R v Fertzanis [2002] VSC 582

Supreme Court of Victoria|2002-12-23|Before: NETTLE J

Criminal law - sentencing - affray - serious affray - man clubbed to death with an iron pipe by another participant - indicative of seriousness of offence - first time offender - previously of good character - low probability of re-offending - genuine remorse - early plea of guilty - cooperation with the police - counterbalancing need to manifest denunciation and for general deterrence - Sentence of 12 months imprisonment, of which nine months to be suspended for three years.

Dimitrious Feretzanis. On 6 November 2002 you were arraigned on a charge that you did at Noble Park on 8 March 2002 unlawfully fight and make an affray. To that charge you pleaded guilty and it is now for me to sentence you.

The facts surrounding the offence are complex, but in summary it may be said that the affray was the result of a public slanging match and following that a pitched battle between two groups of alcohol affected young men of whom you were one. In the course of the battle, Luke Peter Krezalek, who was a member of the group opposed to yours, was so severely clubbed with a metal pipe that he sustained multiple fractures of the skull and internal haemorrhaging and from those injuries he died.

A number of the persons who took part in the affray have been charged over the affray, and some have also been charged with the murder of the deceased. The involvement of each of them varies considerably. You have only ever been charged with one count of affray and, in accepting your plea of guilty to that count, the Crown accepts that your degree of involvement fell short of what would be required to establish that you had intent to kill or to inflict really serious physical injury or that you acted in concert with or aided and abetted those who caused the death of the deceased.

Some others who have been charged are Tom Clappers, who has been charged with murder and affray; Keorasmey Teap, who has been also charged with murder and affray; Bret Kainamu, who has been charged with affray; and Steven Crick has also been charged with affray. A contested committal hearing is listed to be heard in the Magistrates' Court in relation to those and other co-offenders on 17 February, 2003.

You were born on 14 August 1981 and at the time of the offence you were 20 years of age and living with your parents in Carnegie. Clappers was 18 years of age at the time of the offence, Teap was 21 years of age, Kainamu was around 25 years of age and Crick was about 28 years of age.

The deceased was born on 20 June 1972 and was a boilermaker by occupation. He worked for Vawdrey Manufacturers in Dandenong South. At the time of the offence he was 29 years of age and he was living with his family in Hampton Park.

On Friday 8 March 2002 at about 4.40 pm Clappers entered the Golden Triangle Pool Hall in Dandenong and began to play video games and pool. At that location Clappers met several friends, including you, Wyra So, and another male known only as Patrick. At approximately 6 pm that evening, Teap, or Razz as he is also known, caught a train from Yarraman railway station to Dandenong where he met his friends, Vantha Som, Sarath Pen and Sareth Pen. Those four persons then walked to the Golden Triangle Pool Hall, arriving at about 6.30 pm, where they met Clappers, Wyra So, Patrick and you.

About 6.40 pm the eight of you left the Golden Triangle Pool Hall with the intention of travelling by train to Moomba celebrations in Melbourne, but on the way to the station you all stopped at about 6.47 pm at the Liquor Stop bottle shop in Dandenong in order to purchase alcohol. At that location you met further friends: Darra Yim, Youel Kheav, and Solliwan Yun. While at the Liquor Stop, one member of your group purchased a 750 ml bottle of Victoria Bitter, which was passed around and shared between several in the group, and a number of the group contributed funds for the purchase of 24 stubbies of Victoria Bitter beer and five 375 ml cans of Vodka UDLs. At approximately 6.55 pm the group, by then eleven in number, left the bottle shop with the stubbies and UDL cans and went to the Dandenong Railway station.

It was decided that the group would consume the alcohol before attending the Moomba celebrations, due to the anticipation of a police presence at the event. It was also planned to meet three other friends, Thyrun Yem, Phira Yem and Noel Ork at Yarraman railway station. The group thus travelled by train to Yarraman railway station, arriving at about 6.58 pm, and then walked from the platform to the footpath adjoining the southern side of Hanna Street, which borders the southern side of the railway station. A short time later Ork arrived and joined the group.

The group began to consume the stubbies and the Vodka UDLs and continued to do so up until the time of the incident. During that period of drinking various members of the group wandered around the platform area of the Yarraman station as well as the adjoining Hanna Street area.

Meanwhile, sometime after 4.00 pm the deceased had finished work and gone to a bar known as Liquids Nightclub in Dandenong with his friend Kainamu. The pair arrived at about 4.30 pm and started drinking beer with friends. At about 5 pm Crick arrived and started drinking with the pair. They were joined a short time later by Matthew Goodwin.

Shortly after 6 pm Crick and the deceased left the bar and returned to Crick's residence in Noble Park where they continued to drink beer. Kainamu and Goodwin remained at the bar until about 7 pm and then caught the 7.12 pm train to Noble Park railway station. At that location Kainamu spoke with another friend and organised a meeting at the Hallam Hotel later that night. Kainamu and Goodwin then caught the 7.35 pm train back to Yarraman station with the intention of going to Crick's home.

The Yarraman station adjoins Hanna Street, and there is a pedestrian ramp which leads from the railway station to an overpass which in turn leads to a ramp that ends at Hanna Street. When Kainamu and Goodwin alighted at the station they walked over the overpass and down to Hanna Street, and as they walked past the group with whom you were drinking, comments were exchanged. There are different versions of what was said and by whom, but it is probable that Kainamu initiated the discourse by racist abuse directed to those members of your group who were of Asian ethnicity.

Kainamu and Goodwin then continued walking from Hanna Street along the pathway towards the footbridge over the Mile Creek south of the station, and as they did the group with whom you were drinking signified their displeasure at the tone of Kainamu's remarks by smashing a number of bottles on the road.

At that point, Kainamu stopped and made a call on his mobile phone to the mobile phone of Crick, who was at home. The call was answered by the deceased, and Kainamu informed him that Kainamu needed the assistance of the deceased and Crick at the railway station due to problems with a group of "Asian" males. Phone records indicate that the call was made at 7.44 p.m. In response to the call the deceased and Crick travelled in Crick's Holden utility to Tower Court, Noble Park, which is in the vicinity of the foot bridge. As they were en route to that point a verbal dispute errupted between Kainamu and the group with whom you were drinking. Insults were exchanged and Kainamu threatened that he would return with several friends. Clappers, Teap, you and others including Kheav, Sarath Pen and Sareth Pen, put an end to the exchange by chasing after Kainamu and Goodwin. They fled over the footbridge and split up.

After crossing the footbridge, Goodwin turned east and continued along the Mile Creek and eventually hailed a taxi and went home. Kainamu turned west and ran into Tower Court, and as he did that, he passed Thyrun Yem who was en route to meet your group at the station. Your group gave up chasing Kainamu when you reached Thyrun Yem and from that point you walked back towards Yarraman Railway Station together.

A short time later, Phira Yem was walking along a laneway toward Tower Court and saw Kainamu in Tower Court armed with a pole about a metre in length. As Phira Yem entered Tower Court from the laneway he observed the deceased, Kainamu and Crick all to be armed with poles. The three were walking towards the footbridge in the direction of the railway station and Phira Yem followed at a distance behind; for he feared for his safety. The deceased, Kainamu and Crick crossed over the footbridge and walked north along the pathway to within several metres of Hanna Street, heading towards the station.

By this time the members of your group had returned to the railway station centre platform and, as Kainamu and Crick and the deceased approached, your group and his group began yelling abuse and insults at one another. During the altercation the deceased, Kainamu and Crick waved around metal poles and a piece of wood which they had obtained from the rear of Crick's utility. Sarath Pen, Sareth Pen, Kheav and Thyrun Yem and you threw rocks and empty bottles from the platform towards the three as they advanced, as well as collecting wooden sticks which you then carried in your hands.

One traveller who had just alighted from the train at the station at the time later told police that he was in such fear due to the threatening behaviour of the two groups that he warned off other members of the public who were approaching the railway station.

The verbal dispute and the throwing of bottles and stones ended when the deceased, Kainamu and Crick turned around and walked in a southerly direction back along the pathway towards the footbridge, away from the station. By that time, however, Phira Yem had just crossed over the footbridge and was walking north along the path towards Hanna Street, and he was stopped by the deceased, Kainamu and Crick. They asked him whether he was with the group at the station, but he replied he did not know the group on the station and he was allowed to pass.

As he did, you and Clappers and Teap split from the remainder of your group and left the platform and, after arming yourselves with the sticks which you had already collected and metal star pickets from a post and wire fence abutting the pathway, you tracked after the deceased, Kainamu and Crick, with Sarath Pen following along behind you. As you approached, the deceased, Kainamu and Crick turned and a fight occurred on the pathway. There is some doubt as to whether you and your friends approached right up to the other three or whether they turned and advanced on you, but in any event the two groups of three came face to face.

You told police later that the deceased was not aggressive to begin with and that he requested a peaceful resolution of the dispute, and that version of events is supported by observations of Teap, who described the deceased as trying to hold Kainamu back from fighting. But Kainamu swung a pole at you, missing you, and you reciprocated by taking a swing at him, although you missed him, and then the other four became actively involved in fighting with their poles.

You were struck on the shoulder with a pole by Kainamu and knocked to the ground and whilst you were on the ground, you were repeatedly struck to the head and body by either Clappers or Teap or both. Eventually, however, you got up off the ground and, although Crick attempted to grab you, he was restrained by your friends and you managed to get away and you left the area of the fight.

As the fighting raged, other persons from your group on the platform jumped down from the platform and ran to join in the fight. They included Sarath Pen, Kheav, Yim, Yun and Yem. But by the time they got to the fight, Crick was effectively the only one still standing; the deceased's skull had been crushed and was bleeding profusely; and Kainamu lay over the deceased in order to protect him.

A witness has since described seeing Teap swing a pipe around at Crick, striking him several times to the head and neck area. Other commuters who witnessed the fight described it as "war zone" which caused them to be in fear for their safety.

You and others, including So, Kheav, Sarath Pen, Sareth Pen, Yem, Tem, Ork, and Patrick, fled the scene and ran across the pedestrian overpass into Railway Parade, whence you made your way back to the Golden Triangle Pool Hall. You arrived there at about 8.45 pm. You then travelled by train to Carnegie and went home. Some time later, you cut segments from your shirt in an attempt to remove the blood stains which occurred in the course of the fight, and you tipped kerosene on it, and later when that appeared ineffectual, you burnt it.

Subsequent crime scene investigation located a length of threaded metal pipe in the vicinity of where Teap had been seen to leave it, with blood staining apparent. There was also broken beer bottle glass, stubbies, further blood staining near to a drainage inlet along the path where the battle had taken place and a bandanna belonging to Razz and various other items of clothing.

On 20 March 2002 you attended voluntarily at the office of the Homicide Squad and submitted yourself to interview. You confirmed in general terms the circumstances leading up to the incident, as I have recounted them, and in relation to your own involvement you stated that prior to the final incident you left the platform with Clappers and Teap to see where the other group had gone and to make sure that they did not have any more friends with them. You admitted that you had armed yourself with a metal star picket, but you said that you had done so only after the other group had turned to confront you on the path. You told police that as soon as you were struck by one of the other three, now known to be Kainamu, you had fallen to the ground, and whilst on the ground that you were struck on the head with a metal pole, although you were unable to say who struck the blow. It is plain that once knocked to the ground you played no further part in the incident and you retreated, and you have since provided a statement to police detailing your involvement and the involvement of co-offenders in the affray.

The maximum penalty for the common law offence of affray is a period of imprisonment of five years[1]. It has been submitted on your behalf that there a number of considerations which militate against the imposition of a custodial penalty:

* First, it was submitted that in the scheme of things the affray to which you have pleaded guilty is towards the less serious end of the range. It was conceded as it must be that the affray resulted in a death, and that there could be no more serious outcome than that. But it was said that the Crown has accepted your plea on the basis that you are not to be held accountable for the death.

* Secondly, it was submitted that, although you armed yourself with a star picket, you did so only late in the action and even then without a full appreciation of what a star picket can do to a human being when wielded in anger.

* Thirdly, it was said that, in the scale of affray offences, this was a moderate case of affray, because it was of relatively short duration and conducted in a relatively confined space; albeit of course that members of the public had access to the railway station and were in fact put in fear for their safety.

* Fourthly, it was submitted that you did not go out looking for trouble, and to begin with you were not armed, and that but for the intervention of Kainamu and his friends there would not have been any trouble. The seizing of weapons, it was contended, should be seen as nothing more than opportunistic and occasioned by and in direct response to the presence of Kainamu and his friends, Crick and the deceased, who did come armed with weapons.

* Fifthly, it was suggested that, viewed globally, it does not appear that persons outside the dispute were ever threatened, even though nearby commuters were put in fear, and that this was not an event where the participants were celebrating the fear which they caused, or sought to put bystanders in fear, or which suggests that the matter was going to go any further.

I accept that you did not begin the evening looking for physical violence and that you did not arm yourself until late in the action. But I do not accept that the affray to which you have pleaded guilty should be viewed in any way as venial. By all accounts it lasted for something like half an hour in total during which abuse was hurled, bottles and rocks were thrown, glass was smashed, threats were made and returned and, finally, when it looked like it might come to an end without the infliction of really serious physical injury, you and two of your friends pursued the other party as they retreated and armed yourselves with star pickets the better to engage them in armed conflict. Inevitably the conflict followed, and the consequence of the conflict was death.

Even if the death is put to one side as something for which you were not directly responsible, and concentration is focused on the sense of disorder and panic which your behaviour must surely have engendered in the minds of railway commuters and others entitled to go about their business in peace, I consider that your offence is properly to be regarded as a serious offence of affray. If the death is taken into account, as I think it should be, the offence is grave indeed.

I recognise that the Crown considers itself unable to establish that you acted in concert with or aided or abetted those who caused the death of the deceased. Your plea of guilty to affray is to be treated accordingly. But the fact that the death occurred is still indicative of the seriousness of the offence of affray to which you have pleaded guilty. To adopt and adapt the words of Coldrey, J in R v Dewhirst[2], although you were not a party to the escalation of the violence by the use of a pipe to crush the skull of the deceased, you were a willing participant in the fighting with Kainamu's party from which those injuries ensued. This was a serious example of affray.

It was then submitted on your behalf that your level of culpability in the offence is to be viewed as less serious than others, in as much as it was Kainamu who triggered the offence with his loud and racist abuse of your group of friends, and because Kainamu was a considerably older man with significant prior convictions for alcohol related offences involving violence, and because it was Kainamu who was the first to escalate the altercation to a dangerous level of hostility by calling for his friends and taking up weapons with them.

But even allowing for what is said about Kainamu's activities, it remains that in all probability Kainamu would not have called his friends if you and your friends had not rained beer bottles onto the road, and there would not have been a pitched battle of the kind which occurred on the path if you and your friends had not got down from the platform, armed yourselves with clubs and star pickets, and gone after Kainamu and his two friends as they turned and walked away from the station.

Finally, on the question of culpability, it was put on your behalf that you armed yourself only because you feared that you were in for a beating from older and heavier individuals.

I am not persuaded by that suggestion, even on the balance of probabilities[3]. I do not accept that someone who is in fear of being beaten by others pursues them as they retreat, and I do not accept that someone of your age and education could fail to foresee the consequences of taking the course of pursuit which you chose. What else but violence could you have expected if you refused to allow Kainamu's party to withdraw and call it a day, after you had repulsed them from the station?

It was submitted on your behalf that the personal factors which militate in your favour on sentence include:

* your youth, in that you were only 20 when the offence was committed;

* your prior good character, in that you have no prior convictions and have never before been in trouble with the police;

* your reputation for good character and integrity, and tolerance and understanding in the multi-racial environments in which you were brought up and underwent part of your secondary education;

* your genuine sense of remorse, as demonstrated by the fact that you came forward voluntarily and assisted the police in a frank and unqualified fashion;

* your willingness, to which you have attested on oath, to give evidence if called by the Crown in the committal proceedings and at any subsequent trial;

* your prosects of rehabilitation as manifested by your pursuit of tertiary studies in theology and a close involvement in the activities of your church and by the love and support of your family and your girl friend, and the steadiness of the work which you enjoy in your father's business.

Evidence has been given by a number of witnesses on your behalf and you have adopted the unusual course of giving evidence yourself. I also have the benefit of an extensive psychological assessment prepared by Ms Helen Norman, consulting psychologist. That evidence and her report suggests that your offence was an aberration and that you are truly remorseful over the role which you played in the commission of the offence. I consider therefore that your prospects of complete rehabilitation are good. It appears less than likely that you will offend again. And I consider that your willingness to come forward and assist the police[4], and to plead guilty[5], are factors which militate significantly against the weight of sentence to be imposed.

It remains nevertheless that in formulating the sentence to be imposed upon you I am required by law to weigh in the balance not only the factors which militate in your favour but also the needs of just punishment, deterrence and denunciation as well as current sentencing practices.

For the reasons already expressed, I regard the offence to which you have pleaded guilty as a serious offence of affray. Other things being equal, that demands that just punishment be imposed. The need to manifest denunciation of violent behaviour in public and for general deterrence suggests that it should be prison. Current sentencing practices accord with the view that a sentence of imprisonment is warranted. The Court of Appeal has said time and again that those who, when affected by alcohol, engage in unbridled violence in public places, must expect condign punishment in which the principles of general and, on occasion, specific deterrence will play major roles.[6] And in recent years there have been a number of cases at first instance and on appeal in which affray has been punished with prison.[7]

It has been contended on your behalf that your youth and personal circumstances and manifest remorse are such that the purposes of the sentence to be imposed can be achieved by a community based order. Ms Norman has also expressed the opinion that your sensitivity and intuitiveness are such that you would not be able to cope with the penal system. Therefore, I have given the possibility of a community based order a great deal of thought.

In R v Mills[8] the Court of Appeal laid down as a rule that in the case of a youthful offender rehabilitation is usually more important than general deterrence and that ordinarily a youthful offender is not to be sent to prison if such a disposition can be avoided; especially if the offender is beginning to appreciate his past criminality. Subsequently, however, the Court has declared that what was said in Mills was no more than a general proposition and that, while the primary focus is usually placed upon the offender's prospects of rehabilitation, that is by no means the only basis on which youth assumes relevance in sentencing.[9]

In R v Teichelman[10], Batt JA, reiterated the importance of an offender's youth and lack of prior convictions and prospects of rehabilitation. But in keeping with the approach adopted in Oldaker, his Honour allowed that those considerations will yield to the need for denunciation and deterrence in appropriate cases. In Teichelman the offences of which the applicant had been convicted included intentionally causing serious injury, for which the maximum penalty was 20 years, as well as affray. But his Honour's conclusions are expressed in terms of principle which appear to transcend the facts of the case.

It is also to be noted also that in each of Stevenson, Oldaker and Dewhirst, the only offence was affray and yet, as I have already observed, sentences of imprisonment were thought to be warranted.

So to say is not to overlook the importance of avoiding a sentence of imprisonment if the objects of the sentence can be achieved in some other fashion[11], nor to ignore what Batt JA described in Teichelman as the possibly devastating consequences of incarceration in an adult prison upon a first offender of otherwise good character and relative youthfulness. It is to say, however, that such is the need to demonstrate denunciation and to provide deterrence in the case of an offence of the type to which you have pleaded guilty that, despite youth and good character, remorse and prospects of rehabilitation, imprisonment may be called for.

Your youth, your prior good character and your sense of remorse (including your plea of guilty and your cooperation with the Crown), as well as your chances of complete rehabilitation, have together gone a long way to persuading me that the purposes for which sentence is to be imposed on you might be achieved by a community based order. For that reason I sought and was provided with a pre-sentence report in accordance with s.96 of the Sentencing Act. It is a favourable report. But in the end, in the circumstances of this case, I do not consider that the need to demonstrate denunciation or for general deterrence can be met in that fashion. Affray of the kind in which you engaged is not to be tolerated at any level and, despite the contrition and remorse you have shown since the offence, you played a significant role in continuing the affray, into its final deadly stage, after it should have ended.

Bearing in mind the serious nature of the affray to which you have pleaded guilty, and balancing as best I am able the competing considerations of your youth, good character, remorse, prospects of rehabilitation and the desirability of avoiding prison for a first time offender, against the need to manifest denunciation and for general deterrence, I have concluded that a sentence of imprisonment for a period of twelve months is necessary to be imposed.

It has been submitted on behalf of the Crown that, having regard to your personal circumstances and other mitigating factors, and especially your cooperation with the police and with the Crown, it would not be inappropriate wholly to suspend the sentence. I have to say, however, that, but for authority, I would be inclined to doubt that is so. While a suspended sentence would have the important advantage of avoiding your incarceration in an adult prison, it is hard to believe that a suspended sentence would have any or at least any thing like the general deterrent effect of time actually served.

But the law is otherwise. High authority has it that it is wrong to assume that a sentence, albeit wholly suspended, does not play a role in deterring others[12]. I proceed accordingly. Even so, I do not consider that it is appropriate wholly to suspend your sentence, because in my view that would not satisfy the need for just punishment. I have determined that you should serve three months of the sentence and that the remaining nine months of the sentence will be suspended for a period of three years.

For those reasons, I sentence you, Dimitrious Feretzanis, to a period of imprisonment of 12 months and I order that nine months of that sentence be suspended for a period of three years from the date of sentence, resulting in an effective sentence of immediate imprisonment of three months.

I certify that this and the 13 preceding pages are a true copy of the reasons for sentence of Nettle J of the Supreme Court of Victoria delivered on 23 December 2002 .

[3] As I would have to be if I were to take it into account as an ameliorating factor: Cheung v The Queen [2001] HCA 67 at [14]

[4] cf. R v Perrier (No 2) [1991] VicRp 38; [1991] 1 VR 717 at 726-727; Rv Ngui [2000] VSCA 78; (2000) 1 VR 579 at 582

[5] cf. R v RND [2002] VSCA 192 at [17]- [19]

[6] See R v Stevenson [2000] VSCA 161 at [27], per Winneke,P

[7] See, for example_, R v Oldaker_ 25/9/95 (VSCA),BC 9506619; R v Teichelman [2000] VSCA 224; R v Dewhirst, supra.

[9] See DPP v SJK [2002] VSCA 131 at [60]- [61]

[11] Sentencing Act 1991, ss. 6(3) and (4) and see R v Hill [1996] VR 496 at 505

[12] see DPP v Carter [1998] 1 VR 601 at 607-608, per Winneke,P, and the authorities cited.

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Judgment (74 paragraphs)

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