DPP v Rider & Anor [2019] VCC 1712

27 August 2019 and which was tendered on your plea. It is the agreed basis on which I will sentence you. Mr Rider, your counsel tendered an Outline of Plea Submissions dated 9 September 2019, together with a psychological report of Mr Ian McKinnon, consultant psychologist, dated September 2019 and two references. Mr Sovilj, your counsel tendered a number of references and letters in support of your plea.

3 I have had regard to all oral and written submissions made on your behalves, together with the material tendered on your plea.

4 The prosecution summary sets out the circumstances of these offences in some detail. I will refer to them in short compass.

5 Mr Sovilj, you lived on the podium level of STK Apartments in St Kilda Road. The victim, Mr Bouhamra, lived on Level 6 with his partner, Ms Echeverry, and housemate, Yue Xie. You, Mr Rider, were a friend of Mr Sovilj and had never met Mr Bouhamra.

6 In about August 2016, you Mr Sovilj and Mr Bouhamra had a confrontation, where you stared at each other. You told Mr Bouhamra that he had better watch his back. You saw each other another six times in passing with no issues.

7 On 6 October 2016, at about 3.40 pm, both of you rode your motorcycles into the apartment car park and took the lift to the podium level. Mr Bouhamra and Ms Echeverry were at the pool on the podium level.

8 You, Mr Sovilj, asked Mr Bouhamra to come and have a word with you.

Mr Bouhamra followed you to the stairwell opposite the lift doors, where he saw you, Mr Rider, on the landing of the stairs. You, Mr Sovilj, asked Mr Bouhamra whether he remembered, 'the thing that happened a couple months ago?' You said you would turn a blind eye to it if Mr Bouhamra gave you $1,500.

He refused. You, Mr Sovilj, struck Mr Bouhamra first and then both of you hit him multiple times.

9 Ms Echeverry and Mr Xie called 000 for an ambulance.

10 Mr Bouhamra suffered a blood-nose, fractures and breaks to his left eye socket and cheekbone, nerve damage to the left side of his face in the area of his cheek under his nose and part of his lips. He also suffered bruising around both eyes, one or two lacerations over the left elbow and blood in his left eye. He had pain on movement of the eye, swollen eyelid and tenderness of the left elbow, without superficial or bony injury. Mr Bouhamra was released from hospital on 9 October 2016, but had to return on 21 October 2016 for surgery. He had a metal plate inserted. Upon discharge, Mr Bouhamra's face was swollen and he had some double vision.

11 Mr Bouhamra identified you, Mr Sovilj, as one of your attackers. Police identified you, Mr Rider, from the CCTV footage from the apartment block. You, Mr Rider, were arrested on 20 December 2016 and you, Mr Sovilj, were arrested on 23 December 2016.

12 You were both interviewed and made 'no comment' interviews.

13 Mr Rider, your counsel submitted that the matter has been subject to inordinate delay since you were arrested and interviewed by the police. The matter stalled in May 2017, when the prosecution referred the matter to the Office of Public Prosecutions for advice about uplifting the charges. An additional charge of intentionally cause serious injury was added on 1 August 2017. The matter was adjourned to 9 October 2017 for committal mention in the Magistrates Court. You were both committed to stand trial in February 2018. The trial was meant to commence in October 2018, however it was in the reserve list, was not reached and was adjourned to 12 August 2019. The victim did not appear until the third day in the reserve list.

14 You have pleaded guilty to the charge that was ultimately accepted by the prosecution.

15 Mr Sovilj, in April 2017, the second mention of the matter in the Magistrates Court, your counsel was tasked with conducting a summary case conference, with a view to resolving the matter, on the basis of the charge to which you have now pleaded guilty. That summary case conference did not proceed because the matter was referred to the OPP for advice. Nevertheless, he submitted that I ought take into account your active efforts to bring an appropriate conclusion to the matter.

16 In those circumstances, I accept that you ought both be given the benefit of an early plea of guilty as an indication both of remorse, and for the utilitarian benefit that your plea of guilty has had in avoiding a trial.

17 There is no pre-sentence detention to be declared as having been served by either of you, as you have both been on bail.

18 Mr Rider, you have a relevant criminal history, both prior and subsequent, although you have no charges pending.

19 In August 2016, you were charged with affray, failing to comply with a direction and committing an indictable offence on bail. In February 2017, you were charged with driving offences and with unlicensed driving and other offences, including dishonesty offences in May 2017. These were the matters the subject of the first community correction order imposed on 11 January 2018. You were then charged with unlicensed driving, possession of a speed measuring device and driving with non-compliant license plates in April 2018. You were driving a friend's car. Those matters were the subject of the imposition of a CCO on the 11 July 2018. You have completed all but 20 hours of the required community work under those orders. Since the imposition of the CCO, you have not come to the attention of police.

20 Mr Patton submitted that the fact that you have remained free of any further offending for the last 19 months, shows that you are moving in the right direction.

21 Mr Sovilj, you have no prior convictions for violence. The most recent prior matter in 2004, for cultivation of a narcotic plant, has very limited relevance. Your co-accused was your older cousin and you would have been 16 years old at the time. In light of the age of your prior matters and considering that they are not violence-related, I do not consider them to be relevant.

22 Mr Rider, your personal circumstances are set out in detail in the psychological report of Mr McKinnon and were addressed by your counsel on your plea. In summary, you grew up on the New South Wales Central Coast, the middle sibling of three brothers. Until you were 11 years old, your family was close and free of any significant abuse or conflict. When you were 11, your parents separated and your mother moved to Queensland. You were living with your father, but he essentially 'kicked you out' of the house at age 13.

23 You were couch-surfing, completed Year 9, but then went to Sydney at the age of 16 and started tattooing. You moved to Perth when you are 20, got into trouble and spent three and a half years in prison. When you came out, you then went back in for another year. You went to Adelaide, got into boxing training, then moved to Melbourne at age 26.

24 When you came to Melbourne, you did not know anybody. Mr Sovilj was your only friend. You are no longer in contact with each other.

25 Mr Sovilj, you are now 35 years old, single, with no children. Your parents separated when you were three years old. The relationship was marred by domestic violence, however, you have little actual recollection of this. After separation, your father returned to Serbia and remained there for 12 years. He had no contact with you or your brother. You have a number of half siblings from subsequent relationships your father has had.

26 You have a strong relationship with your mother. When your father left, your mother had no real support and limited English skills. You were an above average student, completing Year 12 and beginning engineering and RMIT. You left RMIT because you wanted to get a job and go to work. You completed a carpentry apprenticeship by 23. You have held a number of management roles over quite a number of years, including national assets manager for United Petroleum. You held that role, or equivalent roles, at a national level for nine years.

27 Whilst you drink alcohol from time to time and you have used illicit substances recreationally, you have never had it drug problem.

28 The offence to which you have both pleaded guilty is a serious offence, as is reflected in the maximum penalty of 10 years' imprisonment.

29 Mr Hannan, prosecutor, submitted that the circumstances of the offending are objectively serious and put it at the mid to high range of seriousness. Your actions were deliberate with a specific intent.

30 Mr Hannan submitted that I should find that the victim was lured into the stairwell for the purpose of confrontation, with you, Mr Rider, on the stairs waiting. There was a degree of preplanning, it was not a coincidence that you, Mr Rider, happened to be in the stairwell.

31 The history between you, Mr Sovilj, and the victim was benign and thus the offending was unprovoked. After the first punch, the victim was essentially defenceless and tried to run away. You both chased him, punched and assaulted him again. It was a cowardly assault in company, gratuitous and must be punished.

32 Mr Rider, although Mr Patton submitted that you were not the instigator of the offending, he accepted that this factor cuts both ways. It was not your dispute. Mr Patton submitted, however, that I ought to consider your actions in the context of your isolation in Melbourne. You were acting out of a misguided sense of loyalty to your only friend. Although, the in-company aspect is an aggravating feature, I ought to consider that you became involved only after the assault commenced.

33 Mr Sovilj, your counsel conceded that the offending is serious and the extent of the injuries are relevant in placing this offending towards the upper end of the offence of intentionally cause injury. You were the instigator. He submitted, however, that you did not intend to cause that specific injury, in other words, to break facial bones. Mr Rattray submitted that I could not be satisfied beyond reasonable doubt that you intended to cause injury at the time you asked the victim to come into the stairwell. There was a discussion that took place which ultimately lead to you punching the victim. There was no kicking and on fair analysis, your conduct falls within the mid-range, perhaps upper mid-range for intentionally causing injury offences.

34 I accept that the circumstances of this offending, together with the injuries suffered by the victim, places the offending in the upper range of seriousness for the charge. I am satisfied beyond reasonable doubt that there was a degree of planning involved, in that Mr Rider's presence was not coincidental. I accept the prosecutor's contention that the victim was lured into the stairwell for the purpose of confronting him, a demand for money having been made and refused, then intentionally causing injury.

35 It was a cowardly, nasty attack. The injuries were significant, although I have been careful to ensure that you are sentenced on the basis of causing injury intentionally, not serious injury. Your conduct requires significant weight to be given to the principles of general deterrence, to deter others from engaging in this type of conduct and to denounce this sort of offending.

36 Mr Rider, Mr Patton submitted that due to the delay in this matter to which

I have already referred, you lost the opportunity to have the matter dealt with in the Magistrate's Court, including as part of a consolidation of matters heard in January and July 2018. Had an earlier offer to plead guilty to the present offence been accepted, the matters would have been dealt with in January 2018. He argued that given the seriousness of the matters already being dealt with by way of CCO, although it is speculative as to whether this further offence would have triggered the imposition of a custodial sentence, Mr Patton argued that it is likely that it would not. Rather it would have been dealt with as part of the imposition of a CCO.

37 Mr Sovilj, Mr Rattray made the submission that had the prosecution proceeded in the Magistrates Court on the charge that you now face, intentionally causing injury, it would invariably have been dealt with in the Magistrates Court.

38 Mr Hannan did not accept the submission that this is an appropriate matter for the Magistrates' Court, or that had your matter, Mr Rider, been dealt with as part of a consolidation, a CCO would still have been made.

39 I accept Mr Hannan's submission that given the objective seriousness of the offending, this is not necessarily a matter that would have been dealt with in the Magistrates Court. I will not speculate as to what a magistrate may have done, had he or she considered this as part of a consolidation, but I will take into account that the way in which the prosecution proceeded, meant that you,

Mr Rider, did not have the opportunity to have the matter considered as part of the consolidation in the Magistrates Court. I accept that you, Mr Sovilj, did not have the opportunity for the matter to have been considered for hearing by a magistrate in the Magistrates' Court.

40 Both of your counsel argued that a further significance of the delay is in respect of your prospects of rehabilitation and the steps that you have taken in the three years since your offending. I have taken the delay into account in mitigation of the sentences I will impose.

41 Mr Rider, although you have committed offences since this assault, they are not of a similar kind and you have committed no offences since being placed on a CCO. You now have a track record of compliance with CCOs. The letter from Mr Pardee speaks of your wholesale transformation in personality over the last two years. Boxing has given you a degree of discipline. You have direction in your life and your two year committed relationship is a significant part of that. Mr Cass, a 20 year member of Alcoholics Anonymous, wrote of your remorse and willingness to embrace the concepts of Narcotics and Alcoholics Anonymous 12 Step Program. He has seen you grow positively over the last two years.

42 Mr Patton submitted that I ought consider your offending background and substance abuse in the context of your history, in particular the breakdown of your parents' marriage and being homeless from the age of 13. Your prospects of rehabilitation are good, given the stability you now have in your relationship and employment. Mr McKinnon, psychologist, wrote that you do not appear to possess an anti-social disposition. You do not have a history of engaging in violence gratuitously. You know that committing this offence was wrong.

Mr Patton argued that there is nothing subsequent to this offence to indicate that the community is at risk from you. On the basis of that material, I accept that you have reasonable prospects of rehabilitation.

43 Mr Sovilj, Mr Rattray argued that I ought to consider that this offence occurred in the context of your association with a group of people, an outlaw motorcycle gang, over a period of about two years. You are no longer associated with that group, although leaving that association had its own issues, including you suffering injuries yourself. You had been associated with that group of people for two years before this offence. Your involvement with them is inexplicable and you are regretful. You have no priors for violence and I ought to consider that this offence was out of character.

44 In the time since this offence, you have committed no further offences and have been employed full-time. Your history demonstrates a strong work ethic and social supports. You have a strong relationship with your brother and

sister-in-law and their two daughters. I have had regard to the references tendered on your plea. They speak of your strong work ethic, your remorse, although that is somewhat tempered by the outcome of the pre-sentence report, in which the author has noted that, while you did not demonstrate any apparent remorse for the victim, you did acknowledge the impact of your offending on your family. Nevertheless, I accept that you have expressed remorse in that regard and that your conduct was out of character. Your mother was in court to support you, as she is again today. Your father would have been in court, but for an operation the day before the plea. Mr Rattray submitted that you have very good to excellent prospects of rehabilitation.

45 Mr Rattray submitted that I ought to take into account, in a 'soft' way, that you care for your mother, who suffers a number of medical challenges. She needs day-to-day assistance. She cannot drive, has issues with chronic pain and you help her with her daily activities and all of her medical appointments. She is socially isolated. Whilst your brother could fill the void, he juggles family commitments with work full-time. He has two young children. You would endure additional hardship if you were to serve a term of imprisonment while knowing that your mother needs help and you are not there to help.

46 I accept and have taken into account the role you play in assisting your mother with her needs. I also accept, given your lack of relevant prior offending, that you have committed no offences since, that this offending occurred at a time in which you were associated with a particular group of people, with whom you are no longer associated and your strong work history, that you have very good prospects of rehabilitation.

47 I am obliged to have regard to current sentencing practices in determining the sentence, though I note the guidance of the High Court in DPP v Dalgliesh (a pseudonym) [2017] HCA 41, that current sentencing practices are one of the many factors that must be taken into account in sentencing.

48 I was not referred to comparable cases by counsel. I have had regard to the Sentencing Advisory Council Higher Courts Sentencing Statistics in relation to this offence, as an indication only of the percentage of cases in which a term of imprisonment was imposed and in respect of the length of the term of imprisonment imposed and in respect of other dispositions imposed. Every case is different and the court must have regard to the individual circumstances of each case and the relevant sentencing principles that apply. This is what

49 Mr Hannan submitted that a term of imprisonment is appropriate in respect of both of you. A term of imprisonment is necessary to deter you both, to send a message that this type of offending will not be tolerated. Neither of you are youthful and you have prior convictions, subject to what I have noted in respect of Mr Sovilj's lack of relevant priors. Mr Hannan accepted that I can take into account that the delay was through no fault of yours. Nevertheless, given the nature of the injuries, a CCO, he said, is out of the range.

50 Mr Rider, Mr Patton submitted that I ought impose a CCO, taking into account the significant delay and your successful completion of a CCO. Denunciation can be met by the imposition of significant work hours. He submitted that there is no need for a treatment order, as drugs and alcohol are no longer an issue. In other words, it ought be punitive, rather than therapeutic.

51 Mr Sovilj, your counsel also submitted that a CCO, with a significant community work component, would satisfy the punitive imperative. Mr Rattray submitted that supervision is not necessary, rather a condition for judicial monitoring ought be imposed.

52 In light of the submissions, I considered it appropriate to obtain a pre-sentence report in respect of each of you. In summary, in your case, Mr Rider, you have been deemed suitable for a CCO with unpaid community work, supervision and judicial monitoring conditions. Given the context of drug use in which these offences occurred in your respect, a drug treatment condition and "programs/other" conditions were recommended to enable you to participate with a program available within the community to address your offending behaviour.

53 Mr Sovilj, you were assessed as suitable for a CCO with unpaid community work condition, drug treatment and rehabilitation programs to reduce offending, supervision and judicial monitoring.

54 In sentencing both of you, I need to balance a number of competing principles and considerations. I must have regard to a range of matters, including the seriousness of the offending, your culpability and your personal circumstances. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as is possible, that offenders are rehabilitated into society.

55 Achieving parity involves comparing incommensurables. I must consider your roles in the offending and take into account each of your personal circumstances and the differences in respect of your prior histories.

56 Having considered, balanced and weighed all of the matters raised in mitigation on your plea and considered parity as between you, I have determined to impose a community correction order of the same length on each of you.

I consider that a lengthy community correction order, with a significant community work component, can, in all of the circumstance (and in particular, taking into account the delay to which I referred earlier), satisfy the punitive element necessary to denounce your conduct and to deter others who might be minded to act in that way.

58 Mr Rider, If you agree, I will release you, with conviction, on a community correction order for 24 months. That order will have the conditions that are attached to every order which are:

• That you must report to and receive visits from Corrections Victoria;

• Must notify Corrections Victoria of any change of address or employment;

• Must not leave Victoria without permission of Corrections Victoria; and

• Must comply with any direction given by Corrections Victoria to ensure compliance.

• You must attend Melbourne Correction Community Service within two working days from today. The address is 50 Franklin Street Melbourne.

59 I will also order that you comply with other conditions:

• You must perform 250 hours of unpaid community work;

• You must undertake assessment and treatment for drug use and undertake programs to reduce offending, as directed by the Community Correction officer.

• Pursuant to s.48CA of the Sentencing Act, I determine that 40 hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

60 Do you agree to being release on a community correction order with those conditions attached?

62 HER HONOUR: Yes, thank you. You may be seated.

63 Mr Sovilj, if you agree, I will release you, with conviction, on a community corrections order for 24 months. That order will have the conditions that are attached to every order which are:

• That you must report to and receive visits from Corrections Victoria;

• Must notify Corrections Victoria of any change of address or employment;

• Must not leave Victoria without permission of Corrections Victoria; and

• Must comply with any direction given by Corrections Victoria to ensure compliance.

• You must attend NJC Collingwood CCS within two working days from today. The address is 241 Wellington Street Collingwood.

64 I will also order that you comply with other conditions:

• You must perform 250 hours of unpaid community work;

• You must undertake programs to reduce offending, as directed by the Community Correction officer.

• I have not made an order for a drug treatment condition to be attached to the order, given the submission and lack of history of any drug addiction or significance of drug use in respect of this particular offence.

• Pursuant to s.48CA of the Sentencing Act, I determine that 40 hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

65 Do you agree to being released on a community corrections order with those conditions attached?

68 Pursuant to s.6AAA, had you not pleaded guilty, the sentence I would have imposed would have been a term of imprisonment of 18 months in respect of each of you.

69 I do not understand that, Ms Dunbar, there are any ancillary orders or anything like that?

71 HER HONOUR: I will just get the paperwork and sign that and give you both an opportunity to speak to your clients about the conditions that are attached to the order, if you wish to.

75 Mr Rider and Mr Sovilj, you can come out of the dock and come down to the Bar table to speak to counsel and sign the orders.

76 Unless there are any other matters, 11 o'clock.