Director of Public Prosecutions v Wekerle

[2017] VCC 435

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION	Revised Not Restricted Suitable for Publication
GENERAL LIST

Case No. CR-16-02290
Indictment No. G12590344

DIRECTOR OF PUBLIC PROSECUTIONS

v

KOLI WEKERLE

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	11 and 12 April 2017
DATE OF SENTENCE:	12 April 2017
CASE MAY BE CITED AS:	DPP v Wekerle
MEDIUM NEUTRAL CITATION:	[2017] VCC 435

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:              Sentence – affray (common law) – causing injury intentionally
Legislation Cited:     Crimes Act 1958, s18; Sentencing Act 1991, s3, s5(4C), s6AAA, s18

Sentence:Convicted and sentenced to 2 years’ imprisonment with a non-parole period of 15 months. Section 6AAA declaration: Conviction and sentence of 3 years’ imprisonment with a non-parole period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K Hamill	Solicitor for the Office of Public Prosecutions
For the Accused	Mr R Keating	Slink & Keating

HIS HONOUR: 

1You have pleaded guilty to one charge of affray and one charge of causing injury intentionally.  The maximum penalties are five years’ imprisonment and ten years’ imprisonment respectively.  These offences are largely founded on the same facts.  The fight that caused the injuries occurred at a public place in circumstances where members of the public of reasonable firmness and courage were put in fear, hence the affray.

2After some discussion with counsel, I announced in open court that I proposed imposing an aggregate sentence in the circumstances.  Both the Prosecution and the defence agreed that was a sentencing option open in your case. 

3Circumstances of your offending are set out in the Prosecution Opening on Plea, exhibit A.  The CCTV footage, exhibit B, also demonstrates some of the relevant facts, as do the photographs of the victim, some of which were taken a week or so later, exhibit C. 

4These facts are admitted, save for a reference to something alleged to have been said by you in Samoan and set out in paragraph 13 of exhibit A.  I have ignored that reference in passing this sentence.

5While the exhibits speak for themselves, I will briefly summarise some of the circumstances of your offending.  You knew the victim and obviously had some issues with him as you told police that you were “pissed off” with him.  On
31 August 2016, you travelled into the city from Noble Park where you met the victim and two other young men.  You apparently had violence in mind but initially it was directed to one of the other males.  You had plenty of time travelling to the city to reflect on the fact that you would shortly be meeting the victim, this person you say you were “pissed off” with.  All four of you ended up in the area of Federation Square on the riverbank side.  It was about 8.00pm, so after dark.

6Your offending started when you ran towards the victim from behind him.  You punched him in the head and face multiple times.  You kicked him in the stomach.  The other two assailants were apparently 16 years of age and you were 19 years at the time.  You encouraged your younger co-offenders.  One of them hit the victim with a stake.  This first segment of your violent offending took about two minutes.  Bystander members of the public became aware and were put in fear.  The victim had blood dripping down his face from head and facial wounds. 

7You and the other two assailants started to walk downstairs and away from the bleeding victim who remained at the top of the stairs.  The film shows the victim sat alone at the top of the stairs and appeared to be nursing his head wounds.  After a short while you then walked back up the stairs.  You put your arm around the victim as he sat there.  A female bystander erroneously thought you were assisting him so she gave you some tissues and wipes to attend to him.  A few seconds later, you stepped back from the victim and then kicked him hard in the face.  The victim fell back.  He hit his head on the concrete.  He was rendered unconscious.  You then stomped on his face, before running off.  The presence and reaction of bystanders resulted in the commission of an affray. 

8As well as suffering a loss of consciousness, the victim suffered retrograde amnesia, bruising, a 5-centimetre scalp laceration requiring five staples, as well as other lacerations and bruising to his face and lips.  Exhibit C shows some of these injuries. 

9I regard this as a very serious example of this type of offending.  There are a number of reasons why I consider it so.  I will list a few.  It was a cowardly attack.  There were three of you on to one.  It was a brutal sustained attack that had two segments.  The level of violence was high.  The CCTV footage shows a full blooded kick to the face in the second segment.  You chose to come back and kick him in the face after the first segment, the series of blows, was over.  You had ample time to cool down and think about what you had done before choosing to further assault him.  You were given some tissues by a good samaritan and obviously this did not even lead you to reconsider what you had already done to the victim but simply was a precursor to the vicious kick in the face that followed.  At that stage, you kicked an already wounded victim who was just sitting down, no doubt trying to recover somehow from the first segment of the attack.

10You were interviewed by police about the night and for reasons that are not clear, you took the train ride to the city intending to beat up on someone.  You told the police that in the train you planned on giving another man “a hiding”.  Unfortunately for the victim, when that other man ran off, you “took Joseph [the victim] instead”. 

11When asked about your returning to the victim for the second segment of your attack on him, you told the police you did it because you were angry.  You also said you wanted to teach him a lesson.  Later, you said you “couldn’t help [yourself]”.  These are comments made in the absence of any drug influence and any mental illness.  Your offending was senseless, sustained violence of a very serious kind.

12No victim impact statement has been tendered.  The victim has apparently left Australia.  The facts, including the photographs, speak for themselves as to what you did to the victim. 

13You have admitted the contents of a criminal record which discloses an alarming record of violence for a person still not 21 years old.  Yours is a record that demonstrates you have been treated leniently by courts.  You have ignored those opportunities and in particular, you have already breached three Community Correction Orders.  The offences before me occurred while you were under three current CCOs.  These breaches are apparently to be dealt with later this month in the Magistrates’ Court.

14The CCO Breach Report is damning in regard to your attitude to
non-custodial opportunities given to you in the past, exhibit 6.  Also, it is worth noting that while in youth custody in 2015 at Malmsbury, you committed violent assault offences on two different dates.

15Turning to personal matters.  You turn 21 on 19 October this year.  You came to Australia when you were about 16 years of age.  Your circumstances have been set out in detail in the ten exhibits tendered on your behalf, all of which I have taken account of.  These are:

·Chronology and Submission dated 6 April 2016 which sets out your personal circumstances in some detail and does not need repeating;

·Letter of Temese Leilua from Youthworks Victoria dated
4 June 2015;

·Pre-sentence report from the Department of Health and Human Services dated 11 June 2015;

·Progress report of Department of Health and Human Services dated 13 November 2015;

·Letters from Maleth Ouk from Youth Support and Advocacy Service dated 16 November 2015 and 25 May 2016;

·CCO Breach Report dated 8 October 2016;

·Psychiatric report from Dr Maria Triglia dated 27 March 2016; certificate of program completion dated 14 November 2016;

·Statement of results from Chisholm TAFE dated 17 December 2013; and

·National Training Services record of results dated 12 April 2014.

16As is apparent from their dates, a number of these exhibits are of limited use in terms of your violent offending since those documents were authored.  The materials indicate that your offending has not been drug affected and you do not suffer from a mental illness.  This is in your favour in terms of judging your prospects of rehabilitation. 

17In spite of this and your relatively young age, your prospects of rehabilitation in my view are guarded.  Of particular concern is the report from Dr Triglia, exhibit 7.  While this report is of limited use because it is referrable to your upcoming CCO breach proceedings rather than the offences I must deal with, several comments need to be made.  When interviewed by Dr Triglia on 28 February 2017, you indicated you did not wish to discuss the present matters, and that is your prerogative.  But what is clear from her very recent interview is that you minimise the seriousness of your past violent offending.  I doubt, in spite of the plea made on your behalf, you have much, if any, real insight into your violent behaviour. 

18Your counsel pointed to a number of mitigating factors which you are entitled to have taken into account.  I will mention some of those matters.  You pleaded guilty early.  This shows remorse but your remorse is tempered somewhat by your lack of real insight into your violent offending.  There is of course the utilitarian benefit of saving the community time and expense and sparing witnesses the ordeal of giving evidence.  Your relatively young age is a very important factor.  You were 19 at the time and are still six months off reaching 21.  You have been on remand in harsh lockdown conditions for a considerable time.  Your counsel submitted this has hopefully given you time to think about your offending and your future.  You have family and other support.  People have attended court in support.  You have good health and you are said to have some job prospects.  You face immigration visa cancellation, triggered by a sentence of 12 months or more and thus you are at risk of deportation.  I accept that this risk, as well as your relative youth, will make your time in custody more burdensome than for others. 

19Your counsel’s initial submissions were that a CCO with or without more time in custody was an appropriate sentencing option. In view of the seriousness of your offending, your past attitude to non-custodial dispositions and the CCO breach report, exhibit 6, I do not agree. I have undertaken the consideration required by s5(4C) of the Sentencing Act and in my opinion, in spite of your age, a prison sentence is required to achieve the purposes for which sentence is imposed.  Similarly, I reject the submission that you should be dealt with under the Youth Justice system in its various forms.

20As well as those matters personal to you to which I have referred and which are contained in the ten exhibits I have mentioned, I must also take into account other relevant sentencing considerations. This case highlights the difficulties confronted when sentencing a young offender for serious crimes. Under s3 of the Act, you are indeed a young offender which carries with it all the legal impact in terms of sentencing considerations that category demands.

21Something of a conflict is brought into play where on the one hand the need for just punishment, denunciation and general deterrence is apparent while on the other hand there is the public interest in rehabilitating the young offender.  The risk of institutionalising a young immature offender has to be considered when the prospects for rehabilitation can be unique to a young person when compared to older offenders. 

22In your case, general and specific deterrence must still be given weight, in spite of your age.  The community cannot and will not tolerate offending which seriously compromises our citizens’ right to feel safe in the streets of our city and which can have devastating physical and other consequences for the victim.  It has been said recently by the highest court in our state that random street violence is a scourge on our society.  The message must be clear that appropriate punishment will result in such circumstances.  Your sentence must manifest the community’s denunciation of your conduct and impose just punishment.  I must protect the community from any repetition of this type of offending and I must seek to deter you and others from such violence. 

23Considering the various purposes for which sentence may be imposed and your young age, I will order a shorter non-parole period than I would have if you were older.  Parity is of little, if any, assistance in sentencing you as the two younger co-offenders come under the jurisdiction of the Children’s Court.

24These are without doubt serious offences.  Stand up, please, sir. 

25In the circumstances I impose by way of an aggregate sentence an immediate term of imprisonment of two (2) years and I direct that you serve fifteen (15) months before becoming eligible for parole.  I declare 204 days pre-sentence detention, pursuant to s18 of the Act be reckoned as served. 

26Pursuant to s6AAA of the Act, I declare that but for your pleas of guilty I would have imposed a term of imprisonment of three years with a non-parole period of two years. I have made the ancillary orders sought.

27Take the gentleman, thank you.

28UNIDENTIFIED SPEAKER:  Yes, Your Honour.

29HIS HONOUR:  Nothing else?

30MS HAMILL:  No, Your Honour.

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