R v Rousianos; R v Kalal; R v Trivedi

[2011] NSWDC 1

District Court

New South Wales

Medium Neutral Citation:

R v Rousianos; R v Kalal; R v Trivedi [2011] NSWDC 1

Hearing dates:

4 July 2011

Decision date:

04 July 2011

Jurisdiction:

Criminal

Before:

Conlon DCJ

Decision:

Mr Rousianos: In respect of the charges of assault occasioning actual bodily harm, sentenced to a non-parole period of fifteen months to date back from 20 April 2011 and to expire on 19 July 2012. In respect of those two offences sentenced to additional terms of fifteen months imprisonment to expire on 19 October 2013.
In respect of each of the charges of stealing from the person, sentenced to a non-parole period of twelve months that will date from 20 October 2011 and expire on 19 October 2012. In respect of each of those offences sentenced to additional terms of eighteen months to expire on 19 April 2014.

 

Mr Trivedi: In respect of each of these offences, sentenced to a non-parole period of fifteen months to date from 10 June 2011 and to expire on 9 September 2012. In respect of each offence I sentence you to additional terms of fifteen months to expire on 9 December 2013.

 Mr Kalal: in respect of each of these offences sentenced to a non-parole period of fifteen months to date from 22 April 2011 and to expire on 21 July 2012. Sentenced to additional terms of fifteen months to expire on 21 October 2013.
Recommend to the Corrections Authorities that all three offenders be classified to permit entry to the young offenders program.

Category:

Sentence

Parties:

Regina (Crown)
Dennis James Rousianos (Offender)
Raed Kalal (Offender)
Vivek Bharatkumar Trivedi (Offender)

Representation:

Counsel:

    Solicitors:

File Number(s):

2010/327303

Judgment

1. The three offenders Dennis Rousianos, Vivek Trivedi and Raed Kalal appear for sentence following the pleas of guilty to two charges of assault occasioning actual bodily harm in company (contrary to s 59(2) of the Crimes Act) carrying a maximum penalty of seven years imprisonment. The offender Rousianos has also pleaded guilty to two charges of stealing from the person that is contrary to s 94 of the Crimes Act and carrying a maximum penalty of fourteen years imprisonment.

2. The whole incident was captured on CCTV. That footage formed part of the prosecution material presented on sentence. Accordingly the ferocious nature of the attack can be viewed in a way that words could never adequately describe. With the existence of that footage it is simply not possible to water down or ameliorate the roles played by each of the offenders.

3. On the evening of Saturday 2 October 2010 all three offenders travelled from south-west Sydney to Wollongong. At about 10pm they attended the Hostage X Night Club. At about midnight they went to the Illawarra Hotel but were apparently refused entry. From there they walked together along Keira Street to the Wollongong Crown Street Mall (referred to as the Mall).

4. As they turned left into the Mall and began walking east, they passed eight persons (two groups of four) who were heading in the opposite direction, that is west. The offender Trivedi exchanged words with some of those persons before all three offenders continued to walk east in the Mall towards the amphitheatre.

5. At about this, time the victims Jarrod Pill (eighteen years) and Mark Gilmore (nineteen years) were walking up the Mall with a female friend Jacqueline Cormack, having come from the Harp Hotel. Rousianos then moved to the left away from Trivedi and Kalal and walked in between Gilmore and Pill. As he was walking Pill is talking on his mobile phone. As Rousianos passed in between the two, he says something that Pill thinks was the word “What?” Pill slowed and looked to his right in the direction of Rousianos and said words to the effect of “What’s the problem?” or “What’s your problem?” Pill continued to talk on his mobile.

6. Rousianos then approached Pill and then Gilmore and Jacqueline Cormack walked over. By this time Trivedi and Kalal had moved over towards Pill. Gilmore then grabbed Pill and led him away in a westerly direction. Pill was still on his mobile. In the blink of an eye Rousianos grabbed Pill from behind and pushed him towards the rear of the amphitheatre. He is immediately joined by Trivedi and Kalal, and Kalal king hit Gilmore knocking him to the ground unconscious and motionless. At the same time, Pill had been knocked to the ground and was being punched simultaneously by all three offenders.

7. The attack moves back out from the amphitheatre and the victim Pill once again ended up on the ground. Trivedi kicked Pill about six times and stomped on his head three times. All blows were delivered with tremendous force and with Pill lying on the ground defenceless. It is about this time that Rousianos picks up Pill’s phone from the ground.

8. Rousianos then moves quickly to Gilmore, still motionless on the ground and removes a mobile from the front pocket of Gilmore’s jeans. Rousianos begins to walk off but then returned to Gilmore, rolled him on his stomach and removes the wallet from Gilmore’s rear pocket.

9. As this occurred, Trivedi’s assault on Pill was continuing. Pill managed to get to a seated position on the ground when Kalal moved in from behind and delivered a forceful blow to Pill’s head causing him to fall back to the ground. All three offenders then walked off in an easterly direction down the Mall.

10. Rousianos then went through Gilmore’s wallet and discarded some cards, he then threw the wallet in a bin in the Mall.

11. All three offenders were arrested within five minutes outside the Ivory Night Club in Crown Street. They were taken back to Wollongong Police Station. Rousianos was in possession of Gilmore’s phone. Gilmore’s cards and papers were located in the Mall and the wallet located in the bin. Rousianos declined to be interviewed.

12. Trivedi was interviewed and shown still images from the surveillance footages. He stated he became involved to protect his co-offenders from being assaulted by the victims. He claimed to have kicked and stomped on Pill’s body on only three or four occasions. He was then shown the surveillance footage. He stated he was not affected by alcohol, having only had two alcoholic drinks prior to the incident.

13. Kalal was interviewed but stated he had little recollection of the incident. He was shown the CCTV footage. He apparently showed remorse for the victims but declined to answer any further questions.

14. Both victims were taken to hospital by ambulance. The victim Gilmore sustained a laceration behind his left ear and bruising and swelling to his head, including a lump on his right jaw. He received grazing and swelling to his left elbow and grazing and bruising to his left leg.

15. Pill suffered swelling and bruising to the left side of his forehead, a lump above his right ear, bleeding from his right ear and swelling and soreness to the back of his head. He suffered a deviation of the nasal septum not requiring surgery, but requiring correction.

16. This was an unprovoked, violent, vicious and sustained attack on Mr Pill. As earlier indicated, Gilmore was felled by a cowardly king hit. The CCTV footage clearly indicates that Mr Pill and Mr Gilmore wanted no part of any confrontation with the offenders and indeed had turned their backs and were attempting to move away from them.

17. Whilst Mr Rousianos was the instigator, the speed with which Trivedi and Kalal joined this “blitzkrieg style” attack, that is, involving overwhelming force at high speed, amply demonstrated the meeting of their minds at this point of time. They acted in concert and accordingly were jointly liable for all injuries inflicted on each victim.

18. In the course of submissions during the sentence proceedings Mr Thomas, Counsel for Mr Rousianos, suggested that the fact that no planning was involved might be regarded as a mitigating factor under s 21A(3) of the Crimes (Sentencing Procedure) Act. Of course if an assault was planned that may constitute an aggravating factor. However in respect of this type of offence, I simply do not understand how it can be argued that the absence of any planning could possibly be regarded as a mitigating factor. I certainly do not regard it as such.

19. A viewing of the CCTV footage amply demonstrates the most serious nature of the offending conduct.

20. Concerning the two charges of steal from the person in respect of Mr Rousianos, whilst the Court cannot have regard to the assaults on the victims in the way of an aggravating feature of the steal from the person offence, the fact that his victims were rendered defenceless so that their property could be taken is a matter that cannot be excluded from a consideration of the seriousness of the offending conduct. Accordingly the objective seriousness cannot be viewed as falling towards the lower end of the scale as was suggested by Mr. Thomas, they remain very serious offences.

VICTIM IMPACT STATEMENTS

21. The victim impact statements have been received pursuant to s 28 of the Crimes (Sentencing Procedure) Act. Each statement was read to the court by a representative of the victims. Whilst their physical injuries will heal, the statements clearly indicate that the psychological injury and emotional harm resulting from the attacks will take longer to subside. I have considered each statement and while the impact on the victims serves to highlight the serious nature of the offending conduct, I do not regard the matters referred to in those statements, as constituting an additional aggravating factor under s 21A(2)(g).

SUBJECTIVE CIRCUMSTANCES

22. The offender ROUSIANOS is twenty-one years of age. He has what could be termed a minor criminal record. However it does include charges of common assault (fine $200) and affray (s 33.1(b) bond to be of good behaviour for nine months) dealt with in the Children’s Court in March 2008. In October/November 2008 he was convicted on two separate occasions of possessing a prohibited drug, both being dealt with by way of fines. Also on 28 November 2008 he was convicted of drive manner dangerous and was placed on a s 9 bond to be of good behaviour for twelve months. The supervision condition of the bond was terminated on 30 April 2009 following a positive response to that supervision.

23. Both the pre-sentence report (dated 8 June 2011) of Ms Joelene Sinclair Probation and Parole Officer and the report of Mr John Taylor, Psychologist (exhibit 3 dated 26 May 2011) contained detailed background history.

24. The offender was born in Australia of Greek parents and raised in the Sydney suburb of Campsie. It was a stable and supportive family environment. He informed the probation officer that although he was not exposed to drugs, alcohol or violence, he was exposed to his older brother’s erratic behaviour, aggressive nature and fights with police who attended the family home frequently. When fifteen years of age he witnessed the death of his brother due to a stabbing incident which ultimately resulted in manslaughter charges. The offender stated that he has since experienced difficulties in coping with the loss and described feelings of anger and frustration. He successfully completed his year 10 certificate after suspension for fighting which he believed was due to his ongoing anger over his brother’s loss and a lack of desire to continue attending school. The offender’s mother informed the probation officer that her encouragement enabled him to complete year 10.

25. After a brief period working as a motor mechanic he gained employment in the painting and decorating industry. Since the commission of the present offences he commenced a formal apprenticeship in 2011. His present employer described him as “quite diligent, hard working and a caring employee”.

26. He first consumed alcohol when he was approximately sixteen years old. He informed the probation officer that he consumed alcohol on most weekends when attending night clubs with the intention of becoming intoxicated. He stated on the day of the offence his family were mourning the five year anniversary of his brother’s death and that he was experiencing mixed feelings on this day including ongoing feelings of anger. He claimed limited memory of the incident after it commenced as he “just snapped”.

27. To the psychologist John Taylor, he claimed that he was heavily intoxicated with alcohol at the time of the offence and said “I didn’t remember what happened until they showed me the video footage”. He told the psychologist that he regretted having committed the offences and said, “I don’t stop thinking about it, they didn’t deserve to be hit, I had money and I had a phone, it was just stupidity”.

28. The psychologist stated:

“The results of the psychometric tests administered to him indicate that he has residual symptoms of a chronic post traumatic stress disorder, he has also been found to have some instability in his personality adjustment in that he is inclined towards sensation seeking and risk taking behaviour and is likely to engage in impulsive behaviour if he is experiencing strong negative emotions. At the time of the first consultation with him on 17 November 2010 he was found to have mild anger pathology. When he was reassessed on 24 May 2011 this was no longer present, his improvement in this area has occurred due to him voluntarily participating in psychological treatment.”

29. The results of Actuarial analyses indicated that he has a low-moderate risk of recidivism in general. Taken in conjunction with information obtained through clinical interview and the results of psychometric testing, the psychologist formed the opinion that he has a low risk of recidivism.

30. Exhibit 1 contains reference/testimonial material, all referring to his general good character. Exhibit 2 is a report (dated 8 June 2011) of Dr Pignataro of Oasis Counselling and Psychotherapy Centre. The offender commenced attending that service on 3 February 2011. The psychologist found that the offender had “developed a presentation of mixed anxiety and depression”. This was apparently all consequent upon the death of the brother.

31. The psychologist concluded that the offender will require long term intervention. He stated:

“He is an individual that requires development of insight into inter-personal manner, impaired regulation of negative emotions, such as anger and self worth”.

32. The offender gave evidence in the sentence proceedings, he confirmed his regret for the offending stating:

“It shouldn’t have happened, I’m embarrassed and ashamed, I disrespected my family, I feel bad for them, they shouldn’t have went through what they went through, I wish I could take it back, I feel bad for them after reading the victim impact statements.”

33. He also stated that he apologised to the victims at the sentence proceedings. Since undertaking counselling sessions he said he has learnt to control himself, he commented, “If I do get angry I control my anger.” He said he had not consumed alcohol since the commission of the offences.

34. The offender’s mother also gave evidence. She confirmed that since his brother’s death “he became very angry, he closed up and he would not talk”. She said she was aware of his earlier court appearances but said “he did not want to go to a counsellor”. She said “his anger progressed”. She said since the offence “he has calmed down, he knows he has done something wrong”. She believes he will benefit from further counselling.

35. The probation officer assessed the offender as suitable for a community service order, she also stated:

“Whilst it is commendable that the offender has been proactive in reportedly maintaining alcohol abstinence and commencing counselling for grief and loss it is of concern that it took an incident of violence and his subsequent incarceration to realise the seriousness of his situation and seek such treatment.”

36. I am prepared to accept that the offender’s expression of remorse as genuine and that he has good prospects of rehabilitation. It follows of course that if he continues on his present path the Court can have some hope that he will not re-offend again.

37. Now turning to the subjective circumstances in respect of Mr VIVEK TRIVEDI. He is now twenty years of age, he has no prior criminal convictions. He provided information to Ms Natalie McClaren, Probation and Parole Officer, (report dated 9 June 2011) that he was born in India but migrated to Australia with his family as a very young child. He was raised in a stable, comfortable and supportive family environment. He completed his formal education mid-way through year 12. He received permanent employment as a forklift operator and general factor hand with Arrow Plastics as at 10 August 2010.

38. The offender indicated to the probation officer that he did not have any past or present alcohol problems, although stated that he was intoxicated on the evening of the offence (this was in contrast to his assertion to the police that he only had two drinks and was not affected). He claimed to have had about eight standard alcohol beverages on that evening, whereas he would ordinarily consume no more than five standard drinks and only on special occasions. His parents were unable to comment on his alcohol use outside the family home but indicated that he had never consumed alcohol at home.

39. In speaking with the parole officer, he seems to have abandoned his groundless claim that he only became involved to protect his co-offenders from the victims (no doubt as a result of the police showing him the footage). To the probation officer, he indicated that he had since reflected upon his actions and acknowledged that he had the option of “walking away” rather than becoming involved. The probation officer stated:

“Mr Trivedi expressed feelings of disgrace and appeared to have developed insight into the impact of his behaviour upon his family and victims.”

40. He was also assessed as suitable for a Community Service Order.

41. Exhibit 6 contains reference/testimonial material. The document under the hand of his father indicates, in effect, that the offender had never given him cause for concern. He was described as very kind hearted, gentle and polite. I have no doubt that his parents have attempted to raise him to have respect for the laws of his country and to have respect for others and that they have done their best. However his father demonstrated a level of naivety in the following statement:

“He is vegetarian and has no capacity to challenge physically as he has never shown his interest in muscle based strength or utilisation of its power.”

42. It would seem that a viewing of the CCTV footage might provide a reality check for well intended supporters.

43. Nevertheless his father confirms the offender’s remorse. He stated:

“Since he is out on bail he always repents his actions and says to himself that he never will slap even anyone in his life now, rather he would choose to be the victim instead of being labelled as offender.”

44. The remainder of the documents in exhibit 6 refer to the offender being a hard and conscientious worker and suggest that aggressive behaviour is out of character.

45. Turning now to the subjective circumstances in respect of RAED KALAL. He is also twenty-one years of age. He has no prior criminal convictions. He was born in Lebanon. When ten years of age he and his family migrated to Australia. He was apparently raised in a stable and religious family environment and was well provided for. He completed his formal education at eighteen achieving his HSC. He has been employed on a full time basis as a hairdresser for the last two years. He successfully completed his apprenticeship in May 2011. He still resides in the family home in Miller.

46. The pre-sentence report (dated 9 June 2011) of Ms Natalie McClaren, Probation and Parole Officer, is contained within exhibit B. The offender estimated that he had consumed approximately ten standard drinks on the night. He stated that ordinarily he would consume no more than three standard drinks per fortnight. The probation officer stated:

“The offender expressed concern about the impact his actions now have on him and his family. However it was only when prompted that he commented on the affects that the offences have had upon the victims. He attributed his actions to having reportedly worked fourteen days consecutively prior to the offences and his inability to exert self control while under the influence of alcohol. Mr Kalal commented that he was ‘shocked’ at his own behaviour however appeared to rationalise his role in the offences.”

47. He was assessed as suitable for a Community Service Order.

48. Exhibit 4 is a report of Dr Tim Watson-Munro psychologist (dated 13 June 2011). Mr Watson-Munro concluded:

“Given your client’s attitude to his offending, the positive steps he has taken to rehabilitate himself, the structure which his employment provides, which indeed in itself is a form of therapy, and the supervision of his parents, I believe that with continuing supervision and treatment his prognosis from both the clinical and forensic perspective is very positive.”

49. Exhibit 5 is a folder containing a curriculum vitae and a large number of references/testimonials. Nearly all that material contains statements to the effect that the offender is a good natured, non-aggressive person. Most expressed shock and disbelief that he had offended in this way. He was referred to as an exemplary employee, one who has a strong work ethic.

50. Statements were made to the effect that the offending conduct was out of character.

51. In respect of both offenders, that is Mr Trivedi and Mr Kalal, I am prepared to accept on the balance of probabilities that they are remorseful for their behaviour. I of course have taken into account the fact that neither Trivedi nor Kalal has any prior criminal record. I am accordingly satisfied that both offenders have good prospects of rehabilitation and the Court is hopeful that they would not re-offend.

52. I have referred to the evidence presented on behalf of all three offenders to the effect that they are persons of prior good character. I have no doubt that family, friends and associates were well-intentioned in providing those opinions. However on the numerous occasions I have viewed the CCTV footage, I have difficulty in accepting that persons of truly good character would be capable of such an unprovoked, swift and sustained attack on defenceless outnumbered victims, involving as it did such a high degree of violence.

53. Each offender has attempted to blame, in part, intoxication. However the movement of all three offenders down the Mall and throughout this attack simply does not convey the impression that they were affected to any significant degree by alcohol.

PLEA

54. Each offender is entitled to have his pleas of guilty taken into account in mitigation of penalty. The pleas were entered in the Local Court. Accordingly they were pleas at the earliest opportunity and I intend to reflect the utilitarian benefit of those pleas to the criminal justice system by a discount of about twenty-five per cent.

55. The offender Rousianos was arrested on 3 October 2010 and remained in custody until granted a Supreme Court bail on 25 November 2010 (fifty-four days). The offender Trivedi remained in custody for three days (that is from 3 October 2010 to 5 October 2010) before being granted bail.

56. The offender Kalal remained in custody from 3 October 2010 until 23 November 2010 (fifty-two days) when granted bail by the Supreme Court. I have taken into account the fact that they were released on bail only to now have to re-enter custody to serve a sentence. I have considered the submissions of each counsel concerning the stringent bail reporting conditions.

57. I have taken into account the purpose of a sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. All are still young men and I have not lost sight of the principle that in such circumstances rehabilitation is a particularly significant matter. However in respect of the present offending conduct, deterrence both specific and general should be given considerable weight and the offenders’ conduct must be denounced in the strongest possible terms.

58. The punishment of course must be appropriate to the objective criminality of the offending conduct. It was by sheer good fortune that each offender was not facing a charge carrying an even greater maximum penalty.

59. I have had regard to s 5 of the Crimes (Sentencing Procedure) Act, and having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate in the circumstances.

60. In respect of all offenders, given the fact that this will be their first time serving a custodial sentence, that is sufficient reason in my view to make a finding of special circumstances and to vary the statutory ratio. In respect of Rousianos an additional reason is that there will be partial accumulation.

61. The courts get no pleasure in having to send young persons to prison. On the contrary I expect that all Judges find it a difficult thing to do. However the message needs to be delivered in the clearest possible terms that if you commit violent conduct of this type on innocent citizens, you should expect to go to gaol. Members of the community are entitled to walk the streets without fear of being attacked by those who are intent upon inflicting violence. Those who offend in this way cannot expect any leniency from the law. All three offenders will be serving a sentence for the first time.

62. I have had regard to the principle in Pearce and of course to the issue of totality. I intend to make the sentences in respect of the two charges of assault occasioning actual bodily harm concurrent in respect of each offender. There will be a partial accumulation so far as Rousianos is concerned in respect of the charges of steal from the person.

63. I have already referred to the minor criminal record of the offender Rousianos and I have considered that in the context of the total penalty to be imposed. However I remain of the view that the sentences to be imposed in respect of the offence of assault occasioning actual bodily harm in company should be identical in respect of all offenders.

64. Mr Rousianos would you mind standing.

65. You are convicted of all of these offences. In respect of the charges of assault occasioning actual bodily harm, that is each of them, you are sentenced to a non-parole period of fifteen months to date back from 20 April 2011 and to expire on 19 July 2012. In respect of those two offences I sentence you to additional terms of fifteen months imprisonment to expire on 19 October 2013.

66. In respect of each of the charges of stealing from the person you are sentenced to a non-parole period of twelve months that will date from 20 October 2011 and expire on 19 October 2012. In respect of each of those offences I sentence you to additional terms of eighteen months to expire on 19 April 2014. Accordingly you will be released to parole on 19 October 2012.

67. Mr Trivedi would you mind standing.

68. In respect of each of these offences Mr Trivedi I sentence you to a non-parole period of fifteen months to date from 10 June 2011 and to expire on 9 September 2012. In respect of each offence I sentence you to additional terms of fifteen months to expire on 9 December 2013. I direct you to be released to parole on 9 September 2012.

69. Yes, Mr Kalal.

70. In respect of each of these offences I sentence you to a non-parole period of fifteen months to date from 22 April 2011 and to expire on 21 July 2012. I sentence you to additional terms of fifteen months to expire on 21 October 2013. I direct that you be released to parole on 21 July 2012.

71. I also recommend to the Corrections Authorities that all three offenders be classified to permit entry to the young offenders program.

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Decision last updated: 01 December 2015