DPP v Tanios & Ors [2013] VCC 892

2 The jury found you all not guilty of one charge of intentionally causing serious injury to the victim, the subject of the charge of recklessly causing serious injury. The circumstances of your offending are as follows-

3 On the evening of 1 April 2011, you all attended Crown Casino and in the early hours of the following morning, 2 April 2011, you attended the Fusion Nightclub at those premises. You were all close friends and had travelled to Melbourne from Sydney for the weekend, in company with a number of other persons.

4 At approximately 3 am, you, George Merheb, were involved in a minor incident on the dance floor of the nightclub that quickly escalated into a verbal argument with the victim of your offending, Matthew Hastings. It would appear that Hastings became antagonised as a result of this argument and after his friends attempted to calm him down a fight erupted. You, George Tanios, punched Hastings, who then attempted to intervene in a fight that had erupted between Merheb and John Sacco, who was a friend of Hastings. As Hastings crossed the dance floor, you, Charbiel Fram, struck him with significant force to the face.

5 In his evidence, Hastings stated that he did not see the punch coming and that it caused him severe pain. I am satisfied that the jury concluded that this blow caused the lefort fracture to Hastings' face and he immediately fell to the ground. Shortly after he did so, you, Merheb, punched him four or five times to the head and you, Tanios, attempted to kick him. I am satisfied that in relation to the charge of recklessly causing serious injury, the jury concluded that you, Fram, caused the serious injury when you struck Hastings and that Tanios and Merheb were aiding and abetting you when you did so. In each case the jury were satisfied that you were not acting in self defence, as they were plainly entitled to do.

6 In relation to the charge of Affray, it was the prosecution case, also accepted by the jury, that you, Tanios, punched Hastings before Fram struck him and, as I have said, you attempted to kick him after Fram had struck him. In your case Fram, prior to striking Hastings, you punched Jason Schubert in the head from behind and, after striking Hastings, you exchanged punches with John Sacco. You, Merheb, also exchanged punches with Sacco before Fram struck Hastings and after he did so, as I have said, you punched Hastings to the head four or five times whilst he was seriously injured and lying on the floor. With the exception of the blow you struck to Hastings, Fram, it is the individual acts of violence that I have identified in each of your cases that constitutes the charge of Affray. I am, however, satisfied that there is considerable overlap between this conduct and the conduct that rendered you, Tanios and Merheb, liable as aiders and abettors in respect of the charge of recklessly causing serious injury.

7 I have received in evidence a victim impact statement of Matthew Hastings and evidence from Professor Alf Nastri, the head of facial surgery at the Royal Melbourne Hospital, was led during the course of the trial. Mr Hastings suffered a particularly serious facial fracture, commonly observed in motor vehicle trauma and he required extensive surgery and treatment for that injury. He continues to suffer ongoing pain and anxiety as a result of the assault upon him and the serious injury he received.

8 In each case your offending was plainly serious and an all too common occurrence in licensed premises. The terrifying nature of what occurred is graphically depicted on CCTV footage which was recorded at the time.

9 The sentences that I must impose upon you must be calculated to deter others from offending in this way and your conduct must also be denounced by this court. The courts must play their role in deterring mindless violence such as this and the destructive effect it is having on our culture. Furthermore, you must be punished for what you did.

10 Each of you submitted to the jury that you acted in self defence and sought to portray Hastings as threatening and aggressive. Whilst he is a tall man and in all probability became angry following the verbal dispute, your vicious attack upon him was, in my opinion, without any justification. I am not satisfied that any of you have demonstrated any significant remorse for what you have done.

**12 You were born in Sydney, on 4 August 1986, and you are aged 26. You were 24 at the time of your offending.

13 You have no prior convictions or court appearances and no outstanding charges. You therefore fall to be sentenced as a relatively youthful first offender.

14 Your family are from Lebanon, having left that country in the 1970's during the civil war. You have a younger brother. Your mother is employed as a chef's assistant with Qantas. Your father was employed as an electrician. In July 2010, you discovered him deceased in bed at home and I accept that this experience had a deeply traumatic effect upon you, which you no doubt continued to experience at the time these offences were committed.

15 You have a very good educational and work history, having completed Year 12 and after that a Diploma of Architecture. You have been employed by Odell Australia as a Senior Marketing Analyst for five years and I have received in evidence a reference from the Managing Director of that organisation and also a reference from the General Manager. These references speak very highly of you and also attest to the stress that you have encountered following being charged with these offences. The references also evidence the fact that you have supported your mother and brother financially since the death of your father and that your family is financially dependent upon you. I have also received in evidence a character reference of the Deputy Lord Mayor of the City of Parramatta, Mr Steven Issa, that also speaks very highly of you and your family.

16 I accept that you rarely consume alcohol, do not consume drugs and play cricket at a high level.

17 Your offending is completely out of character and, as your counsel submitted, "You have never taken a wrong step in life." In your case, I am satisfied that your prospects for rehabilitation are excellent and, further, that if you are required to serve a term of imprisonment, your employment, stable family situation and excellent prospects for rehabilitation would be placed in considerable jeopardy. Your offending to some degree is inexplicable and in all probability you simply became involved in what was going on around you. Nevertheless, it is clear that the offending is serious, but in my opinion your moral culpability is less than that of your co-offenders.

18 As the courts have made clear offending of this nature must generally involve a custodial term of imprisonment. However, in the circumstances of this case, it is open to me to suspend any term of imprisonment that I impose upon you, and I am satisfied by reference to the criteria provided for in s.27(1A) of the Sentencing Act 1991 that it is desirable to do so in your case. Furthermore, I have carefully considered the principle of parity in sentencing and I am satisfied, by reason of the compelling factors in mitigation in your case, that it is open to me to adopt a different course to the course that I propose to adopt in the case of your co-offenders.**

**19 You were born in Sydney on 8 July 1986. You are now 26 years of age and you were also 24 at the time of these offences. Your family migrated to Australia from Lebanon in the 1970's and have resided in Granville, New South Wales, since that time. You have a twin brother and one older sister. Both of your parents are in ill health. In 2000, your then oldest sister was killed when she was struck by a motor vehicle. At that time she was 18 years old and was studying at university. This tragedy had a deeply traumatic effect upon your family and I accept that it has caused you ongoing anxiety. You left school during Year 11 and have been involved in a number of semi skilled occupations since that time.

20 You are an infrequent user of alcohol, do not use illegal drug of dependence and, as led in evidence before the jury, you are trained to fourth dan black belt in Taekwondo.

21 You are in a stable relationship and I have received in evidence an impressive and thoughtful letter from your partner. I have also received in evidence seven other character references that attest to your commitment to your family and your community.

22 You have one prior court appearance for exceeding .05 in 2004, which is not significant for sentencing purposes in your case.

23 On 9 February 2012, you and your twin brother were found guilty by a jury in this court of one charge of intentionally causing serious injury. The victim of your offending was your ex brother-in-law, Tony Kabailan. You and your brother met him in a bar in Thomastown on 25 January 2010 and in response to allegations that he had assaulted your sister during the course of their relationship you both punched and kicked him repeatedly. He suffered multiple injuries and lost six teeth. Following a plea in mitigation, His Honour Judge Chettle sentenced you to a term of imprisonment of three years and six months and fixed a non-parole period of two years and six months. You have been in custody since 9 February 2012 and your earliest expected release date is 27 July 2014.

24 The offences before me were committed whilst you were on bail and by operation of s.16(3C) of the Sentencing Act 1991, any sentence that I impose must be served cumulatively on any uncompleted sentence that you are serving, unless otherwise directed. Also by operation of s.14 of the Act, I am required to fix a new non-parole period in respect of all the sentences that you are to serve or complete. In applying s.16 and s.14 of the Act, I am required to apply the principle of totality to arrive at an appropriate proportionate penalty in respect of your overall offending, having regard to relevant sentencing principles and factors relied on in mitigation by you.

25 I have received in evidence a psychological report of Mr Patrick Newton, a consulting and forensic psychologist, dated 7 April 2012. The report was relied upon you in your plea in mitigation before His Honour Judge Chettle. In the course of the report Mr Newton details your family and personal circumstances and concludes that you suffer from elevated anxiety and at the time of the report were experiencing difficulty adjusting to imprisonment. Your counsel informed me that that situation is ongoing, although no doubt you have become more accustomed to imprisonment as the time has passed. Mr Newton concluded, "There is no indication of any psychological disorder, behavioural problems or intellectual impairment" in your case, but he did emphasise that the anxiety that you experienced was making your time in prison more difficult than it otherwise would be.

26 I accept that that is the case and you are effectively still a young man. experiencing imprisonment for the first time. In my opinion, your prospects of rehabilitation may properly be regarded as reasonable. Nevertheless, having regard to the fact that you have now been convicted of two serious offences of violence, in my opinion any sentence that I impose must be calculated to deter you from re-offending.**

**27 You were born in Sydney on 4 December 1983 and are now aged 29. You were 27 at the time of your offending.

28 You have one prior court appearance at the Southport Magistrates' Court in Queensland, on 7 July 2008, in respect of one charge of contravening a direction from a police officer and one charge of obstructing a police officer. You were fined $500 without conviction.

29 Your family also migrated to Australia from Lebanon in the 1970's and since that time have resided in the western suburbs of Sydney. You are the second eldest of five children and your siblings are all in gainful employment or at school. Your family also operates a farm in Nowra, in southern New South Wales. You completed Year 12 in 2001 and thereafter you completed a Diploma of Construction. You worked in the construction industry until 2010. You have been unemployed since 2011 after you were charged with these offences, although you do work from time to time on the family farm.

30 You are not a frequent user of alcohol, do not use illegal drugs of dependence and in the past played Rugby League in the Guildford League. You attend your local Maronite church and are in a stable personal relationship.

31 In my opinion, your prospects of rehabilitation may properly be described as reasonable. I accept that any term of imprisonment that I impose upon you will involve a degree of hardship for you because your family and friends all reside in New South Wales and for that reason you will experience considerable isolation. It is also significant that you have never been in prison before.

32 You have no physical or mental health issues. However, as I observed during the plea in mitigation, you did not appear to appreciate the significance and seriousness of the trial procedure or the charges that you face.

33 I do not consider that specific deterrence is a significant sentencing consideration in your case and you have not re-offended since being charged with these offences. Nevertheless, I am satisfied that the only proportionate penalty to impose upon you is one of imprisonment.

34 Your counsel submitted to me that I should impose upon you a suspended term of imprisonment, but having the regard to the circumstances of your offending and matters personal to you, I am not satisfied that it is desirable to suspend that sentence in your case.

35 As I have already observed, serious offending such as this generally speaking will attract a sentence of imprisonment and, in my opinion, your case may be distinguished from that of Tanios for the following reasons:**

(i) You were older than Tanios at the time of the offending;

(ii) Although minor, you have one prior court appearance;

(iii) You quite deliberately punched Hastings to the head four or five times after he had been seriously injured and was lying on the ground and, in my opinion, your moral culpability in relation to your offending is greater than that of Tanios;

(iv) You have been unemployed for two years and whilst that, of itself, must not aggravate any penalty that I impose, it cannot be said in your case that a sentence of imprisonment to be served would seriously disrupt your employment prospects or your prospects for rehabilitation. Nevertheless, I do accept that the appropriate course to adopt in your case is to impose a significantly lesser than usual non-parole period and that is the course that I propose to adopt.

36 In the result, the sentences of the court are as follows:

**37 In relation to the charge of recklessly causing serious injury, you are convicted and sentenced to be imprisoned for 15 months.

38 In relation to the charge of affray, you are convicted and sentenced to be imprisoned for six months.

39 I order that one month of the sentence in relation to the charge of affray be served cumulatively on the sentence in respect of the charge of recklessly causing serious injury. This makes for a total effective term of imprisonment of 16 months.

40 I order that the whole of that sentence be suspended for a period of three years from this date.**

**41 In relation to the charge of recklessly causing serious injury, you are convicted and sentenced to be imprisoned for two years and six months.

42 In relation to the charge of affray, you are convicted and sentenced to be imprisoned for nine months.

43 I order that three months of the sentence in respect of the charge of affray be served cumulatively on the sentence in respect of the charge of recklessly causing serious injury. This makes for a total effective term of imprisonment of two years and nine months.

44 I order that 15 months of that sentence be served cumulatively on the sentence that you are now undergoing.

45 I further order that you serve a period of two years and two months from this day before becoming eligible for release on parole, in respect of the sentence that I have imposed and the sentence that you are now undergoing.

46 The effect of the orders that I have made in your case means that you are now serving a total term of imprisonment in respect of the charges dealt with by His Honour Judge Chettle and the charges dealt with in this court of four years and nine months and you will have served three years and six months' imprisonment before becoming eligible for release on parole.**

**47 In relation to the charge of recklessly causing serious injury, you are convicted and sentenced to be imprisoned for 18 months.

48 In relation to the charge of affray, you are convicted and sentenced to be imprisoned for six months.

49 I order that two months of the sentence in respect of the charge of affray be served cumulatively on the sentence imposed in relation to the charge of recklessly causing serious injury. This makes for a total effective term of imprisonment of 20 months.

50 I order that you serve seven months' imprisonment before becoming eligible for release on parole.

51 I declare that you have served 13 days by way of pre-sentence detention not including today.

52 I have made the ancillary orders sought in the cases of Tanios and Merheb.

58 HIS HONOUR: Mr Tanios can be released from the dock. Mr Tanios, you are on a suspended sentence for the next three years. If you offend during that period of time by committing an offence punishable by imprisonment you can come back before this court to be re-sentenced in respect of these charges, do you understand that?

60 HIS HONOUR: Yes, thank you. We will adjourn now until 2.15.