Director of Public Prosecutions v Sazdov
[2010] VSC 118
•14 April 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1432 of 2009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL SAZDOV |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 April 2010 | |
DATE OF SENTENCE: | 14 April 2010 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Sazdov | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 118 | |
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CRIMINAL LAW – Sentencing – Manslaughter, recklessly causing serious injury, recklessly causing injury, affray – Serious instance of manslaughter – Unprovoked vicious violence on defenceless victims – Youth of prisoner.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P D’Arcy | Office of Public Prosecutions |
| For the Accused | Mr C Lovitt QC | Stephen Andrianakis & Associates |
HIS HONOUR:
Daniel Sazdov. You have pleaded guilty to one count of manslaughter, one count of recklessly causing serious injury, three counts of recklessly causing injury, and one count of affray.
The charges, to which you have pleaded guilty, arise out of an incident which occurred outside some shops in Stenson Road, Kealba at about 11.45 pm on Friday 22 February 2008. In the course of that incident, Bao Tran, who was then 17 years of age, suffered fatal injuries, from which he died seven days later. In addition, as a result of the incident, Andres Molina (then aged 18 years) suffered a fractured left arm close to the elbow, and three other young men, Maile Latu, Johnnie Phan and Thien Le, each sustained a number of injuries. They were then respectively 17, 16 and 17 years of age. All of the injuries suffered by those five victims were inflicted by the use of weapons by your co-accused. The offences, to which you have pleaded guilty, were committed in company with your co-accused, Viet Huynh, Noel Lunt, and LK. Andrew Azzopardi also participated in the affray, but not in the offences which involved violence to the four young men, to whom I have just referred. I sentenced each of your co-accused on 22 July 2009.[1]
[1]R v Huynh & Ors [2009] VSC 291.
During the evening, and before the incident, you had been at the home of the grandparents of Noel Lunt, and his brother LK, in Driscoll Road, Kealba. Other youths were also present at those premises, including Huynh and Azzopardi. While you were there, you noticed some other vehicles travelling past the house on more than one occasion. One of those vehicles was a dark grey Magna. A decision was made to pursue those vehicles. Accordingly, you, together with Noel Lunt, LK and Huynh, took possession of some weapons, which included some wooden hockey sticks and a cricket bat, which were in the boot of Azzopardi’s vehicle. In addition, LK took possession of a small axe. Noel Lunt and LK, Huynh, and you got into Azzopardi’s vehicle. At Noel Lunt’s direction, Azzopardi drove the vehicle to the shops at Stenson Road, at which the Magna had parked. At the direction of Noel Lunt, Azzopardi parked the vehicle in front of the Magna. At that time, Andres Molina was seated in the driver’s seat of the Magna, Maile Latu was in the front passenger seat, Bao Tran was in the rear passenger seat, Thien Le was in the rear middle seat, and Johnnie Phan was in the rear seat behind the driver.
After your vehicle pulled up, Noel Lunt, LK and Huynh alighted from the vehicle and took possession of weapons. You also alighted from the Magna vehicle, and took possession of a hockey stick. Noel Lunt, LK and Huynh then proceeded towards the Magna, and attacked the vehicle and its occupants with their weapons. You followed them to the Magna, while Andrew Azzopardi remained inside his vehicle.
In the course of the ensuing incident, LK smashed the front passenger window with his axe, and then struck Maile Latu a number of blows with his axe. He then smashed the rear passenger window with the axe, and struck Bao Tran five times on the back of the head with the axe. In the meantime, Thien Le was struck on the right temple with a hockey stick wielded by Huynh. LK also struck Johnnie Phan a blow to the chest with his axe. Noel Lunt confronted the driver, Andres Molina, and demanded that he leave the vehicle. When he refused to do so, Noel Lunt struck him a brutal blow on his left forearm, fracturing the ulna bone. Huynh then tried to strike Molina with his hockey stick, and hit Molina’s right shoulder. At about that time, your group decided to leave, but Noel Lunt refused to do so, until Molina got out of the car. At that stage, the attention of your group was distracted by another vehicle which drove past, thus enabling Molina to start his vehicle, and to accelerate away from trouble.
Pausing there, it is accepted by the prosecution that, during the whole of the incident which I have just described, you did not strike any blow to or at any of the occupants of the Magna. At one stage, you mounted the bonnet of the Magna, and kicked the windscreen. The CCTV footage, which was tendered in evidence, shows that during the incident, you walked around the Magna, but from time to time left it, and walked back to Azzopardi’s vehicle, and then returned to the Magna. Apart from the segment, in which you climbed onto the bonnet of the vehicle, you were not seen on the footage inflicting any violence to the vehicle or to its occupants.
By the time of the conclusion of the incident, both Bao Tran and Thien Le were in a bad state, and were unconscious. Molina drove them to the Sunshine Hospital, where each was admitted to the Emergency Department. Bao Tran was then transferred to the Royal Melbourne Hospital, suffering from very serious head injuries, including a compressed fracture of the skull, and a consequential intracranial haemorrhage. In the following week, his condition deteriorated, and he passed away on 29 February 2008.
After the Magna had made good its escape, each of you got back into Azzopardi’s vehicle, and returned to the house in Driscoll Road, Kealba. While you were there, a Suzuki motor vehicle was observed to drive past. It was thought that that vehicle had been associated with the Magna, so each of you, together with David Drodrolagi, set off in pursuit of the vehicle. While your group was in the course of endeavouring to attack the vehicle, the police intervened. As a result, you were arrested with some of your co-accused. Huynh and LK fled the scene, but were arrested on the next day.
As I have stated, as a result of the incident, Bao Tran died on 29 February. Andres Molina suffered a fracture to the left arm at the elbow, which required a surgical operation. The other three occupants of the Magna, Maile Latu, Thien Le and Johnnie Phan, each sustained physical injuries. As a result of the trauma associated with the incident, Mr Phan suffered a severe psychiatric reaction, which has disabled him from working. Mr Phan was the best friend of Bao Tran, whom he describes as his brother. Mr Phan’s victim impact statement attests to the depth of grief suffered by him as a result of the loss of his close and good friend.
There was some debate before me as to the basis upon which you have pleaded guilty to the charge of manslaughter. Mr D’Arcy, who appeared for the prosecution, submitted that you had pleaded guilty on the basis that you had acted in concert with your co-accused, in the perpetration by them of the unlawful and dangerous acts of assaulting the occupants of the Magna with weapons. On the other hand, your counsel, Mr Lovitt QC, submitted that you had pleaded guilty on the basis of extended common purpose. As I understood his submission, Mr Lovitt contended that you had been a party to an agreement to commit the crime of attacking the Magna, but not its occupants, but that, in doing so, you had foreseen the possibility that the offence of manslaughter might have been committed by an unlawful and dangerous act in the course of that enterprise. Alternatively, Mr Lovitt contended that you had pleaded guilty on the basis that you had aided and abetted the crime of manslaughter, by you being present at, and, by your presence encouraging, the infliction of the unlawful and dangerous act of assault with a weapon on the occupants of the vehicle.
In the upshot, for the purposes of sentencing you, there is little difference between the basis put against you by the Crown, and the basis contended for by your counsel. However, in my view, based on the actions of your co-accused and yourself at the Driscoll Road home, and at the scene of the crime, I am satisfied beyond reasonable doubt that your co-accused were acting in concert with you in respect of the attack, which they inflicted on the occupants of the Magna car, and which resulted in the death of Bao Tran.
It is common ground that you have pleaded guilty to the three charges of recklessly causing injury, and the charge of recklessly causing serious injury, on the basis that you aided and abetted those offences. In addition, you have pleaded guilty to the offence of affray, on the basis that you participated in a fight in public, in which the degree of violence used and displayed was such as would put reasonably firm bystanders in real fear.
The offences, to which you have pleaded guilty, are particularly serious. The attack which was launched on the occupants of the Magna, was characterised by an appalling degree of violence. The occupants of the Magna were innocent victims of the wanton violence inflicted by your co-accused. They had given you and your co-accused no cause or reason to attack them. Rather, they had been present in Kealba that evening for innocent purposes. The assault on them by your co-accused, in your company, was entirely unprovoked and without any justification at all. Those who participated in it – including yourself- were armed and had the advantage of surprise over your victims. By contrast, each of the occupants of the Magna were unarmed. They had no opportunity to defend themselves, or to escape from the violent blows which were rained on them and their vehicle in the course of the incident. The attack on the occupants of the Magna was marked by a disgraceful degree of cowardice and viciousness.
In addition, it is clear that the attack on the Magna and its occupants was not the result of a sudden outburst of temper or anger. Rather, your co-accused and you were each bent on violence when you left the premises at Driscoll Road, and you and your co-accused had armed yourselves for that purpose. During the short drive from Driscoll Road to the Stenson Road shops, you and your co-accused had ample opportunity to come to your senses, and to desist from your violent intentions. Indeed, after Azzopardi’s vehicle had stopped outside the shops in Stenson Road, there was no cause for your co-accused and yourself to proceed with your plan. In that way, the attack was, in a real sense, premeditated, which I regard as an aggravating and serious feature of the offending to which you have pleaded guilty.
The most serious offence, arising from the events of 22 February 2008, was the unlawful killing, or manslaughter, of Bao Tran, to which you, together with your co-accused, Noel Lunt, LK and Huynh, each pleaded guilty. The maximum sentence for manslaughter is 20 years’ imprisonment, reflecting the high value which our community properly places on the sanctity of human life. Although this may not be the worst case of manslaughter in recent times, nevertheless it can be properly classified as being at the high end of the scale of such cases. By your plea you were criminally complicit in the appalling and craven actions of LK in repeatedly striking Bao Tran over the head with the axe.
By the actions of your co-accused, in which you criminally participated, you have been involved in the taking of the life of another human being. I have read, and re-read, the victim impact statement of Bao Tran’s sister, Thien Tran, which she prepared on behalf of her family. Bao Tran was a thoroughly decent young man, with a full life ahead of him. He was much loved by his family. If not for the evil actions of yourself and your co-accused, he would no doubt have lived a useful and fulfilling life. By your offending, you have been involved in the unlawful taking of his life from him, and have thereby caused profound grief and anguish to his parents and sister. The loss of their beloved son and brother will remain with them for the rest of their days. The victim impact statement of Ms Tran is a salutary reminder of the enduring pain and desolation wrought by the vicious actions of yourself and your co-accused.
In addition, by your actions, you have also been involved in the infliction of serious injury on another young man, Andres Molina, and in the occasioning of physical harm to three other young persons. In his victim impact statement, Mr Phan graphically described the type of trauma, which you were involved in subjecting on your victims.
There can be no excuse for your actions. The violence, in which you became involved on the evening of 22 February 2008, is, regrettably, all too prevalent, although I regard this case as involving a more extreme instance of such violence. All too often such unprovoked and unjustified attacks end in tragic consequences, and frequently result in death or particularly serious injury to the innocent victims, as has occurred in this case.
By the offending, in which you became involved, you have violated the fundamental norms of a decent, civilised and humane society. Those actions cannot be tolerated. It is important that this Court imposes a sentence which constitutes a sufficient condemnation by the Court, and the community, of the actions in which you became involved, and which serves as a proper deterrent to others, who may be like minded to participate in gratuitous and cowardly attacks on defenceless members of our community. In a case such as this, the Court has a responsibility to impose sentences, which make it clear that this type of conduct would not be tolerated.
On the other hand, I accept that your level of involvement in, and culpability for, the offending, in which you were complicit, was distinctly less than that of your co-accused, in two material respects. First, I accept that you did not initiate the plan, at Driscoll Road, to attack the Magna and its occupants. Your actions, at the scene of the attack in Stenson Road, were very much those of a follower, rather than of an instigator, of violence. You were last to leave the Magna and, as I have remarked, you were involved in a much lower degree of violence than LK and Noel Lunt and Huynh. In this regard, I note the assessment of the clinical psychologist, Mr Jeffrey Cummins, that your personality structure is that of a follower rather than a leader.
Secondly, and importantly, as I have remarked, your involvement in the brutal violence that was inflicted on the Magna and its occupants was substantially less than that of your co-accused. You did not inflict any blows on any of the occupants. The CCTV footage reveals that you displayed significantly less aggression than the other three perpetrators of violence. At about the time at which LK was attacking Bao Tran, Noel Lunt and Huynh were each also involved in inflicting violence on the occupants of the Magna. You were not. In this connection, I note that you have pleaded guilty to the three charges of causing injury, and one charge of causing serious injury, on the basis that you acted recklessly, which involves a lower level of culpability than your three co-accused, who each pleaded guilty to intentionally inflicting injury in respect of the corresponding counts on the presentment, which were relevant to them.
For those reasons, I accept the submission by Mr Lovitt that I should sentence you on the basis that your level of involvement in and culpability for the offending was substantially less than that of your three co-accused.
I also accept that your plea of guilty is an important mitigating circumstance. It has spared the family of Bao Tran, and each of the other four occupants of the Magna, the stress and trauma of a contested trial, which would have required them to have relived the tragic circumstances of 22 February 2008. Although you pleaded guilty at a later stage than your co-accused, I note that you did plead guilty to manslaughter at the conclusion of the committal proceeding. Thereafter, you resiled from that plea, based on legal advice which was given to you in good faith. That advice only changed after your legal advisors had viewed the CCTV footage, and, based on that advice, you promptly pleaded guilty to the offences, for which I am to sentence you, in February of this year. In those circumstances, I accept that your plea of guilty should be given the same weight, as a mitigating circumstance, that I afforded to the pleas of guilty by your co-accused.
I turn, then, to matters relevant to your background. Those matters are substantially set out in the report of Mr Cummins, which was tendered on your plea, and which was the subject of some elaboration by Mr Lovitt. You are now 22 years of age, having been born in December 1987. Accordingly, at the time of the offending, you were 20 years and two months old. Your parents separated when you were 14 years of age. Subsequently, you resided, on different occasions, with each parent, and with your maternal grandmother. It would appear from Mr Cummins’s report that, during your formative teenage years, you did not enjoy the stability of home life which might be regarded as desirable. You attended secondary school until midway through Year 9. Thereafter, for a period of about five months, you worked as a dock hand for TNT, and then, subsequently, did some painting with family friends. However, you had been unemployed for approximately two years at the time of your arrest in February 2008.
You have come before the Courts on four previous occasions, three of which were before the Children’s Court. On each occasion, you were charged with offences involving violence. However, before your offending in this case, you had not been sentenced to a term of custody. Your last conviction was in March 2007 on a charge of unlawful assault, in respect of which you were sentenced, without conviction, to be released on entering on an undertaking to be of good behaviour, and to complete an anger management course. It would appear that you were not involved in any offending during the period of the bond. Unlike your co-accused, at the time of your offending in this case, you were not subject to any sentence or Court order, of which there was a condition that you be of good behaviour.
In terms of your background, I note that you do not drink alcohol and have never experimented with illicit drugs. In addition you have not been a member of the “SKS” gang, to which the other three co-accused apparently belonged.
Since your apprehension, you have been in custody, mainly in the Metropolitan Remand Centre. You are currently working as a kitchen billet, which indicates that you have had a measure of trust reposed in you by the prison authorities. You have not been in trouble while in prison. During that period, you have undergone in excess of 20 random urine analyses, all of which have been negative. You have also completed courses in mood management, education, and coping with change. I note, however, that you do not appear to have undergone any anger management course. As I remarked in the course of sentencing submissions, given your previous convictions, and your offending in this case, I regard it as important that you undergo such a course during your term of imprisonment, in order to address any underlying issues which might have contributed to your repeated involvement in offences involving violence.
You are, and were, at the time of offending, young. Your youth is, ordinarily, a mitigating circumstance in a number of respects. First, your youth is relevant to a proper assessment of your culpability. In addition, the law recognises the importance of rehabilitating young offenders such as yourself, and that is ordinarily reflected in imposing a sentence which is less substantial than might otherwise have been the case. On the other hand, as I observed in sentencing your co-accused, in cases such as this, while your youth is an important factor, it must be properly balanced by the need to impose a sufficiently strict sentence, in order to serve as a general deterrent to potential offenders, and a specific deterrent to yourself.
In conclusion, then, you have pleaded guilty to a number of serious charges, including the particularly grave charge of manslaughter. The circumstances in which that offending occurred are particularly serious, and the incident was marked by an outrageous level of cowardly and gratuitous violence inflicted on five defenceless young men. As I stated, the principles of general and specific deterrence, as well as proper condemnation of your conduct, are important.
On the other hand, as I have already stated, in determining your sentence, I take into account that your level of involvement in, and culpability for, the offences, to which you have pleaded guilty, was substantially less than that of your three co-accused, Huynh, Noel Lunt and LK. That difference will be reflected in a measure of proportionality between your sentence and that of your co-accuseds, although, in the case of LK, the difference is to some extent offset by the fact that LK was 16 years old at the time of the offence, and therefore I made a greater allowance for his youth than I do in your case.
In imposing sentence, it is necessary for me to allow for a substantial degree of concurrency, in order that the total sentence does not exceed that which is just in all the circumstances. In respect of the charge of affray, it is appropriate that, as in the case of your three co-accused, I should treat the offence of affray as very much part and parcel of the other offences to which you have pleaded guilty. Accordingly, I consider it appropriate that the sentence, which I shall impose on the charge of affray, be served wholly concurrently with your other sentences of imprisonment.
Taking all those matters into account, I sentence you as follows:
(a)On count 1 (affray) I sentence you to 2 years’ imprisonment.
(b)On count 2 (recklessly causing serious injury to Andres Molina) I sentence you to 3 years’ and 6 months imprisonment.
(c)On count 3 (recklessly causing injury to Maile Latu) I sentence you to 18 months’ imprisonment.
(d)On count 4 (recklessly causing injury to Johnnie Phan) I sentence you to 18 months’ imprisonment.
(e)On count 5 (recklessly causing injury to Thien Le) I sentence you to 18 months’ imprisonment.
(f)On count 6 (the manslaughter of Bao Tran) I sentence you to 8 years’ imprisonment.
I direct that 6 months of the sentence on count 2, and 2 months of each of the sentences on counts 3, 4 and 5, be each served cumulatively upon your sentence on count 6, and upon each other, making a total effective sentence of 9 years’ imprisonment. I direct that you serve a minimum of 5 years’ and 6 months’ imprisonment you become eligible for parole.
Pursuant to s 18(4) of the Sentencing Act I declare that the period of 782 days be reckoned as already served under the sentence which I impose. I shall cause a notation to be made in the records of the Court that that declaration was made.
Section 6AAA of the Sentencing Act requires me to state the sentence which I would have imposed if you had not pleaded guilty. If not for your plea of guilty, I would have sentenced you to the following terms of imprisonment:
(a)On count 1 ( 2 years).
(b)On count 2 ( 4 years and 6 months)
(c)On count 3 ( 2 years and 6 months).
(d)On count 4 ( 2 years 6 months).
(e)On count 5 ( 2 years 6 months).
(f)On count 6 ( 9 years).
I would have ordered that 12 months on count 2, and 4 months on each of counts 3, 4 and 5 be served cumulatively on your sentence on count 6 and upon each other, making a total effective sentence of 11 years’ imprisonment. I would have directed that you serve a minimum term of 7 years’ imprisonment before you became eligible for parole.
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