Director of Public Prosecutions v Ruffatt
[2013] VCC 1374
•30 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-00787
CR-12-00788
CR-12-00789
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDRES FABIAN RUFFATT |
| SAMSON BAZI |
| MOSES FOLAU |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 30 August 2013 | |
CASE MAY BE CITED AS: | DPP v Ruffatt & Ors | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1374 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. A. Coombes (Plea) Ms R. Marques (Sentence) | OPP |
| For Ruffatt | Mr I. G. Crisp | Malkoun & Co. Lawyers |
| For Bazi | Mr P. A. Dunn QC | Malkoun & Co. Lawyers |
| For Folau | Mr P. Marin | Stephen Andrianakis & Associates |
HIS HONOUR:
1 Andres Ruffatt, Samson Bazi and Moses Folau, you have each pleaded guilty to causing injury intentionally to Rongomai Wairu. The maximum penalty for this offence is ten years' imprisonment.
2 Tendered as Exhibit A on the plea and read aloud in court was the Summary of Prosecution Opening. Additionally tendered as Exhibit C was a DVD of CCTV footage of the assault on the complainant. The opening was accepted as being accurate and whilst it is vivid enough in its own right, it is but a pale account when compared to the CCTV. The attack on the complainant was as ferocious as it was cowardly.
3 The attack occurred at about 3.16am on 16 April 2011 outside the male toilets of Dream’s gentlemen’s club which is situated on the corner of Flinders and Elizabeth Streets, Melbourne. Each of you were inside the male toilets and the entrance to the toilets was guarded by a person who was described as the “unknown male”. The complainant wanted to use the toilet but was refused entry by the unknown male. Your co-offender, Hafez Mohamed, who was loitering in the hallway outside the toilets, joined the conversation between the complainant and the unknown male and indicated to the complainant that he should use the women’s toilets. During this discussion, you, Folau, opened the door to the toilets and spoke to the complainant. The two of you can be seen on the CCTV talking into one another’s ears.
4 Without warning, you, Folau, punched the complainant twice to the head with your right fist. The complainant fell away from the doorway and the unknown male and you assaulted the complainant further. You were joined by Mohamed and the complainant was dragged by the three of you a short distance in the hallway away from the male toilets. You, Folau, punched the complainant a number of times whilst he was being held down by the unknown male. Mohamed is shown on the CCTV footage kicking the complainant twice and punching him whilst he was held by both you, Folau, and the unknown male.
5 At about this time, you, Bazi and Ruffatt, emerged from the men’s toilets and immediately joined in on the assault. You, Bazi, can be seen on the CCTV to strike downward blows onto the back of the complainant. The complainant was then dragged down the hallway towards the women’s toilets where the assault upon him continued. You, Bazi, threw a number of punches to the back of the complainant’s head and you, Folau, punched him to his face, whilst you, Bazi, held the complainant in a choke hold whilst you, Ruffatt struggled with the complainant.
6 The struggle moved back towards the area outside the men’s toilets and the complainant was forced to the ground and was held by you, Bazi. The unknown male took this opportunity to kick and punch the complainant whilst he was on the ground. At this time, you, Ruffatt, can be seen on the CCTV punching the complainant six times to the head and when that target area was no longer available to you, you directed your attention to the complainant’s left kidney area where you delivered five vicious punches. Whilst this occurred, the unknown male continued to assault the complainant. You, Folau, were present at all times and stood watching.
7 Security guards arrived and dragged the complainant away and as they did so, you, Bazi, can be seen to rain blows down upon the complainant’s back.
8 As a result of the assault, the complainant suffered two black eyes, a broken nose, fractured eye sockets, a fracture to the left cheek, a small laceration under the left eye, swelling and bruising to his head, bruising and soreness to his body and pain in his kidneys. He has since been treated with antidepressants for Post Traumatic Stress Disorder (“PTSD”) relating to the assault. Tendered as Exhibit B on the plea were a number of photographs of the complainant.
9 Each of you were interviewed under caution in June 2011. You, Ruffatt and Bazi, answered “no comment” to the questions put to you, whilst you, Folau, claimed that you acted in self-defence. You were charged on completion of your interviews. A contested committal took place on 16 and 17 May 2012. The only issue aired in those proceedings was identification. In August 2012, the Crown sought to compromise this matter by communicating to you that a plea of guilty to causing injury intentionally would be accepted. This entreaty was rejected. Ultimately in May this year the matter resolved on the basis previously put to you by the Crown.
10 Your offending is a serious example of the offence of causing injury intentionally. An innocent victim was set upon. The attack occurred in licensed premises. The violence was wanton and sustained. Violence of this kind in and around licensed premises is as prevalent as it is senseless. It is all too frequently fuelled by alcohol and/or drugs.
11
You, Folau, are twenty-eight years of age, having been born on 29 October 1984. You have eleven findings of guilt or prior convictions from five court appearances between May 2006 and November 2010. Four of these appearances concerned crimes of violence. At the time of the commission of the instant offence, you were serving a sentence of eight months' imprisonment wholly suspended for two years, a sentence imposed on you by this court on 5 November 2010. This is an aggravating feature of your offending. It seems that you have learnt little from your previous court appearances. Within days of being charged with the instant offence, you were charged with affray and await your trial on that matter in this court later this year. You were remanded in custody in respect of that matter from 7 July 2011 until 19 May 2012, some nine months and thirteen days, a period that I must take into account when sentencing you. (See R v Stares (2002)
4 VR 314) Until you were remanded in custody at the end of your plea, you had spent no time by way of pre-sentence detention referable to the offending.
12 It was you who initiated the assault on the complainant and continued to assault him until he was dragged away from the entrance to the women’s toilets and forced to the ground by your co-offenders; you watched on as they continued to assault him.
13 You were born in Auckland, New Zealand, and migrated to Australia in 1990 with your family when you were six years old. In that same year, you were a passenger in a motor car driven by your father when it was involved in a collision at Black Rock. Your father was killed in the collision and you were a witness to his untimely death. The memory of this tragic event remains with you. At age eleven, you came upon the body of your brother who was thirteen years your senior. He had hanged himself from a tree in the backyard of your family home. This memory, too, remains with you.
14 You were educated at Moreland Secondary College and completed the VCE. Since leaving school, you have gained qualifications in occupational health and safety, rigging and as a dogman. You currently work as a rigger for Maxcon and you are regarded highly by that organisation. (See Exhibit 1 on your plea.) You were brought up in the Mormon faith and have performed works of charity. (See Exhibit 1 on your plea.)
15 You are a support to your mother who cares for your alcoholic brother who lives with her. It was put that you are of consolation to your mother because of your ability to negotiate with your brother and so maintain peace in the household. Additionally, you provide financial support to your late brother’s children. It appears that alcohol abuse is a recurring trait in your family.
16 Whilst on remand, you were not idle and undertook a number of courses through the Kangan Institute, Moreland Hall, Prison Legal Education Assistance, Wise Employment and the Office of Corrections. You also remained drug-free whilst in prison.
17 Since leaving prison, you have obtained accommodation and employment and have re-established fortnightly access with your son.
18 For the last four years, you have been in a stable relationship although through this period you were a member of a “motor cycle club”, an association disapproved of by your partner. Likewise, despite her support, you committed the instant offence and were remanded in custody for nine and a half months in respect to another crime of violence. Your partner is hopeful that you have turned the corner. She is supported in her view by her father. (See Exhibit 1 on the plea.)
19 Exhibit 3 on your plea is a report from Bernard Healey dated 8 July 2013 which recounts your history but is silent as to any psychological abnormality that may be relevant to the exercise of the sentencing discretion.
20 Your counsel replied upon:
(i)your plea of guilty;
(ii)the steps you took whilst in custody to address your drug, alcohol and anger problems;
(iii)cessation of your involvement with a motor cycle club;
(iv)the fact that you have spent nine and a half months in custody and that it was your first experience of imprisonment; and
(v)the support you enjoy from your mother, your partner and your family.
21 It was submitted on your behalf that a non-custodial disposition was appropriate in your case. In the alternative, a partially suspended sentence or a short sentence with the opportunity of supervision by the Adult Parole Board were said to be within range.
22 In my view, the assault committed by you in company on an innocent victim whilst you were serving a suspended sentence for crimes of violence can have but one result; namely, an immediate term of imprisonment. You are an appropriate vehicle for the application of the principles of general and specific deterrence.
23 You, Samson Bazi, exited the men’s toilet to be presented with three men with whom you were acquainted; namely the unknown male, Folau and Mohamed, assaulting the complainant. The complainant was on all fours on the ground and you rained forearm jolts onto him. You joined the attack on him instantaneously and with zeal. As the complainant struggled to his feet and resisted you and your co-offenders, you grabbed him in a sleeper/choke hold whilst others assaulted him. You struggled with the complainant and with the assistance of Ruffatt forced the complainant forwards towards the male toilets. There you and the complainant fell to the floor. You continued to hold the complainant whilst Ruffatt rained blows onto his head and left kidney region. Security personnel arrived and unceremoniously bundled the complainant away and outside the venue. As this happened, you struck the complainant a number of times with forearm jolts, apparently your blow of choice.
24 Bazi, you are thirty years of age, being born on 13 April 1983. You have one prior conviction, having been convicted and fined $500 on 19 November 2010 for assault occasioning bodily harm.
25 You were born in Australia of Assyrian parents. You were brought up in the western suburbs of Sydney. Your father, Martin, worked for the railways whilst your mother initially worked for a florist until she started her own florist business. I was told that you were brought up by your grandparents. You were educated to Year 11 and did not enjoy school but you were a good athlete and a talented soccer player and this meant, so far as you were concerned, that you were tolerated at school.
26 After leaving school, you undertook TAFE studies and qualified as a personal trainer and worked thereafter in a health franchise. You were, together with Folau and Ruffatt, a member of a motor cycle club, described in passing by your counsel as “heavy”. There is no suggestion, however, that this interest had anything to do with the instant offending.
27 Like Folau, some months after being bailed for this matter, you were arrested, charged and remanded in custody for a crime of violence. You remained in custody from 10 January 2011 to 28 August 2012, some eight and a half months. This was your first time in custody. I was told that you will plead guilty to a charge of affray in this Court some time later this year. Your counsel submitted that I should not take your time on remand into account when sentencing you, and that this time should be reckoned as pre-sentence detention for the affray when you come to be sentenced for that offence later this year. Whilst at first blush this is an attractive option, in my view it is contrary to principle and I will not follow this course. Whilst I am not obliged to take this period in custody into account arithmetically, in your case and as a matter of fairness to Folau in his case as well, I intend to give you full benefit for this time in custody in arriving at your sentence. It will be for the judge who follows me to wrestle with the issues of pre-sentence detention and totality.
28 It was submitted on your behalf that you were presented with the scene of your friends in a fight and that you made a split-second decision based on loyalty to your friends to join the fray. Loyalty is an admirable quality. However, during discussion with Mr Dunn of Her Majesty’s Counsel who appeared on your behalf, I raised the issue that the loyalty relied upon arose out of membership of a group that operates at the fringe of mainstream society and that must raise the question whether it is loyalty of a kind which is laudable. Be that as it may, subjectively you felt obliged to help your friends. You helped by assaulting a man already one out against three and you were soon joined by Ruffatt and together you assaulted the complainant. In my view, this is not loyalty, or if it is, it is not of a kind that can be condoned.
29 Tendered as Exhibit 1 on your plea was a report dated 1 August 2013 from Dr Vowels, neuropsychologist. Any reliance on the principles set out in R v Verdins (2007) 16 VR 269 was specifically disavowed by your counsel.
30 I note that Dr Vowels provided a report concerning Ruffatt and the two reports are in similar terms. The reports ascribe to both you and Ruffat similar disabilities. Mr Crisp of counsel, who appeared on behalf of Ruffat, relied extensively upon Dr Vowels’ report and submitted that its contents brought all six principles set out in Verdins into play in the exercise of the sentencing discretion.
31 Dr Vowels’ report recounts that you, Bazi, suffered episodes of head trauma and alcohol abuse. Additionally, she refers to your use of anabolic steroids and the well documented side effects of emotional disinhibition, possible psychotic reactions and adverse effects on attention and concentration. She opined that you suffer from several minimal but significant cognitive disabilities. She opined that:
“His ABI [acquired brain injury] problems would be best described by the diagnosis Dysexecutive Syndrome with the greatest problems being impulsivity and failure to inhibit inappropriate behaviours in a voluntary reliable way, increased perseveration, and failure to self-monitor and utilise error feedback and reduce conceptional reasoning overall leading to abnormal problem-solving and decision-making.”
32 Additionally she diagnosed Amnesic Syndrome. She further opined:
“ …there is no evidence of a psychotic disorder or an easily diagnosed personality disorder.”
33 It seems to me that your increased level of impulsivity was capable of contributing to your decision to join in the assault on the complainant and, if it did then this may reduce your moral culpability but it could only do so marginally. It is probably for this reason that Mr Dunn of Her Majesty’s Counsel, rightly in my opinion, did not rely upon the principles set out in Verdins on your behalf.
34 Much was made on your behalf of delay in this matter but to my mind there has been no real delay. This matter could have been resolved 12 months ago. Since being charged, you have committed a further crime of violence whilst on bail for this matter. The further offending resulted in you being remanded in custody for eight and a half months. In the period between April 2011 and August 2012, you did not spend your time well and cannot demonstrate that during that time you commenced a process of rehabilitation. However, since your release you have obtained rented accommodation, you have formed a relationship with a young woman who holds down a responsible job and you are working as a personal trainer basing yourself out of a gymnasium in Brunswick, as well as having an interest in a tattoo parlour. (See Exhibit 2 on your plea.) Additionally, you maintain your relationship with your five year old son, although he lives in Sydney. You have daily Facetime contact with him via your iPhones and you exercise access to him when you travel to Sydney and when he can travel to Melbourne. Your devotion to your son is consistent with your attitude to your family and your community generally that was attested to in the reference from Reverend Father John Kushaba (see Exhibit 2 on your plea.)
35 Mr Dunn of Her Majesty’s Counsel relied upon your plea of guilty, the steps towards rehabilitation that you have taken since your release from prison and that your first experience of prison has provoked in you a real desire never to go there again. As well he said that you have ceased any involvement with motor cycle clubs. These matters were relied upon in combination to support a submission that a non-custodial disposition is appropriate in your particular circumstances.
36 You, Andres Ruffat, left the male toilets with Bazi. Unlike Bazi, you paused for a moment before you grabbed the complainant and joined in the assault on him. The assault forced the complainant up the hallway towards the women’s toilets. During this time Folau, the unknown male and Mohamed, as well as Bazi assaulted the complainant. You could not get a look-in so you grabbed the unknown male and pulled him out of the road and joined Bazi, who had the complainant in a sleeper/choke hold. The struggle with the complainant resulted in the group being propelled back towards the door of the male toilets. The complainant fell onto his hands and knees with Bazi maintaining his grip on him. You took the opportunity to punch the complainant repeatedly to the head and when in the struggle this target area was no longer available to you, you punched the complainant repeatedly to the left kidney area. Your attack on the complainant was as ferocious and cowardly as that of each of your co-offenders.
37 You are 42 years of age, having been born on 17 May 1971. At the time of the instant offence, you were living at the same address as Bazi. Unlike Folau and Bazi, you have not been charged with any further crimes of violence and have been on bail since June 2011.
38 Mr Crisp of counsel, who appeared on your behalf, told me that as part of the investigation into the present offending, police executed a search warrant at your home address and as a result you were charged and dealt with for possession of cannabis and anabolic steroids.
39
You have ten prior convictions from six court appearances from November 1991, when you were aged 21, to February 2008, when you were aged
36 years. Of note is your prior conviction at the Melbourne County Court on 25 June 2001 where, after a trial, you were convicted of causing serious injury recklessly and sentenced to six years’ imprisonment with a non-parole period of three years and six months.
40 You were born in Australia to immigrant parents of Chilean and Mexican background. When you were five years old, your parents separated. You grew up in the Richmond housing commission area. You went to St Joseph’s Technical High School and coped poorly there. I was told that when you were 14 you were kicked out of home by your mother who was psychologically unwell and thereafter you were self-reliant. You obtained an apprenticeship as a motor mechanic but three months short of obtaining your trade qualification, you left that employment. Since that time, you have worked as a labourer, a kitchenhand, a truck driver and unqualified mechanic. At the time of the instant offending, you shared the same interest in motorcycles, as did your co-offenders, Bazi and Folau.
41
I was told that you are a partner in a gymnasium known as RBT Gym, which is located in South Melbourne. You work there six days a week, from 6 am till
9 pmand when you can, you work as a truck driver driving articulated vehicles. I was told that you have been alcohol and drug-free for 12 months. You live in a de facto relationship with a woman who was identified only as Violetta. You have a 17 year old daughter who has been living with you for some 18 months, although in anticipation of these proceedings, she has commenced to live with her mother, Violetta’s sister. I was told that you are immensely proud of your daughter, who is presently studying the VCE and who hopes to do psychology at university. It is plain, however, that should you be incarcerated, your daughter would remain living with her mother who would support her.
42 Tendered on your plea as Exhibit 1 was a report from Dr Vowels dated 3 August 2013. Much reliance was placed upon the contents of this report and in the opinions said to be expressed therein, so as to enliven each and every one of the principles enunciated in R v Verdins.
43 Upon assessment, your longstanding intellectual abilities were likely to have been in the lower level of the average range. Dr Vowels opined that:
“It is probable that he has a cognitive disability which would have been responsible for some of his poor decision-making and impulsive behaviour.”
44 Your reading and writing were assessed at Grade 3-4 level. Your memory and attention were well below normal limits . New learning was slower than normal. You demonstrated a failure to abide by rules and Dr Vowels formed the opinion that this may be related to your reported difficulties with impulsive aggression towards certain people even though you know it is wrong but were unable to use your apparent insight to prevent the behaviour when under stress.
45 Dr Vowels opined that you have sufficient capacity for new learning. In respect of regulation of behaviour, Dr Vowels opined:
“His capacity to cope with impulsive reactions was abnormal and he could not monitor his output to recognise inappropriate responses and inhibit these at will, as seen in an unacceptable performance in the Luria tasks of Competing Reactions with several errors.”
46 Dr Vowels said of these tests that they suggest that you have a significant organic problem. She further said, “Thus, it could be suggested that his impulsive reaction of becoming involved in the fracas in April 2011 was related, at least in part, to organic reactions he cannot inhibit”. Your planning and organisation is quite disorganised and unsystematic. As to your problem-solving and decision-making, it is mostly competent but not completely reliable in terms of capacity to recognise the likely outcome of choices. Dr Vowels opined in respect of your mood:
“It seems unlikely that the concerning aspects of his abnormal attention and impaired condition may be the result of his emotional state rather than the outcome of the cumulative risk factors for required brain impairment when considering his test performances and his achievement in the everyday world.”
47 As to Dr Vowels’ diagnosis, it is expressed in circular terms. She observes that you have several significant cognitive disabilities. Thereafter, she expressed herself in the following terms:
“It seems, from his account, from his many head injuries and episodes of loss of consciousness, that he has an acquired brain injury at the moderate to mild level. Aspects of poorer memory would fit in with the possibility of alcohol-related Amnesic Syndrome which is interacting with the more disabling lifelong deficits of behavioural control which would certainly meet the criteria for Attention Deficit Hyperactivity Disorder. This disorder, when it persists to adulthood, can be extremely disabling as it prevents the gaining of maturity and gaining of wisdom in the normal way.”
48 Dr Vowels thereafter assumed that you have acquired brain injury problems and writes that they –
“ … would be best described by the diagnosis of Dysexecutive Syndrome with greatest problem with perseveration, marked impulsivity when under stress and unreliable self-monitoring. These issues combined with conceptual inflexibility and limited organisation overall have led to poorer problem-solving and decision-making in a range of situations. What was observed would seem to be sufficient to contribute to the offending as described in the summary of charges I received, and which would have been greatly exacerbated by his long-term anxiety and tendency to panic.”
49 Later she described your current mood as markedly negative with aspects of depressive disorder with anxiety.
50 Much of the plea on your behalf was spent in discussing with Mr Crisp of counsel the meaning of Dr Vowels’ report. It is not clear to me that Dr Vowels formed any opinion in respect of you.
51 Mr Crisp, of counsel on your behalf, submitted that Dr Vowels had formed the opinion that you suffered from an acquired brain injury and that accordingly this ought to be taken into account when sentencing you and, in particular, that it enlivened each of the six principles enunciated in R v Verdins. During the course of discussion with your counsel, I indicated to him that I did not accept Principles 5 and 6 of Verdins were engaged and, further, that if I were to accept that any of Principles 1 through to 4 were engaged they could only operate “at the margins”. Your counsel accepted the latter aspect of this assessment.
52
There needs to be cogent evidence for the Verdins’ principles to be enlivened. Despite my reservations about Dr Vowels’ report, I am prepared to accept that Dr Vowels diagnosed you as having an acquired brain injury. However, the effect of this disability, in my view, is minimal in so far as it relates to the circumstances of the commission of the offence and your moral culpability.
I will, however, in constructing your sentence, make allowance for your increased impulsivity.
53 Mr Crisp, of counsel on your behalf, relied upon your plea of guilty, the period of time between your last prior conviction and the instant offending, and the fact that you have remained out of trouble since the offending. Additionally, he relied upon your work history since the offending, the stable relationship that you have with Violetta and the ongoing relationship that you have with your daughter as well as your present lack of involvement with motor cycle clubs to demonstrate that you have commenced the process of rehabilitation and that a non-custodial disposition is the appropriate form of sentence in your particular circumstances.
54 Each of you falls to be sentenced for the same offence, however your ages, backgrounds, antecedents and how you have used the time between your offending and now, are each different. I must balance all of these matters in coming to a just sentence for you individually, whilst applying the principle of parity.
55 Each of you needs to be punished. Your conduct needs to be denounced. Each of you has to be specifically deterred from further conduct of this kind and general deterrence plays a significant role in coming to a proper sentence for each of you. Each of you have pleaded guilty and are entitled to the benefit of your pleas however, they come after a contested committal where the complainant was cross-examined and after the rejection of the Crown’s offer to compromise this matter some 12 months ago. Your rehabilitation must be fostered, and each of you have made some progress in this respect. However, I regard the prospects for rehabilitation for each of you as guarded.
56 Taking into account the circumstances of the offences and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence each of you as follows:
57 Andres Ruffat, I sentence you to 24 months’ imprisonment with a non-parole period of 12 months.
58 I declare that you have served eight days by way of pre-sentence detention not including today.
59 I declare, pursuant to s6AAA of the Sentencing Act 1991, that but for your plea of guilty I would have sentenced you to 30 months’ imprisonment with a non-parole period of 15 months.
60 Sampson Bazi, I sentence you to 22 and a half months’ imprisonment with a non-parole period of 12 and a half months.
61 I declare that you have served eight days by way of pre-sentence detention, not including today.
62 I declare, pursuant to s6AAA of the Sentencing Act 1991, that but for your plea of guilty I would have sentenced you to three years’ imprisonment with a non-parole period of two years.
63 Moses Folau, I sentence you to 25 and a half months’ imprisonment with a non-parole period of 14 and a half months.
64 I declare that you have served eight days by way of pre-sentence detention, not including today.
65 I declare, pursuant to s6AAA of the Sentencing Act 1991, that but for your plea of guilty I would have sentenced you to 40 months’ imprisonment with a non-parole period of 30 months.
66 MS MARQUES: Your Honour, I apologise - I have just stepped into this, this morning - but I had instructions it was nine days including today, so eight days not including today.
67 HIS HONOUR: Is what I announced.
68 MS MARQUES: Thank you, just wanted to check that.
69 HIS HONOUR: Thank you. Are there any matters arising from your side of the Bar table?
70 MR DUNN: No, Your Honour.
71 HIS HONOUR: You may remove the prisoners.
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