out clearly and succinctly in the summary of prosecution opening for plea which was Exhibit A on the plea and forms part of these reasons for sentence.  You have no relevant criminal record.  You do have subsequent matters and they were discussed on the plea.

3The incident the subject of the charges, in brief terms, and I do not intend to recite the circumstance of the offending in the same detail as it is disclosed in Exhibit A - you were out socialising, you were in High Street in Preston.  You had a glass of beer that you had purchased at the Junction Hotel which is situated at Plenty Road in Preston.  You took that glass of beer on your journey, which took you to Red Rooster in High Street, Preston, taking the glass of beer, that is the schooner the subject of the charge of theft. 

4You pulled into the Red Rooster drive through and you perceived some interaction between yourself and the victims who you could see through the window of the diner.  They were not known to you.  It was your perception that they were making faces at you.  You entered the diner and approached them and said, 'What's up?'  Your victim, Mr Mehri, could see that you had been drinking, he tried to calm you down so as to avoid any trouble, and said, 'Chill bro, sit down and eat.'

5You said, 'What you want to be a smart cunt?'  And then immediately you struck him with the glass schooner to the right side of his face in the vicinity of his eye, using significant force and causing glass to shatter.  The CCTV footage of this serious assault and was played during court proceedings and I viewed it.  It depicts an extremely disturbing and completely unprovoked violent attack with the use of schooner is reprehensible, it is an extremely dangerous weapon to use. 

6Mr Mehri felt like he'd been hit with a brick.  There was a lot of blood obviously.  A lot of bleeding which caused great concern not only to Mr Mehri but his brother and others around him.  Sorry, not his brother, Mr Ali.  Mr Mehri was dining with Mr Ali.  After you had struck Mr Mehri, you approached Mr Ali and ended up assaulting him.  And that is the subject of the relevant summary offence, unlawful assault.

7It was of course an extremely frightening and distressing incident for Mr Mehri and those who observed it.  He was losing blood, he felt dizzy, he was in considerable pain, of course he would have had great concern as he did for his eye.  An ambulance arrived and he was admitted to The Royal Melbourne Hospital in Parkville.  Medical evidence reflects amongst other things that he had lacerations to the face, multiple facial wounds, superficial incised, abraded and incised and on that day of the incident he had a surgical operation to explore the wounds that were sutured closed.  No retained glass was observed during that operation. 

8The purpose of the operation was because it was the opinion that there may have been glass fragments in and around the eye.  That operation did not reveal any.  Mr Mehri had a periorbital haematoma on the right side, a black eye, and with evidence of foreign bodies, being glass fragments around the eye as seen on the CT scan.  The eye itself was not injured.  Of course, as I have already referred to, exploration of that area did not reveal any glass fragments. 

9Mr Mehri also had an open wound to his left index finger, which was repaired during the operation.

10About a month later on 18 August, Mr Mehri was examined by the optometrist Cath Reaper, at that time Mr Mehri reported a reduction in vision in his right eye and said that his eye was in serious discomfort and he was seeing flashing lights.

Investigation

11You were arrested on 13 July last year.  You have been in custody since that time.  When interviewed you stated that on the night of the offending, your brother was driving the white Mercedes because you had had a couple of drinks.  You saw the victims from where you were seated in the car, and your brother was waiting for food.  You told police the victim started making faces and that Mr Mehri was flicking his tongue. 

12You entered the diner and approached him and your intention at that time was to hurt him.  When you approached him you said, 'What do you wanna be a smart cunt?' and then smacked him across the face with a glass bottle[sic].  You expected there to be blood and damage when you hit him.  You manhandled Mr Ali, you said, but did not throw a punch or anything.  Then you told police your brother intervened and he escalated the situation.

13You told police you knew the offending was wrong. You said, when I'm like that I just switch.  You said, you're not the type to control your emotions and you said that when you are pissed you do stupid shit.  You said that you expected that there would be blood and damage when you hit Mr Mehri.  You have been in custody since the time of that interview.  And that's now some 292 days.

Victim Impact Statement

14A victim impact statement was filed. 

15The impacts of your offending on Mr Mehri have been significant and lasting.  Aside from those physical injuries and the psychological sequalae associated with them, he is experiencing high anxiety and stress in relation to being out in the community and engaging socially.  Given the circumstances of this assault in particular and its randomness, the fact that he was simply enjoying a light low-level meal, completely minding his own business, when you intervened and left havoc on his life in this way, those circumstances understandably have impacted on him significantly and caused him great psychological distress.

16It is the high-level violence, the use of the glass and as Mr White for the prosecution observed in his written submissions, the striking nature of the lack of provocation in this case, that add to the gravity of it.  In the prosecution submissions Mr White states,

'Whilst acts of glassing are often unprovoked it is submitted that the complete lack of provocation in this case is particularly striking.

17I agree with that summation. The prosecution rightly submit that general deterrence and denunciation are significant sentencing considerations for such violent, unprovoked and alcohol-fuelled acts, and the heinous act of glassing in a public place, leaving the victim with significant injuries.  I accept the general principle that is referred to from the case of Winch where it is stated,

'The courts must send a message loud and clear on behalf of the community and to the community, that such mindless violence and aggression will not be tolerated.  Males, in particular, young males must realise that consuming copious quantities of liquor does not excuse physical violence.  Those who engage in violence such as glassing and indeed in the use of any other weapon must realise that it has very real potential to lead to the imposition of significant terms of imprisonment.'

Objective Gravity of Offending

18I also accept the prosecution's submissions as to the gravity of the offending including the nature of glassing incidents, if I can use the vernacular in that sense, again referring to Winch, the consequences of glassing are almost invariably very serious.  Striking to the face or head with a bottle or glass carries a high and obvious risk of serious injury.  The victim of a glassing almost always suffers severe lacerations, often has permanent facial scarring and suffers physical and psychological damage which is typically long term and often permanent.[1]  Those observations are apt in your case Mr Rawiri.

[1]Winch v The Queen [2010] VSCA 151.

Prospects of Rehabilitation

19The prosecution do concede that you are otherwise of good character and have good rehabilitation prospects.  I also accept that you are a relatively young man with a strong work ethic and positive familial ties.  And those matters were borne out on the plea in the written submissions and materials in support from Ms Ljubicic but also the support you had in the courtroom during the plea.

20I accept that the level of violence and danger involved in and presented by you during this offence, is completely out of character for you.  If it were otherwise you would be looking at a very significant gaol term.  As I have alluded to, your counsel, Ms Ljubicic, provided a very helpful written and also oral submission in relation to this matter.  Submissions were made on the nature of the injury itself. Of course the observation referred to at paragraph 13 of Ms Ljubicic's submission which is Exhibit 1 on the plea in relation to this Triple 0 call and the statement of the massive cut to the face, that was no longer pursued by the prosecution. 

21I will say this, that the photographs provided by the prosecution as Exhibit D which I had a look at the time and again prior to sentence of course, in combination with the medical materials which includes the notice of additional evidence, and the matters referred to in the summary provide ample scope for me to assess this injury and the serious aspects of it.

22Ms Ljubicic took issue with the extent to which I can rely upon the observation from Dr Williams or the opinion that visible scarring would likely occur.  I accept that opinion, it is limited of course, because it is an opinion as to a future event, but I accept that opinion as to likelihood insofar as it adds to the nature of the injury before me.  Amongst those maters I have referred to, the photographs and the other facts of the injury it adds little.

23In relation to what was reported to optometrist, Ms Rieper, in relation to serious discomfort and experiencing some flashing lights, I accept that report.

24Ms Ljubicic also referred to the maximum of course, I am guided by the maximum, the maximum penalty for intentionally causing injury which is far and away the most significant offence before me is 10 years' imprisonment.  Your counsel accepted the serious aspects of the offending to which I have referred and provided me with a detailed outline of your personal history.  I will not go through your personal history in detail.

Personal Circumstances

25You were born in Townsville.  Your parents separated when you were around two years of age, and you then went to live with your father, who passed away by his own hand when you were only aged six.  That is of course a significant traumatic incident, but it is also in its context of the disruption you had already experienced in your young life at that stage, and then continued to experience as your mother did her best to make a life for you and your siblings, then to move around often.  It has been described as a transient lifestyle. 

26You have strong bonds with your mother and all your siblings.  There had been times through your childhood however when you were exposed to violence, family violence and also violence towards yourself in the family context.

27When you were nine the Department of Human Services become involved with the family and you were placed in the care of your maternal great aunt
Ms Clara Murray.  One of the documents relied upon which I have read, is a document from The Royal Children's Hospital, dated 22 June 2007, where your mother and Aunt Clara are referred to and involved in that assessment.  And I found that assessment of some use in understanding your early childhood life, about your development, and shedding light on the matters referred to in the report of Mr Campbell.

28You returned to your mother's care in 2008, when you were aged about 11 or 12. There was some instability there, transience, homelessness, until settling in stable housing in Preston when you were about 13 or 14.  You had attended Preston Pride College.  School was difficult for you and you left school during the commencement of Year 10.  But you quickly commenced working at Preston Seafood Market and your long and sustained employment in that capacity is to your great credit, given the disruption, trauma and exposure to negative influences in your early years.

29You formed a strong relationship with your employers over that time and letters of support were provided by Mr Joshua Valls and Mr Mason Valls in relation to that employment and what they have referred to your great credit.  I was told you had been living independently in Lower Templestowe since about 16 or 17 years of age.

30It is also to your credit that whilst working on a full-time basis at the fish market you have completed a Certificate III in Civil Construction and obtained Railway Industry Worker's card and Ms Ljubicic expanded on that during the plea, telling me of your goal or intention to work in railway construction.

Other Factors in Mitigation

31In terms of matters in mitigation, Ms Ljubicic was able to rely on your absence of prior criminal history and your youth.  And I accept those matters.  I think in the context of the disadvantaged childhood I have referred to your work history and lack of criminal history are strong pro-social factors in your life and support my finding that you have good prospects of rehabilitation.

32Ms Ljubicic also relied on the Bugmy principle advancing that your early childhood was characterised by transient, poverty, exposure to alcoholism, exposure to drug abuse and exposure to family violence.[2]  I accept that summation and the summation of Austin Campbell, I think I have referred to him as Mr Austin before, it is Mr Campbell, the psychological report which was Exhibit 4, I think on the plea, it might be Exhibit 2, I cannot read my own handwriting.

[2]Bugmy v The Queen 249 CLR 571

33I accept those characterisations of your early life and it engages the Bugmy principle.  These are matters of degree, I made some observations during the plea that there is a degree of profundity I suppose in relation to the circumstances in which that applies.  It suffices to say in this case, I find that it is engaged and it is engaged with mitigatory effect in your case.  Particularly in your case, as I have read in the materials including the report of Mr Campbell, but also in relation to the CISP assessment that was provided for me as well as part of the bundle of materials.  You commenced alcohol use yourself at a very young age.  And that matter is relevant to my assessment, and of your moral culpability also.

34I accept you are remorseful and in particular it was the letter of support from Isabelle, your partner, Isabelle Stefanoski, who was present during court, and I accept what is stated in her reference, including that your offending was out of character and you have shown significant remorse and understanding in relation to the impact of your offending upon your victim.

35You are also entitled to a sentencing discount to reflect the utilitarian benefit of the plea, particularly in these times where the courts are still emerging form the effects of the pandemic and the state of the criminal trial list.  You have been in custody for the first time and for some length of time now and that experience of custody has also been subject to the limitations and impacts of the COVID pandemic in the settings that are still in place in the custodial setting.  I take that into account.

36Submissions were also made in relation to the application of Verdins in the sense of hardship and custody due to the findings of Mr Campbell.  And whilst I accept Mr Campbell's finding and also the general overview provided in the CISP report in relation to the psychological make up, in my view that principle, does not cross the threshold for specific standalone application in this case, but it is something that I take into account that as a first time offender, for a person of your circumstances and makeup, the experience in custody would not have been an easy one and I accept the proposition that it has been a salutary lesson and it had a significant specific deterrent effect upon you.  Your early plea of guilty I take into account.  Your strong prospects of rehabilitation, in particular as underpinned by your strong work history.

37The offending is troubling, it is very disturbing and I made those observations during the plea as clearly something underlying your psychological functioning, that emerged whilst disinhibited due to the alcohol consumption.  That would be even more concerning and troubling if you had a history that reflected that sort of behaviour - violent behaviour whilst inebriated.

38Notwithstanding, that you are a first-time offender, it is nonetheless entirely appropriate that violence - random violence of this order be met with a gaol term to give effect to the serious nature of the offending and principles of general deterrence and denunciation.  I was urged by Ms Ljubicic to impose a combination sentence and that is what I intend to do - to impose a combination sentence.  In my view a period of 10 months which I propose to impose as a period to be served in combination with a Community Corrections Order. A period of 10 months is sufficient to serve those factors of general deterrence, denunciation, community protection and specific deterrence.  In particular, as part of a combination sentence and it is not just for 10 months it is in combination with an 18 month Community Corrections Order that I will come to in a moment.

39I had you assessed for a Community Corrections Order and you were assessed as favourable which was not surprising, given your background.  The recommended conditions are, alcohol treatment and rehabilitation, mental health treatment and rehabilitation, and specific programs to reduce reoffending and supervision.  Programs to reduce reoffending what I have in mind are anger management and something akin to behavioural change necessary in your case for a community to have some confidence that whatever underlying factors drove violence on this occasion, that they are being addressed pursuant to a Community Corrections Order. You were also assessed by the Mental Health Advisory Response Service and that assessment gave support to the view that you could complete a Community Corrections Order and also that whilst not of significant concern, mental health assessment and treatment will be appropriate in your case.

Sentence

40Mr Rawiri, I will now sentence you as follows.

41In relation to Charge 1, on the indictment, that is the charge of theft, you are fined $50 without conviction.

42In relation to Charge 2, being the charge of intentionally causing injury, you are sentenced to ten months' imprisonment in combination with an 18 month Community Corrections Order.

43The special conditions of that Community Corrections Order will be alcohol treatment and rehabilitation, mental health treatment and rehabilitation and programs to reduce reoffending and supervision.

44If it is not clear already, that Community Corrections Order is of course is imposed with conviction given that it is in combination with a gaol term.

45The relevant summary offence of unlawful assault, you are sentenced to
14 days' imprisonment and that is to be served concurrently with the sentence imposed on Charge 2.

46And the summary offence of commit offence whilst on bail, seven days' imprisonment which is also to be served concurrently with the offence imposed on Charge 2.

47Pursuant to sae of the Sentencing Act, were it not for your pleas of guilty I would have sentenced you to a total effective sentence of two years' imprisonment, with a non-parole period of 15 months.

48I declare pursuant to s18 of the Sentencing Act, that you have served 294 days I take it, it is?  Two hundred and ninety-four days of pre-sentence detention, in relation to this matter Mr Rawiri.  Now Mr Rawiri, do you consent to the Community Corrections Order I've placed you on?

49OFFENDER:  (No audible response.)

50HIS HONOUR:  You do, all right, well I accept that verbal consent.  The papers will be prepared and I'll sign those in due course and they'll be sent to you for your signature.  The effect of my sentence is if you're not due to be released now, it would be quite soon.  I say that because I have no control of emergency management days, but I've sentenced you to 10 months' imprisonment to be followed by a Community Corrections Order, so you have to, once released attend at the Corrections Office and commence that Community Corrections Order.  If you breach the order, if you don't comply with the order and you breach it by reoffending, you'll be back before me and you can be resentenced.

51OFFENDER:  Yes.

52HIS HONOUR:  And you should be aware that if that happens and you're back before me for resentence, given the matters I've alluded to, and it's probably a close run thing, whether it was a head sentence and
non-parole period on this occasion, I've given you the opportunity.  If I have to resentence you, well other options are open of course.  So, I wish you well, I think you've got great family support, it was good to see everyone here in court.  You're someone who works well and can work and is obviously well-liked by workmates and employers so, put it behind you and move on with life and take advantage of the supports that are available on the Community Corrections Order. 

53Even if you think it's getting a bit annoying at times, or that you'[re better off working, it's a court order, it's an order imposed by me, I'll be made aware of any breaches.  The conditions are there to try and rehabilitate you and assist you, in particular in relation to any underlying issues and - - -

54OFFENDER:  (Indistinct words).

55HIS HONOUR:  - - - drivers of this offending, so take advantage of it, embrace it and engage in the appropriate way.  All right, now are there any, Mr White, any matters I've overlooked?

56MR WHITE:  Nothing further, thank you, Your Honour.

57HIS HONOUR:  Ms Ljubicic.

58MS LJUBICIC:  No, Your Honour.

59HIS HONOUR:  Thank you very much, all right.  We'll now adjourn the court.

- - -