Director of Public Prosecutions v Wah

[2024] VCC 49

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00243

DIRECTOR OF PUBLIC PROSECUTIONS

v

THA NA WAH

---

JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	2 February 2024
DATE OF SENTENCE:	2 February 2024
CASE MAY BE CITED AS:	DPP v Wah
MEDIUM NEUTRAL CITATION:	[2024] VCC 49

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW – Sentence.

Catchwords:              Plea of guilty – Affray – Causing serious injury recklessly – No prior criminal offending – Youthful offender – Very good prospects of rehabilitation – Delay – COVID-19 pandemic.

Legislation Cited:      Crimes Act 1958 ss 17, 195H, 323(1)(b); Sentencing Act 1991 ss 6AAA, 40, 48CA.

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Biba v The Queen [2022] VSCA 168; Azzopardi v The Queen (2011) 35 VR 43.

Sentence:                  Community Correction Order for a period of 2 years. 

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P Pickering	Office of Public Prosecutions
For the Accused	Mr D Brown	Chester Metcalfe & Co.

HIS HONOUR:

Introduction

1Tha Na Wah, you have pleaded guilty to:

(a) one charge of affray contrary to s 195H of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 5 years imprisonment (Charge 1); and

(b) one charge of causing serious injury recklessly contrary to s 17 of the Crimes Act, which carries a maximum penalty of 15 years imprisonment (Charge 2).

2You have no prior criminal history.

Circumstances of the offending

3A prosecution opening was tendered on the plea and may be summarised as follows:

4You were born in 2004 and had just turned 18 prior to this offending. At the time, you were residing in Werribee.

5There are four identified co-accused in this matter:

(a)   Chaiyapreuk Rumphol, who was 19 at the time of the offending;

(b)   Sonny Ratana[1], who was 16 years old at the time of offending;

(c)   Lee Mya[2], who was 15 years old at the time of offending; and

(d)   Lawrence Howden[3], who was 14 years old at the time of offending.

[1] A pseudonym.

[2] A pseudonym.

[3] A pseudonym.

6The victim, Dillon Reddy[4], was 15 years old at the time of offending.

[4] A pseudonym.

7At approximately 9.15 pm on 12 March 2022, you and your four co-offenders boarded a train from Werribee to Southern Cross Station.

8Police spoke to your group at approximately 11:35pm in Federation Square, Melbourne. At approximately 1.07 am on 13 March 2022, you and Mr Rumphol were on St Kilda Road, outside the Flinders Street Station Myki barriers.

The affray

9An argument occurred at the Myki barriers between your group and another group of youths which included the victim. The argument and subsequent affray were recorded on CCTV.

10In the course of the argument, Mr Rumphol struck one of the victim’s group with a bottle. You then punched the same male from the other group with your fist, causing him to fall to the ground.

11The affray was observed by numerous passers-by in the area around the station.

Recklessly cause serious injury

12The victim then pointed to you and began walking towards you. As he did so, Mr Rumphol ran at the victim and punched him in the jaw with his right first.

13The impact of the punch was of such force that the victim fell to the ground unconscious. The CCTV footage of the incident shows the victim hitting his head on the ground.

14While the victim lay on the ground, you ran up to him and kicked him in the head. The prosecution case is that this kick forms part of the affray.

15Almost simultaneously, Mr Ratana and Mr Mya kicked the victim while he was unconscious on the ground, the former kicking him twice to the torso and the latter stomping on his head with both feet.

16Mr Howden then ran towards the victim and also stomped on his head.

17While the victim lay motionless on the ground, bystanders tried to stop any further attacks on the victim by standing over him.

18The two groups of youths continued fighting but then fled.

Arrest and interview

19Police and ambulance members attended a short time after the fight.

20You were arrested in a laneway in the vicinity of the station at approximately 1.58 am, wearing the same clothing shown as in the CCTV footage.

21Mr Rumphol was arrested shortly after 3.25 am in company with the other co-offenders and others near the station.

22You were interviewed at Prahran police station on the same day. You initially denied the offending, saying you had been hit and fell to the ground and then were kicked. Later, upon being told a video existed of the incident and that the victim was kicked in the head while unconscious, you made the following admissions:

(a)   you kicked the victim in the head;

(b)   you did so because the victim ‘tried to wake up to get me back’;

(c)   you did not know anything because your ‘body hurt and [you’re] mad and want to get him back’;

(d)   you said the victim kicked you too – ‘two three four times’;

(e)   you said the victim punched you first; and

(f)    the victim ‘tried to get up’ and ‘if he get up he would hit me back’.

Injuries to the victim

23The victim was taken to Royal Melbourne Hospital and placed in an induced coma due to his life-threatening injuries. He was admitted on 13 March 2022 and discharged on 31 March 2022.

24The victim suffered a traumatic brain injury and was treated by an urgent craniotomy and evacuation of a left-sided scalp haematoma.

25The victim also suffered:

(a)   a left pariental, sphenoid and temporal bone skull fracture;

(b)    a right coutre-coup subdural 8mm with associated midline shift; and

(c)   a subfalcine herniation.

26The victim was intubated until 19 March 2022 and was required to wear a helmet due to a part of his skull being removed during the operation.

Forensic medical opinion

27A subsequent expert medical opinion from Dr John Gall stated that the injuries suffered by the victim were life threatening and in the absence of the resuscitation and subsequent surgery performed at the Royal Melbourne Hospital, the victim would have died from the injuries to his head.

28It is the opinion of Dr Gall that the punch from Mr Rumphol to the victim’s head and then his head hitting the ground that caused the serious injuries to the victim’s skull.

29Further, it is the opinion of Dr Gall that the kicking and stomping to the head by you and your co-accused may have extended the nature and severity of the serious injury inflicted by Mr Rumphol.

30The prosecution case is that Mr Rumphol committed the offence of recklessly causing serious injury by the punching of the victim to the head resulting in his head striking the ground.

31The prosecution case is that you recklessly caused serious injury to the victim in the following way:

(a)   you carried out the fighting and the affray immediately prior to the punch to the head of the victim by Mr Rumphol;

(b)   you punched another victim to the head, causing him to fall to the ground immediately prior to the attack on the victim; and

(c)   you intentionally assisted or encouraged the commission of the offence of affray and were aware that it was probable that the offence of recklessly cause serious injury would be carried out in the course of the other offending.

Nature and gravity of the offending

32The elements of affray include that there must be a degree of unlawful violence and that that display of violence would terrify a reasonably firm person present at the scene. Having viewed the CCTV footage of the affray, it is self-evident that the display of unlawful violence on this occasion would have been a terrifying experience for any member of the public watching. The fight between the two groups of young men occurred in one of the most public places in the Melbourne CBD, Flinders Street Station. While the whole event was relatively short, it included the inflicting of the serious injury to the primary victim by Mr Rumphol, and the kicking of the victim by you and others once he was unconscious on the ground. In my view, in all the circumstances this is a relatively serious example of an affray in a very public place.

33In terms of the serious injury inflicted on the victim, it is not put on the basis that your kick after he was on the ground can be proven beyond reasonable doubt to have caused or exacerbated the serious injury. Rather, it is put on the basis that your kick is able to be taken into account as part of your involvement in the affray which, as acknowledged by your counsel, elevates the seriousness of the affray. Nonetheless, you have pleaded guilty to the injury charge on the basis of complicity, specifically that you intentionally encouraged or assisted in the affray being aware that it was probable that the offence of recklessly cause serious injury would be committed in the course of the affray, pursuant to s 323(1)(b) of the Crimes Act.

Personal circumstances

34You have just turned 20 years old and are currently residing in Mount Gambier in South Australia with your partner, your one year old baby, and your partner’s parents. Your parents fled to Thailand from Myanmar before you or your siblings were born in order to escape the violence of the Burmese military; your family belongs to the Karen ethnic minority group. You and your two siblings were born in a refugee camp in Thailand, in the jungle close to the border with Myanmar.

35You lived in the refugee camp until you were about 13 years old. The living conditions were harsh and on occasion there was not always enough food to eat, however you were able to attend school in the camp. You acquired some English and you can also speak Thai. You come from a loving family that has remained supportive throughout these proceedings. I note you currently hold a Global Special Humanitarian visa; to be eligible for this visa, a person must be subject to substantial discrimination in their home country that would amount to a gross violation of their human rights.

36You moved with your family in 2017 to Australia, settling in Werribee. You attended a language school before transferring to Wyndham Secondary College, where you completed Year 11 and had just commenced Year 12 when your partner fell pregnant. You subsequently left school to focus on working and supporting your partner and child. You and your partner met first as children in the Thai refugee camp, and reconnected after you separately migrated to Australia. Your partner and her family settled in Mount Gambier. You moved there in 2022 to live with them and work full time on a dairy farm.

37Following your arrest, you were remanded at Melbourne Assessment Prison for approximately two weeks. During this time you had no contact with your family and were only permitted to leave your cell on one occasion. It was not until you were moved to the Metropolitan Remand Centre that you were permitted contact with your family. You were granted Youth Justice Supervised Bail on 1 April 2022.

38Two references were tendered on the plea – one from the manager of the dairy farm where you work, and another from a local Karen community member who resided at the same Thai refugee camp as your family and has known you since your birth. Both describe you as trustworthy and hardworking. Also tendered on the plea was a bail progress report dated 24 May 2022, which confirmed that during some eight weeks of Youth Justice Supervised Bail, you consistently engaged with Youth Justice, attending all of your weekly appointments. You have not reoffended during your time on bail and it was submitted on your behalf that you are no longer associating with any of the co-accused in this matter, preferring to focus on work and supporting your family.

39In your assessment with the Mental Health Advice and Response Service, you admitted that you were intoxicated at the time of the offending, having consumed cannabis, alcohol and unprescribed alprazolam (Xanax). Mr Brown who appeared on your behalf, submitted that at the time, you did have a problematic relationship with alcohol. Since that time you have moderated your alcohol consumption, drinking only occasionally. Again, this change has occurred as a result of your parental responsibilities.

Sentencing considerations

40Mr Brown highlighted a number of matters in mitigation.

41The first is your plea of guilty, entered after a committal hearing in which the victim was not cross-examined. Although your plea was not entered at the earliest opportunity, it has nevertheless saved significant court time and expense and has brought the matter to an early conclusion, thereby facilitating the course of justice. As I was involved in a case conference and then sentencing indication hearing in relation to this matter, I am cognizant of the fact that the injury charge was preventing earlier resolution, in circumstances where you had conveyed to the prosecution that you would plead guilty to the affray charge.

42Further, while the backlog of cases as a result of the pandemic has now eased, there are still some residual pandemic-related delays and thus a moderate amelioration in sentence is still able to be taken into account.[5]

[5] Worboyes v The Queen [2021] VSCA 169, [39]; Biba v The Queen [2022] VSCA 168, [26].

43Your youth is a relevant consideration which must feature prominently in the sentencing discretion. At the time of the offending you had just turned 18 and you turned 20 a week ago. However, as is well established, the mitigatory effects of youth must give way to some extent to the other competing and relevant sentencing considerations such as general deterrence and denunciation of your conduct, particularly in offences of this nature.[6]

[6] Azzopardi v The Queen (2011) 35 VR 43, [44].

44Turning to your prospects of rehabilitation, you come before the court with no prior convictions and no subsequent offending. Following 19 days on remand you entered the Youth Justice Supervised Bail program where you performed well. Since your release you have moved to Mount Gambier where you are settled with your partner and young child. You are also working full time. While you may benefit from treatment and rehabilitation programs in relation to alcohol use and reducing reoffending, in my view your prospects of rehabilitation are very good.

45Undoubtedly, general deterrence is the primary sentencing consideration in cases such as this. Young men fighting on the street in public areas must be deterred and those contemplating engaging in such conduct must know that they will face stern consequences. Denunciation of your conduct is also a relevant sentencing consideration. As to specific deterrence, for similar reasons noted in relation to your youth and your lack of prior criminal history, in my view it need not carry weight in the sentencing calculus.

46While cases such as this often call for a period of prison or detention, in all the circumstances in my view a community correction order is able to meet the relevant sentencing considerations. I note that the prosecution submitted that a community correction order is a disposition that is within in range in this instance. I had you assessed for such an order and you have been found suitable. I also note that the writer of the report assessed you as being a low risk of reoffending.

47I have also taken into account the 19 days that you served on remand in the general sentencing discretion.

48Finally, while there are two separate charges to which you have pleaded guilty, as they are founded on the same facts, pursuant to s 40 of the Sentencing Act 1991 (‘Sentencing Act’), in my view a single correction order covering both charges is an appropriate disposition.

Sentence

49Mr Wah, would you please stand.

50Tha Na Wah, on Charge 1, affray, and Charge 2, cause serious injury recklessly, you are convicted and will be placed on a community correction order for a period of 2 years. The correction order will have both punitive and therapeutic components. You will be required to complete 150 hours of unpaid community work, you will be required to engage in alcohol treatment, you will be required to undergo programs to reduce the chance of reoffending and you will be subject to supervision.

51Pursuant to s 48CA of the Sentencing Act, I direct that all hours that you satisfactorily complete pursuant to the treatment and rehabilitation conditions, may be credited as hours of unpaid community work.

52Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 18 months imprisonment with a non parole period of 10 months.