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[2007] VSC 144
Supreme Court of Victoria
2007-05-11
Teague J
Original judgment source is linked above.
Criminal Law - Sentencing - Affray and intentionally causing serious injury - Events of escalating seriousness - Abuse and Property damage - Assault on victim leaving victim unconscious and vulnerable - Victim in that state when killed by another - Periods in youth justice centre and prison imposed.
1 Jamie Ngyoune, SPA and Abdul Tabbit, you have each to be sentenced for crimes arising from your role in events which took place on 13 May 2005 at Dandenong. You, Abdul Tabbit have been found guilty by a jury of one count of making an affray. That same jury found you not guilty of intentionally or recklessly causing serious injury to one Greg Harrison. You, SPA, have been found guilty by a separate jury of one count of making an affray and one count of intentionally causing serious injury to Greg Harrison. A separate jury found you not guilty of either the murder or manslaughter of Greg Harrison. You, Jamie Ngyoune have pleaded guilty to one count of making an affray and one count of intentionally causing serious injury to Greg Harrison. I must also sentence you, Jamie Ngyoune for three offences arising out of your role in events which took place on 13 January 2007 at Noble Park. As to the Noble Park events, you have pleaded guilty to one count of riotous assembly, one of burglary with intent to steal and one of theft.
2 Media representatives should be aware that, given the age of SPA, there are statutory provisions which impact upon the reporting of these sentencing reasons.
3 At different times last year, three other young males were sentenced for their crimes arising from their role in the events of 13 May 2005 at Dandenong. Clinton Gottinger was sentenced by Justice Habersberger to 14 years in prison after pleading guilty to the murder of Greg Harrison. George Pantazopoulos was sentenced by me to 3 years in a youth training centre after pleading guilty to one count of making an affray and one count of intentionally causing serious injury to Greg Harrison. Justin King was sentenced by me to 4 years in prison after pleading guilty to one count of making an affray and one count of intentionally causing serious injury to Greg Harrison.
4 On the night of 13 May 2005, you, Abdul Tabbit, arranged to celebrate your coming wedding at a bar in Dandenong called Zeine's with some siblings and friends. One such friend was George Pantazopoulos. He arranged to bring with him six companions, some of whom were known to you. They included you, Jamie Ngyoune and you, SPA, as well as Clinton Gottinger and Justin King. George Pantazopoulos and others with him had consumed several alcoholic drinks in a short period of time whether before or after arriving at Zeine's or both. For some, but not all, binge drinking appears to have been the norm. The first event in a series of escalating concern, occurred when you, SPA and another member of the group, Jeremy Vigliarolo, left Zeine's to get something to eat. As the two of you were walking away from Zeine's, a group of three men and two women moved across your path. That group of five were walking home after drinking alcohol over a couple of hours at a local hotel. The five included Greg Harrison. The five were all of aboriginal background. For no apparent reason, Greg Harrison became aggressive towards you and Vigliarolo. Words and punches were exchanged. The skirmish that developed involved all seven. In the skirmish, you SPA had your jacket and t-shirt pulled off. After breaking clear, you used your mobile phone to call Gottinger in the bar. The two of you headed back to Zeine's to tell your companions of the skirmish.
5 They were told enough to conclude that you and Vigliarolo were blameless victims, who had been aggressively set upon. They were told that you had had your jacket stolen. What was said quickly aroused in them a desire to revenge the wrongdoing. The right response would have been to call the police. You and your friends chose instead to act as a vigilante group. You chose to take the law into your own hands. The arousing cry went up to find the "fucking abos" and to fight them.
6 Most of you and your companions promptly exited Zeine's to look for and chase Greg Harrison and his four friends. The five had crossed the Princes Highway, but had not moved far. Realising the pending trouble, they each promptly looked for a hiding place. One was seen to enter a block of flats at 50 Princes Highway. Several of you and your companions, including the three of you, ran across the highway and entered that property. There, there was loud and frightening shouting. There, windows were smashed, one with the head of a broom, others with large rocks removed from a garden bed. A garbage bin was knocked over. Then the chase by the vigilantes continued. Some ran back to Zeine's and got into a van to search those streets into which the group appeared to have gone to hide. Others moved that way on foot. The van belonged to, and was driven by, George Pantazopoulos. The circumstances leading to its moving away from Zeine's led to it being followed by a car in which there were three men, motivated by at least curiosity.
7 One of those who had elected not to go back to the van, but to search on foot, was Clinton Gottinger. It was he who came upon the not-so-secure hiding place of Greg Harrison. A chase of Greg Harrison by Gottinger ensued. Greg Harrison ran into a garden area alongside a flat in a block in McFarlane Crescent. That street runs parallel to the Princes Highway. There, Greg Harrison found himself cornered. An exchange of words followed. The time that elapsed during that exchange was sufficient for most members of the group, including the three of you, to come together in the garden. Justin King punched Greg Harrison to the head. That punch caused him to fall to the ground. He was never to get to his feet again.
8 Once the punch had sent him to the ground, he was set upon. There were various accounts as to how Greg Harrison was kicked and punched and struck with an umbrella. I cannot make a finding as to who used the umbrella. I accept that you Abdul Tabbit took no part in any aspect of the assault on Harrison. I have noted the lack of injuries to the lower body of Harrison. I was impressed by the evidence of the witnesses Baxter and Harrak, which in many respects as to the first assault tied in with the evidence of Gottinger. I find that both you, SPA, and you, Jamie Ngyoune, joined in the kicking of Harrison to the head and neck region. Whether by reason of the alcohol, misguided loyalty, a desire for revenge or all three, you were aroused to the point of permitting yourselves to be blinded to how wrong and how brutal it was to join in kicking a man into insensibility. It was only Baxter's intervention that put an end to the vicious assault on Harrison. It was only Baxter who knelt down to assess the condition in which Harrison had been left.
9 Not one of you, nor any of the others then present, made a call for an ambulance to help Greg Harrison. Rather, the focus of you and your companions was on trying to locate the other members of Greg Harrison's group. You, Jamie Ngyoune and Abdul Tabbit, joined in a quick search made through the Coles supermarket. You, SPA, chose to join Clinton Gottinger in a return to the garden. Whatever the reason for doing so, it was not to assist Greg Harrison. In the garden, in your presence, Gottinger dropped a terracotta pot on the head of the still unconscious Harrison, thus causing his death. Of course, you are not to be sentenced for what Gottinger did.
10 When, in the ensuing hours and days, the police were investigating these events, you SPA, and you, Jamie Ngyoune, each eventually co-operated with them to a significant degree. But you did so only after misleading them. You sought to minimise the extent of your involvement in the events of that night.
11 The offence of intentionally causing serious injury is a serious offence. It carries a maximum sentence of 20 years imprisonment. Affray carries a maximum of 5 years. What you and the others did must be denounced. Others must be deterred from taking the law into their own hands, from punching instead of talking, from encouraging even for a short time, the kind of physical brutality to which Greg Harrison was subjected. Binge drinking played at least a part in your behaving not just badly but criminally, even if it only meant that you were more readily aroused to do together what you would never have done sober and alone.
12 I have read the victim impact statements lodged with the Court and prepared by members of the family of Greg Harrison. Those statements provide a balance in sentencing by helping to bring home the depth of the adverse consequences of the behaviour for which you are to be sentenced. While none of you had any direct role in his death, the affray you were all a part of led to the major assault that two of you were a part of, and that assault left Greg Harrison vulnerable to the death that he suffered shortly after you left him.
13 I turn to the events which occurred at Noble Park on 13 January of this year, some 20 months after the events at Dandenong. Those events have nothing to do with SPA or Abdul Tabbit, but they do as to you Jamie Ngyoune. In January 2007, there was an awareness amongst many young men that at the intersection of the Princes Highway and Elonera Road in Noble Park, at certain times, cars were driven illegally to do burnouts in defiance of the police. On 13 January, a larger crowd than usual gathered. On that night, you, Jamie Ngyoune, were passing the intersection in a car with your father. Curiosity led to the parking of the car. The two of you joined the spectators but became separated. You watched as various young men engaged in a number of riotous and anti-police activities. You were close to some of them when they chose to engage in a particularly stupid and criminal activity. They battered down the doors into a Blockbuster video store at the intersection. They then rushed in. They caused extensive damage. They stole goods displayed in the store. You were not one of those who caused property damage. But you had been part of the throng outside, you did move into the store and you did remove some sweets.
14 It was a spur of the moment thing, but it was very stupid and it was criminal. And you did it when you were still on bail arising out of the charges you were facing in relation to the May 2005 events at Dandenong. Security videotaping of events inside the store were later played on television news programs. There was some footage of you. The sighting of that airplay led to your going to the police and admitting your involvement. Had you not done so, it is problematic whether you would have been identified, located and prosecuted. That is a not inconsiderable factor to be taken into account in the sentencing process. You have provided a statement to the police. You have undertaken to give evidence for the prosecution if called on.
15 I turn to the background of each of you. Jamie Ngyoune, you were born in September 1987. You are now 19 years of age. You have two supportive parents, although they separated years ago. You have spent most of your life with your mother. You have been educated in the Dandenong area. Until the events of May 2005, you were doing more than reasonably well at school, in sport, academically, creatively and many times in a leader's role. The publicity and the shame of those events led to your leaving school. You have worked at various jobs since then, more recently in a pizza shop. You have continued to show great ability as a sportsman. You have aspirations to do further training to equip you to work somewhere in the sporting sphere. In the intervening two years, you have substantially reduced your drinking of alcohol. You have pleaded guilty to the offences arising out of both sets of events. Your actions on both occasions reflect a high degree of immaturity. With your mother you have maintained links with your church in a positive way. In that sphere, as in others, you have demonstrated your remorse for what you have done.
16 SPA, you were born in 1988. You are now 18 years of age. You have been raised in a law-abiding, close and very supportive family. I accept that you have a feeling of guilt about what problems your involvement in these events have caused your parents. You have no prior convictions. There is ample evidence of your good character. You are proceeding well with your studies towards a degree, which studies are at present on hold. You were on bail for a long time, and it was not breached. You are the youngest of the six who have been or are now being sentenced. You were one of the two assaulted by Greg Harrison initially. You had no part in the initiation of that skirmish. You were prepared at an early stage to plead guilty to the two offences for which you were found guilty. You were prepared to give evidence against Gottinger. There is satisfying evidence of your remorse. You, and your parents, have had to endure the ordeal of two long trials, as a consequence of the first jury being unable to agree.
17 Abdul Tabbit, you were born in April 1985. You come from a good background, and have been of good character, with no prior convictions. You are part of a large and close family. You are married to a young woman who has been accepted well within your own family. You completed year 10 in 2001. You did not perform well at school. You suffer from retinitis pigmentosa, a serious and progressively deteriorating eyesight condition. The eyesight condition is the reason why you receive a disability pension. You have supplemented the pension by working as a sales clerk for Tandy and like electronic equipment and parts retailers. You were on bail for a long time, and complied with the terms of bail. Of the six young males, who have been or are now being sentenced, you had the least involvement in the events of 13 May 2005.
18 There are some things you all have in common. All of you have no prior convictions. All of you are young. All of you come from supportive families. All of you have demonstrated remorse. I assess the rehabilitation prospects of all of you as at least very good.
19 I need to briefly address the matter of how the provisions of the Children, Youth and Families Act impact upon the sentencing process. I accept what was put to me by your counsel as to the applicability of those provisions. Those provisions must be applied as to you, SPA. By law, as at 13 May 2005, you were a child. I am proposing to treat them as applicable to you, Jamie Ngyoune. While the provisions do not apply to you, Abdul Tabbit, the law still requires me to have regard to your youth as the most significant mitigating factor in sentencing.
20 I was not able to accept that I should, as urged by counsel for each of you, make a non-custodial disposition. I cannot but view as very serious what each of you did, and what the consequences proved to be of what you did. Only a term in custody is fit to show the court's denunciation of rampaging violence by you as binge-drinking group-aroused young males.
21 I do need to distinguish between you for reasons that include differences in the actions leading to convictions and differences in age as well as other less significant matters noted earlier. A youth justice centre order is not open as to you, Abdul Tabbit. It is clearly an option for you Jamie Ngyoune, and you SPA, in the light of the reports that I have received from Stephen Riordan and Natalie Hill respectively.
22 I have signed the orders as to the disposal of certain items and as to the retention of forensic samples which were sought and not opposed.
23 I am required to declare the days of pre-sentence detention and direct that they be entered in the records: Jamie Ngyoune, 2 days, SPA, 136 days, and Abdul Tabbit, 16 days.
24 Jamie Ngyoune, as to what I will call the first offence, that of intentionally causing serious injury, I impose a sentence of 2 years in a youth justice centre. As to the offence of affray, I impose a sentence of 1 year in a youth justice centre, concurrent as to 9 months, cumulative as to 3 months, on the 2 years imposed on the first offence. As to the offence of burglary with intent to steal, I impose a sentence of 1 year in a youth justice centre, concurrent as to 3 months, cumulative as to 9 months, on the 2 years imposed on the first offence. As to the offence of riotous assembly, I impose a sentence of 1 month in a youth justice centre, all concurrent with the 2 years imposed on the first offence. As to the offence of theft, I impose a sentence of 1 month in a youth justice centre, all concurrent with the 2 years imposed on the first offence. The effective sentence is 3 years.
25 SPA, as to the first offence, that of intentionally causing serious injury, I impose a sentence of 1 year and 6 months in a youth justice centre. As to the offence of affray, I impose a sentence of 1 year in a youth justice centre, concurrent as to 9 months, cumulative as to 3 months, on the 1 year and 6 months imposed on the first offence. The effective sentence is 1 year and 9 months.
26 Abdul Tabbit, on the count of affray, I impose a sentence of 1 year. I fix a non-parole period of 3 months.
DPP
Ngyoune, Tabbit & SPA [2007] VSC 144