R v Gjergjaj
[2013] VCC 710
•27 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
Case No. CR-13-00535
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AUREL GJERGJAJ |
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JUDGE: | HER HONOUR JUDGE COTTERELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 May 2013 | |
DATE OF SENTENCE: | 27 May 2013 | |
CASE MAY BE CITED AS: | R v. Gjergjaj | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 710 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Tang | Office of Public Prosecutions |
| For the Accused | Ms N. Ma | Greg Thomas Solicitors |
HIS HONOUR:
1 Aurel Gjergjaj, you have pleaded guilty before me to one charge of intentionally causing injury. The maximum penalty for that offence is ten years imprisonment. The facts of the matter were opened by the prosecution and a summary of the prosecution opening was tendered as Exhibit A on the plea.
2 In brief, you attended at a night out with your workmates at the Transport Bar in Federation Square on 7 December 2012. You had been drinking earlier and were heavily intoxicated. At around midnight, you left the Transport Bar with a friend and when you attempted to re-enter you were refused on the basis of your intoxication.
3 You then engaged in a dispute with the security guards. Eventually your friend was allowed in because you needed to find the friends with whom you had attended the premises initially and you were told to wait outside. Not satisfied with that you again approached security. You were extremely verbally aggressive, you returned on more than one occasion and eventually you were pushed by one of the security guards and fell over backwards.
4 Shortly after the pushing incident, two new security guards approached to remove you. You continued being aggressive and you were put in a compliance hold. That is, your hands were held behind your back by the wrists. You were momentarily released at the intersection of Swanston and Flinders Streets when you removed a folding knife and proceeded to stab the victim, Sam Vucianitis, inflicting three superficial wounds which required stitching and three minor lacerations.
5 The victim was treated for the wounds and released from hospital later that day. He made a victim impact statement which was read aloud to the court. It was tendered as Exhibit D and in that statement he declared that the injuries and the events of that evening had created great anxiety and fear, which were having a detrimental effect on his vocational capacity. He now suffers impaired capacity and performance in addition to the general day to day feelings of anxiety, agitation, stress and feelings of worthlessness and helplessness. This event clearly had a serious effect on somebody who was involved in the security industry and who has to face members of the public in an inebriated state on a repeated basis, and I take those matters into account.
6 Tendered on your behalf was a psychological assessment authored by Dr Aaron Cunningham, which sets out your history as a child in Kosovo during the war where you witnessed bombings and the destruction of villages and where you were eventually smuggled out to relatives in Montenegro. You lived in fear during those years and were eventually reunited with your family and came to Australia at the age of six. You have a very close family relationship and you are a very hard working young man, and that history and those details are all set out in a report of Dr Cunningham, which was exhibited as part of Exhibit 2. Dr Cunningham’s testing revealed that you are of average intelligence and have no indications of intellectual impairment. That report is exhibited as Exhibit 2 on the plea.
7 Since this offending, however, you have changed your life considerably. You contacted the Voyager Service in relation to your excessive consumption of alcohol. A letter was tendered as part of Exhibit 1, which indicated that you have had some ten attendances, that you are highly motivated to maintain your current abstinence from alcohol and that you are now in the maintenance state in the process of change where you will be focusing on relapse prevention strategies. I take those attempts at rehabilitation and the demonstration of your awareness of the problems that alcohol has created in your life, into account in assessing your prospects of rehabilitation.
8 Tendered as Exhibit 4 was also a letter from your employer, which attests to your qualities as an employee and as a human being and to your openness with your employer, Mr Nick Spiropoulous, who wrote that you are very aware of the impact that your behaviour has had, not only on the victim but in relation to the other members of your family and all those involved with you.
9 Submissions by your counsel were that you should receive a substantial discount because of your very early plea of guilty. He further submitted that the plea of guilty should be taken also as evidence of your genuine remorse, which has been expressed to others and is instrumental in your taking the steps to ensure that you never inflict this sort of behaviour on another member of the community, and I do take those matters into account.
10 I note that you have a supportive partner and family and that this the first time that you have been before the court for violence. I take all those matters into account. You have one prior matter, which involved burglary and a drink driving charge, for which you received a community based order for three months without conviction on 17 May of this year.
11 I now turn to the other matters which I am required to take into account in sentencing you. I take into account the need for general deterrence, that is that young members of the community need to understand that if they carry a weapon and use it in a situation where they are disinhibited by alcohol they will face serious consequences. That requirement for general deterrence is, however, moderated in your situation because of your youth. You are a young offender. You are now 20 and in such circumstances the principle of rehabilitation has prevalence over the need to deter other members of the community insofar as the community is far better served by having you retained as a functioning and working member of it, rather than facing a term of imprisonment. The main investment and interest of the community is your rehabilitation.
12 I am also required to take into account specific deterrence, and given your conduct following this offending I am satisfied that your prospects of rehabilitation are excellent and you do not need to be further specifically deterred from indulging in such behaviour.
13 I am further required to denounce your conduct on behalf of the community and I do so. The violence inflicted by young men under the influence of alcohol is rife in this community and will not be tolerated. Your behaviour was clearly disgraceful on that night and any member of this community would find your actions abhorrent as you were inflicting injuries on a man who is simply trying to keep the peace and control the general public.
14 I am then required to impose just punishment in all the circumstances and I have taken into account all the matters that I have just referred to. I also take into account the submissions made by counsel for the Director of Public Prosecutions, that given your youth, your lack of relevant prior history and the seriousness of the injuries that you actually inflicted, a Community Corrections Order would be appropriate in your circumstances. I have considered that submission, together with the matching submissions of your own counsel, and have reached the conclusion that the appropriate sentence in this matter is that you be released on a Community Corrections Order for a period of 18 months. To that end I have had you assessed for such an order and I have received a report which indicates that you are indeed suitable.
15 Could you please stand?
16 On Charge 1 you are convicted and you will be released on a Community Corrections Order. The order will commence today and will be of 18 months duration with the following conditions; firstly, that you perform 250 hours of unpaid community work during the period of the order, that you undergo assessment and treatment for alcohol abuse or dependency as directed, that you attend for a mental health assessment and treatment as directed. You may not be directed to do that as there is no indication of any need for it at this stage but it may be relevant to preventing any further offending in the future.
17 Then you undergo assessment for programs or courses aimed at the factors relating to the offending and you are to participate in such programs as directed.
18 Finally, you are to report to the Sunshine Office of Corrections before 4 pm on 29 May 2013. The reason that I impose the order is it gives you a chance to continue with your rehabilitation. If you were to breach the order, either by failing to comply with the conditions, that is by failing to report or perform the work, or, indeed, if you were to breach the order by committing a further offence for which you could be imprisoned, you will be brought back before the court and you will undergo breach proceedings before me and you will most likely be ordered to serve a term of imprisonment because you will be re-sentenced. So you understand that?
19 OFFENDER; Yes, Your Honour.
20 HER HONOUR: It is most important that you comply with all the conditions. Further, I shall make the ancillary orders requested by the prosecution. There is an exclusion order under s.184I of the Liquor Control Reform Act, which prevents you from attending the area - it is very complicated. It is all described. I thought it was to be Federation Square?
21 MS TANG: Your Honour, it would be the last line from the first paragraph. At this stage it is worded as the Transport Hotel and its immediate vicinity. I believe counsel raised whether Your Honour thought it was more appropriate to word it as Federation Square or to leave it as the wording in its current form.
22 HER HONOUR: Right. I thought that we said it should be Federation Square.
23 MS NIRVANA: Your Honour, I believe that that was where the conversation ended. I believe counsel was going to leave it in Your Honour's hands as to whether or not Your Honour physically amended it, and I would submit that that would be the best way to have the order be a little bit more specific, just to limit it to Federation Square. That does have its own boundaries.
24 HER HONOUR: Yes, I think I will do that.
25 MS NIRVANA: Apologies, Your Honour. If I could also ask that the further amendment be made just to say unless for work purposes or if we could have liberty to apply.
26 HER HONOUR: Yes. Right. Be excluded from Federation Square for a period of 12 months with liberty to apply.
27 MS NIRVANA: Thank you, Your Honour.
28 HER HONOUR: So I will take out, "And its immediate vicinity". So it is all Federation Square. You understand that?
29 OFFENDER: Yes, Your Honour.
30 HER HONOUR: Yes. I think that is easier. So I will make that order. I will further make an order pursuant to s.474ZF(2) of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from your mouth. I do so as I am satisfied that the making of the order is justified because of the seriousness of the circumstances of your offending, the order is not opposed and the granting of the order is in the public interest. You are to attend at the police station at Keilor Downs, 1 Copernicus Way, during the period of four weeks commencing 28 days after the day of sentence or any instituted conviction appeal is finally determined, and the conviction of the forensic sample offence is upheld, whichever is the later. I will leave it to your counsel or your solicitor to explain that to you. Really, it means properly within 28 days of the day of this sentence.
31 I also have to inform you that if you should refuse to consent to the taking of the scraping from your mouth an authorised member of the police force may use reasonable force to enable the forensic procedure to be conducted.
32 So that is that, and finally there is a disposal order, and that is that the fold up knife be forfeited and disposed of. So those are all the orders that I intend to make and you can now leave the dock.
33 MS NIRVANA: As Your Honour pleases.
34 HER HONOUR: Right. Just, Mr Gjergjaj, I just wanted to say to you this will give you a chance to really get on with your life. Please take the opportunity to do that.
35 OFFENDER: I will. I do not plan on coming back here, Your Honour.
36 HER HONOUR: Good, good. I hope I do not see you again.
37 OFFENDER: I do not think you will.
38 HER HONOUR: If you come up and take a seat behind your solicitor and be careful not to breach the order. Thank you.
(See Crown Opening attached.)
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