DPP v Chilenko
[2006] VSC 247
•6 July 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1485 of 2005
| DPP |
| v |
| ALEXANDER CHILENKO |
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JUDGE: | TEAGUE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 April and 6 July 2006 | |
DATE OF SENTENCE: | 6 July 2006 | |
CASE MAY BE CITED AS: | DPP v Chilenko | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 247 | |
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Criminal Law – Sentencing – Recklessly causing serious injury – Threat to kill – Pleas of guilty - 17 year-old male in fight stabbing 17 year-old male – injury nearly fatal – many mitigating factors – Total effective sentence of 2 years and 6 months, with non-parole period of 1 year.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Gyorffy | Office of Public Prosecutions |
| For the Accused | Mr R.A. Lewis | Lethbridges |
HIS HONOUR:
Alexander Chilenko, you have pleaded guilty to two charges arising out of events which occurred at Bentleigh on 16 December 2004. The first is of recklessly causing serious injury to Andrew Cula-Reid. The second is of threatening to kill Andrew Cula-Reid.
You and Andrew Cula-Reid had been fellow students and friends. In December 2004, you were both 17 years of age, shortly to turn 18. You had both just finished your schooling at McKinnon High School. On 11 December, Andrew Cula-Reid had a car stereo system stolen from his car at a time when it was parked a short distance from his family home. His mother had seen you and other teenagers near the car at a critical time, and said so to Andrew. He formed the conclusion that you were linked to the theft. Over the next few days, he made telephone calls in an attempt to find out more as to those links. You and some of your friends became aware of his close interest. He enlisted the support of some of his friends. Thus there were two camps of male teenagers. Each camp had something to be aggressive about to the other. It was a setting with a potential for action that was at least immature.
On 16 December, matters came to a head. Andrew Cula-Reid and his friends were in one car. You and your friends were nearby in another. You spoke by telephone with Andrew Cula-Reid. You threatened to kill him. You said things like: “You are a dead man walking”; “I’m going to stab you”; and, “I’m going to fucking kill you.”
At about 7.45 p.m., the two cars were driven into Centre Road, Bentleigh. There, your car was parked behind that of Andrew Cula-Reid. You were handed a knife by one of your friends. You chose to take up that knife. You walked towards Andrew Cula-Reid, saying that you were going to kill him. The two of you came together and there was a fight. Blows were struck by you and by him. In the course of that flurry of blows, you had the advantage, as you well knew. You alone were holding a knife. The knife only caused one injury. But it was a near-fatal injury to the chest of Andrew Cula-Reid. It pierced his left lung. It pierced his heart. Fortunately for him, and for you, it was possible to carry out emergency surgery and thus save his life.
How you acted after you left the scene, suggested that you cared little for the man that you had nearly killed. I do not punish you for those actions, but they are contra-indicative of remorse. You engaged in a variety of strategies over the next day or so, which were calculated to avoid responsibility for your actions. On 17 December, at about 10.15 p.m., you were removed from a flight about to leave Sydney for Tokyo, and were arrested.
Denunciation and general deterrence must play a role in the sentence that I impose. Fights between immature loud-mouthed young men with fists alone are regrettable enough. Taking up a knife adds a particularly nasty extra ingredient. It increases markedly the prospect of death or really serious injury. To the seriousness of the main offence is to be added the circumstance that you have had to appear before the Children’s Court on a number of occasions. For that reason, special deterrence cannot be put to one side.
Mr Gyorrfy, prosecuting, contended that a period in custody was called for, but also accepted that the imposing of a sentence of a significant period of custody in a youth training centre was within the range of sentencing dispositions. Mr Lewis, on your behalf, urged that I should order a non-custodial sentence. I will return to those matters.
I have read the three victim impact statements lodged with the Court. They are from Andrew Cula-Reid and his two parents All the indications are that a lot of thought went into each of the three statements. They help to bring home the devastating effects of an injury such as Andrew Cula-Reid sustained, and not just because of the adverse physical effects. The serious and enduring adverse psychological effects are very powerful indeed and do need to be taken account of.
I turn from the offending behaviour and its adverse effects to you. You are now 19 years of age, having been born in January 1987. The details of your background were provided to me in part in the report of Pamela Matthews, psychologist, in part through the plea made by Mr Lewis and in part through the two witnesses called to give evidence on the plea. In short, you were born in Vladivostok. Your parents separated when you were aged 4. Your mother took on a new partner, and to him bore a son, who is to you a younger brother. You came to Australia at the age of 10. You have received most of your secondary education in Melbourne. In 1999, your mother had an operation that had an adverse result which led to her being considerably disabled, and to her being forced to give up her work as an exporter. Your IQ level is in the average range. Your academic results have been much better than average, which suggest that you are a hard worker when studying. There is evidence from your employer “Surepak” that you are a diligent storeman/driver. That employment has been undertaken to provide a much-needed stream of income to support your mother and brother. You have been studying at Latrobe University, and plan to continue those studies. You have a girl friend.
Mr Lewis put to me that you have turned your life around since coming out of remand last year. That is just as well given the signs of an apparent increasing disrespect for the law displayed by your Children’s Court appearances and the circumstances of the subject offences. It does appear that the time on remand has had a rehabilitative effect at least in part as a consequence of exposing you to the adverse consequences of a period in an adult prison. The evidence of Mr Luzhanski and of Dr Goloub served to bear out much of what was put to me by Mr Lewis as to several matters, including the availability to you of support in the Russian community in Melbourne, the importance of your salary to your mother and brother, and the extent of your maturing over the last 12 months.
I must and do weigh heavily in your favour, your youth, your pleas of guilty, the delay which has attended your being sentenced, the strong indications of a commitment to rehabilitation, and the importance of your contribution to the welfare of your mother and brother. However, as I said on the plea, I do consider that the seriousness of the principal offence is such particularly in the light of your prior actions which brought you to court, that I cannot accept that a non-custodial disposition could be appropriate.
I did request two reports which have been studied by me and have been the subject of further submissions from Mr Lewis. In one report, it has been indicated that you are a suitable candidate for a community based disposition. Such suitability, however, is a consideration which is but one of a number of factors to be balanced amongst others to be addressed. In the other report, it has been indicated that you are not considered a suitable candidate for a youth training disposition. I found the reasons given by the authors for that conclusion compelling.
I am satisfied that the appropriate course is to order a period of imprisonment but with a lower than usual non-parole period. I am conscious in so doing that an inappropriately low non-parole period can be seen to undermine the effect of general deterrence. My intention is to make appropriate allowance for the significant mitigating factors operating in your favour.
I have signed the retention order, there being no objection to my doing so. I declare as to pre-sentence-detention: 165 days. I direct that that be entered in the court records. For the offence of recklessly causing serious injury, I impose a sentence of 2 years and 6 months imprisonment. For the offence of threatening to kill, I impose a sentence of 1 month imprisonment, concurrent with the 2 years 6 months on the first count. I fix a non-parole period of 1 year.
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