Director of Public Prosecutions v Teuma

[2019] VCC 925

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

AT GEELONG
CRIMINAL JURISDICTION

CR 18-02131

DIRECTOR OF PUBLIC PROSECUTIONS

v

CODY TEUMA
KYLE JOHNSON
RILEY ROSSITER

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	21 June 2019
CASE MAY BE CITED AS:	DPP v Teuma
MEDIUM NEUTRAL CITATION:	[2019] VCC 925

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward
For Accused Teuma	Ms W. Duncan
For Accused Johnson	Ms N. Harrington
For Accused Rossiter	Ms A. Paul

HIS HONOUR:

1Cody Teuma, Kyle Johnson, and Riley Rossiter, you have pleaded guilty to one charge of causing serious injury intentionally, contrary to s.16 of the Crimes Act 1958. The maximum penalty for this offence is 20 years' imprisonment.

2The legislation provides that the offence of intentionally causing serious injury is a category 2 offence.  That means that a period of imprisonment or a YJC order must be made unless substantial and compelling reasons exist to impose a different disposition.  I shall return to this later in these sentencing remarks, as counsel for Mr Teuma and for Mr Rossiter have made submissions which call for further consideration of this provision.

3Neither you, Mr Teuma, nor you, Mr Johnson, have any prior convictions.  
Mr Rossiter, you have one Magistrates' Court matter from September 2017 when you were convicted and fined $1000 for using a carriage service to menace.  I shall return to this matter later in these sentencing remarks.

4Mr Hayward, on behalf of the OPP, tendered the summary prosecution opening as Exhibit A.  A summary of your offending is as follows.

5On the 20 May 2018, at approximately 1.56 pm, you each attended at The Sporting Globe Bar & Grill located at Ryrie Street, Geelong.

6Your entire movements before and after the assault were captured on CCTV footage.

7After entering the hotel, all three of you walked into the beer garden and sat down at a table where you remained throughout the afternoon.

8At approximately 3.20 pm, Liam Hill arrived at the hotel and made his way to the beer garden, where he sat at a table by himself in order to watch the football which was being shown on one of the big screens.  The table that Hill sat at was approximately 25 feet from where you sat.

9Whilst Mr Hill was watching the football, one of you called out to him and asked him whether or not he had been recently ejected from a local nightclub.  Mr Hill, who did not know any of you, stated he had not and continued watching the football.  He was told, 'You're lucky it was security that kicked you out'. 

10At approximately 4.06 pm, Mr Hill walked inside the hotel and went to the main bar to order a drink.  When he left the beer garden to order his drink he was followed by you, Mr Rossiter.  Although you lost sight of Mr Hill, you,
Mr Rossiter, and you, Mr Johnson, kept looking for him.

11At approximately 4.08 pm, Mr Hill was observed on CCTV footage entering the male toilets, holding the stubby he had just purchased.  Approximately 22 seconds later you, Mr Rossiter, and you, Mr Johnson, also entered the toilets and immediately began assaulting Mr Hill.  He was punched to the head several times by you, Mr Johnson, before ending up on the ground, at which time
Mr Rossiter, you began kicking him to the face.

12At approximately 4.10 pm, you, Mr Teuma, joined your friends in the toilets and almost immediately punched Mr Hill to the head.  Mr Hill had only just then managed to get back onto his feet in order to leave when you assaulted him.

13At approximately 4.12 pm, the three of you walked casually out of the toilets and left the hotel through separate entrances.

14At approximately 4.17 pm, Mr Hill emerged from the toilets and was immediately assisted by staff, who provided first aid until ambulance paramedics arrived. 

15Mr Hill was conveyed by ambulance to the University Hospital, Geelong, at which time he was admitted, due to having sustained significant head and facial injuries, including both eye sockets and cheek bones being fractured.  Specifically, his injuries included:

·     Concussion;

·     Severe facial fractures (a complete separation of the facial bones from the skull known as a 'Lefort III fracture');

·     Two black eyes.  Both eyes were swollen completely shut;

·     Swelling and tenderness to the nose with nosebleed;

·     With lacerations to the right eyelid; and

·     Bleeding laceration to the lip.

16As a result of the assault Mr Hill spent two nights in hospital for observation, pain relief and further examination.

17On 1 June 2018, Mr Hill underwent a major operation to stabilize the facial fracture with plates and screws.  A complication arose, in which a screw broke and the decision was made to leave it in place in his face due to the risks associated with its removal.

18Mr Hill stayed in hospital for a further three days after the surgery.  After the procedure, he developed some decreased eye movement and double-vision; a complication of both the fracture itself and the stabilisation operation.

19When you were interviewed by the police, you each made extensive denials and told lies to the police regarding the offending.  In fact, you, Mr Johnson, challenged the investigators to prove otherwise.

20Some of the factors by which the court is able to assess the gravity of your offending are as follows:

·     Your proven intent:  was it to cause serious injury or really serious injury, or the maximum possible injury?

·     The seriousness of the injury actually caused (both immediate and the long-term consequences for the victim);

·     The vulnerability of the victim;

·     Whether a weapon was used;

·     The duration of the attack on the victim; and

·     Whether, as assailants, you acted alone or in company.

21Of these factors, your intent and the seriousness of the injuries are considered the most important in judging the objective seriousness of your offending.  The offending of the three of you was appropriately described as alcohol fuelled violence.  It was a sustained attack, taking about four minutes overall, with
Mr Teuma's involvement lasting about two minutes and 20 seconds.  

22It was a vicious sustained cowardly opportunistic attack on an unsuspecting fellow patron.  You used the element of surprise, numbers and confinement (in order to prevent his escape) for you to each punch and/or kick him. 

23The seriousness of the injuries can be gauged from the description I have already read, but also from the four photographs taken by the police at the hospital shortly after Mr Hill was admitted.  I conclude your joint intention was to cause serious injury (and not really serious or the maximum possible injury).

24The victim impact statement speaks of the ongoing pain and anguish you have caused to your victim and his family.  The victim impact statements were not read in court.  That was to respect the wishes for privacy expressed in the statements.  However, I can say that the likelihood is that you have forced the victim from this area.

25I note also that the opening refers to a perceived vigilante motive for the attack.  This was ultimately expressly omitted from submissions due to an entire absence of evidence to support the suggestion.  The true motivation for this attack appears to have been alcohol.

26Your offending must be met by principles of deterrence, denunciation and a measure of protection of the community.  The latter arises from the fact that you chose to attack the victim by random in a public place.  He was, for all intents and purposes, a stranger to you.  People expect, and are entitled, to go to public venues and venues where alcohol is served to enjoy themselves.  Mr Hill was doing no more than watching the football.  Spurred on by alcohol, your determination to seek out Mr Hill amounts to senseless, unchecked random violence and it must be met by stern punishment.

27I turn now to each of your personal circumstances.

Personal Circumstances

28CODY TEUMA

29You are 23 years of age.  You were born on 11 October 1995.  You were raised by your parents in a previously loving and caring family with your older sister.  Your father works in his own sheet plastering business.  In the last 12 months or so, your parents have had some marital difficulties and have separated.  This has caused enormous stress to you, your mother and your sister.

30Your mother suffers from ill-health and had an aneurysm approximately two years ago.  You reported to the psychologist, Jeffrey Cummins, that your mother is your closest confidant.

31You attended Bannockburn Primary and then Western Heights Secondary College until part way through Year 9, when you transferred to Geelong High and continued until midway through Year 11.  You consider that you have always struggled with your studies.

32Some years ago, you were diagnosed with bipolar affective disorder.  Earlier still, you were provisionally diagnosed with anxiety and depression by your general practitioner in 2012.  You consider that you had something of a breakdown in mid-2017.  Mr Cummins considers, after assessing you, that it is more likely you suffer from severe recurrent major depressive disorder, as opposed to bipolar affective disorder.  You also suffer from an insomnia disorder.  It was submitted that the major depressive disorder should mitigate your sentence, as you will find it more difficult in prison with this condition.

33You have never been dependent on illicit drugs but you admit to consuming a considerable amount of alcohol on the night in question, and as a coping mechanism for the prospect of imprisonment in the lead up to your appearance before me on 28 May 2019.

34To support the family, you and your mother, in partnership, operate a fish and chip shop in Newtown.  Your illnesses have impacted on your ability to work in the shop.  Further, the financial stress of running the business increases with the prospect of your imprisonment.  Your mother is considering selling the shop.  In addition, your father says the family home will have to be sold in the next 12 months.

35As I have already remarked, you have no prior convictions, no subsequent matters.  It was described by your counsel as 'out of the blue' offending.

36KYLE JOHNSON

37Turning to you Mr Johnson, you are 21 years of age and you were born on
1 June 1997, so you are now 22.  You have two siblings.

38You are estranged from your father.  He was addicted to drugs and regularly assaulted your mother.

39You completed Year 12 at Western Heights Secondary but failed to achieve an ATAR.

40In 2016, you yourself were assaulted outside a bar by six males.  I was told you were hit to the head with a metal pole and left for dead.  You were hospitalised for two to three weeks and required neurosurgery.  Some of the discharge notes of this stay were placed into evidence.

41Mr Mortley, on your behalf, stated that due to your father's behaviour and this assault, you wanted to make a positive impact on society and prevent violence.  As such, you became a security guard in 2016 and worked in that industry until this incident.  You had worked at a various venues but have now lost your licences as a result of this offending.

42Since May 2018, you have been working, carting plaster up to 60 hours a week.  You have worked at a clothing store on weekends.  Mr Mortley stated that you used work as a way of keeping your mind focused.  You described this offending as the worst thing that you have ever done.  You considered your actions disgusting and said that you lost control.  I was told that you sought professional counselling after your offending, which continued to the date of the plea.

43It was put that you have never had a problem with the abuse of alcohol previously.  Since this incident, you decreased the amount of alcohol you have consumed.

44You were assessed by psychologist, Gina Cidoni, on 5 December 2018.  She assessed your IQ at 92, which indicates you are not burdened by cognitive dysfunction. Ms Cidoni reports that you understand your behaviour was wrong, that you feel bad about the injuries to the victim.  She concluded that your remorse was evident.  You were assessed using the violence risk appraisal guide.  Ms Cidoni concludes that you pose a medium risk of reoffending; however, it is expected your risk will reduce if you continue to abstain from alcohol and continue with counselling treatment.

45I have already stated that you have no prior convictions.

46RILEY ROSSITER

47Mr Rossiter, you are 20 years of age and you were born on 13 August 1998.  The psychological report of Gina Cidoni notes that you were raised in a stable home environment.  You have two older sisters.  Your father died when you were 17 years of age.

48You live in Norlane with your mother, sister and niece.  Your other sister lives in Sydney.

49You attended North Shore Primary and then Western Heights College in Geelong until Year 10.  After that you completed a Certificate II in automotives at the Gordon Institute.  Since then, you have been consistently employed.  You were initially employed at Mitre 10 Hoppers Crossing and then at Subway in North Geelong from 2014 to 2018.  In the eight months until you were remanded in custody you had been working in a fish and chip shop.

50Ms Cidoni assessed your IQ as low-average, being at full-scale 83.  A personality inventory test was employed which gave no indications of emotional, psychological or personality disorder.  All subscales fall generally within the normal range.  Ms Cidoni stated that you experience regret, guilt and remorse for your conduct.

51Importantly, Ms Cidoni administered the violence risk appraisal guide.  Using this tool, she calculated your risk of reoffending in the low range and confirms no indication for a personality disorder.

52Although your counsel told me that you have previously used drugs, you have not used since this offending.  Moreover, you had been a social drinker until the offending.  Whilst after the offending your drinking increased, you have now stopped altogether before you were remanded in custody.

53As I have mentioned, you have one prior matter from 2017, for which you received a fine.  You told the psychologist that you committed this offence by calling a male for no apparent reason and harassing him.  You told Ms Cidoni that this was done 'as a joke'.  Ms Cidoni reported that your coping resources in the face of stressful situations are reduced, and that you presented as impulsive, irresponsible and that your immaturity was apparent.  In these circumstances, I have decided that your prior conviction should not lead you, of itself, to be dealt with differently or more harshly than the other two young men who have no prior convictions.

Sentencing Submissions

54Mr Teuma, your counsel submitted on your behalf that I should take into account the following factors:

·     First, your direct involvement in the role as one punch to the left eye. The victim did not go to the ground after that punch and does not say what degree of force you applied.  In this way, it was submitted you played a lesser role than the other two and that you acted so rapidly, you did not take into account the victim's condition;

·     Second, it was submitted you have no prior convictions or subsequent matters;

·     Third, there was no premeditation or planning;

·     Fourth, your youth is a significant factor.  As such, I should ought to give more weight to your prospects for rehabilitation;

·     Fifth, I should also take account your major depressive disorder and the effect of anxiety as the sentencing for this matter approached;

·     Sixth, related to this, your mother’s ill health has been a burden on you and you are concerned of the adverse effect a period of imprisonment will have on her health;

·     Seventh, you entered a relatively early plea of guilty.  Although you were not remorseful at the time you were interviewed by police, by the time you spoke to Mr Cummins, he formed the view that you were 'rigorously remorseful'; and

·     Finally, it was submitted in addition to youth, your prospects for rehabilitation are enhanced by the fact that you enjoy support from your family and your girlfriend.  You have been in a two-year relationship with her.  Further, you have ongoing employment.

55In these circumstances, your counsel submitted that there were substantial and compelling reasons why I should not impose a period of imprisonment on you, rather I should impose either a non-custodial sentence or a combination sentence with a community corrections order.

56I do not consider there is any reason to substantially distinguish your role in the offending from those of Mr Johnson or Mr Rossiter.  Although you entered the bathroom after your co-offenders, you were still in that room for over two minutes.  In that time, you either saw the condition of the victim and then punched him or you punched him and saw the condition he was in and chose not to leave.

57As I said to your counsel, your presence in the bathroom, your actions in punching the victim in a situation where it was three onto one and your decision to stay in that confined space where you did nothing to prevent the assault on the victim (or at least did nothing to help him) means that you are liable for the actions of your co-offenders.

58In my view, when the factors submitted are considered individually or cumulatively, there are no substantial and compelling circumstances that justify either a non-custodial penalty or a combination of a sentence of imprisonment with a CCO.

59Whilst I accept that you have good prospects for your rehabilitation, you have no prior convictions, youth is on your side, you have no drug history, you have good family support, this offending was out of character and you entered a relatively early plea of guilty, these matters are present in very many matters that come before this court and may be said about very many young offenders.

60I do accept, however, that your depression and your anxiety for your mother will weigh upon you and should lead to a moderation of the sentence I impose upon you.  I do not accept, however, that they amount to what Parliament describes as 'substantial and compelling' reasons such as to lead to a different disposition.

61As I have already outlined, the offending in this case is indeed serious.  I do not consider that the offending, the injuries or your role in it should be described at the lower end.  Rather, you made a decision to go into the toilets, it seems knowing that the other two men were looking for Mr Hill.  You thereafter made a decision to assault the victim and to be present for a considerable period of time whilst the victim was being assaulted or had been assaulted.

62Your offending therefore calls for a period of imprisonment.

63As I say, however, I do consider that you have good prospects for your rehabilitation and that applying the principles relating to youth, more weight should be given to your rehabilitation.  This also will lead to some moderation of your sentence

64On behalf of you, Mr Johnson, it was submitted the following matters should mitigate the sentence imposed upon you:

·     Lack of premeditation;

·     Plea of guilty;

·     Youthfulness of the offender;

·     Firm work ethic; and

·     Strong prospects of rehabilitation.

65I accept that all of these factors should aid in the mitigation of the sentence I impose upon you.  Your counsel expressly submitted that you accept that you must face a period of imprisonment for your offending.  It is accepted that you made a decision to assault the victim and that you had looked for him before you entered the toilets on that evening.  Nevertheless, I do consider that there must be a balancing of all sentencing factors and I must take into account your youth and lack of prior convictions in imposing a sentence upon you.

66On your behalf, Mr Rossiter, it was submitted that I should take into account your youth, your lack of relevant prior convictions, your plea of guilty, your good prospects for rehabilitation and your remorse.  Ultimately, it was submitted that I should impose a youth justice order on you because of your age.

67Whilst I accept each of the factors I have just outlined that were placed in mitigation on your behalf, I do not consider that a youth justice centre order is appropriate in this case.  The facts of this case require that the sentence I impose give effect to the principles of general deterrence and denunciation of senseless alcohol fuelled violence and unprovoked offences on an unsuspecting stranger in a public place.  In this respect, I consider that this offending and your role in it should be met with a period of imprisonment.

68Mr Hayward, on behalf of the Crown, referred me to the case of Nash.  I have read that case and I have had regard to the principles in it, some of which I have used in the formulation of these remarks.  At the end of Nash, there is a table of comparable cases.  Whilst I have had some regard to that table, in the end, I must formulate sentences which meet the individual circumstances of this case and take account of each of your individual circumstances. 

69There will be a slight variation in the sentence I impose on you, Mr Teuma, in order to take account of your illness and the burden that places upon you.

70Mr Teuma, on the charge of causing serious injury intentionally, you are sentenced to a period of imprisonment of three and a half years.  I order that you serve two years and one month before you are eligible for parole.  I reckon the period of pre-sentence detention of 24 days reckoned as already served. 

71Mr Johnson, on the charge of intentionally causing serious injury, you are convicted and sentenced to three years' and eight months' imprisonment.  I order that you serve three year and three months before you are eligible for parole.  I order that the period of pre-sentence detention of 24 days be reckoned as already served. 

72Mr Rossiter, on the charge of intentionally causing serious injury, you are convicted and sentenced to three years' and eight months' imprisonment, with a minimum of two years and three months to serve.  I order the period of 24 days pre-sentence detention reckoned as already served. 

73The 6AAA declaration is but for the pleas of guilty, you would have been sentenced to six years with four years to serve.  

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