Director of Public Prosecutions v Vaofusi

[2019] VCC 1031

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00843

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL VAOFUSI

‑‑‑

JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 April 2019
DATE OF SENTENCE:	17 May 2019
CASE MAY BE CITED AS:	DPP v Vaofusi
MEDIUM NEUTRAL CITATION:	[2019] VCC 1031

REASONS FOR SENTENCE
‑‑‑

Subject:  Recklessly Cause Serious Injury

Sentence: 5 years imprisonment with a non parole period of 3 years.

‑‑‑

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P Stefanovic
For the Accused	Mr S Anger

1HIS HONOUR:  Daniel Vaofusi, on 1 February 2019 you pleaded guilty to one charge of recklessly causing serious injury, for which the maximum penalty is imprisonment for 15 years.  In order to commit this offence, an accused must have been reckless about causing serious injury; that is, the accused must have been aware when committing the relevant conduct that caused the serious injury that it would probably cause serious injury or that such a consequence was probable or likely to occur.

2It is important to understand that this offence occurs where there is an unintended consequence.  In cases where an offender intentionally causes a serious injury, the law provides for a higher maximum penalty.  That is because the culpability of an offender who intends to inflict serious injury is much higher.

3You were charged with intentionally causing serious injury or alternatively recklessly causing serious injury.  You pleaded not guilty to intentionally causing serious injury, but have always offered to plead guilty to the charge of recklessly causing serious injury.

4In the afternoon of 3 December 2017, you attended a laundromat at the Cairnlea shopping centre.  You were accompanied by your partner and your infant child, whom you had in your arms.  The three of you were seated in the laundromat waiting quietly for your clothes to dry.  By unfortunate chance, the victim, Levant Babican, had arranged to meet a friend at the same laundromat.  You and the victim were thus complete strangers to each other.

5Mr Levant's intention was the simple purpose of meeting and having a coffee with his friend.  He arrived early and peered through the front window of the laundromat to see if she was inside.  You apparently thought he was looking at your partner.  For some bizarre reason, you thought his actions deserving of punishment.

6You calmly handed your child to your partner and marched outside of the laundromat.  You walked up to the victim, who was standing minding his own business, apparently unaware of you.  You confronted him, and you punched him in the face, knocking him to the ground.

7The whole incident was captured on CCTV footage.  You struck the victim with a deliberate, violent, and sickening blow to his face in an entirely unprovoked attack.  You knew what you did would probably cause serious injury to the defenceless and unsuspecting victim, who was a young man of only slight build, and that is in fact what you did.

8The victim can be seen on the CCTV to fall to the concrete where he remained motionless and unconscious for some time.  You looked at the victim and then callously walked away, apparently unconcerned.  You collected your partner and child and quietly left the scene.  You showed no concern and no apparent remorse for what you had done.  Your partner asked you why you did what you did, and you told her that the victim knew why you did it.

9Soon after, the victim was taken by ambulance to the Sunshine hospital, where he began to vomit and complained of an increased level of pain.  A doctor diagnosed the victim as suffering from an intracranial bleeding and swelling which was confirmed by a CT scan.  He was transferred to the Royal Melbourne Hospital where he underwent emergency surgery to relieve bleeding on the brain and intracranial pressure and swelling.

10As a result of what you did, the victim suffered a subdural haematoma of 1.2 centimetres in length in the frontal lobe and contusions and a subarachnoid haemorrhage resulting in an acquired brain injury, swelling and pressure on and around the brain, a swollen left eye that he could not open, post-traumatic amnesia, headaches, and an inability to communicate with friends, family, and doctors.

11Photographs taken of the victim during his hospital stay to some extent reveal his plight.  He was hospitalised at the Royal Melbourne Hospital for a period of two weeks and then a further three to four weeks at Royal Talbot Rehabilitation Centre, where he remained until 5 January 2018.

12Needless to say, the injury you caused Mr Babican was life-threatening.  He will suffer from its consequences for the rest of his life.  He still suffers from its consequences in the sense of ongoing pain and emotional and psychological consequences.  His speech is impaired and it affects almost every aspect of his life.  It has ruined his plans for a professional career, as he has been unable to complete his studies.

13I admitted into evidence victim impact statements from the victim and his father, both of which were read in court by the victims.  They were moving statements, and the consequences of your conduct upon the victims must be properly taken into account in passing sentence.

14This is clearly a serious example of this kind of offending, for which I judge your moral culpability as being high.  I reject your counsel's submission that I should find that your offending falls towards the lower end of the range for this kind of offending.  This was truly an unprovoked and random, wanton act of a thug, imparting, as it did, maximum violence with one punch and in a public place.

15Unfortunately, violence of this kind and at this level is prevalent in public places, and this kind of offending serves as a reminder to everyone that it can have unintentional but catastrophic consequences, as in this case.

16You told the jury that you only wanted to warn the victim, whom you wrongly perceived as looking at your part that when he peered through the laundromat window.  You gave evidence you hit the victim with an open hand or a slap, and your counsel submitted that this is what I should find.  I do not accept that, and reject the submission of your counsel.  The CCTV footage does not show a mere slap being delivered by you, but a sickening violent punch.

17I have looked at the CCTV footage several times, both at trial and since on the plea.  You struck the victim with a very forceful blow in an extremely violent way and this is depicted in the CCTV footage.  Further, notwithstanding the evidence that you gave to the jury that you only slapped the victim, you told psychologist David Ball, who prepared a report about you that went into evidence, that you had only a vague recollection of the event and that at the time you were affected by an unknown but substantial quantity of alcohol.  I do not accept your evidence.

18In December of last year, a trial was conducted over three days, where you pleaded guilty to a charge of intentionally causing serious injury and not guilty to an alternative charge of recklessly causing serious injury.  The jury was unable to reach a unanimous verdict on the first charge and after lengthy deliberations were discharged without verdict.

19Because the jury could not be unanimous on the first charge, as a matter of law they could not consider the alternative charge.  Having failed to convince a jury beyond reasonable doubt that you intended to cause serious injury, the prosecution then accepted your offer to plead guilty to the charge of recklessly causing serious injury.  Because you have pleaded guilty, you are entitled to a reduction in sentence, and this will be reflected in the sentence that I will shortly pass.

20You have accepted responsibility for your offending.  I treat you as having indicated that you would plead guilty at the earliest opportunity.  Had your offer been accepted - and in my opinion, it should have - your offer to plead guilty soon after a committal, where no evidence was challenged but only submissions made, was at an early time and would have saved the time and cost of a trial.

21In the course of the trial you gave short sworn evidence in which you said in summary that when you struck your victim you did not intend to inflict the catastrophic injury that you did.  You expressed regret for your actions, which I accept, but in my opinion your regret does not stem from genuine remorse, but from the situation that you and your family now find yourselves as a result of your assault upon Mr Babican.  I accept you now have some limited remorse, as signified by your plea of guilty.

22I turned to some matters concerning your background.  You are 26 years of age and you have no prior convictions.  I was told on the plea of some subsequent offending, which I will refer to later.  Your counsel filed a brief outline of submissions, which I marked as Exhibit 1 on the plea.

23You were born in Samoa of Samoan parents.  Your family moved to Auckland in New Zealand when you were aged about 10.  You were abandoned by your parents and were raised by your great aunt and her family.  You were educated to Year 10 level, after which you left school and worked in various jobs.  At age 19 you moved to Australia.  You have a partner and a 20-month-old daughter from the relationship.

24Whilst in Australia you have worked as a machine operator at a dairy, and I was provided with a reference from your former employer.  Your employer has said that you have been reliable, trustworthy, and hardworking and also respected by other employees.  He said he would employ you again.

25You were arrested and charged three days after the crime, and you have remained in custody on remand since that time a total of 526 days pre-sentence detention, not including today.  To your credit, you have completed a number of courses whilst on remand, which may assist with your rehabilitation.  I admitted into evidence a psychological report from David Ball, who found that you did not suffer from a mental illness, personality disorder, mood disorder, or other pervasive clinical syndromes.  This follows a background where you apparently suffered from child sexual abuse.

26Subsequent to these matters, you were charged with offending involving three other police informants.  You told Mr Ball, and I accept, that other offending occurred in the context where you offended whilst affected by methylamphetamine.  Those subsequent matters are only relevant to my assessment of your prospects for rehabilitation.  This offending occurred in the context of you apparently being alcohol-affected.  Your time in custody has meant that you are now alcohol and drug free. If you remain so, I think your prospects for rehabilitation are reasonable.

27You have a stable relationship with your partner, you have accepted responsibility of being a parent, and you have a good work record.  You are not an Australian citizen, and you face the prospect of deportation upon your release from prison.  I accept the prospect of deportation will likely weigh heavily upon you whilst in prison, making your time in prison more burdensome than for others who do not face the prospect of deportation upon release.  I have taken this into account.

28In sentencing for a crime such as this, the sentence must properly address the principle of general deterrence so as to deter others who might seek to offend as you have.  The sentence must impart just punishment and denounce the offending and have regard to the effect that your offending has had upon the victim.  It must also have regard to your prospects for rehabilitation.

29Your counsel submitted that I should make a community corrections order.  In my opinion, such a disposition would not achieve the purposes of sentencing in the circumstances of your offending.  In my opinion, only the fixing of a term of imprisonment with a non-parole period would achieve all of the purposes of sentencing in this case.

30Would you please stand, Mr Vaofusi. On the charge of recklessly causing serious injury, you are convicted and sentenced to a term of imprisonment of five years. I fix a non-parole period of three years' imprisonment before which you are to be eligible for parole. For the purposes of s.6AAA of the Sentencing Act, had it not been for your plea of guilty to the charge at an early time, I would have imposed a sentence of seven and a half years with a non-parole period of five years.

31I direct that 527 days pre-sentence detention be reckoned as having been already served under the sentence passed this day, be entered into the records of the court, and be deducted administratively. Application has been made for the making of a forensic sample order pursuant to s.464ZF of the Crimes Act 1958. That application was not opposed, and for the reasons stated in the order, I have signed it.

32HIS HONOUR:  Thank you.  Would you remove Mr Vaofusi, please.  I will just leave the Bench whilst the Bar table is reconstituted.

‑ ‑ ‑