DPP v Faulkner
[2007] VSC 512
•10 December 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1545 of 2006
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALI SLEIMAN FAULKNER |
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JUDGE: | Teague J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 August 2007 | |
DATE OF SENTENCE: | 10 December 2007 | |
CASE MAY BE CITED AS: | DPP v Faulkner | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 512 | |
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Criminal Law – Sentencing – Intentionally Causing Serious Injury and other offences of violence – Effective sentence of 5 years and 9 months – Non-parole period of 4 years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Tinney | Office of Public Prosecutions |
| For the Accused | Mr D. Hallowes | Dowling McGregor Thomas |
HIS HONOUR:
Ali Faulkner, you have pleaded guilty to seven offences arising out of events that occurred on 27 November 2005 in Brunswick. Count 1 is of making an affray. Count 2 is of recklessly causing serious injury to David Mather. Count 3 is of intentionally causing serious injury to Lincoln Walker. Count 4 is of intentionally causing injury to Neil Reaney. Count 5 is of intentionally causing injury to Elton Smith. Count 6 is of intentionally causing injury to Zac Myers. Count 7 is of assaulting Ethan Hill.
The maximum penalties for each of the five offences are, in years: 5 for affray, 15 for recklessly causing serious injury, 20 for intentionally causing serious injury, 10 for intentionally causing injury and 5 for common assault. Save for the affray, the relative seriousness of the individual offences is such that the maximum is of little consequence.
At around midnight leading into the early hours of Sunday, 27 November 2005, you went with some friends and acquaintances to a party that was being held in an upstairs warehouse in Hope Street, Brunswick. Two of those friends were Binyam Alemu and Khalid Baker. I say little as to them as they are still facing a charge of murder as to the death of Albert Snowball arising out of one episode of the events of 27 November 2005. You were not directly involved in that incident.
Most of the acquaintances with you were interested primarily in putting on a musical and dancing performance at the party. It is not clear what you, Alemu and Baker had in mind. At one stage, the three of you left the warehouse to purchase alcohol. At another stage, you were seen to be smoking from a bong.
At around 2 a.m., you carried out your first assault. You were standing in a passageway as David Mather passed by. He was intending to leave the building. He was not known to you, or you to him. As he was passing you, and for no apparent reason, you punched him in the face. He suffered a broken nose, which required surgery. That is Count 2. It is the first in point of time.
From Count 2, I turn to Counts 1, 3, 4 and 6. At around 3 a.m., you were responsible for initiating an affray. You chose to harass a young woman. That led to her keeping away from you by rejoining her friends Lincoln Walker and Neil Reaney. Neil Reaney started to dance with her. Lincoln Walker remained seated. As he remained seated in a chair, you punched him a number of times to the head. As a result of your assaults, he lost consciousness. He had to be treated later for cuts and bruises at St Vincent’s Hospital. Your assaults led to Alemu and Baker engaging in assaults on other people nearby. Innocent party-goers were punched and kicked. Bottles were thrown. Not only did you initiate the affray. You continued to take a very active part in it. When Neil Reaney went over to check on Lincoln Walker, you assaulted and seriously injured him. Another party-goer, Zac Myers, was also assaulted by you, and suffered injury.
I turn to Counts 5 and 7. Together with Alemu and Baker, you started to leave the building. That meant moving down some stairs. At the time of the events leading to the death of Albert Snowball, you were not alongside them. That was because one of your acquaintances was restraining you in your own interest. As you were going down the stairs after the fatal assaults by others upstairs, you assaulted Aidan Hill. You punched him to the face for no apparent reason. Outside the building, Elton Smith warned you and your friends that you were in trouble. He then moved away. He then rang the emergency number 000 on his mobile phone to enlist aid. You went over to him and punched him in the face.
You left the scene with your friends. You split with them shortly after doing so. An hour or so later you were picked up by police in Brunswick Road. You were then placed in a cell at the Preston Police Station. That was done on the basis that you were showing the effects of having consumed an excessive amount of alcohol.
You were arrested on 12 November 2005. You provided a written statement to the police. In it you said that you had attended at the warehouse party, but had no memory of it. You said that you had consumed on the night alcohol and 6 Serepax tablets.
I have read the victim impact statement prepared on 23 November last by Neil Reaney. I am informed that no other statement has been received, and that your lawyers do not wish to make submissions directed to that of Neil Reaney. His statement refers to the very substantial adverse past and ongoing physical, financial and psychological consequences that he has suffered as a result of your criminal assault on him. You ought to read the statement carefully. You ought to reflect on its contents and use it as a spur to gain entry into prison courses aimed at avoiding such consequences being suffered by others in the future at your hands.
You are 22 years of age having been born, in May 1985, into a family that has had no trouble with the law. Your schooling was uneventful. You chose to take a path that led you into taking illegal drugs from the age of 18. Further details of your background were provided in the oral testimony of your mother on the plea. It is clear that you have a supportive immediate and extended family. More details are set out in the report of Bernard Healey. He saw you in October 2006, and reported on matters which included your family background, your school and work record, your involvement in a collision with a tram in 2003, your considerable involvement with illegal drugs and your problems with observing bail conditions last year.
You have appeared before various courts charged with criminal offences on six occasions between 2002 and 2005. On the first occasion, you were placed on probation and you breached the probation order. On the second occasion you were placed on a community based order and you breached that order. On the four later appearances in the Magistrates’ Court, on which you were convicted of over forty offences, a number for violence, you were sentenced to terms in youth training centre and in prison. Your record is such as to make you a leading candidate for assessment to do a high-level violence program while in prison.
I must allow in your favour for a number of mitigating factors. Foremost amongst them is your relative youth, and your early pleas of guilty. Apart from the utilitarian aspect, your pleas go to your prospects of rehabilitation and remorse. I must also take account of the circumstance that the balance of your time in prison is likely to be spent in protection. Denunciation and general and specific deterrence must play a significant part in the sentence that I impose. Your prospects of rehabilitation are at least reasonable, given that you have good family support, and that you have done courses already in prison, have shown a willingness to do more and have kept away from drugs there.
The offence that I treat as the most serious is Count 3, and thereafter Counts 1, 2 and 4. The position overall is such as to make somewhat difficult the adjustments for relative seriousness and hence concurrency. The affray that you created and continued was particularly nasty, such as to create a terrifying situation for many people nearby. I weigh in your favour that the only weapons used in the affray were bottles. Nevertheless, the extent of adverse consequences from a forceful blow with a fist can be devastating.
I declare that you have served 694 days by way of pre-sentence detention. I direct that that be entered in the court records. I have signed a forensic sample retention order as submitted by the prosecution, having been informed that there is no objection to my doing so.
In what follows I direct that there be cumulation for the later counts on the period of 3 years imposed on Count 3. On count 3, I impose a sentence of 3 years imprisonment. On count 1, I impose a sentence of 2 years imprisonment, cumulative as to 1 year. On count 2, I impose a sentence of 2 years imprisonment, cumulative as to 1 year. On count 4, I impose a sentence of 8 months imprisonment, cumulative as to 4 months. On count 5, I impose a sentence of 6 months imprisonment, cumulative as to 2 months. On count 6, I impose a sentence of 6 months imprisonment, cumulative as to 2 months. On count 7, I impose a sentence of 6 months imprisonment, cumulative as to 1 month. The effective term is 5 years and 9 months. I fix a non-parole period of 4 years.
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