DPP v Jawahiri

[2020] VCC 1351

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-20-00266
Ind K12832250

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAPHEL JAWAHIRI

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2020
DATE OF SENTENCE:	28 August 2020
CASE MAY BE CITED AS:	DPP v Jawahiri
MEDIUM NEUTRAL CITATION:	[2020] VCC 1351

REASONS FOR SENTENCE
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Intentionally causing serious injury, joint attack with weapons, punches & kicks. Multiple blows by multiple offenders to outnumbered victim. Prisoner had meat cleaver. Variety of serious injuries including multiple fractures (including skull), pneumothorax and near amputations of fingers. Intubation. Life threatening injuries and injuries substantial and protracted.
early plea; 20 years old at time, 21 now. No criminal history.  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Sprague	Office of Public Prosecutions
For the Accused	Mr J McQuillan	Marcevski Lawyers

HIS HONOUR: 

1.Raphel Jawahiri, you have pleaded guilty to one charge of intentionally causing serious injury, an offence punishable by a 20 year maximum term of imprisonment.  

2.You were born in December 1998, were 20 years old at the time of the offence in October last year and are now 21 years of age. You have no prior criminal history at all. There are a large number of dishonesty matters pending relating to the theft or possession of a number of cars or fraud committed in relation to them as well as proceeds of crime offences. Those alleged offences predated the matter I am dealing with. On the day of the plea I was told by your counsel that there was nothing pending. No doubt Mr McQuillan believed that to be the true position but of course it wasn’t. That was just an oversight. Your solicitor had failed to mention the fact of the pending matters to counsel and emailed the Court late on the day of the plea to correct that misapprehension. Those matters are proceeding as contested matters.  There is an administrative mention next in October of this year so I put them aside.

3.The details of your offending are set out in the written summary of prosecution opening dated 15 July 2020. The prosecutor Mr Sprague opened this case to be in accordance with that document which was marked as Exhibit A.

4.Your counsel Mr McQuillan advised the Court that it was an agreed opening.

5.In that setting, I don’t see any need to fully restate the sentencing facts in my reasons. I will sentence in accordance with that agreed summary.

6.I will say only something very briefly about the facts.

7.You came across your victim as he walked through a service station late in the evening of Friday 25 October of 2019. You had got out of a car at the 7/11 and gone inside the outlet. Another person from that same car entered the outlet as well. You exited the outlet and went back to the car which was parked near the petrol bowser. The victim had chosen that moment to take a shortcut through the service station. Nothing was said but he made eye contact with you and was later to say that you looked funnily at him as he walked past. He continued walking home. There was nothing vaguely resembling a confrontation. No words, no acts. Nothing. A short time later having travelled in the car in the same direction the victim had been walking in, you and two others left the car and walked across Racecourse Road. You were holding a meat cleaver as you entered the area in behind the housing commission flats. You and your two offsiders loitered in that area. You were waiting. Your victim came along in the direction you had travelled and one of your number, it is believed to be Eser, asked the victim his name and then said “remember me ya fucking dog cunt”. The victim had no idea what this was a reference to and had in fact put his hand out to shake hands and we can see that on the CCTV.  He then saw that the other person was armed with a knife. He was pulled to the ground and then brutally assaulted with kicks, punches and by weapons. It was a joint attack by the three of you. Mr McQuillan’s suggestion that it is somehow mitigatory in such a setting that you were not the person who instigated the contact is not a matter of any worth at all. This was a group attack and it was plain that the group you were part of lay in wait. After all, you had the meat cleaver out as you walked in this area well in advance of the actual meeting and there you waited until the victim arrived. Mr McQuillan conceded that was all established on the materials.

8.So who first spoke to the victim or delivered the first physical blow is of no moment at all. This was a planned joint attack. Your victim was quickly taken to ground. He put his hands up at one point to protect his face only to have them slashed and cut. Then his head was cut. The attack rained down on him.  He fell onto his back. He thought he would die. Footage depicts you striking this man five times to the hands, face and body with a meat cleaver. He was on the ground almost from the outset of the first contact.  

9.One of your number at one point said “he’s done, leg it, let’s go”. That is what you all then did.

10.The CCTV footage shows you running off as a group and you wiping your meat cleaver and putting it in your bag. You left your victim to his own fate.

11.Luckily for you, and for him of course, the victim was able to make his way to a nearby apartment and summonsed help. Had he not done so, had he lay down where you had last seen him, as he so easily might have, you’d likely be facing a charge of murder. Instead he somehow got to his father’s apartment and collapsed there. The emergency services were summonsed.

12.He was in shock when ambulance crews arrived. He had multiple penetrating stab wounds, a deep wound on his back through which his internal organs or muscles could be seen and a range of other significant wounds including multiple lacerations to his hands and fingers ranging from superficial to almost complete amputations.

13.The summary of prosecution opening refers off to the various medical materials within the depositions including the medical report at page 137, the medical file at pages 327-341 and the expert report of Dr Schreiber at Victorian Institute of Forensic Medicine.  An emergency trauma call was initiated due to his having no recordable blood pressure at one point. See page 423.

14.He was in a critical condition. He had life threatening injuries. He was intubated.  The summary sets out the details of his admission to hospital and the extent of the injuries and I will not go into all the detail.

15.He had multiple knife wounds, several partially amputated fingers, multiple fractures including to his skull, to 4 ribs, to  his cheekbone, his hand and his shin. He had lost 1.5 litres of blood and had penetrating chest trauma with a collapsed lung.

16.He had a number of further procedures and spent further time in hospital and has kept a number of outpatient appointments since. I have been informed of some of that information this morning and an email has been marked as part of Exhibit B, together with the unsigned Victim Impact Statement and some further medical records.

17.You were arrested and interviewed by the police on 27 October 2019. You did yourself no favours in that interview, telling lie after lie but that is not a matter in aggravation.

18.You pleaded guilty at a second committal mention in February of this year after some negotiations. One co-accused is before the courts and contesting the matter. That is Eser. He is, as I understand it, your stepbrother. The other man is unknown, well at least to the authorities.

19.That is only my summary of the summary. The agreed opening is far more complete and I sentence in accordance with it. As I say, it refers off to various medical material attached to the depositions including the Victorian Institute of Forensic Medicine report summarising the hospital file. Of course, I also have the footage of this attack which is marked as part of Exhibit A.  It is startling.

20.This was a terrible attack causing severe injuries.

Victim Impact

21.There was difficulty on the date of the plea obtaining information as to the victim’s current position. There had been some indication that a victim impact statement would be provided but it had not been. He had wanted to attend court but the stage 4 restrictions prevented his attendance. In fact I was told that he had been taken away to hospital by ambulance that very morning. The matter was adjourned to see if any further light could be cast on his condition. There is now a brief victim impact statement here. It is unsigned but that is really owing to the involuntary admission of the author. He is currently in hospital and there is no access to him and won’t be potentially for months. There has been significant deterioration in his mental state. Mr McQuillan in discussions this morning has been explicit in telling me that there was no issue taken with the Court acting on the unsigned VIS in that setting or those other materials that have been marked as part of Exhibit B. The reality is the victim impact statement could not be signed for the foreseeable future. Had there been any issue taken I would have had to consider adjourning off this sentence to permit the victim to at least be in a position to sign that document.

22.In any event I have specifically asked Mr McQuillan as to his attitude to the victim impact statement and these materials and he has no objection to me receiving it and acting on it even though it does not comply with the strict provisions in s.8(K) of the Sentencing Act.

23.There are also those hospital records that have been obtained and that is also marked as part of Exhibit B.  I am not going to go through that line by line. He has had some ongoing treatment and issues which is hardly surprising.  It would be miraculous if he had not.

24.Even had there been no victim impact statement, it would have been abundantly clear that this was a very serious attack with very serious consequences.  He describes in the victim impact statement, and it is a brief document, his depression and anxiety and difficulties in sleeping, having nightmares, reliving the event. His life has greatly changed and that is not owing purely to the very serious physical injuries. Overall the attack has caused him much pain and suffering.  Again that is hardly surprising when one looks at the injuries.  It has changed his life.

25.I take into account the impact of your crime. It has been very sizeable.

Mitigation

26.Your counsel Mr McQuillan had filed a written plea outline which took me to your background in some detail. He said there was much family support. He relied upon a large number of character references to the same end and as demonstrating the out of character nature of this conduct. He made submissions about the level of seriousness of the offence. He made submissions as to the relevant sentencing purposes as well as to your future plans and your prospects of rehabilitation.

27.He relied principally upon:

·Your early guilty plea;

·The presence of remorse;

·Your youth and absence of any criminal history at all; and

·The increased burden arising from the impact of the COVID-19 virus.

28.Your counsel conceded the seriousness of this crime and the inevitability of a sizeable term of imprisonment. He conceded that a non-parole period would be required here but argued for a longer than usual parole period. I interpose, there is no such thing as a usual parole or non-parole period actually.

Prosecution

29.The prosecutor Mr Sprague did not make lengthy oral submissions. There was no need to. He had prepared a 6 page written submission as to sentence dated 6 August. That was marked as part of Exhibit A. I see no need to set out all of the prosecution sentencing submissions in these my reasons. Those written submissions were generally quite uncontroversial. They descended to the detail of the matters of aggravation in the instant case as well as to some matters of firmly established sentencing principle.  They addressed some of the matters in mitigation. The prosecutor submitted on behalf of the Director of Public Prosecutions that this was serious offending warranting a prison term. Well of course that was in no way in dispute here. The prosecutor took me to a handful of past sentencing decisions which included statements of principle as well.

30.This offence is a Category 2 offence and so a custodial sentence must be imposed unless one of the criteria set out in s.5H(a)-(e) of the Sentencing Act 1991  is made out. Plainly there was no ability to avoid a lengthy enough prison term as was conceded by your counsel, so I will not mention those provisions again in these reasons.

Background

31.I turn now to your background. I will do so briefly as it is not one of those cases where it is said to explain the offence or in any way reduce your culpability. You had a good enough background with loving and supportive parents.

32.I have no reason not to accept the family background placed before me and see no need to repeat it all now.   You were born on 8 December 1998. You are now twenty-one years of age. 

33.You are the eldest of 4 children of migrant parents, your mother from Ethiopia, your father from Iran. You grew up in the Collingwood/Clifton Hill area in a number of public housing units. Your parents separated when you were 16. You were living in Clifton Hill with your mother and other siblings at the time of your remand. Your mother works in aged care. Your father who still lives in Clifton Hill is a security guard.  You have a good relationship with both parents. You completed year 12 by way of VCAL at Secondary School without any dramatic issues at school. You did some work in construction as part of your VCAL and a little bit outside that study component, but have had little luck actually holding down a job for some years. Drugs have been an issue, mainly cannabis, cocaine and ice but also alcohol.

34.You have no criminal history at all.  This is your first time in custody. There are the many pending dishonesty and driving matters alleged to have occurred in August and September of 2019 but as I have been told that you are contesting those cases it is appropriate then for me to put aside those outstanding matters altogether which is what I must do.

35.You have been in custody since your arrest in October 2019, a period as of the plea date of 281 days. That total has now risen to 302 days.

36.It is not a good time to be in prison with greater restrictions in place arising from the response to the COVID-19 virus. I will discuss those matters later in these reasons.

Guilty Plea

37.I turn now to some of the matters raised in mitigation on your behalf, firstly to your guilty plea.  It was a plea at the very earliest of stages.

38.It has obvious utilitarian value.  By your early guilty plea, you took responsibility for your crime. The community has been spared the time, cost and the effort of a committal hearing in the lower court or a trial up this court. Importantly the victim Mr God has been spared the experience of giving evidence in Court. So too the various other witnesses, police and civilian alike. Giving evidence can itself be an unpleasant experience. It can actually add to the trauma and it has been completely avoided here. Giving evidence no doubt would have provided an added stress in his life and has not been necessary here.

39.You have in these ways then facilitated the course of justice and I will pass a lesser sentence because of your early guilty plea.  I do take into account the admissions that you made in your interview with the police but for reasons which I now move to, I must say the interview is not your strong point on the plea.  You really do not convey much, if any, remorse in that lengthy exchange.

Remorse

40.Your counsel argues that you are genuinely remorseful. Very strangely, at least it seemed to me, he was pointing to the interview as a source of that remorse. Well as far as I am concerned, the less said of your interview the better. But as your counsel, for whatever reason, relied upon it as a source of remorse, I need to say just a little bit more about that interview. You danced around the truth for most of that exchange. That is not, by the way, a matter in any way in aggravation, but there is scarcely a shred of remorse that I can detect in that account. You were trying to ascertain what the police knew and what they could prove. Initially you said you were not there at all. You had not been in Flemington. You had been at a concert and had come away in an Uber with people who you would not name. When shown some CCTV stills, you admitted that that was you. The Uber disappeared from your story and it was now your stepmother’s car. You had denied owning a bag. You had lost your Louis Vuitton bag a fortnight before, you said. You then said it was you but not your bag, when confronted with the CCTV still. The bag was around your shoulder.

41.You said there was no incident, no assault. So a large number of questions with many lies coming from your mouth. Each step you lied and then had to retreat from those lies when shown the image next in line which proved the lie. You told the police you could not recognise who those other men were. They came with you, Mr Jawahiri. You had no weapon, then you had a meat cleaver. You did not use it, there was no incident, then you said you only used it twice. You said you did not know the victim.  It was the first time you had come across him. You said you bumped into him and got into a fight but that you had no weapon but then described having a meat cleaver and saying that one could get meat cleaver from anywhere. You told police that you did what you had to do but would not expand on that at all.  You said that you were helping yourself and did what you did for “personal reasons”. 

42.By the end of the interview there was no explanation at all of the offence. None. That has not changed. It is an unusual aspect of this case.  You have chosen to give no explanation of the offence. None. I asked your counsel to explain to me the mindset behind this offence. Why you had the meat cleaver? Why you lay in wait? Why the conduct occurred? You have chosen for whatever reason to give him no instructions on any of these topics. Of course that is your right but what am I to make then of this offence? What am I to make of remorse or the risk of reoffending? I do not have any explanation of the offence so can have no idea what your attitude really is to it. You mentioned regret once in the interview. See Question 378.  Not one enquiry about the condition of the victim. No apology in the interview or since. You have however pleaded guilty at an early stage. A guilty plea is usually but not always evidence of at least some remorse.  Here the case was overwhelming. That does not impact in any way upon the allowance I make for your guilty plea. They are quite separate matters and the allowance I make for your guilty plea does not in any way depend upon a positive finding as to the presence of remorse.

43.However, the evidence is not strong here as to the presence of any remorse. I am prepared in the circumstance to put from my mind your laughter in the course of the plea as the summary was read aloud by the prosecutor. I hoped it was just a nervous expression upon hearing the swear words used in Court. I put that aside altogether.

44.There are the character references from family, friends and people associated with the Church, a large number of them marked as part of Exhibit 2. I raised my concerns as to many of those references. It was as though there has been a template handed out and your counsel had anticipated that may be raised as he had obviously noticed the very same thing. I do not really know what any of those authors have been told or know about this matter, as to what is actually alleged against you. It seemed plain that they had been informed of the bare detail of the charge. They presumably have none of the detail that I have. They presumably have no account from you as to why you did what you did, no explanation. Nor am I really told why they reach the conclusions they say they reach about your remorse or even what they mean by that word.

45.The references seem not to grapple greatly with the issue of your problematic drug use over the years. It is fair to say your counsel in his oral submissions significantly moderated and retreated from his submission in the written outline and ultimately suggested that I should find there was some remorse at least implied from your guilty plea. I am prepared at least to find that your guilty plea implies some limited remorse but it is far from complete here.  I do not know why that is so but that is the position. I take the existence of some limited remorse into account in mitigation of sentence.

Rehabilitation

46.I turn now to your prospects of rehabilitation. You have no criminal record, so a genuine first offender but what a first offence to commit. You are still very young and with youth always comes some hope. I will say more about youth in one moment. You have obvious family support. The various references are relied upon. I have already commented on some of their limitations. I am not going to dissect the detail of those documents. I take them into account. They speak of your qualities, the qualities observed by the various authors.

47.Really with one voice they describe the conduct as being starkly out of character. I am not satisfied they know the full detail of the offending. I don’t myself, given your preference not to disclose why you so acted in company with two others to inflict this attack. If I have no sense of why you so acted, of what brought you to that point, how do I make meaningful judgements as to the risk in the future? That is a real problem. Saying as your counsel did in his written submission that you instructed that you became involved in this offending as a result of being with the wrong people at the wrong time and having used ice and alcohol earlier in the day, well that is just a whitewash. It is totally meaningless and it gives me no true insight into your reasons for committing this serious offence. Reasons which you obviously know but which you prefer to keep to yourself. I suppose it is possible you are protecting others, Eser for instance, but I really cannot know. Your counsel submits that you have insight into your reasons for offending. Well I am not satisfied about that at all. How can I be?

48.Drugs have been an issue for some years and they always cloud a person’s future prospects. The sentence I will impose will be a very large one and that process of being arrested, charged, brought before the court and then sentenced to a sizeable prison term will all serve to deter you to a degree. The strong family and church support is there but it was there at the time of the offending. It is hard then not to be slightly guarded here. How do I assess your risk of re-offending when I cannot really understand how or why you came to be offending in the way that you did?  Ultimately, I am prepared to find though that you have reasonable prospects of rehabilitation.

Youth

49.Tied into those prospects of rehabilitation is your youth. You were 20 years old at the date of offence and only 21 now. Not a child, but still pretty young and importantly, a first offender.  Your counsel made submissions about some of  the principles which apply when dealing with a youthful offender, things set out very clearly in cases such as Mills[1] and Azzopardi[2]. He focused on Mills but in the course of discussion conceded that there were some limitations in play here. That the submission as to the importance of your youth had to be read in light of some of the passages from Redlich JA in Azzopardi, that have application here. Also what was said in the case of Lawrence[3].  There are many passages in many cases dealing with the reduced weight given to youth in some cases.  Many of those cases are offences of violence.

[1]R v Mills (1998) 4 VR 235 (“Mills”)

[2]Azzopardi v The Queen [2011] VSCA 372 (“Azzopardi”)

[3]DPP v Lawrence [2004] VSCA 154

50.The law ordinarily treats youth as a matter of real importance. Young people are more prone to make mistakes or to act without thinking through the consequences. They are more likely to be caught up in group settings where peer pressure may have a role to play. They are less mature. They are generally speaking, less culpable and the benchmark for sending a youthful first offender to prison is a very high one indeed.

51.It is handsomely attained in this case.

52.Generally speaking, more weight is devoted to rehabilitation and less weight is given to punishment and deterrence. The law also recognises the potential corruption of a youthful offender which may and does take place in a prison setting. The law recognises the fact that young or youthful offenders are more able and likely to be rehabilitated as they are less set in their ways. Whether it knows it or not, the community has a sizeable interest in the rehabilitation of any offender. So do the Courts. After all, no protection is needed from someone who is actually rehabilitated.

53.The Sentencing Advisory Council (“SAC”) released a lengthy paper late last year dealing with the complexities of sentencing young adult offenders. See ‘Rethinking Sentencing for Young Adult Offenders’ (SAC, December 2019).

54.You are a youthful first offender and that is a matter of significance but what is also clear from the cases is this: the weight to be given to youth and rehabilitation will vary from case to case. It is not just automatically applied the same way in every case. As Redlich JA stated in Azzopardi, generally speaking, the more serious an offence, the less weight will be given to youth and rehabilitation. That is because more weight is devoted to some of the other purposes of sentencing. The same sentiments are spelt out in countless other decisions including Lawrence where the Court of Appeal stated:

“ With an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offenders' youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence. As has been said, youth and rehabilitation must be subjugated to other considerations.” [4]

[4] Ibid at [22]

55.The Court of Appeal went on to refer to those matters taking a back seat to specific and general deterrence where crimes of wanton and unprovoked viciousness were involved. Especially in a setting where a perpetrator has been given chances. Well of course you have not been.

56.I will not lose sight of your youth. I am not in that dark zone referred to by
Redlich JA in Azzopardi where the mitigatory effect of youth is all but extinguished. That dire setting is reserved for the gravest of criminal offending where there is no realistic prospects of rehabilitation and that is not reached here. I have already commented on your having prospects of rehabilitation but this was a very serious crime. Your youth and rehabilitation must surrender some sizeable ground to the other purposes of sentencing here.

COVID-19

57.I accept that the COVID-19 virus and the response to it by those running the prisons will increase your prison burden. It has already since the limitations came into play some months back. Prison is a more stressful environment. You cannot make a decision to self-isolate. Social distancing is not easy. No doubt there is worry about catching the virus in such a setting where there is no level of autonomy. It is impossible for me to know precisely how the virus or the response to it by those running the prisons will impact upon you in the future. There are some lockdowns but they do not exist across all prisons so I cannot conclude that they will necessarily apply to you in the future. Visits have already been suspended and so have some courses and programs. I cannot know how long those things will persist.

58.It is impossible for me to forecast the impact of this virus either on those in the community or those in prison. Some cases have been discovered in prison in recent times. There has been a state of disaster declared and that does not suggest to me that there will be any prospects in the short term of the prison conditions being returned to the pre COVID-19 setting. So prison life has been and is tougher for you, a first time offender. I would expect there will be less time out of cells, more time in cells therefore, less programs and courses and no access to in-person visits for quite some time. I accept then that there is an increased custodial burden in your case for these various reasons and I take this into account in your favour.

General

59.I now wish to make some general remarks.

60.I am required to take into account a large range of matters including the maximum penalty and the impact of the crime.

61.I am required to take into account current sentencing practices.  Current sentencing practices are only one factor amongst many. They are not a controlling factor.  I have looked at a variety of materials. I have looked at the Sentencing Advisory Council Snapshot No. 238 for intentionally causing serious injury as well as the cases the Prosecutor referred me to.

62.Some of those cases refer to other examples of sentences imposed previously for this crime. I believe matters of principle spoken of in the cases are far more important than the actual sentences imposed.

63.I have looked also at the new Judicial College of Victoria sentencing case collection of sentences for this crime.

64.Cases such as Lukudu[5] to which I was referred and Evans[6] speak of the importance of general deterrence and the reality of sentences in the high single figures and into double figures for this crime.

[5]Lukudu v The Queen [2019] VSCA 248

[6]DPP v Evans [2019] VSCA 239

65.The snapshot demonstrates that when prison was imposed it spanned a large range of sentences. There were periods of less than one year right up to periods of over 12 years.  The most common band of prison sentences fell between 5 to 6 years.

66.That spread of sentences though is perfectly normal and merely recognises the many differences which exist between cases and offenders. Something recognised in the cases.

67.In Nash v R [2013] VSCA 172 Priest JA said that experience shows that the circumstances of the commission of this offence are almost infinitely variable and therefore the sentences imposed widely vary. He went on to say that there were cases involving protracted savagery while others were constituted by a single punch. Some involving a variety of weapons. Further the injuries widely vary from gross and permanently disabling injuries to others that barely cross the threshold of serious injury. See paragraph [55].

68.Statistics have inherent limitations. They are just numbers on a page and really say nothing at all about the individual features of the other case. They are silent as to all of the many features of aggravation or mitigation which may exist. Those are the very things which will inform the sentencing task.

69.Other cases also have significant limitations. Whilst as a matter of fact they do disclose the actual sentences previously imposed for the crime of intentionally causing serious injury, they are not precedents, to be followed unless somehow distinguished. They are instances of another Judge or Court sentencing another offender for another instance of the crime. There are always differences as there were in the handful of cases to which I was referred. Some things present in other cases are not present in this case and vice versa. I must pay regard to current sentencing practices but there is no such thing as one correct sentence and another judge in any of these other cases I have looked at might permissibly have imposed a different sentence. There are always limits in looking at other cases, even comparable cases.

70.There are always differences. Different mechanisms of injury, different duration of offence or number of blows, different injuries, different impacts, different consequences. Sometimes a weapon or weapons, sometimes not. Sometimes a group attack, sometimes a single offender. Sometimes there might be provocation, often there is none. Differences in so many other areas including the existence of remorse, the stage of the plea, prospects of rehabilitation and the existence or otherwise of a criminal history.  A host of differing matters in mitigation and aggravation. Even differences in the definition of serious injury which was significantly altered in July 2013 and became far more difficult to establish.

71.I note also that sentences have increased for this crime. See Lukudu at paragraph [46].

72.My job as a Judge is not to try to find another sentence for the same or very similar crime by a similar offender and then use that as a form of template or precedent and impose that same or similar sentence. That is not what a judge must do.

73.What I must do is pass an appropriate sentence in your case.

74.That outcome will never be driven by what has happened in other cases, or by what the statistics disclose as to what has most commonly been done in the past. I am not here to sentence you by selecting the median or average or most common sentence imposed in the past. They are just statistical terms.

75.I have to take into account the various purposes of sentencing.

76.Rehabilitation is one such purpose. I don’t ignore your youth or your realistic prospects of rehabilitation. They are not however the only things I must consider.  Because of the high seriousness of this crime, your youth and rehabilitation is not nearly as important as it would be in a less serious case. It must surrender sizeable ground to some of the other purposes here given the nature of this crime. One such purpose is punishment.

77.Punishment is an important sentencing purpose. You must be punished for your crime, justly and proportionately.

78.I must also denounce your conduct. That is an important purpose of sentencing for a crime as serious as this. This was outrageous offending carried out in a public place.  You should be far more ashamed of yourself than I sense that you are.

79.Community protection is also an important purpose of sentencing.  This was a quite startling offence committed upon a totally innocent man in a public place. He had done nothing to you. I am not given any explanation for your offending. None. That is your choice and one you are free to make. I think it is a bad choice actually.

80.So what I have is a startling joint attack that so easily could have killed this victim. And for what? It is true you have never done anything like this before. True you have no criminal history and of course I take that into account. However it was an incredibly dangerous crime and you seem not to even now be fully remorseful. I find that deeply puzzling.  It is disturbing.

81.Who knows, you may have been mixing with the wrong crowd and disinhibited to some extent by alcohol and drugs but even if that is what happened, and I do not know that it was, that would not be in any way mitigatory as your counsel correctly concedes. Nor would it explain this level of violence. You were carrying a meat cleaver.

82.Specific deterrence, that is to say the need to deter you is obviously of relevance here.  You must be deterred from offending in the future. No doubt having been in custody already, will have some role in deterring you. So too the sentence I will soon impose but it is an important sentencing purpose here.

83.General deterrence is an important purpose as well in this sort of case. It is not greatly reduced owing to your youth. There are, regrettably, enough young men who see fit to carry weapons and to use them. Enough offenders committing acts of violence in public places are young and the message must be driven home to them. I am not only though seeking to deter young offenders. I must deter any likeminded offender. This was a violent attack with weapons in a public place. The courts have a role in deterring other people in the community who might be minded to commit this type of very serious offence of violence. The use of weapons raises the stakes very considerably.  The message must be sent loud and clear to likeminded potential offenders that this sort of serious crime of violence will be met with condign punishment.

84.I have to pay regard to the gravity of the offence before the court.  Your counsel suggested that this was a mid or medium level offence. The prosecutor suggested the overall objective seriousness placed it in the higher end of the medium range. All that talk of fitting the crime into some band of seriousness should not be in any way mistaken. No-one is saying it is anything other than a serious offence. Intentionally Causing Serious Injury is after all an inherently serious crime. I have to assess the nature and gravity of the offence before the court and so it is not uncommon to have these submissions made with slight differences between the level of offence seriousness depending on who is making the submission to me. Here, medium as opposed to the higher end of the medium range. It is all a bit silly actually and the Court of Appeal has recognised that fact often enough. They have been critical of this practice. See the case of Weybury[7].

[7]DPP v Weybury [2018] VSCA 120

85.This never ending quest to place an offence as though with some mathematical precision onto some spectrum of offence seriousness is greatly overrated in my view. It is much more valuable to look at what you actually did.

86.Still I must make a judgement as to the nature and gravity of the offence before the court and counsel have seen fit to make their submissions as to the level of offence seriousness. Where then does this offence fall? Your offence falls a mile from the lowest level examples of the crime of Intentionally Causing Serious Injury, which is an inherently serious crime. It sits very comfortably above mid-level in my view. Plainly, it is a serious example of this serious offence and I have already mentioned some of the features which make it so. A totally innocent man on his own at night and plainly targeted in a public place. So there was some planning. Over what? You will not tell me.

87.He was unarmed.

88.You had seen him and the three of you for whatever reason had determined to lay in wait. That is plain from the footage. It is conceded. You had your meat cleaver drawn. That sentence might imply that it is natural to have such a weapon on one’s person but only unusual to produce it. The fact that you had it is alarming enough. The fact that you drew it well in advance of your victim coming down the path is more alarming. You then used it on a defenceless man and were striking at vital areas. It was incredible conduct actually.

89.So there was nothing spontaneous or opportunistic happening here. I cannot find any provocation. You will not fill in any of the detail. He held out his hand to shake hands with your offsider and the terrifying attack then rained down upon him with kicks, punches and the use of weapons. You were swinging a meat cleaver at his hands, head and upper body. Not just swinging it, hitting him with it. It was a dreadful joint attack. The injuries were horrendous. As I said earlier, it is not mitigatory that your offsider was the person who met and engaged the victim. It was a planned joint attack as is so obvious by your movements as a group both before, during and after the attack. Nor is it mitigatory that it was a swift exercise. He was totally overwhelmed. It did not need to be protracted. The exercise produced grave injuries because at least two of you were armed and using weapons upon a lone and unarmed, defenceless victim. He was immediately overcome and in a defensive and vulnerable position on the ground throughout this attack.

90.Both limbs of the definition of serious injury are amply satisfied here. That is conceded by your counsel. Serious injury is defined as ‘injury including the cumulative effect of more than one injury that endangers life or is substantial and protracted’. Both limbs are made out here. Your victim was left in a critical condition. He had life threatening injuries. He would likely have died but for the treatment obtained. Serious invasive operative and medical treatment was required. Luckily for you he survived. Further, the effects of those injuries has been substantial and protracted.

91.As I said a moment ago when dealing with the wide variation of offences captured by this crime, some can be caused by a single punch. Some with injuries which just barely cross the threshold of that definition. That is not what I am dealing with here. This was joint planned brutal conduct by armed men upon an unarmed man at night. Dreadful injuries resulting and unlike a single punch where there can sometimes be a disconnect between the injuries intended and those actually produced, that cannot be said for a man swinging a meat cleaver with at least one offsider using a knife. There was no disconnect between the mechanism that you and your offsiders used and the actual serious injuries caused. Your victim did not fall to the ground for instance and sustain serious injury in that way.  This was not some flurry of blows with someone fighting back in a one on one fight or some confused melee between groups.

92.This was a deliberate, ruthless, joint armed attack. I am satisfied beyond reasonable doubt that you intended to cause really serious injuries.

93.The court of Appeal had a fair bit to say about such an event in Lukudu. See paragraphs [35]-[40] and later at [46]. The use of the weapon, the context of the offence and the severity of injuries. None of those things assist you, Mr Jawahiri

94.These injuries as I have said could so easily have been fatal but for prompt medical attention and a fair dose of luck. It is true that we as Judges see injuries that are more catastrophic than these in terms of their ultimate physical residual effect. I am speaking of some unlucky victims who are reduced to a totally dependent state or to life in a wheelchair for instance.  Well very luckily, that is not what we are dealing with here it would seem. These serious injuries were of a high level, could so easily have been fatal and the mechanism, a joint armed and physical attack in a public place was extreme. The crime viewed objectively is in my view a serious example of the crime of intentionally causing serious injury.

95.Justice of Appeal Nettle said the following over 15 years ago in the case of Zullo[8]:

“This court has said repeatedly that those, who when disinhibited by alcohol, engage in unbridled violence in public places, must expect condign punishment in which the principles of general and on many occasions specific deterrence will play major roles”.

[8]DPP v Zullo [2004] VSCA 153 (“Zullo”)

96.He went on to make it clear in that case that sentencing practices had moved on from those days where there had been a lesser maximum penalty for this offence. He said that the top of the range was now upwards of 15 years. That was when he spoke in 2004. Well to jump ahead 12 years and to pick up the point made in the High Court case of Kilic[9], a case where the same Judge actually presided, a worst case offence is of course deserving of a sentence close to the maximum term.

[9]The Queen v Kilic [2016] HCA 48 (“Kilic”)

97.The Court of Appeal in a case of Terrick[10] referred to a series of cases handed down in August 2004 where a number of statements had been made as to the seriousness of the offence of ICSI. See para 76. The cases included the case I have just mentioned of Zullo, Lawrence, Huynh[11] and Sa[12].  The Court of Appeal quoted from Zullo.  The Court of Appeal in Terrick then made clear that the aggravating features common to many of the cases with the high level sentences were;

(i) that the attack on the victim was unprovoked;

(ii)  the attack continued after the victim had become unconscious; and

(iii) the victim sustained very severe injuries. 

[10]DPP v Terrick [2009] VSCA 220 (“Terrick”)

[11]R v Huynh [2004] VSCA 156 (“Huynh”)

[12]R v Sa [2004] VSCA 182 (“Sa”)

98.Fortunately for you and for your victim, as dangerous as his injuries were on the night and as serious as the impact undoubtedly has been, it has not reached that highest of levels, those catastrophic impacts that I mentioned such as a lifetime of dependence or something which is irremediable, such as a dreadful brain injury. His life has altered forever. There is no question but that he has been deeply affected but as a matter of pure chance he is not left with those sorts of catastrophic impacts that I have spoken of.  It is only for that reason that you avoid the imposition of a sentence well into double figures.

99.Your crime really does not bear much scrutiny. There is, in truth, not much in mitigation in this case. You have pleaded guilty. You are a youthful first offender but nonetheless I judge this to be a serious example indeed of the crime of Intentionally Causing Serious Injury.

100.Your counsel conceded the inevitability of a term of imprisonment. Well that was obvious.

101.I am conscious of the need to avoid a crushing outcome upon you but I must pass an appropriate sentence. Your culpability was very high here. The objective seriousness was also very high. The only reduction in culpability would arise from your youth. Even that is hard to take greatly into account owing to the seriousness of this offence and for that matter, the complete vacuum in the materials as to why you so acted. It is not easy for me to connect this offence up to youth at all.

102.Given the dimensions of the sentence I will impose, I will be required to fix a non-parole period. I can make no assumptions as to whether you will be released on parole as that decision will be made by the Adult Parole Board. I am not even allowed to speculate about the possibility of early release.

103.I will fix a non-parole period as I am required to and that will provide for the possibility of a sizeable enough period on parole should you be so released.  Whether the Adult Parole Board release you on parole will be between you and them.

104.There are no ancillary orders sought in this matter so I will now pass sentence upon you.  I would normally have you stand up but I will not over the WebEx, I will have you remain seated.  

Sentence

105.On Charge 1, which is of course the only charge before me, that is the charge of intentionally causing serious injury, I convict and sentence you to 8 ½ years' imprisonment. That is therefore the total effective sentence.

Non Parole Period

106.I fix a period of 5 ½ years during which you will not be eligible for release on parole.

Section 18 PSD

107.You have been in custody already for a period of 302 days. That period is reckoned as having already been served pursuant to this sentence and that section 18 declaration is also entered into the records of the court.

6AAA

108.I have taken into account your guilty plea.  Had you pleaded not guilty and been found guilty of this offence by a jury, I would have sent you to prison for 11      years. I would have fixed a non-parole period in that setting of 8  years and that declaration pursuant to s.6AAA is also to be entered into the records of the court.

109.Are there any other matters, Mr Sprague?

110.MR SPRAGUE:  No other matters, Your Honour. 

111.HIS HONOUR:  All right.  You will have to arrange obviously a conference with Mr Jawahiri in due course to discuss what has occurred here today.  I will revise these reasons once they are provided for signature but that completes the sentencing task then.  So as I say, if there is - I will provide in due course the revised reasons.  They can be no doubt distributed to the victim for that matter or if there is a desire to observe the passing of sentencing then that can also be  arranged by way of provision of a copy of it.  Anyway, that completes the matter and I will sign those formal orders.  I have signed that order so then that completes the matter.  I will now disconnect the link and we will adjourn the court.

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