R v Dewhirst [2001] VSC 214

Supreme Court of Victoria|2001-06-22|Before: COLDREY, J.

Michael Phillip Dewhirst, you have pleaded guilty to a charge that, at Melbourne, on 6 December 1998, you unlawfully fought and made an affray. That charge carries a maximum sentence of five years. In order to sentence you, it is necessary to briefly examine the facts surrounding the commission of this offence so as to place your actions in context.

On 6 December 1998, at about 4.30 a.m. you were one of a group of five young men who went to the Dome Nightclub in Commercial Road, Prahran. A large number of potential patrons were awaiting entry to the venue. The leader of your group appears to have been a Dino Dibra, (now deceased); also present was a person named Armen Molic. Your group was refused entry into the nightclub apparently because of the past behaviour of Dino Dibra. According to your version of events, given in a record of interview, Dino Dibra and the group were regarded as trouble makers. This assessment was disputed, principally by Dibra and a fight broke out. You assert that one of the security personnel kicked you in the face, that you grabbed his leg and pulled him forward and then aimed a kick at his testicles. You told police you punched him in the head. You stated that security staff then advanced with baseball bats. The evidence (including the security video), indicates only one such bat (some 60 cms in length) which was produced after your group had commenced this altercation.

You told police that, observing one of your companions being attacked by several security staff, you grabbed a pole (being one of the stanchions used in roping off the entrance area of the nightclub). You said you probably swung it two or three times and you hit one of the security guards in the area of the shoulder. On the material it appears that a Mr. Talakouras was the person struck by you. It was subsequent to this time that you heard gunshots. You then saw the group taking off and you moved to catch up with them. You told the investigating police you were not affected by liquor at this time.

Extracts of the altercation were captured on a security video every two seconds. The video is not clear but it may depict Armen Molic with a pistol. Based on the video, the incident itself lasted about three or four minutes and there was a lull in the proceedings of 30 to 40 seconds preceding the shooting.

The Crown does not assert that you fired the shots that wounded the two security staff, Mr. George Christodoulou or Mr. Nicholas Talakouras, or that the shots were fired at your behest or with your agreement. You are not therefore to be punished for the shooting and its consequences. However, you were part of the affray which resulted in the infliction of the injuries and the fact of the infliction of such injuries is relevant in assessing the level of seriousness of the affray.

For completeness I should add this. The injuries themselves were serious ones. Insofar as Mr. Christodoulou is concerned, he suffered a gunshot wound to the right thigh, whilst Mr. Talakouras suffered a bullet wound to the abdomen which penetrated both the small and large intestine.

The effect of this incident upon the victims of the affray is spelt out in Victim Impact Statements. Mr. Christodoulou has suffered permanent damage to his right leg. As a result he has been unemployed being both unable to complete his apprenticeship as a motor mechanic and pursue his occupation in the security field. Psychologically he suffers from post-traumatic stress disorder and is on anti-depressants. Mr. Talakouras lost a portion of his large and small intestine, suffered structural damage to the abdominal wall and experiences resultant chronic back pain. He was off work for two and a half years. He now has insomnia and suffers from distress and depression.

Patrons at nightclubs should be able to enjoy themselves without the risk of physical violence or drunken harassment. The employment by such venues of security staff is designed to ensure this occurs. That may entail security staff refusing entrance to violent or intoxicated persons, or persons with a past record of misbehaviour. The courts must deter those persons who violently challenge the authority of employees whose duty it is to preserve peace and order in places of entertainment for the benefit of all patrons. The courts must also, by the sentences imposed, deter others who may be minded to engage in such conduct. Although you are not a party to the escalation of the violence by the use of the pistol, you were a willing participant in the fighting with the nightclub staff in which these injuries ensued. There is no doubt this outbreak of fighting was very frightening indeed to those innocent bystanders suddenly confronted with a violent and potentially dangerous situation. In short this was a serious example of an affray. Indeed it was conceded by your counsel that an immediate custodial sentence was appropriate given the nature and dimension of the altercation and having regard to your prior convictions.

There are a number of matters personal to you which I must take into account in determining the sentence to impose. You were born in Footscray and you are presently 27 years of age. You have a sister aged 23 and a step brother aged 12. Your parents separated when you were aged four, your father being an abusive alcoholic. Thereafter your mother remarried another alcoholic named Searle. That marriage last until you were 12. A three year relationship with a Mr. Butler resulted in the birth of your step brother. Throughout this time you experienced a lack of any proper parental discipline and you resided at several addresses. Your present step father is a David Ferniough with whom you have a stable relationship. You also have the support of your mother and your paternal grandparents.

You were educated at Albion North and Coburn Primary Schools before attending Melton High School to Year 8 where you were asked to leave. After three to four months at Melton Technical School you were given an exemption from further study. You were then aged 14. Testing by Mr. Bernard Healey, a Clinical Psychologist called on your plea, placed your IQ at 87, being below average capacity.

You have a spasmodic employment history. According to your counsel, since leaving school at 14 your jobs have included work as a cabinet maker in Sunshine for nine months, at Whitingslow's Amusements for seven months, and as a blind fitter with Kresta Blinds and City Limits Interiors for 11 months and two years respectively. For an intermittent period of about 14 months you were employed by a company called Satellite Transmissions, which is involved in the repair of automatic transmissions, a business operated by one of your uncles. In May 1999 you fractured both your wrists in a fall from a roof and you were off work until October 2000. Since that time you have worked at Satellite Transmissions as needed on a casual but regular basis.

Also from about the age of 14 you commenced drinking alcohol and smoking cannabis and you subsequently began committing offences. At the age of 19, while in prison, you were introduced to heroin. According to Mr. Healey you have not used heroin since September 1996.

In about 1990 you commenced to live with your first wife Kirsty. She remains supportive of you despite your drug abuse and period of imprisonment. You married in 1994 and have a son, Luke, now aged 8. Ultimately the stresses of your conduct became too much for your wife and you have recently divorced. I am instructed that you have remained friends and that you see your son three times a week.

From a second relationship with a lady named Monica, you have a six week old son named Joshua. Monica is presently living with her mother.

I am told that in the past you have shown talent as a footballer with clubs such as St. Albans and Melton South. The peak of your career was being picked with the Footscray Reserves. Drug abuse, and your resultant conduct, have severely truncated your football career, although you are apparently hopeful of playing in the future with Braybrook.

I have mentioned that you have prior convictions. Those alleged against you commence in July 1993 and continue on a yearly basis until August 1997. I do not intend to detail them all. There are a number of convictions for using, possessing and trafficking in cannabis and also convictions for possessing and using heroin, which are all consistent with your history of drug abuse. You have some 12 convictions for offences of dishonesty. More significantly in relation to the current offence, you have three prior convictions for assault and five for intentionally or recklessly causing injury. The last of these was in July 1997. Over the years you have been sentenced to a number of periods of imprisonment.

I was also informed by your counsel that you have subsequent convictions in March, July and November 2000. The first of these court appearances involved offences of dishonesty, possessing and using cannabis, and possessing an explosive substance which was a detonator. The other court appearances were for traffic offences.

Apart from a propensity towards dishonesty and violence, your criminal history demonstrates a consistent contempt for the law, and gives little prospect of rehabilitation. Furthermore, although there has been a delay of almost two and a half years between the commission of the present offence and the court hearing, you have committed further offences. On the basis of your prior convictions the element of specific deterrence must be accorded weight in the sentence imposed.

In his psychological report of May 2001, and in his evidence before this Court, Mr. Healey speaks of signs of maturation beginning to emerge. Some of these signs are reflected in his testing. Mr. Healey contrasts your current lifestyle with your past history which included a disturbed family background, a period of drug abuse and of assuming a persona of toughness to survive the traumatic effects of undergoing adult imprisonment including a brief period in B and H Divisions, Pentridge when you were a physically slight person aged only 19 and possessing only a low intellectual capacity. For example, you now realise that your mother has been a caring and concerned person for you over the years and that you have let her down. You have overcome your heroin addiction. You have developed a relationship with your 8 year old son who you take out camping and fishing. You are also concerned to be part of your second son's life. You have endeavoured to avoid undesirable associates and you desire to return to competitive sport. Consequently Mr. Healey is of the view that the trend in your life is upwards rather than downwards.

I am not as confident as Mr. Healey as to your future but I certainly hope his forecast is correct. It is really up to you. Certainly, if you are to succeed, you will need to curb your tendency towards what Mr. Healey described as excitability and impulsivity.

In fixing the sentence I take into account in your favour your plea of guilty.

I also take into account that the offence occurred two and a half years ago.

Having regard to your role in this offence, the serious nature of the affray itself and the need for specific and general deterrence, as well as all the other factors enunciated in the Sentencing Act, I have concluded that the appropriate sentence is that you be imprisoned for a period of 18 months. I fix a period of 12 months before you become eligible for parole. Further, I declare that the period to be reckoned as already served under the sentence is 78 days inclusive of today's date. I direct that there be noted in the records of the Court the fact that such declaration is made and its details.

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