Sentence: Total Effective Sentence of 5 years' imprisonment with a non-parole period of 3 years and 6 months. s6AAA declaration of 7 years' imprisonment with a non-parole period of 4 years and 9 months.
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Didier Lam Kee Shau, you have pleaded guilty to one count of recklessly causing injury contrary to s.18 of the Crimes Act 1958 and one count of engaging in conduct endangering life, contrary to s.22 of that Act.
In addition, you have pleaded guilty to a summary offence, namely refusing to furnish a sample of breath when required to, pursuant to s.55(2) of the Road Safety Act 1986.
The circumstances of your offending are as follows.
On 16 September 2018 you and your wife travelled from your home in Coburg to attend a communion party for your niece at Carrum Downs.
Your wife was five months pregnant.
You arrived at the party at approximately 7.30 pm and you left soon after midnight. Your offending occurred in the early hours of 17 September 2018.
You had consumed beer and whiskey while at the party. Prior to your departure you had been seen talking with a number of your relatives. You were observed to be angry about something. Your relatives were attempting to calm you down. Your wife noted that your breath smelt of whiskey.
You departed for your home with your wife driving. During that drive your mood altered from being relatively happy to extremely angry.
At one point you ordered your wife to stop the car. She pulled over to the emergency lane of the freeway on which she was travelling. When she resumed driving you accused her of speeding and demanded that she slow down, notwithstanding her telling you that she was travelling at less than the speed limit. You said to her, 'You're being a big woman, arguing with me. You don't fucking argue with me. Do you understand?'
Your wife did not respond to you. You struck her on the left shoulder and the left side of her face with your right hand, saying, 'Do you understand?' She felt pain and replied, 'Yes', in order to have you cease hitting her.
You then demanded your mobile phone from your wife. She informed you that she did not have your mobile phone. You then demanded her phone. She told you it was in a bag on the back seat. You demanded that she stop the vehicle again. You said to her, 'You're a dumb cunt, a stupid fuck, and you're not worth anything, even worth a baby'. You continued to yell and swear at her.
At one stage your wife managed to call your mother, to whom you had been speaking earlier. She told your mother that you were hitting her. You reacted by punching your wife to her head and face with a half closed fist. You took the phone from her and hung up on your mother. You then demanded that your wife call your mother again. When your wife refused to do so you hit her to the left side with the back of your right hand. In order to defend herself your wife punched you with her left hand to the side of your cheek. You became furious and began to repeatedly punch your wife to her head and face.
Your wife could feel blood flowing from her nose. When she looked down at her hands she could see that they were covered in blood.
You then grabbed her by the hair and pushed her head down between her knees. She felt pain and she believed that you were going to pull her hair out. She called out to you, 'Please let me go'. You did let her go and she sat back up. She commenced driving again. When she looked in the rear view mirror she could see that her face was covered in blood.
As she drove on you demanded that she not exceed 50 kilometres per hour. You began hitting her again to her shoulder.
A short time afterwards your wife noticed a petrol station ahead. About a block before the petrol station you again demanded that she stop the vehicle and began punching her repeatedly to her face, causing her contact lenses to fall out, which resulted in her having blurred vision and experiencing dizziness.
She drove on and pulled into the service station. She stopped the vehicle.
From this point the movements of you and your wife were captured by Closed Circuit Television (CCTV) from three cameras positioned inside and outside the premises at the service station.
When your wife stopped the vehicle the CCTV shows you punching her twice with a round arm, full swinging punch to the left side of her head and face.
You shouted at her, demanding that she keep driving whilst continuing to punch her. She told you that she could no longer see or drive.
She opened the door and ran towards the service station shop, screaming for help. She was feeling dizzy.
You exited the vehicle and pursued her. Just before she reached the door to the service station shop you grabbed her by the hair and pushed her to the ground. You then began to punch and kick her repeatedly to her head and face.
You then grabbed her by the hair or neck and flung her some metres across the tarmac of the service station. You approached her and delivered a number of strong punches to her head and face. You then kicked her several times to her head and face.
Having watched the films I am satisfied that you were punching and kicking her head as hard as you could. As her head lay on the concrete surface of the tarmac you then proceeded to stomp on her head twice.
Your wife curled up into a ball to protect her unborn baby and raised her hands to protect her face.
At one point you ceased your attack upon your wife and returned to your nearby vehicle for some reason. Taking advantage of this opportunity your wife got up and moved towards the doors leading to the service station shop. The attendant on duty, Mr Keshidi, had witnessed the assaults unfolding from inside the shop and had contacted police. He unlocked the doors to allow your wife in. Once she was safely inside the service station premises Mr Keshidi closed and locked the doors to prevent you from entering.
This conduct on your part constitutes the offence or recklessly causing injury, contrary to s.18 of the Crimes Act, Charge 1.
Soon after you approached the service station premises and realised that the doors were locked and you could not gain access. You started banging with your hands and fists on the glass wall of the premises. You were ignored by the attendant.
You then returned to your vehicle and entered the driver's seat. You reversed the car some distance and then accelerated forward at a fast rate of speed, directly into the glass wall of the service station premises, directly behind which Mr Keshidi was located at the service console. You drove your vehicle directly at him.
Your vehicle travelled at a speed sufficient to mount the kerb, colliding with and bending bollards which had been positioned there to protect the store attendant's service area. Approximately one half of your vehicle crashed through the glass wall and entered the premises. Both front driver and passenger airbags deployed. You then exited the vehicle via the driver's side window and began walking towards Mr Keshidi. He feared for his safety and ran.
This conduct constitutes the offence of engaging in conduct endangering life, contrary to s.22 of the Crimes Act, Charge 2.
Having perused the CCTV film it is my view that the description set out in the prosecution summary of your offending, and my words previously uttered here today, do not fully convey the degree of violence perpetrated by you against your wife that morning. A full appreciation can only be obtained by viewing the film in question.
I am of the view that the film clearly depicts what can only be described as a brutal assault by you of your five months' pregnant wife. It is all but miraculous that she was not far more seriously injured.
In fact, your wife suffered:
Multiple cuts, abrasions and bruising to the right side of her face, including just under her right eye;
Large bruises to her right shoulder and upper arm over the lateral aspect, left arm and forearm and over her scapula and spine;
The dorsum, or underside, of her feet bilaterally had also sustained small bruises;
She had abrasions to the skin over her left elbow and over both of her knees;
There were bruises over the right side of her forehead and temple and bruises behind her right ear.
There was a large bruise to the right cheek and jaw; a cluster of bruises over the left frontal scalp;
Bruising around he left upper and lower eyelid, bruises and an abrasion to the left side of her chin;
Sub-conjunctival haemorrhages on the lateral aspect of both eyes;
Bruising to the area between her nose and upper lip;
Bruising to her left chest, just above her breasts;
Bruising on the outer aspect of her right hand;
Abrasions on the knuckle area of her right index finger and outer aspect of her right wrist;
A cluster of bruises on the outer aspect of her right shoulder;
Bruising to the back of the right upper arm;
Bruising to the back of her right elbow;
Bruising to the knuckle of her left thumb;
Abrasions between the left index and middle fingers and over the middle knuckle of the left ring finger;
Bruising to the outer aspect of her left upper arm;
A pattern of red bruises in parallel rows and columns on the front and inner aspect of her left upper arm;
Bruising on the inner aspect of the left upper arm close to the armpit;
Bruising to the outer aspect of the right calf, just below the knee;
Scratches to the right lower thigh;
Two abrasions on the front of her right knee;
Abrasions to her left, lower thigh and left knee; and
An abrasion on the front of the left, upper calf and several small abrasions over the top of the left foot.
This combination of such extensive injuries places this offence at the high end of offences relating to the causing of 'injuries'. However, I am conscious that you have not been charged with, and you are not to be sentenced for, the more serious charge of causing 'serious injuries' as that term is defined in the Crimes Act.
Doctors who examined your wife at the Monash Medical Centre later concluded that the injuries were consistent with blunt force trauma with friction to her head, arms and lower legs, which I conclude occurred when she was dragged and thrown across the tarmac.
Mr Keshidi, the service station attendant, had managed to move slightly to his right a split second before your car slammed into the glass wall which abutted the service console. The impact smashed and propelled the console bench and shelving from his left to his right. He sustained minor injuries to his left elbow and ribs. Had he not moved to his right a split second before the impact, I consider that he would have suffered grievous injuries.
The impact of the vehicle also caused the front counter to be propelled some distance away where it narrowly missed your wife who at the time had been sheltering behind a refrigerator.
The service station was closed to the public for four days whilst damage caused by you was repaired. The proprietors suffered income and stock losses and incurred expenses in repairing the store of just under $94,000. I was informed by the prosecutor that the proprietors intend to recover this cost from you but in separate proceedings.
Since your arrest later that day you have been remanded in custody.
At the first committal mention date in early December 2018 you pleaded guilty to these charges. It was accepted by the prosecutor that your plea was entered at the earliest opportunity.
The maximum penalty for the offence of causing injury recklessly is five years' imprisonment. The maximum penalty for the offence of engaging in conduct endangering life is 10 years' imprisonment.
After being taken into custody you refused to provide a breath sample as requested by police. The maximum penalty for the summary offence of refusing to undergo a breath test contrary to s.49(1)(e) of the Road Safety Act of 1986 is a fine of not more than 12 penalty units, which amounts to a sum of $1934.28.
By way of background, you are currently aged 38. At the time of this offending you were aged 37.
You were born and raised in Mauritius. I was informed by your counsel that you were the youngest of four children, had a happy upbringing and were close to your parents and sisters.
Your parents remain living in Mauritius. You have described them as a hardworking and law abiding family.
You completed the equivalent of Year 11 at school in Mauritius and after leaving school commenced working for a design company before taking classes in food preparation.
In about 2002 you came to Australia with your then girlfriend. You studied in Melbourne, completed Certificates II, III and IV in commercial cookery. You enjoyed a relatively long term and successful period, working in hospitality for a number of employers.
In 2008 you obtained Australian citizenship and married your former partner.
In 2014 you separated from her and returned to Mauritius where you worked as a chef. You stayed there for approximately one year before returning to Melbourne in 2015. Your divorce from your first wife was finalised in that year.
In 2016 you met and married your second wife, who was the victim of your offending behaviour in the matters now before this Court.
You have continued working as a chef until being taken into custody following your offending conduct.
Your counsel informed me that it was likely that you would obtain employment as a chef upon your release from prison.
You have prior convictions for being drunk in a public place and for assaulting police in November 2004, some 14 years prior to the commission of these offences.
A report from Mr David Ball, a psychologist and clinical neuropsychologist, dated 26 October 2018, was tendered on your behalf.
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He took a history from you that you had started drinking alcohol when you were aged 13 but that you had reported mostly moderate patterns of consumption. You told him that at that time you barely drank at all, which I suppose may not be surprising given that you had been on remand in custody for the previous month.
Mr Ball considered that on the basis of your self-reporting you did not satisfy the criteria for alcohol use disorder. He accepted that you were severely affected by alcohol on the night in question, if not poisoned by alcohol at that time. He did not provide a basis for his suggestion that you had been poisoned and on the evidence before me I do not accept that such a conclusion is open, nor do I consider that there is any evidence to support his statement that your behaviour during this incident is accounted for by acute and probably highly toxic alcohol abuse.
The level of your intoxication at the relevant time is uncertain. I've observed the CCTV films taken during the time that you were at the service station. During that time you were seen walking and bending, and assaulting your wife in a variety of ways, which I consider involved considerable athleticism. Looking at those films alone I consider that they do not indicate that you were intoxicated to any extent. You appeared steady and coordinated on your feet, you did not stumble or fall.
On the other hand I accept that your wife noted that your breath smelt of alcohol and a witness who spoke with you shortly after the incident and before police arrived recalled that you were, 'walking funny', and that she realised that you were intoxicated when you spoke to her through the window of her motor vehicle. She reported that you were slurring your words and smelt strongly of alcohol.
Later after your arrest by police you refused to undergo a breath test, which may have provided objective evidence as to your level of intoxication at the time.
You told police during the record of interview later that day that your last recollection of the party at Carrum Downs was that you were drinking with your uncle and cousin and sitting down with your wife and chatting. Whether this is accurate or whether it is a conscious attempt on your part to deny knowledge of, or to disown your behaviour on that night I am unable to say.
In a statement to police later on the morning of your offending your wife stated,
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Didier has had anger problems and issues with losing his temper ever since we first met and I know it's easier for him to get angry when he drinks alcohol.
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At your plea hearing earlier this month your wife gave evidence and was cross-examined. She stated that there had been no earlier instances of domestic violence. She said that you were drunk at the time of this offending and she had never seen you like that before.
She had not seen you since the morning of your offending until the day of your plea hearing on 8 May last. Nevertheless she said that she wanted to live with you. She said that she would not allow you to drink at home if that was the case. Her evidence was that there had been 'no alcohol issues at all since she had known you'. She said that you had never assaulted her in the past. She said on the occasion in question she was shocked and that you had seemed to hate her. She agreed that you had said some awful things to her in the car.
In a statement addressed to the Ringwood Magistrates' Court dated 11 October 2018 your wife had provided a reference for you. In it she stated,
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'Didier hasn't been drinking any alcohol since we came back from our honeymoon at Mauritius and he's not addicted to alcohol at all. I believe what he was on the night wasn't Didier himself. I will support Didier by doing counselling and I believe he is a good father and a good husband'.
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I am not clear as to the basis upon your wife's assessment of you as a good father given that you had never met or laid eyes on your only child until that day in court here on 8 May 2019 when she brought the child to court for your plea hearing. Further, I consider her suggestion that you had never had problems with alcohol is at odds with what she told police on the day in question.
I treat your wife's evidence with some caution.
I prefer to accept her statement made to the police on the day in question and I accept that you have had anger problems in the past, losing your temper, ever since you first met your wife and that these instances were usually accompanied by consumption of alcohol. Notwithstanding I accept that there is no evidence that such anger had ever progressed to violence in the past.
It appears that Mr Ball was not provided with details of your prior conviction or with the police statement made by your wife on the day of the offending. Accordingly, I do not consider that I should give weight to his views about your past habits or self-reporting in relation to alcohol, or his suggestion that you may have suffered from some alcohol poisoning.
On balance, I do accept that you were probably intoxicated to an extent on the morning in question, but I consider that the level of intoxication was not such as to be visually apparent from viewing the CCTV films.
I am not satisfied that your state of intoxication should be viewed as a mitigating factor in relation to your offending. Nor am I satisfied that you have a history or domestic violence associated with alcohol in the sense that your consumption of alcohol that night ought to be regarded as an aggravating factor.
Intoxication aside, Mr Ball considered that you had satisfied the criteria for a mild cannabis use disorder, that you presented as symptomatic for intermittent explosive disorder, sudden emotional dysregulation or explosive rage. He appears to have largely come to that conclusion by reason of your denial of any previous domestic violence or other violent acting out. He thought there was no impairment of your capacity for moral reasoning or culpability and that you presented as an eminently employable chef in a commercial kitchen. He thought that you were in no way impaired in your understanding or appreciation of the criminal justice system or the illegality of violent or other offences. He said nor was there any impairment to your capacity for moral reasoning or culpability. He said you were aware and had acknowledged the wrongfulness of your behaviour, the distress it caused your wife and the service station attendant. He considered that you could be readily managed in the community and might benefit from mood management and cannabis relapse prevention treatment. He opined that you would do well to avoid and abstain from alcohol in the future.
I note that your counsel expressly stated that none of the principles enunciated in the Court of Appeal decision of Verdins were relied upon here.
A number of character references were tendered on your behalf. These were from the following:
David Adanisovsky - he had employed you last year for about four weeks. His understanding of your offending appears to be limited to knowledge that you have been charged with, 'Certain conduct and drink driving offences'. Whether he was aware of the full extent of your violent offending is unknown, but it appears not.
Stephanie Zegler - she is your sister who resides in the Netherlands. She does not state how long she has lived in that country or how often she has seen you in recent years. Nevertheless she says that she cannot believe what happened in September last year. However, she does not state in her letter what her understanding is of your misconduct. She is aware of the charges that you face but does not refer to any details of your offending. The extent of any contact with you since your commencement on remand is unknown. Nevertheless she says that you are feeling absolutely remorseful and shameful for what you have done.
Marie Josef Leveque - she is a cousin of yours. She states that she grew up with you. She now lives in Cranbourne and describes you as being known for being a dedicated husband and a reliable member of the community. She states she understands that you have been charged with, 'A few offences'. It appears that she has no idea of the conduct constituting the offences committed by you. Nevertheless she says that you are really remorseful and extremely sorry for what you have done.
And finally Shirley Yoong - she states that she has known you for about two years through your wife, who is a friend of hers. She has always found you to be friendly, polite, sincere and reliable. Although she states what happened was totally out of character and she believes that it is a one off. She gives no indication that she is aware of the nature or extent of your offending conduct.
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In the circumstances I do not place great weight on those references.
Nevertheless I note that your only prior conviction or convictions occurred some 14 years earlier and I shall sentence you on the basis that you have been a person of good character, save for your conduct on the morning of
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I consider that there are aggravating aspects of your offending.
Firstly, the offending occurred in the context of domestic violence. The Supreme Court and Court of Appeal have said on a number of occasions that domestic violence is an aggravated form of violence.
Secondly, your wife, to your knowledge, was five months pregnant at the time.
Thirdly, your offending was not some brief or impulsive loss of control. It was a lengthy, repetitive and violent bashing of a woman who as considerably smaller and of much lesser strength than you. She was the softest of targets for your aggression.
You must have been aware of the likelihood of injury to her. As previously said, it is something of a miracle that she was not very seriously injured.
You must have been aware that she would be terrified as a consequence of your attack upon her and terrified of the serious risk of injury to her and to her unborn child.
There are some matters which go in mitigation of your sentence. You did plead guilty to these offences at the earliest opportunity. I accept that this probably is an indication of some remorse on your part, although it has to be said that the prosecution case against you was extremely strong.
Further, your plea of guilty has significant utilitarian value. Witnesses will not be required to give evidence at a trial. This will be of particular relief to your wife, who will be spared the stress of testifying against you. The community will be saved the considerable expense of a trial.
By reason of your plea you are entitled to a discount on your sentence.
Apart from your plea I accept that more recently you have shown indications of some remorse. I take into account a letter written by you, dated 3 October 2018 and addressed to the court, which is Exhibit 5. In the letter you claim to feel remorse for your actions and state that you should have drunk responsibly but did not do so. You professed to be aware that the lives of yourself and others have been deeply impacted and significantly changed forever. You state that you will regret your actions for the rest of your life.
Further, as I have previously mentioned, I am to sentence you on the basis that you have been a person of good character in the 14 years at least up to your offending conduct.
Section 5 of the Sentencing Act1991 sets out sentencing guidelines, they being the only purposes for which sentences may be imposed by a court. These are:
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to punish the offender to an extent and in a manner which is just in all the circumstances;
2. to deter the offender or other persons from committing offences of the same or similar character;
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to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated;
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to manifest the denunciation by the court of the type of conduct in which the offender engaged;
2. to protect the community from the offender;
3. a combination of two or more of those purposes.
I consider that the principles of deterrence, both specific to you and in general in relation to the community, denunciation and just punishment are the principal sentencing purposes in your case. However, I also accept that your conduct was likely contributed to by your consumption of alcohol. You appear, when sober, to be a person of good character. I consider that if you are prepared and able to abstain from alcohol in the future your prospects for rehabilitation are reasonable.
Section 5(2) of that Act requires me to have regard to a number of matters. They include, those being relevant to your case: the maximum penalties for the offences, which I have referred to previously; current sentencing practices; the nature and gravity of the offences, which I consider here to be serious; your culpability and degree of responsibility for the offences, which I consider in your case to be high; the impact of the offences on any victim of it and any resultant injuries, loss or damage, which I have referred to; whether the offender pleaded guilty and if so at what stage of the proceeding. I have referred to these matters before; your previous character likewise; and the presence of any aggravating or mitigating factors.
Your counsel referred me to the 2015 Court of Appeal decision of Marocchini v The Queen[1], which involved the imposition of what I regard as a relatively like penalty for crimes involving criminal damage, reckless conduct placing another person in danger of serious injury, making a threat to kill, and assaulting police, all in the context of domestic violence.
In more recent years it is my view that our community has become far more conscious of abuse of women and domestic violence generally.
In Marocchini, although there was a threat to kill uttered by the offender there was no actual violence directed to the offender's wife. There were a series of actions and statements made in the context of an extremely emotional reaction to the offender discovering that his wife was having an affair with another. No one was injured although there was damage to some property.
I consider that your offending is of a very different nature.
Despite the violent and persistent nature of your assaults against your wife I take into account that you have been charged with recklessly causing injury rather than the offence of intentionally causing injury, an offence which carries a much heavier maximum penalty.
I am limited to sentencing you for that lesser offence.
However, I do consider that the severity of your offending is at the high end of the offence of recklessly causing injury, and I reach that conclusion because of the viciousness and extent of your violent assaults and the extent and number of injuries caused by you.
The fact that you have been charged with only recklessly causing injury should not mask the seriousness of your offending. I am satisfied that the purposes for which I am to sentence you can only be satisfied by a custodial sentence.
A report from Corrections Victoria dated 8 May 2019 was provided to the court. It indicates that you have been assessed as suitable for a Community Correction Order. However, the Sentencing Act1991 permits me to impose such an order only if accompanied by a custodial sentence of 12 months or less or no custodial sentence at all. I do not consider that such a term would be an adequate punishment for your offending.
On the charge of recklessly causing injury to your wife contrary to s.18 of the Crimes Act, you are convicted and sentenced to a term of imprisonment of three years.
On the charge of engaging in conduct endangering life, you are convicted and sentenced to a term of imprisonment of three years, of which two years shall be cumulative upon the sentence imposed in respect of recklessly causing injury.
It follows that the total effective sentence is one of imprisonment for five years. I direct that you shall not be eligible for parole until you have served three years and six months of that term.
I declare that you have served 241 days. Mr Serratore, does that sound right?
MR SERRATORE: That's correct, Your Honour.
HIS HONOUR: Yes, thank you. I declare that you have served 241 days of pre-sentence detention not including today. I direct that such period be reckoned as time already served pursuant to this sentence and be recorded as such in the records of this court.
On the summary charge of failing to furnish a sample of breath, contrary to s.49(1)(e) of the Road Safety Act1986 you are convicted and fined the sum of $1000. I further order that any driver's licence or learner's permit held by you be cancelled and that you be disqualified from obtaining such a licence for a period of four years, commencing this day.
Pursuant to s.6AAA of the Sentencing Act1991 I declare that had you not pleaded guilty to these offences but had been convicted of them I would have sentenced you to an aggregate term of imprisonment of seven years with a minimum non-parole period of four years and nine months. On the summary charge I would have imposed a fine of $1500.
Are there ancillary orders of any description sought?
MR SERRATORE: No, Your Honour.
MR YANG: As the court pleases.
HIS HONOUR: Are there any other matters that counsel consider I should turn my mind to?