Director of Public Prosecutions v Rivas

[2016] VCC 1072

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00773 & CR-16-00774

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALAN RIVAS
RICHARD RIVAS

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	12 July 2016
DATE OF SENTENCE:	25 July 2016
CASE MAY BE CITED AS:	DPP v Rivas
MEDIUM NEUTRAL CITATION:	[2016] VCC 1072

REASONS FOR SENTENCE
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Catchwords:  Criminal law – sentencing – intentionally cause injury – relatively youthful offenders – combination of jail and community correction order imposed

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Flynn (Plea) Ms V. Jones (Sentence)	John Cain Solicitor for Public Prosecutions
For Accused A. Rivas	Ms A. Kapitanik (Plea) Mr P. McClure (Sentence)	Balmer and Associates
For Accused R. Rivas	Mr J. Williams	Victoria Legal Aid

Pages 1 - 11

 

HER HONOUR:

1Richard Rivas and Alan Rivas, you have both pleaded guilty to one charge of intentionally causing contrary to s.18 of the Crimes Act 1958. The offence is serious and that is reflected in the maximum penalty that is prescribed by law and for that charge, intentionally causing injury, it is level 5, ten years' imprisonment. You also both admitted criminal records and I will refer to those later.

2The offending relates to an assault that took place at Flemington on
26 September 2015.  You are both brothers and you both reside at
129/120 Racecourse Road, Flemington with your mother and another brother and his son. 

3The victim, Saleban Ahmed, who is known to you, also resides at that housing commission estate in Racecourse Road, Flemington.  He is aged 30 and was 29 at the time of the offending. 

4You are both relatively youthful offenders.  Richard Rivas, you are aged 23 and at the time of this offending and you are now aged 24 and Alan Rivas, you are aged 22 at the time of the offending and you are now aged 23. 

5The context to the offending was that there had been a history of animosity between both of you and the victim prior to this incident.  It had been alleged that in the past, the victim had urinated on the doorstep of your mother's flat about six months earlier and that he had been verbally abusive towards you both and that he was acting strangely on the date of the incident. 

6Whilst I accept the offending occurred in the context of ongoing antagonism between both of you and the victim and that, in part, explains your offending behaviour, it in no way excuses such behaviour.  Your response to any supposed provocation on the day was out of all proportion to any perceived threat.

7The immediate context to the offending was that on the afternoon of Saturday 26 September 2015 at about 3.54 pm, the victim purchased six bottles of beer and some groceries and was walking along Racecourse Road to his home.  He saw Alan Rivas seated in the driver's seat of his vehicle at the intersection of Wellington Street and Racecourse Road.  He approached Alan Rivas and said that he wanted to fight with his brother Richard one on one.  He then continued walking along Racecourse Road towards his flat.

8Once the victim left, Alan Rivas, you then rang your brother, Richard, informing him of what had been said by the victim.  Alan, you then with another unknown female, drove your vehicle back to the flats and parked in the car park at the front of 120 Racecourse Road.  Richard Rivas, you then left your flat and exited, walking to the front car park. There you spoke with your brother Alan and then retrieved a wooden baseball bat from inside his vehicle.  You concealed that bat within your clothing.

9Both of you walked to the footpath near the car park and remained there for a period of time. 

10CCTV footage shown to the court revealed at about 4.04 pm, the victim arrived at the flats and walked towards the internal access road.  Both of you are then seen approaching and confronting the victim. 

11Richard, you used the baseball bat and smashed the beer bottles that the victim had with him.  The victim then picked up a broken beer bottle and lunged towards you, Richard, and that caused a small laceration to the left side of your neck.  The victim then attempted to run away from both of you.  Alan Rivas, you followed him and tripped him, causing him to fall onto the internal access road where he lay on the bitumen.  You then used your right foot to kick the victim forcefully several times to the upper body and head.

12Richard Rivas, you then ran towards the victim who was lying on the ground and being kicked and you struck him to the head and upper body a number of times with the baseball bat, holding the bat with both hands and swinging it forcefully.  During this attack, the victim lost consciousness and lay motionless on the bitumen. 

13Richard, you are seen striking the victim hid body with the baseball bat whilst Alan, you stood over the victim and stomped on his head twice using your right leg.  You are both seen walking away from the unconscious victim.  

14Richard Rivas, you took the baseball bat to your vehicle, located in a different car park on the estate.  Alan Rivas, you then got into your vehicle and drove it towards the estates internal access road.  Richard, you then drove your vehicle past Alan's vehicle and out onto Racecourse Road with Alan then following in his vehicle.  You both left the scene and drove away. 

15The CCTV footage then shows the victim lying unconscious on the road for a few minutes.  Eventually, bystanders attended him.  Vehicles that were entering and exiting the estate are seen driving around his prostrate body.  At about
4.08 pm, the victim regained consciousness and walked back to his flat where he fell asleep.  He had no memory of the incident from the time he was forced to the ground and hit and kicked until he woke up later in his bed. 

16Meanwhile, a resident of the flats had called 000.  Police attended the scene and noted large amounts of blood on the roadway and photographed the scene.  Police were unaware of who the victim was and left the scene.

17At about approximately 5 pm, family members of the victim woke him up when they arrived back home.  They then conveyed him to Flemington police station, where police photographed his injuries and those photographs were exhibited during the plea hearing.

18The photographs depict the victim's injuries.  He had a severely swollen left cheek and eye and lacerations to his right hand and both arms.  He was reported as being in extreme pain, having a bad headache, swollen and sore arms and hands and lot of pain in his left leg.  He was conveyed to the
Royal Melbourne Hospital for treatment where he remained overnight. The hospital records state that during the alleged result, Mr Ahmed reported falling over and hitting the back of his head on the ground.  He was hit in the face, head, forearms and legs with a baseball bat.  He lost consciousness for some time and had limited recall of the events.  He told medical staff he had consumed seven beers prior to the assault. 

19Following medical examination, it was confirmed he had a broken left eye socket as well as bruising, swelling and lacerations to his head and face, tender forearms with multiple abrasions, a ragged edge to the wound on the palm of the right hand and a tender and swollen left knee. His injuries were photographed in the hospital and those photographs were also tendered at the plea hearing and have been viewed by me. 

20You were both arrested on Wednesday 30 September at your unit in Racecourse Road following the execution of a search warrant.  Police located the baseball bat at the premises and then both of you were conveyed to Flemington police station.  During the formal interview, Richard Rivas, you made admissions and said that you had not planned the assault and that you had just happened to exit the lift as your brother was in the car park at the front.

21You observed the victim approach, holding a bottle, so you grabbed a baseball bat from your brother's car.  You said the bat was there because your brother's girlfriend plays softball.  You said that you acted in self-defence as the victim had attacked you with a bottle and cut the skin of your neck.  You said that you had issues with the victim in the past and when you did attack him, that you wanted to hurt him. 

22I am unconvinced that that was the sequence of events, having regard to what is seen on the CCTV footage and also the opening that was read to the court. 

23Alan Rivas, during your interview, you made admissions and stated that the victim approached you and said he wanted to go one on one with your brother.  You called him and told him.  Richard told you to leave him, you said that you walked off and then saw your brother when the victim came up and they were exchanging words.  You stated the victim had a bottle and was saying stupid things and Richard went and smashed the bottles. 

24You said the victim went to get your brother on the neck and Richard grabbed the guy.  You said that you chased him and tripped his leg and started kicking him in the head.  You said that the baseball bat came out of your car and you had it there because of the victim as it had been going on for ages.  You admitted kicking him and stomping him on his head but did not know if he was unconscious or not.  You admitted that you wanted to hurt the victim and that you were not going to sit there when your brother was smaller and the victim wanted to stab your brother.  You said that the victim had been swearing, was angry and was going crazy. 

25Having regard to the objective features of your offending, I consider that this is a serious example of this serious offence.  This was a savage and unnecessary attack out of all proportion of any perceived provocation on the part of the victim. 

26There are a number of aggravating features, namely that it was a sustained joint attack in a public place when members of the community were present.  The attack involved the use of a baseball bat to strike the victim around his head and the attack continued whilst he was lying on the ground, defenceless.  The nature of the assault, that is, striking to the head with the bat and kicking was dangerous.  The fact that you both abandoned the victim when he had lost consciousness and that he was left in an exposed and vulnerable position on the roadway is also an aggravating feature.

27Further, his injuries have had lasting and psychological effect as is evidenced in the victim impact statement that was read to the court.  In that statement, the victim confirms, following the assault, he had to remain in hospital for observation, he received stitches on his right hand and he now has a scar there.  He also suffered depression and loss of self-esteem as a consequence of this traumatic incident.  He is afraid to live in his residence and he is receiving counselling to assist him cope with his feeling of being traumatised and humiliated as a result of the assault.

28I am satisfied that this was a joint decision by you both to arm yourselves with the baseball bat and then to run after the victim with the intention of attacking him.  Your behaviour was excessive and out of all proportion.  I consider that your moral culpability is high.  It is only by good fortune that the victim did not sustain more serious injuries and I consider this offending to be towards the upper end of the spectrum of seriousness for this sort of offence. 

29In sentencing you both, there is a real need to emphasise general and specific deterrence, denunciation and to provide for the protection of the community. 

30Mr Williams, on behalf of you, Richard Rivas, and Ms Kapitanik, on behalf of you, Alan Rivas, conceded that this is a serious example of the charge of intentionally causing injury, given the nature of the offending, that had occurred in company and they also accepted that there were a number of aggravating features.  They both submitted that a community correction order is the appropriate disposition in all the circumstances, having regard to your respective antecedents and the circumstances surrounding the offending. 

31Ms Flynn, on behalf of the Crown submitted that having regard to the objective features and gravity of offending, a sentence of imprisonment to be served was appropriate punishment but conceded that a combined gaol term with a community correction order to follow was within range. 

32In formulating the most appropriate sentence, I have had regard to your background and history.  You both reside with your mother and brother at the Flemington Housing Commission Estate where you have lived for the past 19 years.  Your family came to Australia from war torn El Salvador in 1992 and have settled here in Victoria. 

33Your parents are separated, however, your father lives nearby and maintains a good relationship with your mother.  Your mother has a chronic hand injury attributed to her work as a cleaner and Alan, you have been her carer and have assisted her with various activities of daily living for some years.  I note in respect to you, Alan, that there was no submission that the hardship principles applied, that is, in the legal sentence. 

34You both have limited formal education.  Alan, you are educated to the start of year 9 at Debney Park High School and Richard, you are educated to year 10 at the same school.  Both of you have had very limited work experience. 

35Alan, you relocated to Adelaide after leaving school and worked at a vineyard for about 18 months.  You then returned to Melbourne to care for you mother.  You commenced pre-apprenticeship in carpentry but discontinued those studies to care for your mother. 

36Richard, you have only had sporadic employment at Hungry Jacks for about eight months and you have also worked at a call centre and had brief employment with the Kangan Institute canteen and some casual work at a warehouse, recently.

37Both of you have long-term issues related to the use of cannabis.  It was submitted that over the time since these charges have been laid, you have both reduced your use dramatically.  I note that there was no submission made that either of you were intoxicated at the time of this offending. 

38Richard, you are very engaged in the sport of Jiu Jitsu and have risen to the rank of blue belt.  You train regularly and have been teaching and coaching a beginners group for the past three months.  Your goal is to continue to train and to obtain suitable employment.  You have an interest in carpentry and you are trying to secure more stable work in the warehouse industry and you are keen to live independently. 

39Richard, you have a prior criminal history that spans the period from
1 June 2010 to 5 August 2015. Of concern is that there is an attendance at the Melbourne Children's Court on 1 June 2010 for a robbery charge for which you are placed on an adjourned undertaking to give good behaviour for 10 months.  You also have two appearances in respect to possession of prohibited weapons without exemption or approval for which you have been fined. Otherwise, you have been charged with driving offences and offences related to the possession of cannabis.  I noted that you had never been subject to the supervised re-order. 

40Alan Rivas, you are in a long-term relationship with Natalie and you have been together with her for three years.  She remains supportive of you and was present at the plea hearing.  You have aspirations to work as a labourer in the future.  You too, have a criminal history and there are three appearances in the Children's Court and three appearances in the Magistrates' Court.  Those appearances span the period from 11 June 2009 until 18 June 2015.

41In 2013, you were dealt with in respect to possess cannabis and placed on an adjourned undertaking with the condition that you access drug and alcohol counselling and you completed that adjourned undertaking successfully.  It is of some concern that you have two appearances in the Melbourne Children's Court in 2011 for robbery and a recklessly cause injury charge.  The penalty for those charges were that you were placed on adjourned undertakings to be of good behaviour and it appears that you were successful in adhering to those undertakings. 

42In sentencing you both, I have taken into consideration the matters raised in mitigation.  In particular, I have had regard to the pleas of guilty entered at the earliest stage at committal mention.  By your pleas, you have spared the victim the further trauma and the inconvenience of having to come to court to give evidence on your trial.  I accept there is real utility in both pleas.  I accept you have both facilitated justice and your sentences will be discounted accordingly.

43I accept that you are both still relatively youthful and have applied the relevant principles relating to youthful offenders, known as the R v Mills [1998] 4 VR 235 (‘Mills’) principles and the principles set out in Azzopardi v The Queen (2011) 35 VR 43 (‘Azzopardi’).

44Your ultimate rehabilitation is a factor that weighs heavily in the sentencing matrix.

45I accept that both of you were fully cooperative with the police at the time you were arrested and made admissions.  By your pleas of guilty, you now acknowledge that your behaviour was wrong. 

46In addition, I noted, Alan, that you admitted that your offending was stupid and I accept that you now show some real insight and remorse.  Having regard to your current circumstances, your supportive family and friends and your expressed commitment to obtaining regular employment and training and your expressed opinion that what you did was wrong does mean that there is some optimism concerning your future rehabilitation prospects and I accept you have good rehabilitation prospects.

47Richard, I accept that your plea of guilty does indicate a willingness to admit that what you did was wrong and is also indicative of some remorse and I have assessed your rehabilitation prospects as being reasonable. 

48You have both been assessed as to your suitability for a community correction order and have been found to be suitable.  In sentencing you, I have had regard to the guideline judgment in Boulton v The Queen [2014] VSCA 342 concerning the imposition of community correction order and the impact it has had in terms of the changing the nature of the sentencing landscape in this state. I do not consider that a CCO alone is sufficient to achieve the sentencing aims of just punishment, general deterrence and denunciation.

49Having considered all the mitigating factors and undertaking the balancing exercise that I must, I accept that the offending calls for an immediate term of imprisonment in the light of its gravity. Given that I consider you are equal participants in the execution of this crime, the same sentence will be imposed on you both. I have given consideration to s.5(4C) of the Sentencing Act 1991 and consider that the most appropriate sentence is one that combines the term of actual imprisonment in combination with a community correction order.

50In sentencing you, it is important that I impose just punishment and on behalf of the community, formerly denounce your behaviour.  You can now both stand please.

51In relation to the one charge of intentionally cause injury, the formal court order is that you are both convicted and sentenced to 12 months' imprisonment to commence from today's date, to follow a community correction of two years with special conditions, namely 150 hours' community work, treatment and rehabilitation programs to reduce reoffending and supervision. 

52The orders provide that any programs that are undertaken can be taken into account in respect to the assessment of your community work. 

53I note that you have both been assessed as suitable for a community correction order and you both have consented to such an order being made and you both have indicated that you understand the nature of the proposed order and its consequences and the consequences of contravention of such an order.

54I make the following s.6AAA declaration, but of your plea of guilty, I would have imposed a period of three years imprisonment with a non-parole period of two years. 

55I make the ancillary orders sought.

56I make an order pursuant to s.464ZF with respect to each offender for the taking of a forensic sample and what that will mean is that a taking of a scraping from your mouth will be done and provided you cooperate, that should be the end of the matter, but in the event that you don not cooperate, police may use reasonable force to enable that procedure to be conducted. 

57I have made that order having regard to the seriousness of the circumstances of the offending, your prior convictions and the fact that the order is by consent and the granting of the order is in the public interest. 

58I make the disposal order sought.  Yes, all right, so I will sign those community correction orders.  You can take a seat while we print off the orders and then my associate will come down with your counsel to get you to sign them. 

59Mr McClure, with your client, with his arm, is there any particular information that we need to convey to corrections?

60MR MCCLURE:  Not really. 

61HER HONOUR:  Not really.

62MR MCCLURE:  He did say he had a letter from his doctor (indistinct) hospital.

63HER HONOUR:  All right.

64MR MCCLURE:  How much information is that (indistinct) sorry, Your Honour.

65OFFENDER:  It just says where it is broken.

66MR MCCLURE:  Okay, so that might suffice, at least he can have a check.

67HER HONOUR:  All right.  Perhaps I will just make a note in terms of custody issues, that he has fractured his right arm and it is currently in a brace and he is currently having treatment and the details of that is provided in a letter that the prisoner holds

68MR MCCLURE:  Thank you.

69Her Honour:  All right, so we can adjourn, thank you.

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