Director of Public Prosecutions v Williams
[2018] VCC 1272
•14 August 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 17-01516
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB WILLIAMS |
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| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Trial June 4 – 22 June 2018 Plea – 10 August 2018 |
| DATE OF SENTENCE: | 14 August 2018 |
| CASE MAY BE CITED AS: | DPP v Williams |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1272 |
REASONS FOR SENTENCE
---Subject: Jury verdict - Intentionally cause injury x 1
Sentence: 8 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Albert (Plea) Mr M. Pitcher (Sentence) | |
| For the Accused | Mr J. Lavery (Plea) Mr S. Robertson (Sentence) |
HIS HONOUR:
1Jacob Williams, you have been found guilty after a trial by a jury of one charge of intentionally causing injury (charge 2). The maximum penalty for this crime is 10 years imprisonment .
2You were charged on indictment with one charge of aggravated burglary (charge 1). The allegation was that you entered a premises being Flat 62/200 Dorcas St, South Melbourne (“the premises”) with intent to steal whilst armed with an offensive weapon and/or whilst knowing a person was present. You were also charged with one charge of theft (charge 3).
3The jury returned not guilty verdicts on charges 1 and 3 and convicted you on charge 2. I agree with the submissions of your counsel Mr Lavery that the only reasonable interpretation of the jury’s verdict in acquitting you on charges 1 and 3, and convicting you on charge 2, is that the jury were not satisfied beyond reasonable doubt that you had entered the premises. The jury was satisfied beyond reasonable doubt that you had assisted or encouraged others to injure the victim Mr Rangbar the occupier of the premises. I understood the prosecutor Mr Albert to concede that this was the only possible interpretation of the jury’s verdict.
4Whilst you cannot be punished for having run a trial, you nevertheless cannot expect to receive a reduction in sentence that would normally apply had you pleaded guilty to the charge. You have maintained your innocence throughout and you have exhibited no remorse.
5The facts as to what occurred here may be shortly stated. At about 5.20am in the morning of the 16th March 2016 you, accompanied by one Josef Morfese went to 200 Dorcas St South Melbourne where you meet another person Mahadi Abdirahman who lived at that address, which is a large block of Housing Commission Flats. Your movements in entering and moving within the block of flats were largely recorded on closed circuit television. You were recorded entering the lift and travelling to the 6th and 7th floors. Mahadi Abdirahman lived in a flat on the 7th floor. The victim Rangbar lived in a flat on the 6th floor. You were later recorded leaving the building and after a short time re-entering via the stairwell. Another person, whom you identified in your evidence as a person named “Sean”, gave you access to the stairwell from inside the building. Morfese was armed with a crow bar.
6Bijan Rangbar is an elderly and frail man obviously in ill health. He gave evidence that he was at home and shortly before 6.00am he answered three knocks on the door. On the last occasion two men entered and assaulted him causing him injury as a result of which he was hospitalised. It was the prosecution case that you were one of those two men and the other was Morfese. Rangbar was unable to positively identify you.
7You did not give a record of interview. You did give sworn evidence. You told the jury you went with Morfese to the housing commission flats where you met with Sean. The purpose of going there at that time of the morning was to score the drug heroin. You said you did not know who was going to supply the drug but Morfese knew Sean and Sean would do the drug deal. You gave evidence that you went into the block of flats where you met with Mahadi Abdirahman and Sean. You and Morfese contributed $500 between the two of you and Sean went to purchase the heroin. When the heroin was supplied you said you went to the flat of Mahadi Abdirahman on the 7th floor to use the drug. It was then realised that you had not been supplied with the agreed quantity of heroin. It was agreed between you, Morfese, Sean and Mahadi Abdirahman that Morfese and Sean would return to the supplier (whom you believed from later events was Bijan Rangbar), and either get some money back or get the correct quantity of the heroin. You told the jury that you and Morfese then left the building and went to a car where you both picked up a crow bar which you knew might be used as a weapon and a bag with tools and implements in it. You and Morfese then returned to the building via the stairwell having been let in from the inside by Sean and the three of you went to the sixth floor. You told the jury that Morfese and Sean went into the premises occupied by Bijan Rangbar but you did not. You said that you waited in the stairwell. A short time later Morfese returned shouting for you to Go,Go,Go. You then left the building and the area by car. You were given more heroin which had apparently been obtained by Molfese when he again entered the premises and assaulted Bijan Rangbar.
8The jury must have accepted your evidence or at least it gave reasonable doubt to the prosecution case.
9Bijan Rangbar was taken to hospital injured. He remained an in-patient for seven days. His injuries were photographed and he was examined by a forensic medical examiner Dr Ghuman who gave evidence. Amongst other things he had a laceration to the bridge of his nose and to his scalp and a two centimetre laceration to the top of his left foot consistent with having been struck with a crow bar and bruising to his right thigh. It was obvious to everyone in the court that Bijan Rangbar had been subjected to a pretty bad beating having regard to his already frail state of health. The photographs depicting his injured state certainly gave this impression and it was not suggested otherwise.
10Josef Molfese was found guilty of a murder that occurred not long after these events. After he was found guilty of murder, when he presented for plea he also pleaded guilty to the charges of aggravated burglary, theft and intentionally causing injury arising from this incident. He was sentenced by Justice Jane Dixon in the Supreme Court on the 14th February this year. DPP v Josef Molfese [2018] VSC 32. He was sentenced on the basis that he committed each of these crimes in concert with you. On the charge of intentionally causing injury to Bijan Rangbar Her Honour imposed a sentence of two (2) years' imprisonment. Her Honour said that had it not been for Molfese’s plea of guilty to the charge she would have imposed a sentence of two years and eight months imprisonment on that charge. I accept that having regard to the jury’s verdict in this court you are to be sentenced on the basis that you assisted or encouraged Molfese to injure the victim Rangbar and not on the basis that you directly inflicted the injuries or than you were in the flat when the assault occurred.
11Mr Lavery filed with the court an outline of argument which I marked as an exhibit. He attached to that the sentencing statistics from the Sentencing Advisory Council relating to the offence of intentionally causing injury which show that the median sentence for this offence is imprisonment for one year. Mr Lavery submitted that your offending must fall towards the lower end of the scale for this offence. You knew that others were returning to Mr Rangbar’s flat armed with weapons to recover drugs or money. You knew that to achieve that purpose Mr Rangbar would or might be injured. For an elderly man to have been intentionally injured in the way that he was, is very serious. Whilst you may not have directly inflicted the injuries you encouraged or supported the infliction of the injuries and you knew it was likely the victim would be assaulted and injured. I agree your role, on the evidence the jury must have accepted, was a lesser one than Molfese but you nevertheless played an important part of the crime.
12You are now aged 26. This offending occurred on your 24th birthday. You have a long criminal history commencing with your first appearance at the Melbourne Children’s Court as you approached your 15th birthday on the 28th February 2007 when you were dealt with on a number of charges involving dishonesty and violence including recklessly causing serious injury, intentionally causing injury, robbery and armed robbery.
13In the May following you were again dealt with for amongst other matters, unlawful assault and recklessly causing injury. The records show that on a number of occasions you have appeared in the Children’s Court on charges involving acts of violence. Your first appearance in the Magistrates’ Court for a crime of violence was in March 2011 when you were again convicted for recklessly causing injury. In December 2011 you were convicted in the Ringwood Magistrates’ Court on charges of recklessly causing injury, unlawful assault and assault police. In July 2012 you were again before the Ringwood Magistrates’ Court where amongst other matters you were convicted of threatening injury to prevent arrest and unlawful assault.
14You appeared before the Moorabbin Magistrates’ Court on the 6th March 2017. You were convicted of a number of consolidated charges including two charges of assault and dishonesty and drug offences. You received a total effective sentence of one year and one month imprisonment and 134 days was reckoned as pre-sentence detention so that you must have been in custody from about October/November 2016 on these matters. The Magistrate fixed a non-parole period of 6 months on that occasion.
15However, on the 18th April 2017 you were again back before the Frankston Magistrates’ Court for further offending by offences of dishonesty. The Magistrate imposed a sentence of four months' imprisonment cumulative on the sentence imposed on the 6th March 2017.
16You were arrested on the matters that are before me on the 7th April, 2016. I was told there was a filing hearing on the 11th April 2016 and a contested committal was to be held on the 16th December 2016 which could not proceed because Mr Rangbar went to Iran. The committal proceeded on the 31st July so that there was a delay in this trial taking place of around 6 to 7 months. During that time you were serving sentences for other crimes which I have set out above.
17Mr Lavery argued the sentence here should be reduced because you lost the possibility of concurrency and because the trial was pending you lost the opportunity of parole from other offending. I am not convinced that is the case. The fact remains you have frequently committed so many offences resulting in so many court appearances that it is only a guess that you would have been admitted to parole or that you have lost concurrency.
18It is agreed between your counsel and the prosecutor that you have 168 days pre-sentence detention as at the date of your plea.
19I admitted into evidence a neuro-psychological report from Jane Lofthouse dated 30th July 2018 which I admitted into evidence as exhibit 2. I was also told in references tendered that you were born addicted to heroin. You told
Ms Lofthouse your use of heroin dates back to your childhood and that you have been a heroin user daily since aged 15. You commenced using cannabis aged 12. You have also abused other medications. You used to use methamphetamine but this became less frequent after you became a daily heroin user.20You told Ms Lofthouse both your parents were heroin users. You grew up in the care of your paternal grandparents. You left home aged 15 and you have spent many periods in gaol or in Youth Justice Centres. You have a good relationship with your father and he and your grandfather were in court for you each day. You have no contact with your mother. You are in a relationship with a woman. You have described this as a positive relationship. You have the support of your partner and a number of relatives. Because of the problems in your life your education has been fragmented and limited. You left school during year 8. You have had work as a waterside worker, a labourer and a bricklayer.
21Psychological testing revealed a full scale IQ of 77 which was within borderline range. Ms Lofthouse concluded by saying:
“The results of this assessment suggest that Mr Williams has mild to moderate intellectual deficits that, for the most part, are likely to have been present at the time of the criminal offending that resulted in his current incarceration. Intellectual impairment cannot however account for his long and violent history of criminal offending which dates back to his early adolescence. Mr Williams shows a mildly reduced capacity for verbal and non-verbal abstract reasoning and this makes him somewhat reliant on reaching ill-considered and impulsive decisions and this is likely to have been one factor in his criminal offending. Intellectual impairment is not the only or significant contributing factor in his criminal offending and Mr Williams chronic use of drugs from an early age are likely to have played a significant part in destabilising his behaviour and this has been a significant contributing factor in his criminal offending."
22I accept this opinion. Much of your offending and this offending for which I sentence you has been directly caused by your drug addiction. It is impossible in these circumstances to predict your chances for a complete rehabilitation. Your history sadly suggest to me that your chances of rehabilitation are bleak. Whether or not you can achieve it is entirely up to you.
23You have a deal of support. I admitted into evidence a reference from father Bob Maguire who has known you and your family for many years. He speaks of your family support and your prospects for employment upon release. I also admitted into evidence a reference from Paris Little who supports you and outlines prospects for your employment and a further reference from your father outlines the support from him and the rest of your family. All of this is positive but the rest is up to you.
24In your case the sentence imposed must have proper regard to deterrence, both general and specific. The sentence must also denounce your crime and impose just punishment. In passing sentence I have had regard to the fact that you have now been in gaol since October 2016 on this and other matters so I must have regard to totality. I have also had regard to the fact that because of some incident in gaol you have been kept in isolation making your time in custody more burdensome for you than for other prisoners. Having regard to all of these matters you will be sentenced as follows:
25On the charge of intentionally causing injury you are convicted and sentenced to a term of imprisonment of eight (8) months.
26I direct that 172 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 deducted administratively.
27Are there any questions arising out of that?
28MR PITCHER: Your Honour, there's only the issue of the disposal order.
29HIS HONOUR: Is that opposed, Mr Robertson?
30MR ROBERTSON: No, Your Honour.
31HIS HONOUR: Yes, I'll sign the disposal order submitted by the prosecution in relation to various items.
32MR PITCHER: Thank you, sir.
33HIS HONOUR: So, I've signed those orders.
34MR PITCHER: Thank you, sir.
35HIS HONOUR: Could you take Mr Williams back to custody please?
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