Director of Public Prosecutions v Tsionis

[2015] VCC 1223

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00986

DIRECTOR OF PUBLIC PROSECUTIONS

v

COREY TSIONIS

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2015
DATE OF SENTENCE:	28 August 2015
CASE MAY BE CITED AS:	DPP v Tsionis
MEDIUM NEUTRAL CITATION:	[2015] VCC 1223

REASONS FOR SENTENCE
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Subject:    Criminal law. Sentencing.
Catchwords:  Intentionally cause series injury.
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited:  Boulton v Queen. Hutchinson v The Queen.
Sentence: Imprisonment 18 Months, Community Corrections Order to follow, 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Zebrowski	V. Anscombe Acting Solicitor for the Office of Public Prosecutions
For the Accused	Mr J. McLoughlin	Victoria Legal Aid

HER HONOUR: 

1Corey Tsionis, you pleaded guilty before me to one charge of intentionally causing serious injury to John Rodriguez.

2The offence is serious and that is evidenced by the maximum penalty prescribed by Parliament. Intentionally cause serious injury is a level 3 imprisonment charge which carries a maximum of 20 years' imprisonment in accordance with s.16 of the Crimes Act 1959.

3In addition, you admitted your criminal record.

4You are now aged 21.  You were born on 14 October 1993.  As highlighted in the plea hearing, you do have prior criminal history that is of some relevance.  The Victoria Police criminal history report notes that there have been five previous court appearances, three of which were in the Frankston Children's Court and the remaining two at the Frankston Magistrates' Court.

5In the past, you have been dealt with by the courts for theft of a motor vehicle, trespass, handle stolen goods, possess controlled weapon without excuse, set off fireworks without permission, driving related offences, dishonesty offences relating to stolen goods, burglary, and of relevance, intentionally cause injury and unlawful assault, make threat to kill and unlawful assault - and I shall discuss the relevance of the prior criminal history later in these sentencing remarks.

6I shall proceed to sentence you on the basis of the summary of the prosecution opening that was read into the transcript at plea hearing by the learned prosecutor Mr Zebrowski.  There was no objection taken to that summary by your counsel Mr McLoughlin.

7This offence occurred on 29 March 2015 just after midnight on a Sunday.  The victim John Rodriguez was 28 at the time of the offending and was in company with two of his friends, Shaun Butler and Jess Freed.  They had been at The Deck Hotel, Frankston for a friend's birthday celebration.  They then attended Flanagan's Pier Hotel for about 30 minutes before deciding to head off into the city.  They were walking towards the taxi rank in Davey Street when the incident occurred.  They had stopped in the street to chat and then another group of which you were a member walked past him and his group where they were standing.

8You had earlier been at a private function upstairs at The Grand Hotel and you were in company with four others.  You had a plaster cast on your right forearm wrist.  As you passed Mr Rodriguez' group, one of your companions flicked a cigarette butt near them.  Thereafter, there was some interaction between the two groups.

9CCTV footage was shown to the court which showed what then happened.  You and your companions are seen looking around at the victim but continue walking up the street.  Mr Rodriguez followed behind your group.  You were then seen turning towards the victim and are seen hitting him with a deliberate and significant blow with the right fist to the face, causing him to fall backwards against the wall of The Grand Hotel.

10As he slumped towards the ground, you punched him forcibly to the face a further three times in rapid succession.  The victim was left unconscious on the footpath. 

11A security guard, Mr Singh, who was working at The Grand Hotel on that evening observed that as Mr Rodriguez was talking to another male from your group, you punched him from the side.  According to Mr Singh, Mr Rodriguez could not have seen the punch coming as he was talking to the other person and you were out of his line of sight on the roadside on the footpath.

12Thereafter, you left the scene and police and ambulance attended.  Mr Rodriguez was taken to the Frankston Hospital.  He remembered waking up lying on the footpath with blood on his hands and with his mouth full of blood and he felt his jaw hanging from his face.  The pain he described as excruciating.  The medical material confirms Mr Rodriguez was rendered unconscious by the blows to his head and regained consciousness while lying on the footpath.  He blacked out again from the pain when he was in the ambulance.

13He was seen by an Oral and Maxillofacial Surgeon at the Emergency Department of Frankston Hospital and a CT scan of the brain and facial bones was ordered.  The CT scan revealed comminuted fractures of the anterior left mandibular body and right mandibular ramus - that is, a broken jaw - with a left fracture passing through the roots of two teeth, 32 and 33, and an acute nasal bone fracture.

14Mr Rodriguez was taken to theatre on 30 March 2015 where he underwent manipulation of the nasal fracture, removal of the bilateral upper wisdom teeth, open reduction and internal fixation of the left mandibular fracture using arched bars, plates, wires and screws.  His wisdom teeth were removed for placement of the arched bars.  Following surgery, it was noted that there was a 5 millimetre gap in his bite and elastic bands were attached to assist with bite alignment.

15He was discharged home on 31 March 2015 and reviewed in the dental clinic thereafter.  On 13 March 2015, the wire and arched bars were removed, and following this incident, Mr Rodriguez has continued to feel significant pain and discomfort.

16On 6 April 2015, you were arrested at 42 Herrington Avenue, Carrum Downs.  You were then taken to Frankston police station and a video recorded interview was conducted during which you did not deny assaulting the victim but claimed to have almost no memory of the incident having blacked out due to drug use.  You claimed to be able to recall being at a taxi rank and arguing with somebody, and then jumping in a taxi and going home.  You told police that your hand and wrist hurt from hitting that bloke and said that you had used GHB at the party and could not remember anything after that.  You told police you had also consumed three Skittle bombs, alcoholic shots, some ice, methylamphetamine, and two ecstasy pills.  You identified yourself in photographs taken from the CCTV footage that captured the incident.  When the allegations were put to you and when asked if there is anything you wanted to say, you replied - and I quote - "I'm a piece of shit obviously."

17You were then bailed and there is no pre-sentence detention. A filing hearing was conducted on 9 April 2015 and thereafter an offer was made by your legal representatives for you to plead guilty to causing serious injury intentionally and that offer was accepted by the prosecution.  The matter then proceeded by way of committal mention on 4 June 2015 and a straight hand-up brief of guilty was prepared.  The Crown concede that your plea of guilty is entered at the earliest opportunity.

18Mr Tsionis, this offending is very serious, involving an unprovoked attack on an innocent man who was attacked by you in a main public thoroughfare in Frankston.  There appears to be no reason and no motive for you to have assaulted Mr Rodriguez.  The only explanation as to why you did this was the drugs that you consumed that night.  Whilst providing some explanation for your behaviour, in no way does it excuse this behaviour.

19On the face of it, your actions were brutal and cruel, and have resulted in serious injury to Mr Rodriguez.  He suffered greatly and that was evident from hearing his victim impact statement that was read to the court.  In addition to the physical injuries that I have already described, he explained the impact on him following his admission to hospital.  It was a very harrowing time for him whilst he awaited surgery.  It was difficult for him to breathe and he could not eat.  He had difficulty ingesting food following surgery, and for a full six weeks was unable to eat anything solid.  His only source of nourishment was in liquid format which he had to take through a straw.  He had strong pain relief medication that inhibited his daily functions.  He found the time in hospital very stressful and it is anticipated he will have to have further extensive dental work in the future.  This incident will impact upon him for the rest of his life.

20At the commencement of 2015, he had started a small logistics business of which he is the sole employee.  He worked very hard to establish his business and win contracts, but because of the difficulties he experienced whilst recuperating from his surgery, he was unable to work and unable to contact clients such that he missed opportunities to service those clients and that has had an impact on his business ongoing.  He has frequent nosebleeds and that makes it very difficult for him conducting his business as well.  This has only occurred since the injury.

21He also has suffered emotional trauma.  He is very uncomfortable around other people and feels now very inhibited and fearful of strangers.  His real fear is that he may be hurt again.

22I accept that your senseless attack upon him has impacted greatly on both he and his family as set out in the Victim Impact Statement.

23Mr McLoughlin on your behalf set out in detail your personal history and circumstances.  You do have the strong support of your mother and your stepfather, both of whom were present at the plea hearing and who continue to provide you with great support.

24You have had very little to do with your biological father over the years.  Your mother had you when she was only 17 and stayed with your biological father for only a brief period following your birth.  He was a heavy drug user and suffers mental illness, and she suffered violence at his hands.  They separated in 1995 when you were about two.  In 1996, there was an incident where you were kidnapped by your father and efforts had to be made to restore you back to your mother's care.  In 1999, she re-partnered and you do have a good relationship with your stepfather Cosimo.

25School was very difficult for you.  You were diagnosed with ADHD in 1998 by Dr Chitra Chandra.  In 2004, Dr Anne O'Neill, paediatrician, confirmed the diagnosis of ADHD and noted that at age 10, you only had a reading level of Grade 2.  She prescribed medication but that was discontinued after one year with no noticeable beneficial effect reported.

26You have two half-siblings, namely twins that were born in 2003.  In 2007, you lived with your biological father for a short time but because of his violence, DHS intervened and you were returned to your mother's care.

27In 2007, Mr Ian McMillan, psychologist, assessed you and confirmed a specific learning disability with auditory and visual processing difficulties.  You have had treatment for dyslexia in the past.

28Your schooling has been limited.  You failed Year 8 and did not complete Year 9.  You have had a long-term issue with illicit drug use.  Dr Dieter Miglic in his report of 17 August 2015 notes that you have had a marijuana and ice habit leading to erratic behaviour with angry outbursts although no overt psychosis has been noted.  In April 2013, he noted you did harbour some paranoid delusions and he treated you with Zyprexa and Valium.  You then had a period of no drug use for some three months but relapsed.

29On 1 August 2014, you were accepted by the SEADS detox program but because of disruptive and threatening behaviour, you were asked to leave that program on the first day.  On 23 September 2014, you rolled a car but suffered no significant injuries.  On 30 December 2014, you suffered a fall whilst working as a boat detailer and that resulted in the fracture of your right wrist.  I accept the proper diagnosis of that condition was delayed but eventually you have had plastic surgery with screw fixation of the fracture and treatment is ongoing.

30On 22 April 2015, you rode your motorcycle into a tree at high speed resulting in a fracture of T3 to T5 thoracic vertebrae with severe injury to the left index finger resulting in impaired mobility.  There is a careless driving charge from 14 January 2015 that is listed for 28 September 2015, and between 30 March 2015 and 20 April 2015 when you had your accident with the motorcycle, there are multiple careless driving offences that have been committed and those charges are currently outstanding.

31I note following the motorcycle collision you were hospitalised at the Alfred Hospital for nine days on an induced coma and that related mainly to your withdrawal from drugs.  You are still undergoing treatment with respect to your various conditions and you are currently on opioid medication.  There are also other subsequent matters that remain outstanding.  There are driving offences relating to the incident in September 2014, there are careless driving charges that I have referred to and they are yet to be dealt with by the courts.

32I note that Mr Gary Fewkes, psychologist, has been seeing you since 20 May 2015.  He has been treating you for anxiety and drug-related issues on referral from Dr Kira Terlakow.  In his report of 2 June 2015, he confirms in his view you display symptoms that fit the diagnostic criteria for generalised anxiety disorder.  He says those symptoms are acute and have moderated with treatment.  He also thought you displayed some symptoms that fit the diagnostic criteria for impulse control disorder that he attributes to developmental difficulties rather than cerebral dysfunction.  He has been undertaking cognitive behaviour therapy with you.  He notes that you did attend his sessions punctually.  He also noted you were completing your violence intervention program to deal with impulsive behaviours and substance abuse.  He noted your progress was good and that you were maintaining sound relationships with your family, and that in his opinion that level of stability reinforced your treatment and enhanced your situation.  He recommended ongoing treatment.

33Ellie Gianvanni, forensic psychologist, in her report of 24 August 2015 stated following her examination, she was uncertain and unable to ascertain whether your current experiences of depression and anxiety symptoms are consistent with any DSM-5 diagnoses.  She considered on her testing you were at a low risk of re-engaging in general offending behaviour including future violent offending contingent on you abstaining from drugs and regular attendance to psychological treatment.  If you were to recommence using drugs and did not attend regular psychotherapy, she said your risk of reoffending would escalate to be moderate.  Her report notes that the incident with you crashing your motorcycle in April 2015 seems to have been a catalyst for you stopping taking illicit drugs.

34She considers that your reliance on strong painkillers for the last eight months appears to indicate that you have developed a dependency on these medications. Her report highlights that you are willing to attend psychological treatment in the community and/or an offence-specific program in prison.  You are willing to attend rehabilitation to address your drug and alcohol addictions as well as current medical addictions.  She further notes that you do now accept full responsibility for your offending behaviour and you appear to be sincerely remorseful.

35Mr McLoughlin highlighted a number of matters in mitigation.  I accept that you are a relatively youthful offender.  You will be turning 22 on 14 October 2015.  This will be the first time that you will be held in an adult custody setting, and I note in the past you have only had one month in a Youth Justice facility.  I have taken into account your admissions to the pleas when you were interviewed. 

36I further find that you entered a plea of guilty at the earliest opportunity.  By doing so, you spared the victim Mr Rodriguez the further trauma of having to come to court and give evidence on your trial, and you save the state the cost and inconvenience of a trial.  You have therefore facilitated justice and there is real utility in your plea.  I have discounted your sentence accordingly.

37In addition, I am satisfied that your plea of guilty is evidence of genuine remorse and that you now take full responsibility for your behaviour. I reject the submission that this behaviour was totally out of character.

38As discussed in the plea hearing, you do have two relevant priors for crimes of violence against the person.  On 13 September 2013, you were dealt with the Frankston Magistrates' Court for make threat to kill, unlawful assault, assault police and resist arrest, and that concerned the incident at the drug rehabilitation place where you threatened a worker with a pair of scissors.  Police were called and you had to be subdued, and you were convicted of those charges and placed on a community corrections order for 12 months with special conditions.  You adhered to those conditions and completed that order.

39In addition, you were dealt with on an earlier occasion at the Frankston Children's Court on 25 November 2009 for charges which included intentionally cause injury and unlawful assault.  That concerned an altercation with a middle-aged male bus passenger.  Apparently, you were part of a group who had had an interaction with him, and when you all got off the bus at some time thereafter there was a confrontation with your group and that passenger was assaulted.  On that occasion in the Children's Court, you were placed on a 12-month probation order with conviction.  That was subsequently overturned in the County Court on appeal and you were placed on a 12-month probation order without conviction being recorded.

40I note in the plea hearing Mr McLoughlin specifically disavowed any reliance upon the Verdins principles concerning the offence.  I do accept, however, by reason of your present condition - namely your physical condition in relation to your right wrist and left index finger and thoracic spine, your dependence on opioid medications, your learning difficulties combined with your general symptoms of anxiety and depression that your time in prison will be harder than if you were of normal health, and I have taken that into account and moderated your sentence accordingly.

41It is evident that since the accident of April 2015 you now have come to a realisation that there is a link between your drug-taking and your continued offending and your impulsive behaviour.  You have now taken some tentative steps through your cognitive behavioural therapy to address what causes your offending.  I am satisfied that you now have ceased all illicit drugs although I am somewhat concerned that you now appear to have an over-reliance on strong pain relief that has been prescribed for your various ailments, and note the concerns expressed by Ms Gianvanni who recommended in her report that you have drug and alcohol counselling to address your chronic drug use.  Prison personnel should be made aware of your current dependency on morphine-based painkillers in case you cannot be prescribed or administered these medications and all the reports will be sent to the authorities for their assistance.

42I accept withdrawal from these medications can cause psychological distress and/or behavioural difficulties.  That may hinder your initial adjustment to prison.  In the event that you continue to abstain from drugs and continue on your path of rehabilitation with appropriate therapy and management of your various physical conditions, that there is real prospects for your ultimate rehabilitation.

43Mr McLoughlin submitted that given your youth, that rehabilitation was an important consideration and that general deterrence had a significant role to play.  He submitted that specific deterrence is of less significance given your post-offence conduct, the fact that you are now undertaking cognitive behaviour therapy and abstaining from drugs.

44Mr Zebrowski submitted that having regard to all the features of the case, namely that this is an instance of gratuitous violence on an unsuspecting person in a public place, the protection of the community is also an important factor in sentencing.  He emphasised general deterrence is paramount and that specific deterrence still had a role to play.  He submitted that the court could impose a term of imprisonment to be followed by a community corrections order to assist you to continue your rehabilitation in the community.  Mr McLoughlin's submission was that he was not saying that imprisonment cannot be imposed but rather the factors that apply here should determine the length of imprisonment followed by a community corrections order.

45Yesterday I had you assessed as to your suitability for a Community Corrections Order and the Pre-Sentence Report confirms that you have been found suitable.  In sentencing you, I am guided by the principles established in the guideline judgment on community corrections order in Boulton v The Queen.[1]  The Court of Appeal in that case highlighted that a Community Corrections Order may be suitable even in relatively serious cases which might previously have attracted an immediate term of imprisonment and particularised as an example cases such as yours involving intentionally causing serious injury.

[1] [2014] VSCA 342 (Boulton).

46The Court in Boulton stated the sentencing judge may find that in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned Community Corrections Order of lengthy duration is capable of satisfying requirements of proportionality, parsimony and just punishment while affording the best prospects for rehabilitation.[2]

[2] Ibid 131.

47A Community Corrections Order option does provide a sentencing disposition which enables all the purposes of punishment to be served simultaneously in a coherent and balanced way in preference to an option of imprisonment which is skewed towards retribution and deterrence.  Therefore it offers the sentencing court the best opportunity to promote simultaneously the best interests of the community and the best interests of the offender.  Nonetheless, that does not mean a community corrections option is a get out of gaol free card and that I refer in particular to the dicta of Priest JA in Hutchinson v The Queen where he states: 

"Acknowledging that a CCO may be appropriate even in cases of relatively serious offences which might previously have attracted an immediate term of imprisonment should not be thought that Boulton offers a get out of gaol free card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed.  One of the purpose for which a sentence may be imposed is of course to punish the offender to an extent and in a manner which is just in all the circumstances."[3]

[3]Sentencing Act 1991, s5(1)(a).

48Mr Tsionis, every case of sentence imposed must depend on its own facts including the circumstances of the offending and the offender, and circumstances of aggravation and mitigation.  In your case, I have had regard to the objective features of the offending.  This was an unprovoked serious assault on an innocent party.  You have relevant prior criminal history in respect of violence against persons.  The injuries inflicted were of a serious nature. 

49Overall, I consider the gravity of the offending is a serious example of this sort of serious offence, and I do not consider in all the circumstances of your case that a Community Corrections Order standing alone would be capable of satisfying all the sentencing requirements.  This is a case where a Community Corrections Order standing alone would be inadequate to satisfy the need to punish and denounce your conduct, and to provide a measure of general deterrence. General deterrence is very important in the exercise of a sentencing discretion in these sorts of cases.  People who engage in gratuitous acts of violence against innocent parties in public streets need to know that if they do so and serious injuries are caused to others then significant punishment will follow.

50In order to promote your rehabilitation and to give recognition to those factors that were highlighted by Mr McLoughlin, I have reduced the term of imprisonment that I would have otherwise imposed.  As I have stated, I propose to impose a term of imprisonment to be followed by a Community Corrections Order to commence upon your release from custody.

51Could you please stand.

52Firstly I propose in respect to the one charge of intentionally causing serious injury that you be convicted and sentenced to 18 months' imprisonment and to follow a Community Corrections Order of three years duration to commence upon the completion of the period of imprisonment that I have imposed.

53It has been explained to you what the mandatory conditions are that are attached to the Community Corrections Order.  I repeat those, and they are that during the period of the order - that is, for three years - you must not commit whether inside or outside Victoria any offence punishable by imprisonment, you must report to and receive visits from the Secretary, you must notify the Secretary of any change of address or employment, you must not leave Victoria without the Secretary's permission and you must comply with any direction given by the Secretary.  Do you understand the mandatory conditions?

54OFFENDER:  Yes, I do.

55HER HONOUR:  All right.  In addition, I'll be attaching special conditions for you, namely conditions requiring assessment and treatment for drug dependence and mental health conditions, conditions requiring participation in offending behaviour programs and other treatment and rehabilitation and a supervision condition.  Do you understand that?

56OFFENDER:  Yes, I do.

57HER HONOUR:  All right.  In addition, I am obliged to explain what would happen in the event that you were to breach such a community corrections order.  A breach itself is a fresh offence.  There is a maximum penalty of three months' imprisonment for that breach, plus you would stand to be re-sentenced by me in respect to this offending.  So do you understand that?

58OFFENDER:  Yes, I do.

59HER HONOUR:  All right.  So the focus of the conditions of the order are to minimise your risk of re-offending, to ensure that you get appropriate treatment, to address the underlying causes of your offending, and also in that way, the order can serve the purpose of protecting the community.  Are you willing to consent to the imposition of the order in those terms?

60OFFENDER:  Yes.

61HER HONOUR:  All right, so that order will be made.

62I make the following declaration pursuant to s.6AAA of the Sentencing Act 1991: but for your plea of guilty, I would have imposed a term of imprisonment of five years, with a non-parole period of three years.

63I make the forensic orders sought, there being no opposition to the order.  The seriousness of the circumstances of this offending warrant the making of that order, and a granting of the order is in the public interest.  The only thing I need to tell you just to complete that is that I have to warn you that the authorities can take reasonable steps to obtain the forensic sample in the event that you do not cooperate with them.  So that means that you will be given a cotton bud to place inside your mouth, and provided that you do that, there will not be any need for any force to be used to take that sample, all right?

64I believe I have covered everything?  I just need to sign the orders in respect ‑ ‑ ‑

65MR ZEBROWSKI:  Your Honour, I have orders with today's date on them.

66HER HONOUR:  ‑ ‑ ‑ to the forensic sample.  Other than that, we can complete this.  All right, so an order's been prepared along the lines as I've just outlined to you, Mr Tsionis, I'll get you to sign that.  Mr McLoughlin can accompany my associate while you do that.

67I've signed those orders. The other thing that I will ask my associate to do, Mr McLoughlin, is to highlight to Corrections that this is the first time Mr Tsionis is being taken into adult custody, that he is on heavy opioid medication and that there are withdrawal consequences.  All the medical material that you've filed in the plea hearing will be given to the authorities to accompany him for his assessment when he's received into custody today.

68MR McLOUGHLIN:  Thank you, Your Honour.

69HER HONOUR:  I don't think there's anything else I need highlight?  All right.  That completes that matter.  Mr Tsionis can be taken downstairs and I'll step off the Bench while everyone's getting ready for the next matter.

70MR ZEBROWSKI:  As Your Honour pleases.

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