DPP v Fisher [2017] VSC 21

2 The offences all relate to an incident that took place on the night of Sunday, 26 January 2014, at 99 Billingham Road in Deer Park. The incident was the last of a number of confrontations that had taken place between two groups of people, beginning two days earlier.

3 One of the groups was connected to members of the Borg family, including Ben, Matthew and Jessie Borg, all of whom are the younger cousins of your friend and co-accused, Adam Power.

4 The members of the other group were connected to two brothers, Phillip and Daniel Labanie. Michael Sleiman, who died in the course of the incident, was part of the Labanie group, and lived at the Billingham Road property.

5 Ben Borg was told by his ex-girlfriend that Phillip Labanie had sexually assaulted her. That allegation set in motion the chain of events that ultimately led to these offences.

6 On the evening of Friday, 24 January 2014, Ben and Matthew Borg and some of their associates drove to 99 Billingham Road, where they understood that Phillip Labanie was staying. The Borgs got out of their cars and spoke to people at the address. Ben Borg was yelling out that he wanted to speak to Phillip Labanie about raping his ex-girlfriend. Some of the Labanie group armed themselves with weapons, but did not use them. One of the Borgs went to the boot of a car and retrieved a spear gun, which he pointed at the Labanie group. Once the Borgs were satisfied that Phillip Labanie was not there, they did some "burn outs" and sped off.

7 Phillip Labanie became angry when he was told about the Friday night confrontation. On the Saturday, after finding out where the Borgs lived, the Labanies and Mr Sleiman drove to the Borg home. Initially, there was a verbal confrontation between the Labanie group and various members of the Borg family. Eventually, the confrontation developed into a physical fight, in which members of the Labanie group punched, kicked and tasered Ben Borg. Ben Borg was subsequently taken to hospital, where he was kept overnight.

8 After that first Saturday incident, there were a series of abusive and threatening phone calls and text messages between the two groups.

9 The two groups met again, face to face, later on the Saturday. On that occasion, a large group of somewhere between 20 and 40 people associated with the Labanies drove to the Borg house, to confront the Borgs and their supporters (who numbered around 15 on that occasion). However, as the two groups gathered, the situation was diffused without violence by one of the men who knew people in both groups. The Labanie group left.

10 When the Friday and Saturday incidents occurred, you were on a hunting and fishing trip with Adam Power. The Borgs contacted Mr Power and told him what had happened. You and Mr Power cut short your trip and returned to Melbourne together.

11 The next day, Sunday the 26th, Ben Borg was released from hospital. While you and Mr Power were en route back to Melbourne, you sent a group text message to 10 people that said: "Tomoro we gonna go see a few guys that stabbed Adams little cousin come for spin if use want" [sic]. You were travelling in the car with Mr Power as he made calls and sent text messages further organising the "run-through", which eventually took place that night.

12 That evening, Mr Sleiman, the Labanies, and some of their friends were having an Australia Day barbeque at 99 Billingham Road.

13 Just before 10.00 pm, 13 males, mostly wearing dark clothing associated with the Rebels Motorcycle Club, walked up Billingham Road as a group, and ran onto the property at No 99. They were carrying a range of dangerous weapons, including axes, machetes, baseball bats, knives and chains. You were one of the men in that group and were carrying some sort of wooden stick or bat.

14 There were five people on the front porch at the time: Haythm Yousif, Charlie Eid, Phillip Labanie, Mr Sleiman and his girlfriend, Pamela Anagnostopoulos. Upon seeing your group entering the property, the four men fled inside, shutting the door behind them, leaving Ms Anagnostopoulos still sitting on the sofa on the porch.

15 As the invaders jumped over the front porch railing, someone struck Ms Anagnostopoulos on her legs with a hard object, causing her physical injury. She was unable to walk for around two weeks, and was treated by a physiotherapist for about 12 months; she is still suffering psychologically from the events of that night.

16 Assault charges 1 to 4 relate to causing Messrs Yousif, Eid, Phillip Labanie and Sleiman, respectively, to apprehend the immediate application of force, at the time when they were out on the front porch and fled through the house. Assault charge 5 relates to Ms Anagnostopoulos, and includes both the actual application of force, as well as causing its apprehension.

17 Your group smashed cars and windows, and forced its way into the house by hacking through the front door with an axe. Once inside, your group went on a terrifying rampage, smashing the building and its contents with various weapons.

18 Unfortunately, the back door of the house was sealed up because of building works, so the men who fled inside had to jump out of rear windows to escape. Phillip Labanie, and Messrs Yousif and Eid managed to escape in that way, but Mr Sleiman was unable to do so. Mr Sleiman was brutally and fatally attacked in the rear bedroom by unidentified members of your group, who inflicted multiple blows with different weapons.

19 You have recently been found not guilty of manslaughter. Accordingly, I am not sentencing you in respect of Mr Sleiman's death.

20 Before making further findings about your offending, it is necessary to mention what has happened in relation to the various charges brought against you and your co-accused.

21 You were tried in February 2016, together with three co-accused, whom the prosecution alleged were other members of the group of 13, namely, Mr Power, Matthew Delamothe and Bekhim Muhtari. You each faced the same seven charges - five assault, one aggravated burglary and one manslaughter charge. Part way through the joint trial, I discharged the jury in relation to Mr Muhtari,[2] and ordered that he be tried separately on a later occasion. Adam Power was convicted on all seven charges. Matthew Delamothe was acquitted on all charges. You were found guilty on the aggravated burglary and assault charges, but the jury was unable to reach a verdict on the manslaughter charge. Your bail was revoked and you were remanded in custody at the end of that trial.

22 In June 2016, you faced a second trial on the manslaughter charge, but that jury was also unable to reach a verdict.

23 In February 2017, you faced your third trial on the manslaughter charge, at a joint trial with Mr Muhtari. The jury acquitted you both of manslaughter.

24 The prosecution case in relation to all seven charges was run on the basis of joint criminal enterprise. That is to say, the prosecution case was that you were a party to the agreement, arrangement or understanding ("the agreement") necessary to commit the relevant offences.

25 Given the way the prosecution case was run, in finding you guilty of charges 1 to 6, the jury must have been satisfied beyond reasonable doubt that you were a party to the following agreements:

(a) In the case of each of the assaults (charges 1 to 5), an agreement to engage in an assault; and

(b) In the case of the aggravated burglary charge (charge 6), an agreement to enter the house as trespassers, with the intent to assault people in the house with the offensive weapons that you and others were carrying.

26 Those agreements are less serious than the agreement necessary for manslaughter, namely, an agreement to engage in an assault in the course of which someone might be so attacked with a weapon as to create an objectively significant risk of serious injury (the parties have referred to the manslaughter joint criminal enterprise as "the bad agreement", and I will do so for convenience). But the fact that you were acquitted of manslaughter at a later trial does not mean that you must be treated as having been party to less serious agreements than Mr Power, in relation to the assault and aggravated burglary charges of which you were both convicted by the same jury. The prosecution case was clearly put on the basis that each of the offences involved a separate agreement.

It is also clear from the questions which the deadlocked juries asked, that the issue on which both juries were stuck was whether or not you had withdrawn from the bad agreement prior to Mr Sleiman's death (not whether you were ever a party to such a bad agreement). In fact, I do not regard that matter as relevant to sentencing you, as separate agreements were relied upon for the different offences, and you were ultimately acquitted of manslaughter. I mention it only because your counsel invited me to conclude that you had a lower overall criminal intent than Mr Power, because he was convicted on the basis that he had been party to the bad agreement and you had not. Were Mr Power's participation in the bad agreement relevant to assessing his culpability on the assault and aggravated burglary charges, then your participation in the bad agreement (up until the point of any withdrawal) would be equally relevant to your culpability on those lesser charges.

27 In sentencing on the basis of a joint criminal enterprise, it is relevant to have regard to the particular role which the offender played in the enterprise. Your role includes both what you did at the house that night, as well as the part you played in organising the enterprise.

28 As far as your physical actions were concerned, you told police that you ran onto the property, smashed the front bedroom window and a yellow ute which was parked in the driveway, then ran a few steps inside the house before leaving the property. Your counsel sought to argue that those were less serious acts than Mr Power's, and that they lasted for a shorter time. In fact, I have made no finding that Mr Power engaged in any specific act during the incident. It is clear that he was one of several men in the group who was carrying an axe or an axe-like weapon, any one or more of whom may have smashed through the front door and inflicted damage to the ute. Even if there was an evidentiary basis for me to find that Mr Power was the person who did those particular acts of physical damage (which there is not), there was no admissible evidence that he did anything more than that, or was present in the house for a longer period than you. For those reasons, I am not satisfied that your actual conduct on the night was less serious than Mr Power's.

29 Mr Power was sentenced on the basis that he was the primary organiser of the "run through", and therefore bore responsibility for the various acts done by group members, which were within the scope of the joint criminal enterprise that he orchestrated.

30 Even accepting your account as to your actions on the night, that does not adequately reflect the totality of your role in the offending, or your moral culpability. Although I accept that your role was not as substantial as Mr Power's, you were one of the organisers of the group. Your role in sending out the group text message (the "call to arms" to various members and associates of the Rebels Motor Cycle Club) was not an insignificant one. In those circumstances, you also bear some (albeit a lesser) responsibility for the acts of others in your group in relation to the assaults and aggravated burglary.

31 This is a serious example of the offence of aggravated burglary. The offending took place at night, in a suburban house, where its occupants were entitled to feel safe. Thirteen men, similarly dressed in intimidating clothing, carrying a range of dangerous and frightening weapons, swiftly and unexpectedly invaded the property as a united force, noisily smashing things as they pursued the occupants into and through the house. Although the entire episode only lasted around two minutes, it caused your victims to fear for their lives, and left two people physically injured. It must have been an absolutely terrifying ordeal for those who were present at the house at the time. The "run through" had been pre-planned, and all of the offending that occurred was within the scope of the enterprise which you had helped to orchestrate (presumably, as some sort of retaliation for what members of the Labanie group were understood to have done to Mr Power's cousin).

32 Although the victims of the assaults gave evidence at trial of the fear they felt that night, the only victim impact statement filed in relation to your offending was that of Ms Anagnostopoulos.[3] She suffered physical and psychological injuries as a result of the events of that night. I described the nature of those injuries in some detail when sentencing Mr Power,[4] and do not wish to cause her further distress by repeating them here. Suffice to say that she is still suffering from the terrible events of that night.

33 I turn now to consider your personal circumstances.

34 You were born in October 1990, the second of three siblings. You grew up in a loving and supportive family.

35 Your primary and secondary schooling were unremarkable. You excelled at sport. You have continued playing football, and have played a leadership role in your local football team, in your adult life.

36 Since leaving school after year 11, you have worked in various jobs in the construction industry. Except for a period when you were recovering from a motorcycle accident in mid-2008,[5] you have been in regular employment. You will have good work prospects when you are released from custody.

37 You still enjoy the support of many members of your close-knit family, who have attended the various court hearings and visited you in custody.

38 Whilst in custody, you have undertaken a number of courses. You have also held positions of some responsibility, including as a unit billet and a volunteer in the prison disability unit. Those matters are all encouraging in terms of rehabilitation.

39 A large number of character references were provided by family members and friends, football coaches and employers. Many of your referees have known you since childhood. They all described you in positive terms, such as honest, loyal, caring, kind and respectful. They all regarded your actions as being out of character for you. That said, many of your referees made no mention of your former membership of the Rebels Motorcycle Club, or demonstrated an understanding of the true seriousness of what actually happened in the incident. However, I do accept that you are well supported within the community, which will make it easier for you to reintegrate upon release.

40 Your referees also speak of your remorse or regret at what happened. The prosecution does not dispute, and I accept, that you are genuinely remorseful.

41 This is not your first interaction with the criminal justice system, involving violence committed in company. When you were 21, you were placed on a 12 month community correction order, for charges of affray and recklessly causing injury. Those charges arose out of a fight between two groups at a nightclub. That offending was obviously less serious than the current offending, and seems to have involved alcohol (at least on your part).

42 You are now 26 years old; you were 24 at the time of the offending. Although that does not make you a young offender in the legal sense, I accept that you were youthful.

43 The law says that the youth of an offender should be a primary consideration for a sentencing court where the matter properly arises. In the case of such an offender, rehabilitation is usually more important than general deterrence; rehabilitation benefits the community as well as the offender. However, those principles are not immutable; due regard must be had in each case to other relevant matters, including the seriousness of the offending, and whether there has been any prior offending.

44 In sentencing you, I am mindful of the fact that the aggravated burglary offence was a serious instance of a serious offence, and that this is not your first offence involving violence in company.

45 I accept that you have very good prospects of rehabilitation: your limited criminal history, strong work ethic, family and community support, and absence of addiction or mental health problems, all point in that direction.

46 However, having regard to the seriousness of the offending and your role as one of the organisers of the group, I have given only limited weight to your youth.

47 Although there may not be a great need for specific deterrence, principles of general deterrence, denunciation and just punishment still have a very important role to play in sentencing you.

48 Parity with the sentences imposed on Mr Power is also a very important sentencing consideration. Equal justice requires that like should be treated alike. But, if there are relevant differences in the offending, or in the personal circumstances of co-offenders, due allowance should be made for them.

49 As far as the assaults and aggravated burglary offences are concerned, you were both organisers of the relevant enterprises, although I accept that Mr Power played a more substantial organisational role than you. That said, you (unlike him) also played a known role in the acts which took place that night.

50 There are many aspects of the personal circumstances of yourself and Mr Power that are very similar, particularly your relatively youthful ages, strong employment histories, family and community supports, responsible roles in prison, lack of substance abuse and mental health issues, and good prospects of rehabilitation.

51 One point of difference is that Mr Power had no prior criminal history, whereas you have a relatively minor one.

52 A more substantial point of difference arises from the fact that, over the year since your joint trial, you have faced the stress and uncertainty of two subsequent trials, on a more serious charge on which you were ultimately acquitted. Because the time you have spent in custody since you were convicted last February is treated as pre-sentence detention, it is not wasted (or "dead") time. However, the fact that you faced that substantial stress and uncertainty is a relevant sentencing consideration, which I have taken into account.

53 On 29 September 2016, I sentenced Mr Power as follows:

(a) For manslaughter - 10 years' imprisonment (the base sentence);

(b) For aggravated burglary - 7 years' imprisonment, of which 2 years was to be accumulated on the base sentence;

(c) For each of charges 1 to 4 (the assaults not involving the application of force) - 4 months' imprisonment (to be served concurrently); and

(d) For charge 5 (the assault on Ms Anagnostopoulos, which also involved actual force) - 8 months' imprisonment (to be served concurrently).

54 Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, for the offence of aggravated burglary, I sentence you to 6 years and 3 months' imprisonment. I will treat that as the base sentence.

55 For each of charges 1 to 4 (the assaults not involving the actual application of force), I sentence you to 4 months' imprisonment. For charge 5, the assault on Ms Anagnostopoulos, which also involved actual force, I sentence you to 8 months' imprisonment. Given the substantial overlap between the assaults and the aggravated burglary, I agree with both counsel that it is appropriate not to accumulate any part of the sentences for assault. Accordingly, I order that the sentences for assault be served concurrently with the base sentence.

56 That makes a total effective sentence of 6 years and 3 months' imprisonment.

57 I fix a period of 4 years and 3 months as the period you must serve before becoming eligible for parole.

58 Further, I declare that the period to be reckoned as already served under this sentence is 661 days, inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.

[1] The maximum penalties for those offences are: (a) Aggravated burglary - 25 years' imprisonment; and (b) Assault - 5 years' imprisonment.

[2] As a result of the prosecution obtaining some important additional DNA evidence against Mr Muhtari after the trial had started.

[3] Members of Mr Sleiman's family filed victim impact statements in relation to the sentencing of Mr Power.

[4] DPP v Power [2016] VSC 498.

[5] In respect of which you were convicted of various minor traffic offences.