DPP v Sako & Ors [2010] VSC 223

2 The charges arise from an incident which occurred at the Queensbridge Hotel in the early hours of the morning of 7 September 2008. You were all present to celebrate the 21st birthday of Mr Issa's cousin.

3 The absolute tragedy that marks these events comes about as a result of the unfortunate death of Matthew McEvoy. The fact that his death was sudden and entirely pointless only makes the suffering of those close to him all the more intense.

4 Lauren Sako, I will sentence you in a few minutes. You are to be held directly responsible for the death of Mr McEvoy and I will say more about him when I come to sentence you.

5 The following facts are relevant to all three cases.

6 Mr McEvoy had arranged to meet his cousin at the Queensbridge Hotel at about 2.15am. Prior to this he had been out with friends and had been drinking. He was affected by what he had to drink. Mr McEvoy arrived at the hotel at about the appointed time with a group of friends and met up with his cousin, Mr McGrath, as planned.

7 Mr McEvoy continued to drink at the hotel and appeared to have been attempting to get some ecstasy. One of the people he approached was you, O'Brien. That led to an argument between the two of you and you finished up with your foreheads pressed together. The intervention of Mr McGrath ensured that the incident did not go any further and you, O'Brien, shook hands with Mr McEvoy, before the two of you hugged and parted.

8 About the same time Andriyas Tello, in company with you, Issa, went to an area of the hotel known as the smokers pit. You were joined there by O'Brien and you, Sako. Mr McEvoy and Mr McGrath came out to the same area and joined friends. They were a reasonable distance away from your group at that stage.

9 There is a CCTV camera in the smokers pit of the Queensbridge Hotel. The recorded footage shows you, O'Brien, pointing towards McEvoy when discussing something with your group. It is reasonable to assume that you were pointing McEvoy out to your friends.

10 Over the next 20 seconds or so the three of you approached the group where Mr McEvoy was standing. About 30 seconds later two of Mr McEvoy's friends left the group and within 20 seconds after that the group appears to break up. About that time, Tello came from the area near the door to the Irish Bar and struck Mr McEvoy a severe blow to the right side of his head with his clenched right fist before retreating. That conduct appears to be without reason.

11 It was put on the plea that you, Mr O'Brien, turned in Tello's direction immediately before the attack and that appears to be so. In so far as that suggests that you somehow encouraged the attack, I am not satisfied to the requisite standard that such an inference is open on the material before me. That is particularly so in light of there being no fight at that stage of proceedings and the group appears to have been breaking up.

12 At the time that Mr McEvoy was first struck by Mr Tello, it does not appear that the deceased in any way perceived that he was about to be attacked, or that he even saw Tello coming towards him.

13 Those events bring us to 2.37.59 on the CCTV footage. The blow from Tello knocked Mr McEvoy to his left and a little behind Mr McGrath. A security guard named Michael Bulatovic was quickly on the scene and attempted to separate the group. At that time, you Issa and you O'Brien were pushing and shoving and throwing punches in the direction of Mr McEvoy and Mr McGrath, although none of them appear to have connected. Or if the did connect, did not do so with any force. You, O'Brien, showed a fair amount of persistence regarding engagement in the fight without a great deal of success. Your group, including you Sako, were positioned generally to Bulatovic's right and Mr McEvoy and Mr McGrath to his left. As Bulatovic was attempting to keep you, O'Brien and Issa in particular, at bay, Tello came around him and again struck Mr McEvoy a very forceful blow with his clenched fist to the side of his head, towards the rear.

14 Mr McEvoy was not attempting to defend himself and appears to have been taken unawares. Mr McEvoy fell to the ground from the force of the blow. He fell to his left. You, Sako, then kicked him with some force to the head using your right foot. It was then 2.38.11 on the CCTV footage. That is, the truly important event of this night occurred in the space of about 12 seconds.

15 Tello then intervened and took hold of you Sako and you O'Brien. Mr McEvoy was by then unconscious and later died as a result of his injuries. His parents were subjected to the awful experience of being forced to make the decision to turn off their son's life support system. That was done on Monday 8 September.

16 The immediate response to these events involved the three of you and Tello being ejected from the hotel. Had it not been for the truly tragic and serious consequences, that probably would have been the end of the matter. You O'Brien and you Sako, were arrested on later on the morning of 7 September 2008. Or else it was one of you later in the morning and one that afternoon.

17 Mr McEvoy died as a result of a subarachnoid haemorrhage with prominent basilar haemorrhage. It is not possible to say whether it was either or both of the blows delivered by Tello or whether it was your kick Sako, which caused the death. For that matter whether it was any one of the above or all of them in combination. You, Sako, accept responsibility for causing the death by either your own unlawful and dangerous act, or by aiding and abetting Tello in the commission of his unlawful and dangerous acts. At the time you kicked the deceased, you knew that he had been struck to the head by Tello and that he had, as a result, either been knocked or had fallen to the ground. In the circumstances, I think it is more probable that death was caused by either of the blows struck by Tello. If it could be established that your kick alone caused death, then your conduct would have to be viewed more seriously. I cannot be satisfied beyond reasonable doubt that it did and so you fall to be sentenced as an aider and abettor of Tello where either or both of you have caused the death. The prosecution puts its case against you in such a way. The distinction will not, at the end of the day, be an important one as you are, on either basis, to be held responsible for the death of Matthew McEvoy.

18 On the plea I was provided with a DVD of the CCTV footage, which had been enhanced to enable each of those involved in the incident to be more readily identified. It is therefore possible to say with some certainty who did what.

19 I should interpolate at this stage that it is necessary for me to prohibit the publication of these proceedings until such time as verdict has been delivered in the trial of Andreyas Tello. I intend to make the enhanced DVD footage available at that time.

20 I turn now to deal with the affray involving Issa and O'Brien. The conduct which constitutes the affray for both you, Issa and you, O'Brien, involves the fight which followed Tello striking Mr McEvoy for the second time. Neither of you are to be held responsible for the death of Mr McEvoy, his death having no actual connection with the offence of affray in this instance. The affray does, however, form part of the context of the offending and in one sense, is what actually brings you before the court. Mr Hevey, who appeared on behalf of the prosecution, noted on the plea:

The Crown does not seek to visit the consequence of Mr McEvoy's death on these two.

21 The conduct constituting the affray involved pushing and shoving and the throwing of punches. It is not clear whether any of them connected with any one or thing. It is fair to say that you, O'Brien, went on with such conduct for a longer period than you, Issa, continuing unto and during the security guard Bulatovic's attempts to intervene. In all, the events constituting the affray occurred over a period of about 20 seconds. Throughout, Mr McGrath attempted to do no more than look after himself and Mr McEvoy. He was not engaging in the fight.

22 The Crown submitted that a term of imprisonment was appropriate for both of you and that you, O'Brien, should be ordered to serve some part of it immediately. The call for an immediate custodial sentence in such circumstances was said to be predicated upon the public's having had enough of this type of conduct in licensed premises late at night. It was submitted that the principles of denunciation and general deterrence require such an outcome.

24 It should not be thought for a moment that I do anything less than condemn fighting of this kind. I wish that young men would stop hurting one another and innocent bystanders. The point is, overriding any particular factor in sentencing is the fundamental principle that you must be sentenced for what you have done.

25 I observed on the plea and I indicate now as part of my findings that this conduct is at the lower end of seriousness of the crime of affray.

26 It was not started by you, it was short lived and unplanned. It did not involve the use of weapons and in so far as I can assess, it did not involve either of you actually striking or actually kicking anybody. Even if the conduct of Tello and Sako added to the affray, it involves two punches and a kick. They fall to be dealt with separately for their conduct and its consequences.

27 I do not accept that this affray is one that can be singled out as an appropriate vehicle for contending an immediate custodial sentence is required. Especially in circumstances where that would not otherwise have been the case. Had it not been for the unintended consequences you, O'Brien, and you, Issa, would probably not have been charged - and if you were charged, the matter would have been dealt with in the Magistrates' Court. You are not in the position of Tello or Sako and you should both be grateful for that.

28 You have both pleaded guilty and taken responsibility for your actions on this night. As far as it can be distilled from the material you had been drinking for some time but were not particularly affected by alcohol. You do not appear to be affected on the CCTV footage, however the general effects of alcohol short of drunkenness cannot be disregarded.

29 The crime of affray is a crime which typically involves a group of people. The way young men in particular, behave in groups, is markedly different from how they might behave individually. This is a very good example of how the conduct of one draws the whole group into behaving abhorrently.

30 When sentencing I am obliged to look at all the available options. In particular s 53 and 54 of the Sentencing Act are of general application:

53. A court must not impose a sentence that is more severe than which is necessary to achieve the purpose or purposes for which the sentence is imposed

54. A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve confinement of the offender.

32 Ivan Issa, it was first urged by Mr Holding who appeared on your behalf that I should recognise that your part in the affray was reactive rather than active and I do so. I accept that you have not been involved in any incident like this in the past and you have no prior convictions. You were 18 years and ten months old at the time of the offending and you are now 20. You are a young man. Your rehabilitation will therefore have especial regard in your sentence.

33 In many ways you are an unlikely person to find yourself before the court for an offence of this kind and I repeat my earlier observations concerning what men do in groups. You pleaded guilty at an early stage in the proceedings and I accept that you are remorseful with regard to what you have done. Your involvement was relatively minor. You threw a couple of punches which did not connect. From the outset you admitted to the police that you had been involved. You description of your own conduct does appear to have been reasonably accurate.

34 You were born in Iraq and you are of Syrian extraction. Your parents came to Australia in 1992 or 1993 when you were three or four years old. You have two older brothers and two younger sisters. Your family appears to be close. You are in a relationship with Jane Beveridge and you have her support and the support of her family. You live at home and work as a brick layer.

35 You successfully completed school to year 11 and have almost completed apprenticeship. A number of written references were tendered on your behalf, they have been marked as exhibits. I have read them and taken them into account. You have been involved with local sporting clubs.

36 A report from psychologist Carla Lechner dated 23 October 2009 was tendered on your behalf. That report conveniently sets out your history and indicates that you are a person of average intelligence. More importantly, Ms Lechner noted you do not have an alcohol or anger management problem. At the time of the consultation you expressed regret for what had happened to Mr McEvoy. The behaviour and conduct in which you were involved does otherwise seem out of character.

37 At the conclusion of the plea I ordered you be assessed for a community based order. I have received a report and you have been found suitable for that disposition.

38 Michael O'Brien, It was urged by Mr Skehan, who appeared on your behalf, that the fact that you went back to the area of the hotel and voluntarily spoke to the police upon discovering somebody had been seriously injured was indicative of your attitude to this matter. I accept that submission.

39 I have indicated my findings as to the nature of this particular affray. At some stage during the incident you tried to calm things down. There is no doubt that the incident escalated once Tello stepped in in the way that he did. You were 18 at the time of the offending you are now 20. You were at school for a number of years with your fellow accused Ivan Issa and you have been close friends over that time.

40 You have an older sister and younger brother. Another sister Nicole was unfortunately killed in an accident before you were born. Although your parents separated in the year 2000 they both came to court to support you. You live at home with your mother. You successfully completed year 11 at school and commenced an apprenticeship as a builder which you will complete in April.

41 You are involved in your local football and basketball clubs. You have other sporting interests, BMX, motor bikes and trampolining. You have no prior convictions, no history of being in fights, nor any reputation for being a trouble maker. You are highly regarded by your employer and others whom I will mention shortly. I received written references which are exhibits, I have read them and taken them into account.

42 Your father Patrick gave evidence on the plea. He spoke highly of you, particularly in the context of your relationship with your younger brother. He described your general attitude and relationship with others as being good and your attitude toward work as very good. He told me that you had helped him renovate his house.

43 Your father also told me you have shown regret and remorse. He said in particular because of your age and weight, you have not developed any aggressive style. You are a happy-go-lucky generally and got involved with groups around you. You are also involved in a relationship and have been for about a year. You are nearly at the end of your apprenticeship and you are still young. Your rehabilitation has to be an important feature in your sentence. You have been assessed for a community-based order and found to be suitable.

44 I now turn to some more general considerations about both of you.

45 It is unusual to find young men, such as yourselves, before this Court charged with a serious offence. One which carries a maximum term of imprisonment of five years. It is unusual because you have had, or do have, good support from your families and friends. Unusual because you have completed your education, are now in full time employment, have almost completed apprenticeships and you have done well in your work. You have no prior convictions and have never been in trouble. You have involved yourself in conduct about which you should have known better. In the end, a young man, about whom all the things I have noted about you and more could be said, is dead. You are not actually to be sentenced for that, but it is an inextricable part of the context of your offending. I do not see any need to distinguish between the two of you, although I regard your conduct O'Brien, as being slightly more serious.

46 It is my intention to convict and release both of you on community-based orders. I will fix a period of two years for that order for each of you, to commence from today on the following conditions. The program conditions, which apply in addition to the core conditions will be that you perform unpaid community work as directed by the regional manager for 400 hours. You must undergo assessment and treatment for alcohol and drug dependency or submit to medical psychological or psychiatric assessment and treatment as directed by the regional manager. You must be under the supervision of a community corrections officer, you must undergo assessment for programs to reduce re-offending and participate in such programs as directed by the community corrections officer.

47 The core conditions which apply to all community-based orders and will apply to these orders are that you must not commit another offence for which you could be imprisoned during the time that the order is in force, you must report to the community corrections centre within two clear working days of the order starting, report to and receive visits from the community corrections officer, let a community corrections officer know within two clear working days of you changing your address or job, not leave Victoria without first getting permission to do so from the community corrections officer and obey all lawful instructions from and directions of community corrections officers.

48 Now, it will be necessary for you to sign this and to acknowledge that you understand this order and the conditions and effect of it. Stand up, both Mr Issa and Mr O'Brien. As I understand it, the terms of these orders have at the time of your assessment been explained to you, is that correct? That you both understand the conditions of the orders and you consent to being released on such an order? Thank you. In this case, the time for attendance will be on Friday, tomorrow. That is in your case Mr Issa, at 10 am and in your case Mr O'Brien at 2 pm. I will now ask that those orders be signed.

49 (Community-based orders signed and acknowledged.)

50 Lauren Sako, I have already set out the circumstances of your offending. By your plea, you personally take at least part of the responsibility for the death of Matthew McEvoy and take in combination with Tello, responsibility for the whole of that consequence. On your plea, three victim impact statements were tendered and read to the court. They are from Matthew's mother, father, and brother. The material was very moving. To say that their suffering has been profound is inadequate and an understatement. It has been increased by the painful decisions which had to be made in the hours following this incident. Increased by the loss of a young man of outstanding quality, increased by the entire pointlessness and avoidability of his death. The loss will be with them for the rest of their lives. It should also be noted that the victim impact material is set out in a careful and most dignified way. No sentence I impose on you Sako, can act as much, if any, consolation to them.

51 You are a young man of very good character. You were 18 years old at the time of these events and 20 now. Your youth is relevant but given the seriousness of this offending, although regard must be had to matters of rehabilitation, they do not carry the same weight as they would for lesser offending.

52 Your conduct involves one forceful kick, but it was to the head of a man who had fallen to the ground. Your crime arises from the objective risk of infliction of serious injury. Why you did what you did will never be known. You said to the police that you acted in self-defence, that is not supported by the evidence. What ever sense of self-preservation might have been involved, your actions were totally out of proportion to any threat you or your friends faced. Those facts were recognised by your plea of guilty.

53 It can be said that your act of kicking the deceased was quick and was the only actual violence you were involved in. That is not to say much one way or the other. Somehow, the community and particularly young men need to understand how dangerous behaviour such as this is and how easily somebody might be killed. You have no prior convictions, you have not otherwise been in trouble with the authorities, the behaviour is out of character.

54 You have pleaded guilty in circumstances which are to your credit. Many people in your position would have taken this matter to trial. It is not always so, but in your case, your election to plea at an early stage does reflect remorse.

55 I received a large number of references from your friends, family and people with whom you have been involved in work in addition to other written material which I have marked as exhibits on the plea. I have read that material and taken it into account. You have a high reputation and much support.

56 On the plea Sam Patto, Silvana Bodzaj and Ronnie Issa, the cousin of the accused, gave evidence on your behalf. Mr Patto, who is your uncle, told me you were a good and reliable worker in his plastering business. Ms Bogjas told me of your religious commitment, your remorse and your work helping other young people. Mr Issa told me that he had been your former employer and spoke of the changes in you since these events and of your remorse.

57 From your point of view the most important material put forward on the plea were the reports of Ian Joblin, a very experienced forensic psychologist, and your treating psychologist, Dr Emma Aitken.

58 Mr Joblin noted that the major issue in this case, from a forensic psychological perspective, is two fold:

One, it is important to determine what this offence represents in terms of ongoing psychological states and that is discussed above. The second issue in my opinion is determining the attitude of Mr Sako as to the offending. Mr Sako was emphatic that at the time he spent in the adult gaol system was onerous on him and resulted in significant deterrent value. He reported that when he was bailed he was still charged with murder, he reported significant difficulties psychology from his awareness of the seriousness of that charge and the possible outcome of his court appearance.

Accordingly Mr Sako decided to do something about his life. He reported that he did not develop a careless, irresponsible or indolent attitude, rather he determined he should try to overcome many of the problems he had and make a better life for himself and those around him. Thus he reported that he worked hard and became involve with religion. I have outlined that above including my opinion. Often persons claim an adherence to religious factors in an attempt at manipulation. I am not of the opinion that that applies in Mr Sako's case.

Mr Sako acknowledged that this offence is extremely serious and he is very humble in recognising than being conscious less. He has certainly not an antisocial personality disorder by disposition.

The issues of remorse and contrition are also important. At a more emotive level the question of remorse involves the individual's attitude to the offending. In this case his presentation and remorse involve more than simple sorrow or regret over having committed a crime because of the punishment which it is about to bring, Mr Sako has a strong sense of guilt about his behaviour. While he discusses this issue about whether or not he connected with the deceased when he kicked out, he has also acknowledged his plea of guilty.

There are components of the more cognitive concept of contrition, but it seems in his admission of guilt and his acceptance of responsibility, he has considerable sympathy for the victim's family and extended family. He certainly has made a serious practice never to be involved with the criminal justice system again.

There is no doubt that Mr Sako is very aware of the damage that this incident occasioned, the lives of those who were close to the deceased and to Mr Sako is abhorrent that he was responsible for that. In my opinion that attitude is consistent with remorse.

The cognitive concept of contrition is seen and his awareness of the wrongness of his behaviour, of being involved in an incident where this man died. Again I have no doubt that this is genuine.

As indicated therefore at the time of my interview with Mr Sako he presented very well. He is a young man who sees his future working and to a degree trying to compensate for the damage he has occasioned himself, his family, and the victim and those close to him. He has an ambition He is fully literate and he is certainly not psychotic. Indeed in my opinion he does not exhibit any symptoms of a clinical diagnosable psychologically abnormality.

Mr Sako reported feelings of hopelessness about his future and feeling sad and anxious most of the time, explained that he'd assaulted another young man during a confrontation. Although he believed his actions were defensive, he caused serious injury that resulted in the death of the other young man. Mr Sako explained that every time he thought of what happened or was reminded of it by seeing incidents in the media of a similar nature, he would experience troubling flashback memories and severe depression and guilt. He would think about how the other man did not deserve to die and how sad his family must be. He would feel guilty and worry about other people including his own family would think that he is a bad person. These feelings would last for a long time and be accompanied by chest pains. Mr Sako tried to avoid reminders of the incident including avoiding social events. He would also spend much time going over what had happened in his mind and what he should have done to avoid the incident.

I administered several psychometric tests to Mr Sako to measure the degree of depression and anxiety and trauma that he was suffering. The results suggest he's suffering from post-traumatic stress disorder. This is a chronic disorder that sometimes results from exposure to trauma and is often accompanied by significant depression. In therapy he has attempted to come to terms with his actions and accepts the will always experience negative feelings and trauma about the incident.

Mr Sako has expressed his deep remorse about his actions and his desire to do whatever positive things he can, as speaking to his friends about his terrible mistake and how easy it is to cause serious injury and death to another person. He has also expressed his desire to write to the family of the victim to express his remorse but is concerned that this could upset them further.

In my opinion, Mr Sako's insight into his actions and his remorse are genuine and profound. He seems very motivated to learn from his experience and teach others. He understands that he cannot undo or make up for what he had done but wishes to make good of his life for the sake of the young man whose life ended through his actions. It is also my opinion that imprisonment will exacerbate Mr Sako's psychological condition and will limit his access to the crucial support of his family during the recovery. I hope that these matters can be taken into account in considering the best course for Mr Sako's future.

60 The letter you referred to writing in your talks to Dr Aitken, eventuated in your writing a note, addressed to me, which was read out by your counsel Mr Lewis on the plea. It expressed the matters that were referred to in the report. Although people like me are cynical, as Mr Joblin observed, about the genuineness of remorse and regret, you do seem genuine in a way which is somewhat unusual in this Court.

61 You are now 20, you came to Australia from Iraq via Turkey when you were quite young. You have a loving and caring family. You live at home with your mother, father and two brothers. You have two sisters and two brothers. Your immediate older brother has been in trouble. You attended school until Year 11. There does not appear to be anything remarkable about your schooling. You then went to the Batman-Kangan TAFE and received a certificate in building and construction. You commenced an apprenticeship as a carpenter but then moved on to bricklaying with the witness Issa. After you had spent a little over a month in custody, prior to being bailed, you went to work for your uncle Mr Pato, as a plasterer.

62 Because of your background and character, you represent a complex and difficult sentencing problem. Mr Lewis urged upon me that I should sentence you to detention in a youth training centre and I had you assessed. I have received a report from Mr Stephen Riordan, a senior court advice officer. Mr Reardon is a very experienced officer who, with relatively short notice, carried out his assessment and provided a helpful report. I am grateful for his help in the matter. Mr Riordon has assessed you as suitable for a youth justice centre disposition.

63 The maximum term available under a youth justice centre sentence is three years. I must have regard to just punishment; incorporating personal and general deterrence on the one hand and matters particular to you on the other.

64 This is a serious offence. It carries a maximum of 20 years imprisonment. I do not regard the offending as being at the high end of cases of seriousness for manslaughter, but I do not regard it as being at the lower end either.

65 I have concluded that a maximum of three years would be inadequate and therefore a youth justice centre sentence would not be appropriate. What is important about Mr Riordan's report is that it reflects, both in its terms and by implication, that you had difficulty in the adult prison system. I will therefore recommend that the adult parole board, pursuant to s 471 of the Children, Youth and Families Act 2005, give consideration to your transfer to serve such portion of your sentence as they regard as appropriate in a youth justice centre. That will require the adult parole board obtaining from the Department of Human Services a report as to the appropriateness of that action.

66 In your sentence, I am required to fix a non-parole period. Because of your youth, your early plea, and the other powerful matters put on your behalf on the plea, I will fix a lower than usual non-parole period.

68 I sentence you to be imprisoned for six years. I order that you serve three years before being eligible for parole. I am required by law to set out what sentence I would have imposed if you had not pleaded guilty.

69 In your case, the plea is inseparably bound up with the level of remorse which you have shown. If you had been convicted by a jury of this offence I would have sentenced you to be imprisoned for seven and a half years with a non parole period of five and a half years.