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[2016] VCC 667
County Court of Victoria
2016-05-20
Mr J
Original judgment source is linked above.
1 HARALAMBOS TARANTZOPOULOS, you are to be sentenced in respect of one charge of recklessly causing serious injury contrary to s.17 of the Crimes Act 1958.
3 You pleaded not guilty to the charge, but following a seven day trial before a jury of twelve, you were convicted of this charge. The charge was an alternative to the charge of intentionally causing serious injury, the first charge on the indictment. The jury acquitted you of that more serious charge.
4 You had a friend, Tony, who ran a coffee shop in the vicinity of the Sunshine Railway Station ("the station"). You knew the complainant, Daniel Gudeta, was a patron of the coffee shop. Mr Gudeta owed Tony approximately $200 to $300.00. When the station was renovated, Tony's shop was relocated. At the time of the incident, Mr Gudeta's debt had been outstanding for about a year.
5 On the day of the incident, 24 July 2014, you and at least two friends arrived at the station. You had your bicycle with you. As your group was moving about the station, in the vicinity of the overpass, you noticed Mr Gudeta walk by. You called out to him and asked him to wait for you. He complied with your request.
6 Mr Gudeta was on his way down the stairs of the overpass when you exchanged words with him, apparently over the debt and a scuffle ensued. You removed Mr Gudeta's cap and flung it onto railway tracks. You then moved down the stairs ahead of Mr Gudeta. At the bottom of the stairs, there was a further confrontation, following which you and Mr Gudeta ended up just outside the station near a tree. There was a further scuffle, during which you bit down on Mr Gudeta's right ear. Either you pulled away with Mr Gudeta's ear still between your teeth, or he recoiled when you bit him, but the result was that you bit off the top part of Mr Gudeta's ear, which landed on the ground.
7 Although the severed part of Mr Gudeta's ear was later found, surgeons were unable to re-attach it. Mr Gudeta has been left with permanent disfigurement. Fortunately, the function of his ear has not been impaired and he has suffered no loss of hearing.
8 The serious injury alleged in the charge is confined to the injury to Mr Gudeta's ear.
9 The principal issue at trial was whether the prosecution could establish beyond reasonable doubt that at the relevant time, when you bit off part of Mr Gudeta's ear, you were not acting in self-defence.
10 At trial, you gave sworn evidence that after you approached Mr Gudeta while on the stairs, you asked about the debt and in response Mr Gudeta then threatened you. You testified that Mr Gudeta claimed to have a knife in his bag, with which he threatened to stab you, and further, he threatened to have his African "brothers" kill you. I should add here that Mr Gudeta was born in Ethiopia, but as I understand it he originates from Kenya.[1] There was pushing and shoving and you swore that you warned Mr Gudeta to not issue any further threats. You walked away, down the stairs. But, according to your account, Mr Gudeta would not let the matter rest. He followed you and made yet more threats. When he would not back off, the two of you moved towards the tree. You testified that you thought Mr Gudeta was making a grab for his bag and you thought he was going for his knife. You grabbed him by the top of his arms in an attempt to restrain him but he struggled on. You testified that you bit Mr Gudeta's ear while defending yourself from actual and imminent harm.
"I was in defensive mode. I felt intimidated and threatened and that is why I acted the way I did."[2]
"[Defence counsel]: Yes?---I approached him [Mr Gudeta]. I called him over and told him to wait up. I asked him about the money, "Are you gunna pay Tony the money?" And he told me to fuck off. He started getting all funny when I mentioned the money.
When you say "funny" what do you mean by that?---Aggressive. He changed.
In what way? Can you describe for the jury what happened? ---Well, he told me basically to go away, you know, and then he started making some threats to me.
Can you recall what those threats were?---That he's gunna, you know, stab me, and get his African brothers onto me.
What happened then?---Then I pushed him against the wall and told him, "Don't threaten me."
Can you just describe where you were in the train station at that point?---At that particular time I was probably on the top of the stairs, on the decline.
So this is on the step ?---On the decline.
- - - stairs area?---Yeah.
So your evidence is that you've pushed him against the wall. Did you say anything to him?---I told him not to threaten me.
Did he say anything to you?---Yeah, he got - he got more aggressive and started making more threats.
So can you then describe - can you describe to the jury what happened then?---Well, then he said he's got a machete in his bag, okay, and that's when I sort of, you know, got I panicked a little. I got scared. I walked away.
So you've said that he described the machete, you panicking, are you still on the stairs at this stage?---I believe so, yes, I'm walking down the stairs.
What happened then?---Then I attempted to walk away from him, and then he continued to keep going on about what's he gunna do to me, yeah, he's gunna stab me in the back when I'm not looking, yeah.
Whereabouts were you when this is taking place?---I probably finished going down the stairs at that point, I was in the passageway.
Can you describe what happened after that?---After that he approached me, and then there was a scruffle (sic), a grapple, and I held onto him in order for him not to access his bag. I didn't want him pulling out the machete.
Where did you think this machete was that you're referring to?
---In his bag.
Whereabouts in the train station were you at this stage?
---In the passageway.
You've said that there was a grapple. What happened after that?---After that I remember holding his arms, we held onto each other, and then I dragged him away.
When you say dragged him away, where did you drag him from and to?---From the passageway to the tree.
Why?---I didn't want him accessing the machete - I didn't want him opening the bag.
Was he saying anything at this stage?---Yeah, he's still making threats.
Was he doing anything at this stage?---He was holding onto me as well. Yeah, he was struggling.
You've described now that you've got to the treed area, what happened there?---Well, basically for him to let me go I bit him - I bit his ear.
Can you describe that in more detail, what led up to that and why you did that?---I wanted him to let go, and I wanted to get away from him.
Why did you want to get away from him?---Because I didn't want to get stabbed.
What were both of you doing immediately before the bite?---I beg your pardon, before the bite?
Immediately before you bit him where were you standing in relation to him?---Probably face-to-face, yeah.
Where were your hands?---My hands were probably near his shoulders, yeah.
Can you recall where his hands were?---Probably near my armpits, yeah, but we did change positions.
What do you mean by that?---As we were struggling - you know, like, I'm trying to get the better of him, he's trying to get the better of me.
Then you said that you bit him?---Yes.
What happened then?---Then he pulled his head away.
Can you describe exactly how that happened?---Well, basically when I bit him I remember him yelling, and then he pulled his head away.
You've seen in this case that part of his ear is ultimately found on the ground?---Yes.
Do you know when and how that happened?---Well, I found that out when the police arrested me. I knew I had bitten him, but I didn't know I took his ear off.
What was your intention when you bit him?---For him to let go.
Why?---Because I didn't want to get stabbed. I didn't want to be next to him.
You've heard the complainant gave evidence that - I'm going to take you now back to the staircase area - that the only thing he said to you was, "I will kill you." So this is what you're saying to the complainant from the complainant, "I'll kill you, come here." Words to that effect. What do you say to that suggestion?---Incorrect.
Can you just go through again what you say the conversation was on the stairs?---About the money. About paying back the money.
Your Honour, what I seek to do now is to play the compilation footage for Mr Tarantzopoulus to comment on if I could.
....
(Recording played to court.)[3]
[portion of video on the stairs played]
Can I just ask for it to be paused then. So Mr Tarantzopoulus, can you describe what's happening there?---Well, now, that's when I've been threatened, yeah. As I've taken my helmet off I've been threatened at that point.
What were the words that were being used just if I can clarify that?---He was telling me that he was going to get his brothers onto me.
Your evidence before about asking him about money, can you just explain to the jury at what point that conversation takes place?---Can you repeat that, sorry?
Your evidence before was that you'd approached a conversation about money?---Yes.
When did that take place?---Right there, yeah.
You say that at this stage the witness has been threatening you?---Yes.
If we could press play again.
(Recording played to court.)
If we can press pause now. Mr Tarantazopoulus, can you explain to the jury what's happening there?---Well, I've pushed him back against the wall and told him not to threaten me.
Thank you, Mr Tipstaff.
(Recording played to court.)
Mr Tipstaff, if I could ask you to pause it there. Mr Tarantzopoulus, can you tell the jury what's happening there?---We're struggling. We're having - there's a scuffle.
When you say "a scuffle", what do you mean by that?---Well, you know, we're fighting, we're fighting.
So when you say "we're fighting", can you describe what Mr Gudeta is doing?---He's actually trying to strike me as well.
And what are you doing?---Pushing him.
(Recording played to court.)
Can you tell the jury what's happened through that passage? ---Well, basically the fight escalated then.
Can you go into a bit more detail about that?---Yeah, it got a lot rougher.
Well, when you say it got a lot rougher, what was Mr Gudeta doing?---Well, trying to use his - you know, trying to use his body and, you know, trying to fight.
And what were you doing?---Just trying to use my body weight to push him.
(Recording played to court.)
Can you describe that part of the footage there?---Well, basically, we're separated and that's when I've been threatened once again.
Mr Gudeta said words along the lines that he wasn't fighting with you but you were trying to pull him down the stairs. What do you say to that suggestion?---Totally, totally incorrect.
For the purpose of the transcript, we've now gone to the angle of the camera looking from the bottom up the stairs. Thank you, Mr Tipstaff.
(Recording played to court.)
Mr Tarantzopoulos, that's a different angle, but can you tell the jury what's happening there?---Well, I'm yelling back at him.
Well, you're yelling back at him but is anybody else saying anything?---Yeah, yeah, he's threatening me.
What sort of things is he saying?---The same thing, continued threats, that he's going to get his brothers on to me and he's going to stab me and they're going to get me.
Can you recall what you were saying?---I was telling him not to threaten me, repeatedly.
(Recording played to court.)
That's from a different angle. That's under the undercover part near the train station?---Mm'hm.
Can you tell the jury what was happening at that stage?---I'm trying to get away from him and then he's gotten real close to me, very close, too close.
All right. And if we can press "play" again.
(Recording played to court.)
[Defence counsel]: And we can press "pause" there. (To witness) Can you please tell the jury what's happening in that passage?---I'm trying to walk away again and then he's coming - coming towards me once again.
Can you tell the jury what was being said, if anything, between the two of you?---That he's going to pull the machete out and stab me.
Can you describe what you were doing through that passage there?---Trying to get away from him.
(Recording played to court.)
Mr Tarantzopoulos, can you explain to the jury what is happening at that stage?---At that stage I've grabbed a hold of him to prevent him from taking the machete out of the bag.
And then done what?---Then dragged him.
Why did you drag him?---Because I didn't want to be stabbed.
(Recording played to court.)
Mr Tarantzopoulos, we're now looking at the long shot towards the tree area. Can you describe what's happening to the jury there while we're playing?---Well, we're struggling, yeah, we're fighting.
And when you say "we're fighting", can you describe that more?
---Well, more - more we're grappling, not actually punches, yeah, we're more - got a hold of each other and we're trying to, you know - one of us is trying to get the better of the other one.
Are you able to say at which point it is that the grapple and the earbite takes place or not?---I can't - I can't say from that angle. I couldn't say. I mean, it happened as I - as he's let go.
Yes?---I mean, obviously, when I - when I've walked away, it's - yeah, that's when it happened 'cause I remember when he pulled his head away and I heard the scream, and he let go. Then I walked away.
Can you identify when it is that you leave?---When?
Yes?---Well, immediately after he's let go of me.
All right. And what's happening there, Mr Tarantzopoulos, that you can see?---I'm still there, I think.
It doesn't matter?---I actually haven't seen myself walk away yet with the bike.
All right. But your evidence is that at the end of the altercation, that you walk away?---Yes, I do walk away.
Can you describe how that was? You said something about a bicycle?---Yeah, pushing my mountain bike.
So you're pushing it as opposed to riding it?---Yeah.
All right. Thank you. Thank you, Mr Tipstaff. (To witness) Mr Tarantzopoulos, you would agree that you've got no prior convictions for assault matters? ---Yes.
You've been charged by the police with intentionally causing serious injury and recklessly causing serious injury to Daniel Gudeta. Did you intentionally cause serious injury to Daniel Gudeta? ---No, I did not.
Did you think it was likely or probable that biting Daniel Gudeta would cause him a serious injury?---No, I did not.
What was your intention when you bit Daniel Gudeta?---For him to let go of me.
What did you think would happen when you bit Daniel Gudeta?---I thought he'd let go of me."[4]
13 When cross-examined by the learned prosecutor, you maintained this version of events.
14 In his sworn evidence, Mr Gudeta rejected any suggestion that he was the aggressor or that he threatened you in any way. He testified that he did not provoke you, and his only physical acts were to try to fend off your attacks upon him. He swore that you were the aggressor from the moment you approached him on the stairs.
15 A number of witnesses who were at the station were called. I shall not summarise their evidence here. Significant portions of the events that day were captured on CCTV film[5]. However, critical parts of the action were obscured. The film was silent. Both the prosecution and you argued that the film supported your respective cases.
16 Although the jury was not satisfied that you intentionally caused serious injury to Mr Gudeta, the jury was satisfied beyond reasonable doubt that you were reckless in this regard. By its verdict, the jury must have rejected beyond reasonable doubt your claim of self-defence.
17 In order to rebut your claim of self-defence, the prosecution relied on
Mr Gudeta's evidence of your earlier assaults upon him both on the stairs and later at the bottom of the stairs. You were not charged with any of these alleged assaults and you are to be sentenced only on the basis of the sole injury claimed.
18 The jury's verdict leaves open the possibility that while under perceived attack either your conduct exceeded that which was necessary to defend yourself in all the circumstances or your belief that your conduct was necessary in order to defend yourself was not based on reasonable grounds. I cannot exclude either possibility beyond reasonable doubt.
19 I consider it most likely that when you first saw Mr Gudeta that day, you intended to discuss his outstanding debt to your friend, but the discussion escalated to physical violence. This finding is supported not only by your evidence, but also by the evidence of Ms Trinh Dinh:
"[Prosecutor]: But can you tell the jury, firstly, what you could hear?---I could hear the first man approaching another man asking to give him money back. But then the second man who was approached said that he already gave that money to the first man's friend. And then the first man said that they went to the friend but the friend said that they didn't get any money. And the second man then said that well, he doesn't have - well, he gave the money to the friend already.
....
Beyond what you've heard in terms of what was said, can you remember any specific words that were said?---No, this happened a while ago, so I don't remember clearly.
In relation to how it was said, can you say anything in terms of the volume of the voices or ?---The first man who was demanding for money seemed a bit aggressive.
When you say seemed a bit aggressive, what gave you the impression that he was aggressive in terms of ?---He was yelling and screaming at the second man.
In terms of the second man, how was his voice?---He seemed a bit more vulnerable and a bit scared.
What gave you the impression that it was those things?---He didn't speak up as loudly as the first man.
In terms of your observations of the men, did you see - after hearing them speak did you see what happened after that?---After that I saw the first man hit the second man with a helmet.
After that?---After that I just called the police and the men just proceeded to go down the staircase, and that was the last I saw of them.
In terms of when you saw, one of the men being hit with the helmet, can you say which man was hit with the helmet?---The second man, the one that was being asked for money."[6]
20 This evidence stands in stark contrast to Mr Gudeta's evidence under cross-examination where he maintained that as he passed you, you called him over, then, without reason, you threatened to kill him. He denied any conversation about the debt:
"[Defence counsel]: I suggest to you that there was a conversation between the two of you on the stairs and at the top of the stairs. Do you agree with that or not?---What he said is, "Come, come," and what happened and so on and nothing else.
Just to be clear your evidence is the only words that were said on the stairs was the accused man said to you, "Come, come"?---(Direct) "I'll kill you, come here. I'll kill you today, come here." (Through Interpreter) He said in English as well, "I'll kill you, come, come," and he was saying this.
That was on the stairs you say?---Yes, as you have seen it yesterday that was what was happening as we were going down the stair.
Mr Gudeta, can I suggest to you that in your first statement to the police there's no reference to the words "I'll kill you"?---No, my head at that time was zero, I forgotten myself.
Can I suggest to you that in your second statement you don't mention on the stairs the accused man saying anything to you, "I'll kill you. I'll kill you"?---That I remember.
Let's do this in order, firstly, do you agree that you make no mention in your first statement of him saying, "I'll kill you"?---At that time, he had bitten my ear and I was not able to remember anything.
.....
All right. Do you agree that the accused man approached you at the top of the staircase at the Sunshine Railway Station?---Yes.
The accused man told you that he wanted to talk to you about the money that you owed Tony; do you agree or not?---No, he didn't say that. Only thing says, "Come, come."
Okay?---And start to pull me.
All right. That when the accused man told you that he wanted to speak to you about the money you owed Tony, you told him to fuck off; do you agree or not?---No, I never said that."[7]
21 Significantly, at the plea hearing, the learned prosecutor, Mr Dickie, conceded that Mr Gudeta's claim that there was no discussion about the debt came as a surprise, since his statement to police made such a reference. He quite frankly conceded that the whole sorry episode commenced with the discussion about the debt.[8]
22 Your evidence is that after the discussion about the money there was pushing and shoving both ways. The CCTV footage of the incident on the stairs is obscured, but it is not in dispute that you reacted to whatever was said in the conversation. I agree with Mr Dickie, that Mr Gudeta did not appear to strike you in response to any of your blows, however, I cannot rule that out as a possibility given the obscured images. Be that as it may, it appears that incident stopped when you walked away from Mr Gudeta and headed down the stairs.
23 The CCTV footage shows you coming down the stairs ahead of Mr Gudeta. It also shows Mr Gudeta following you. At the bottom of the stairs, Mr Gudeta is seen to approach you from behind and it appears he says something to you which prompts a physical response from you. It appears that you turn back towards Mr Gudeta, you move towards him, and position your face up close to his.
24 A witness claims that you kicked Mr Gudeta repeatedly in the region of his testicles somewhere around this point in time.[9] I am not satisfied beyond reasonable doubt that you did this because, first, Mr Gudeta gave no such evidence, second, there is no evidence of any physical injury to this part of
Mr Gudeta's anatomy or complaint of such injury to any medical treaters, third, if this happened at or near the bottom of the stairs, it is not seen on the CCTV footage and finally you were not charged with any such assault.
25 You conceded in your evidence that after this you "dragged" Mr Gudeta to the area beside the tree where you bit his ear during a scuffle.
26 Mr Gudeta's evidence is that around this time he was attempting to break free of your grasp. It is not disputed that Mr Gudeta was wearing a bag. He denied carrying a knife or threatening you in any way.
27 The gravity of the offence of recklessly causing serious injury covers a wide range of conduct.
28 In assessing the overall gravity of the offence, I must take into account matters such as:
• The severity of the injuries caused and their impact on the victim; and
• Whether the conduct was premeditated, spontaneous or an over-reaction to a perceived threat.
29 Turning to each of these matters, the degree of your recklessness was high. On your version of events, you deliberately put your mouth over Mr Gudeta's ear and bit it in an attempt to stop his attack upon you. In the confrontation during which you swear each man was trying to get the better of the other, there was to-ing and fro-ing. The risk of severing Mr Gudeta's ear in the process was an obvious one, albeit an unintended consequence.
30 There is no suggestion that you used any weapon or that your conduct was premeditated. It was a chance meeting with Mr Gudeta and I cannot exclude the reasonable possibility that yours was an overreaction to a perceived threat.
31 As to the severity of Mr Gudeta's injury, I have already remarked that his ear could not be reattached although there is a possibility of some reconstructive surgery. Even if this occurs, Mr Gudeta's ear will not be restored to match his other ear. I have also earlier noted that it is fortunate that no compromise to
Mr Gudeta's hearing has occurred. Although serious, I do not consider the injury falls at the upper end of the scale of seriousness, a fact quite properly conceded by the prosecutor.
32 In his victim impact statement tendered as exhibit C on the plea hearing,
Mr Gudeta describes the impact of his injury. Apart from the obvious disfigurement, which he attempts to hide under a bandage or hat, Mr Gudeta has lost confidence and tends to be socially isolated. He states:
"The crime has left me feeling uneasy in the area where the crime occurred and when I am in crowds I get away as quickly as I can. I fear this crime will have a long psychological impact on me due to the effects on me so far."[10]
33 However, it must not be forgotten that the consequences of your conduct were not actually intended. As was said in Boxtel [1994] VicRp 54; [1994] 2 VR 98 at 103 - 104:
".... it is of great importance not to allow the effects of an unintended catastrophe to 'swamp' all other considerations, particularly in the fixing of the non-parole period so as to cause an imbalance between all the factors which ought properly to be given their proper weight".
34 In cases such as this, principles of general deterrence, specific deterrence, just punishment, denunciation and protection of the community are important sentencing considerations.
35 Your counsel, Mr Cronin, conceded the gravity of your offending. He also conceded that the only appropriate response to your conduct is the imposition of a term of imprisonment. However, he submitted that there are compelling reasons to justify tempering such a sentence and combining it with a community correction order.
36 You are 39 years of age, turning 40 next month. You were born in Greece and with your family, immigrated to Australia when you were a baby. In your teenage years you completed year 11. However at age 24, as a mature age student, you completed year 12 following which you enrolled for tertiary studies.
37 Your parents worked hard in labouring jobs to support you and your brother and sister.
38 Your father was a strict disciplinarian who had great expectations of his children. Your siblings were high achievers and you felt you let your parents down because you could not compete with them. You became a rebellious child and were often in trouble. You associated with other rebellious children and at age 15 and as a disciplinary measure, your father sent you to a boys' home. Rather than improve your behaviour, this drastic action had the reverse effect. In the home you met and associated with other youths with behavioural difficulties. These negative associations led to your alcohol and drug abuse.
39 After leaving the boys' home, as I understand it you were effectively homeless and encumbered by drug and alcohol addiction. You found yourself in trouble with the law.
40 Fortunately, you were able to dig yourself out of your personal problems when you formed a long-term loving relationship. With the help of your partner you were able to overcome your substance abuse problems. Your behaviour improved dramatically and over a 10 year period you remained out of trouble. You furthered your education and you worked in the hospitality industry.
41 Things took a turn for the worse when your relationship broke down. You relapsed into drug addiction and again found yourself in trouble with the law.
42 Your prior court appearances and convictions are summarised in Exhibit B. Between 1994 and 1998 there are several court appearances and convictions mainly related to but not confined to dishonesty offences. The next group of court appearances and convictions is between September 2008 and July 2011. Significantly, you have no prior convictions for offences involving violence. You have had the benefit of a number of community-based orders, some of which you breached.
43 Although it did not emerge at trial, you were the victim of an earlier assault by an African man that took place at the same train station in 2013. The police records indicate that you were attacked from behind by the African man who struck you several times to the head with his belt. Apparently he launched the full force of the buckle to your head approximately ten times. You suffered bruising and lacerations. Police were called to the scene, and deployed capsicum spray. You declined to make a formal statement to police, but there is no doubt that you were the victim, not the aggressor.
44 You were the victim of a second assault in which your arm was fractured, requiring the insertion of eight pins and a plate in your elbow, but this took place after you committed the crime for which you are to be sentenced today.
45 As a consequence of the assaults upon you, you have been diagnosed as suffering from and been treated for post-traumatic stress disorder. In this regard, Dr Michael King, clinical psychologist gave evidence before me on your behalf.[11]
46 Dr King was of the view that because of your post-traumatic stress disorder, you experience periods of inappropriate fear, anxiety and "not necessarily correct interpretation that other people are threatening or mean [you] harm."[12]
47 Dr King was unable to say with certainty which of the two assaults upon you caused particular symptoms of post-traumatic stress disorder. However it is likely that the first assault made material contribution to this condition which was likely aggravated by the second assault.
48 Dr King also testified that because of your condition, a period of imprisonment would be more onerous for you and would likely worsen your condition.
49 I accept on the balance of probabilities that at the time of offending, because of the vicious assault upon you at the train station by the African male in 2013, you were suffering from post-traumatic stress disorder. This condition likely made you more apt to misconstrue the words and actions of others and in particular Mr Gudeta, as threatening. I am satisfied that there is a causal nexus between this condition and your offending behaviour.
50 Mr Dickie submits that I should reject your evidence that Mr Gudeta threatened you. Accordingly he submits that even if you suffered from post-traumatic stress disorder at the relevant time there were no acts matters or circumstances to lead you to the incorrect belief that you were under imminent threat of harm. Although he conceded that Mr Gudeta's evidence to the effect that there was no discussion about the debt was wrong, he urged me to put this down to a mistake caused by difficulties associated with translation. Even if that is so, it leaves me in the position that at the very least Mr Gudeta's evidence is inaccurate. As is clear from the CCTV footage and from Mr Dickie's concession, there was conversation between both you and Mr Gudeta. Putting Mr Gudeta's evidence to one side, that leaves your sworn version of the conversation, which, as I said before is also partially corroborated by an independent witness.
51 Mr Dickie urged me to watch the CCTV footage more closely and I have done so. It appears to me from the footage that your version of events is largely consistent with the footage. On the other hand, if Mr Gudeta's version is correct, it is inconsistent with the CCTV footage insofar as Mr Gudeta portrays the assault as a continuous incident commencing on the stairs. If, while on the stairs you threatened to kill him as he swore, it is curious that you would walk away from him and he would follow after you and then approach you. The CCTV footage shows him apparently saying something to you, as I have mentioned earlier. I consider it more probable than not that you took his words as a threat of violence.
52 I also accept on the balance of probabilities that because of your post-traumatic stress disorder a term of imprisonment will be more onerous for you, a fact also accepted by the prosecution. It is also likely that your condition will deteriorate whilst you are in custody, as Dr King testified.
53 In all these circumstances, I consider it appropriate to moderate your sentence.
54 You have already undergone ten sessions of treatment with Dr King. Dr King considers that you require further long-term treatment and he is willing to provide it. Your brother has undertaken to pay the costs of such treatment if it exceeds the Medicare rebate allowance.
55 The prosecutor concedes that successful treatment will not only improve your prospects of rehabilitation but it will also afford a greater level of community protection.
56 You have demonstrated in the past that with support you can overcome your substance abuse problems and lead a law-abiding life.
57 You now have the support of your family, who were present in court at the plea hearing. You have remained drug free whilst on remand since verdict and you have taken steps towards self-improvement and further education and training.
58 All of these factors weigh in your favour, improving your prospects of rehabilitation.
59 In your sworn evidence before the jury, you testified that you were sorry for the harm you caused. When cross-examined you stated:
"[Prosecutor]: When you [bit Mr Gudeta's ear] you intended to cause him a serious injury? --- No, incorrect. I never - I never had - for once intended that. I am remorseful and I am very regretful that that injury occurred to this man, but not once did I ever, ever intend to bite this man's ear off."[13]
60 I note today a letter you wrote tendered as Exhibit 6 contained a further apology and expression of remorse. I accept that you are truly sorry for biting off part of Mr Gudeta's ear.
61 I take into account all of the matters personal to you to which I have referred, including your prospects of rehabilitation. I must also take into account such matters as deterrence, especially general deterrence, which is of importance in a case such as this. I am required to take into account the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending.
62 I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment. I also note that I have earlier stated that the sentence will be moderated in view of your post-traumatic stress disorder.
63 As I mentioned before, your counsel urges me to combine a term of imprisonment with a community correction order. The prosecutor conceded such a course is open. In my opinion, this was a sensible and fair concession to make.
64 I propose to impose a term of imprisonment and also give you the opportunity of a community correction order directed at both punishment and rehabilitation.
(a) the court has received a pre-sentence report and has had regard to any recommendations, information or matters identified in the report; and
66 As you know, I have sought and received a pre-sentence report. The report indicates, with reservation, that you are considered a suitable candidate for a community correction order. The report also contains certain information and a number of recommendations.
67 I propose making such an order but can only do so if you consent to my taking such a course, as I said. So that you are in a position to make an informed decision about whether you will give your consent, I will tell you something about the course I propose.
68 First, I propose sentencing you to a term of imprisonment. I propose that upon your release you will commence a community correction order.
69 The length of the community correction order will be TWO YEARS.
70 Every community correction order including the one I propose in this case contains seven mandatory conditions. They are:
10 Foundry Road Sunshine within two clear working days after the order comes into force, namely within two days of your release from custody;
71 I am also required to attach at least one condition in accordance with s.47 of the Sentencing Act 1991. In attaching these conditions I bear in mind -
B) the purpose for which a sentence may be imposed as set out in s.5 of the Sentencing Act 1991; and
C) the purpose of a community correction order as set out in s.36 of the Act - namely: to provide a community based sentence for a wide range of offending behaviours while having regard to and addressing your circumstances.
73 The treatment and rehabilitation specified by the court is as follows:
74 You will be required to be under the supervision of, and be monitored and managed as directed by the Secretary for the period that the order is in force. I propose to attach this supervision condition for the purpose of ensuring your compliance with the order.
75 As I stated earlier, I propose to order that you serve an immediate term of imprisonment. I consider that taking account of the proposed terms of the community correction order, that you be imprisoned for a period of TWELVE MONTHS. I do not propose to fix a non-parole period under s.11 of the Sentencing Act 1991. As I also stated earlier, the Community Correction Order will not commence until the day you are released from prison.
76 My proposal then is to record a conviction, sentence you to a 12 month term of imprisonment and make a community correction order containing all of the conditions that I have just mentioned.
77 You must understand that if you breach any of the conditions of this order, you may be charged with the offence of contravening a community correction order. That offence carries a maximum penalty of three months' imprisonment. There may be other consequences. If you are found guilty of the breach, in addition to the penalty being imposed for that offence, the court might vary or cancel the order or re-sentence you in respect of the offence before me today. That might mean you will be sent to prison as a result. Do you understand that,
79 HER HONOUR: Do you consent to the order in the terms that I have just outlined, in the full knowledge of the consequences of breaching such and order?
82 The formal orders of the court are: You are convicted and sentenced to a twelve month term of imprisonment together with a Community Correction Order in the terms just outlined.
83 Under s.18(4) of the Sentencing Act 1991, I declare that the period of 65 days is to be reckoned as a period of imprisonment already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
84 You may be seated while I sign the Community Correction Order and then deal with the ancillary orders.
85 Application has been made under s.464ZF(2) of the Crimes Act, that you undergo a forensic procedure for the taking of a scraping from the mouth and or a blood sample in accordance with subdivision 30A of Part 3 of the Act, until a sample of sufficient standard is obtained for placement on the database.
87 Therefore, under that section, you are ordered to undergo a forensic procedure as I just described, until a sample of sufficient standard is obtained for placement on the database.
88 The charge to which the order relates is on indictment no.E12463622.
89 Having considered the seriousness of the circumstances of the forensic sample offence, I am satisfied in all the circumstances the making of the order is justified for the following reasons:
• The seriousness of the circumstances of the offending warrant the order;
• Your prior convictions are such as to warrant the making of the order;
• The granting of the order is in the public interest.
90 Mr Tarantzopoulos, I must inform you that if at the time of request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand?
92 HER HONOUR: Thank you. Just take a seat. Anything further?
95 HER HONOUR: Thank you. Yes, you can remove the prisoner. Thank you.
[11] See also Exhibit 2, report of Dr King dated 16 March 2016
DPP
Tarantzopoulos [2016] VCC 667