Director of Public Prosecutions v Vogiatzoglou

[2023] VCC 360

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01175

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEVEN VOGIATZOGLOU

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JUDGE:	Mullaly
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2022, 20 February 2023
DATE OF SENTENCE:	7 March 2023
CASE MAY BE CITED AS:	DPP v Vogiatzoglou
MEDIUM NEUTRAL CITATION:	[2023] VCC 360

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Sentence indication – Plea of guilty – Causing injury intentionally

Cases Cited:              Worboyes v The Queen [2021] VSCA 169; Chenhall v The Queen

[2021] VSCA 175; DPP v Meyers [2014] VSCA 314; Boulton v The Queen [2014] VSCA 342; 46 VR 308.

Sentence:                  Total effective sentence of 5 months’ imprisonment with an 18-month community correction order

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms I. Adbulnour	Office of Public Prosecutions
For the Accused	Mr M. Reardon	Victoria Legal Aid

HIS HONOUR:

1Steven Vogiatzoglou, on 28 November 2022 I granted your application for a sentence indication.  I indicated that, should you plead guilty to a charge of intentionally cause injury, I would impose a combined sentence of five months' imprisonment with an 18-month Community Corrections Order.  You accepted that indication and pleaded guilty on arraignment. 

2The facts on which the sentence indication was given were agreed and tendered on the plea. On 10 November 2019, your neighbour, the victim, had a gathering at his house.  Around midnight you became annoyed at the volume of the music.  You banged on your neighbour's garage.  You and he argued.  He suggested you meet outside your house.  He went to your driveway.  He was with others from the gathering. 

3It was put by your counsel, based on the evidence of your partner and from your record of interview, that you were in real fear.  That said, you came out of your house to confront the neighbour and the others who were in or near the driveway. 

4You came out of your house, unfortunately for you and the victim, carrying a machete.  The neighbour's son saw what you were carrying and threw a beer bottle at you, which struck you in the face. You then ran out at the victim, striking him forcefully with the machete.  The blow struck his hands as he had his arms up to protect himself.  You were chasing, first, your neighbour and then one other of his guests.  The victim, that is, your neighbour, then took the opportunity to return to his garage, as he was not in a good state following your attack on his with the machete.  You then went to where he was in his garage.  He was, in fact, lying on the floor when you continued your attack on him.  His son had to use a stick to get you to stop. When you returned then to your own house, you rang Triple 0 and said that you had used a machete on a man and an ambulance was needed. 

5The victim was taken to hospital where he remained for three days, undergoing several operations to repair his hands and injuries.  There were facial lacerations and a fracture to his skull.  His recovery with intense rehabilitative treatments was over many weeks.  He has suffered protracted psychological harm.  He wrote a Victim Impact Statement which was read by his sister.  In it he wrote the following: 

To date, I still struggle to overcome the emotional and mental battles that have surfaced from this night.  I was once a happy, jokey, laid back person who enjoyed life and loved meeting people.  Since this incident, I'm moody, short-tempered and am less trusting of people. 

6He outlines that his ‘ family have unfortunately been on the receiving end of my mood swings and constant change in behaviour.'  He speaks about his friends; that is, him not wanting to engage with his friends and those relationships have been impacted and become, to use his words, 'close to non-existent because my emotional state of not wanting to engage in normal conversations.' 

7He speaks about his sleeping patterns being 'all over the place'.  He replays the night in his head and he has nightmares.  He says that to get back to where he was, he was fortunate and grateful that the Victims of Crime offered counselling services.  They give him short-term relief but once the sessions are over and he tries to return back home, negative thoughts flood back.  He says:

This one night event has and continues to impact on me mentally and emotionally.  I don't have the confidence to go out anymore and meet people.  My relationship with my family members is not as strong as it used to be.  I've become more frustrated with small things in life.  Given all the trauma I have to relive, getting back to normal seems impossible, but I can only hope.

8He also describes how the physical injuries continue after two to three years of attending hospital appointments and going through hand therapy and having other mini-operations.  His left arm is not back to normal.  He struggles to carry anything beyond 10 kilograms using his left arm.  He is on light duties at work but he can't help around the house or carry any heavy items.  His long-term situation at work is difficult because not many workplaces will hire someone with only one fully functioning arm. 

9Recreationally, he used to play volleyball and rugby but those injuries have put limitations on that as well.  Financially, he has struggled because he has had to use up all his leave.  His sister has assisted but it is very difficult for him.  He concludes by saying:

I'm now a closed book.  I don't socialise much with friends like I use to.  I don't trust people as easily anymore.  My relationship with family members are not what it used to be and I've created distance with a lot of people.

10In assessing the gravity of your crime, it can be said that it was explosive and brutal.  Returning to the garage and assaulting the victim while he was on the ground was particularly serious offending.  This violent episode was entirely avoidable if you had not brought and used a machete.  You said you were in fear when you were in your house.  Given that you were in fear at the outset, there was no need for you to go outside.  Once you did and were struck with a bottle, you could and should have retreated to the safety of your house and rung the police – as in fact your partner had already done. 

11It was accepted by all parties that this was a serious example of the crime of intentionally cause injury.  You had confronted the more serious charge of intentionally causing serious injury.  The matter resolved with a plea to this lesser charge.  While there may have been aspect of self-defence at play at the outset, your response was excessive and unreasonable, especially when you went back to the victim as he lay on the floor in his garage.  I note from the Community Corrections Order assessment that you are much more insightful and accepting of this aspect of it.

12What was emphasised by your counsel in his plea was the long delay from the offending in November 2019 to now.  The delay is significant and due to COVID and due to you taking the matter almost to trial before settling the case.  But as I said, you faced the more serious charge of intentionally causing serious injury, which is a Category 1 offence which can only be punished by imprisonment and not in combination with a Community Corrections Order which is proposed here. Delay is always relevant and mitigation does follow, given the stresses involved in having charges hanging over your head, as they did for so long. 

13In addition, your plea of guilty is a matter of real significance, given the ongoing difficulties facing the criminal justice system.  The Court of Appeal in Worboyes v The Queen,[1] and in Chenhall v The Queen,[2] made clear that a sentencing discount must be given and one that is palpable to the accused and encouraging to others.  Thus, the usual sentence of imprisonment with a head sentence and a non-parole period for a crime of this gravity can, in the current circumstances, be met with the type of combination sentence that I indicated. 

[1] [2021] VSCA 169.

[2] [2021] VSCA 175.

14As to your personal circumstances, you are now 50.  You were raised in a hardworking and close family.  You moved from school to a working life in your parents' shop and from there you have a solid work history, mainly working in warehouses.  Your working life is to your credit.  You are still, or were until your bail was revoked, still employed. 

15You were treated for Hodgkin's Lymphoma at the age of 28 and it is at the moment in long-term remission.  However, in 2018, brain aneurisms were detected.  They were successfully removed with surgery in 2019.  Follow-up scans have revealed that there are no further complications.  That said, you were, at the time of the offending, particularly concerned about the recent brain surgery and fearful of what a blow to the head might have caused.  Of course, this just gives further emphasis to the need for you to have remained inside and called the police, rather than take things into your own hands with a dangerous weapon.

16You have a criminal record but mostly for driving offences dating back a number of decades.  However, there is relevant prior conviction for violence – being recklessly cause injury and making threats to kill and resisting arrest when you went to the Magistrates' Court for those – that saw you receive a gaol term of three months to be served as an Intensive Corrections Order.  The Intensive Corrections Order was breached but you were ordered to continue with it.  I do not overlook that this prior matter was over 13 years ago but nonetheless, it is concerning. 

17You were in a long-term relationship with your partner who I have spoken about already but it seems that faltered recently under the pressures of these proceedings.  You are still in regular communication with her up to the time of your remand but you were living apart. 

18As I said, you were still working up until your remand. You have now spent 44 days in custody since, as a combination of what occurred before bail was granted and subsequently to your plea.  Following your accepting of the sentence indication, your lawyers had you assessed by Mr Cummins.  I have considered all his report and your counsel's submissions on the plea, as well as those of the prosecution.     

19In my view, Mr Cummins' opinions based on the medico-legal interview, amounted to you being stressed and depressed because of your Hodgkin's Lymphoma, now in remission, and the well managed aneurisms and also these court proceedings.  Of course, it is your subjective reaction to your health problems that is relevant and you plainly reacted to that problem over the years, such that Mr Cummins was of the view that you had a moderate depression with trauma symptoms. 

20In the end, I cannot discern any realistic connection between your explosive violence and your health related depression.  In my assessment, all the circumstances do not permit a conclusion that your moral culpability, which is high, to be moderate or ought be moderated because you have depression because of your past ill health.  Certainly, I see no basis for moderation of the important weight in sentencing purpose of general deterrence. As to how you will manage in prison – I considered that, at the time of my sentence indication, that prison would be onerous for you because of all aspects of your personal circumstances.  In particular, you would be going to prison essentially for the first time.  The psychological report fortifies my view that gaol will be onerous, however, as the Court of Appeal said in the DPP v Meyers,[3] mitigation because of depression would be unusual and, in any event, very moderate. 

[3] [2014] VSCA 314.

21This was a serious example of intentionally cause injury.  You have the older prior for like violence.  But taking into account all personal matters in mitigation, such as your good work history, your mostly lawful lifestyle of late, your depression and fear for your long-term health, together with the policy matters or considerations of the enhanced value of your please of guilty and a long delay in this matter resolving – all those matters, once synthesised, lead to the sentence that I indicated. It is one that punishes but also facilitates your rehabilitation by allowing you to, upon your release, continue with both punishment and rehabilitation in the community.  Those can occur, as Boulton said,[4] simultaneously, unlike a term of imprisonment with a non-parole period.  But it is, in my view, a sentence that does emphasise parsimony, though, for anyone like you who is sentenced to imprisonment, such an outcome always seems harsh, but in my view, it is necessary, grave as that step is, and it is, in my view, as merciful as could be allowed.

[4] Boulton v The Queen [2014] VSCA 342; 46 VR 308.

22The Community Corrections assessments indicate that you are suitable and that you should engage with your general practitioner in a mental health plan.  As I indicated and now order, for committing the crime of intentionally cause injury, you are sentenced to a term of imprisonment of five months, together with an 18-month Community Corrections Order.  Within that order, there will be conditions that you do 100 hours of unpaid work, together with programs, that is, assessment and treatment for your mental health, assessment and treatment for programs or that you are to do programs as directed that will assist or reduce of reoffending and you are to be under supervision.

23All hours spent in terms of the programs that I have mandated, that is, the mental health and the offender programs, can count as hours to be deduced from the hundred hours of unpaid work.  Had you pleaded not guilty to these offences and been found guilty of them, I will have imposed a sentence of two years and eight months with a non-parole period of 20 months.

24As I have indicated, you have already served 44 days in custody.  That figure, having been reckoned, I now declare that it is part of the sentence that I have just imposed.  I will ensure the declaration is entered into the records of the court, so that the prison authorities are left in no doubt you have already done 44 days of the sentence that I have just imposed. 

25There is no issue that the order for disposal should be signed and I intend to do that.  Is there anything else required?

26MS ABDULNOUR:  Nothing further, Your Honour.

27HIS HONOUR:  Thank you.

28MR REARDON:  No, Your Honour.  May it please the court. 

29HIS HONOUR:  Thank you very much for your assistance.  If you wish to talk to your client, that can be arranged through my staff, Mr Reardon.  I'll leave this and you work it out with those others.  Thank you.  Just bear with me for a moment. 

30MS ABDULNOUR:  Thank you, Your Honour, may it please the court.

31HIS HONOUR:  I am so sorry, I always forget this part.  He's going on a Community Corrections Order.  If you were in court, he'd sign a document, so I need to just go through something with you, Mr Vogiatzoglou.  So here is what we do.  You're placed on an 18-month Community Corrections Order.  It starts after you will be released when that is the dates we've got worked out.

32Now, everyone who goes on a Corrections Order has the following standard conditions and I'll just outline them as simply as I can.  The first of them is the most important.  You must not commit another offence that's punishable by imprisonment during the time that the order is in place.  If you do, you'll come back before me, having breached the Corrections Order and I will resentence you and we won't be talking about another Corrections Order, we'll be talking about a serious amount of gaol.  So don't commit any further offence.  You haven't got a recent history of offending but if there is trouble with cannabis, just be clear that's illegal and there may be aspects of that which would lead you to breach this order.  So sort that out. 

33The next step is, there are a whole range of matters that require your cooperation.  So you've got to report to the Corrections Office, and we'll tell you which one that is shortly, the Corrections Office, which is Werribee, within two working days of you getting out of prison, so work that out.  They'll probably be in touch with you to advise you about that as the day gets closer.  You have to tell them where you live and if you change your address, you've got to tell them if you change your job.  You've got to get permission before you leave Victoria, that's even for a trip over the border, and you've got to cooperate with all their lawful directions. 

34All right, the next part of it is that you have conditions that apply specifically to you, that is, the hundred hours of unpaid community work.  That's not voluntary or mandatory, you don't just decide you'll do it sometimes and not others or that your work gets in the way.  So that takes priority.  Just get the hundred hours done and work it out with them.  You're a hardworking man, you'll be able to get that done, I would expect, fairly quickly.

35The next aspect is that you will be - there'll be treatment and assessment for your mental health so that you can overcome your depression.  You told the Office of Corrections there was no mental health diagnosis.  They, through their offices, indicate well there's a need for you to deal with some aspects of your depression and so on.  Speak to your doctors about that and get proper treatment.

36The next thing is that there may be - there'll need to be supervision and they'll be in touch with you about how that operates.  You've got to keep in communication with them.  And finally, that there needs to be - if they direct you to do programs that will assist in ensuring you don't reoffend, that is, you don't lose your temper or you don't react with violence, then do those programs as well. 

37Now, if you were in the court you'd sign a document.  What we do here is, on the virtual hearing, do you consent to doing the Community Corrections Order as I've outlined it? 

38OFFENDER:  Yes, Your Honour.

39HIS HONOUR:  Thank you.  We'll note that.  All right, well, now we move to allowing you some time to just have a discussion with your client if you wish that, Mr Reardon.

40MR REARDON:  Thank you, Your Honour.  May it please the court.

41HIS HONOUR:  Thank you.  I'll leave.

42MS ABDULNOUR:  Thank you, Your Honour.

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