The Queen v Obradovic & Ors [2018] VSC 805

2 The maximum penalty for affray is five years' imprisonment,[1] and the maximum penalty for common assault is five years' imprisonment.[2]

3 The offences to which you have each pleaded guilty occurred at a licensed restaurant in Caroline Springs.

4 On Friday 8 September 2017, there was a social function at the restaurant, organised by Deni Dimovski. The three of you arrived at the function soon after midnight and socialised amongst yourselves and others. Shortly before 2.00am, the lights were turned on and staff commenced clearing the tables. At this time, there were approximately 30 patrons still inside the dining area.

5 Shortly after 2.00am, Stefan Obradovic tipped two half full bottles of beer onto a dining room table. A few minutes later, Daniel Obradovic picked up a glass and threw it at the back wall of the dining room, where it smashed. There is no apparent reason either of you did these things.

6 Mr Dimovski then walked over to your group and reportedly asked for things not to be broken. It is not suggested that he was threatening. A conversation ensued, with Mr Dimovski continuing to stand amongst your group of people. Stefan Obradovic then approached him from behind, and they had a brief conversation.

7 During this conversation, Daniel Obradovic moved quickly through bystanders towards Mr Dimovski and shoved him to the chest. He stumbled as a result. A number of his friends came over to intervene or assist, at which point the affray commenced.

8 The affray involved a large number of patrons fighting and struggling amongst each other in the dining room area of the restaurant. During these events, many people were shoved, kicked, jostled and punched. The affray ended when participants were ejected outside onto the footpath. The violence lasted only a minute or so, but was intense and violent.

9 After the affray concluded, further violent events occurred in the restaurant kitchen. It is not alleged that the three of you were involved in these violent events, which ultimately led to the death of Mr Dimovski. His death occurred at the hands of people other than you.

10 During the course of the hearing of this matter, the prosecution played a series of CCTV images which clearly depicted the overall nature of the affray. The vision also showed the particular activities that each of you carried out.

11 The Crown case in respect of the individual acts of each of you is as follows.

12 Before the affray began, Mr Dimovski asked Stefan Obradovic why he had tipped beer on the table, to which he replied, 'Why not', and/or, 'Because I wanted to'. As this conversation was occurring, Daniel Obradovic approached Mr Dimovski from his right side and pushed him to the chest, causing him to stumble backwards. Mr Dimovski's friends came to assist and a large group of people began pushing and shoving one another. Stefan Obradovic then ran towards Pece Petrovski, who was backing away, and threw a punch at him. Mr Petrovski put his hands up in self-defence. This describes Stefan Obradovic's the common law assault by on Mr Petrovski and is charge 3 on the indictment.

13 Shortly after, Stefan Obradovic joined another male, who was participating in the affray and was armed with a glass bottle. With Stefan Obradovic immediately to his left, this other male struck Mr Dimovski twice with the glass bottle to his head. The two of you, along with a third participant, then punched Mr Dimovski to the head numerous times. Mr Dimovski had his hands and arms up, and was trying to defend himself. These circumstances amount to Stefan Obradovic's charge of common law assault against Mr Dimovski, charge 2 on the indictment.

14 Stefan Obradovic and another male then grappled with Mr Dimovski, attempting to pull him to the ground. Both of you continued to punch and kick at Mr Dimovski. The group pushed and shoved Mr Dimovski towards the floor. You eventually fell over a fallen chair and dropped away from the fight. You attempted to re-enter the fight, but were forced backwards and out of the venue via the front door.

15 Your actions committed against Mr Dimovski were a cowardly joint attack by at least three men against one, for which you should you be ashamed. Your overall offending is made more serious by the fact that beyond the affray, you assaulted two people.

16 After the initial act of shoving Mr Dimovski, Daniel Obradovic was involved in a brief argument with him. You were pulled back to the outer edge of the fighting as the affray escalated, but you stayed amongst the fight, and appeared to push and shove at various times.

17 You also kicked at Mr Dimovski as your brother, Stefan Obradovic, and another individual were punching him and trying to pull him to the ground. After this occurred, you dropped away from the fight and moved towards the front door to exit the venue.

19 Prior to the commencement of the affray, Stephen Motta was sitting near the wall of the dining room. After Daniel Obradovic had shoved Mr Dimovski and the pushing and shoving between the group escalated, you rose from your chair and watched on.

20 You then picked up a glass bottle from a nearby table, raised it above your head in a menacing manner, and started pushing and shoving a number of people who were in front of you. You appeared to threaten Mr Petrovski, who was arguing with Stefan Obradovic. The CCTV shows you wielding the bottle in a threatening fashion, and continuing to hold it in your right hand, despite one of the participants trying to take it away from you.

21 With the bottle still in your hand, you pushed and shoved people in the affray and remained involved in the fighting. However, despite wielding the bottle, the CCTV vision does not suggest that you struck anyone with it. A short time later, you stood behind Stefan Obradovic while he and two other individuals punched Mr Dimovski, and one also struck his head with a glass bottle. You followed the group as they pushed and shoved for a number of metres. You eventually moved away and were forced out of the door to outside the restaurant.

22 During the affray, staff and patrons of the venue were placed in fear. CCTV vision shows that some people fled through the kitchen and to the rear carpark. Others fled through the front door or hid in the bathroom until it was safe to exit. The events were relatively short, but intense, and occurred in a contained location. It was crowded and confused.

23 The affray to which the three of you have pleaded guilty refers to what happened inside the dining area of the restaurant, and ended when you were either ejected from or left the premises. A short time later, further events occurred in the kitchen of the restaurant. A number of people entered and an altercation occurred which resulted in Mr Dimovski receiving two stab wounds, one of which was fatal. It is suggested that each of you were, at some point, either inside the kitchen or stood where you could see inside the kitchen. However, it is not suggested that any of you were involved in the events inside the kitchen that led to the death of Mr Dimovski.

24 After leaving the dining area, and after events that occurred in the kitchen, each of you left the scene. At approximately 2.22am, police and ambulance crews arrived at the restaurant.

25 On 14 November 2017, police attended the Obradovic home and executed a search warrant. Both Stefan and Daniel Obradovic were arrested and made no comment interviews.

26 On 23 November 2017, police attended the home address of Stephen Motta and similarly executed a search warrant. Interviewed by the police about the events, you also made no comment to the questions asked.

27 As I have observed, the affray was of relatively short duration. It was nevertheless intense and violent. It involved approximately thirty people fighting, pushing and shoving, with physical assaults occurring. There is little doubt that the contained area in which the events occurred increased individuals' proximity to the violence and the fear that some experienced.

28 Fortunately, the events of the affray did not result in significant injuries to any participants. Apart from the presence and limited use of bottles, no weapons appear to have been used. There was damage to the restaurant as a result of the affray.

29 In all the circumstances, I assess the gravity of the affray as mid to low range in seriousness. The assaults committed on Mr Petrovski and Mr Dimovski by Stefan Obradovic do not appear to have resulted in injuries. The assault against Mr Petrovski was towards the lower end of gravity. However, the assault on Mr Dimovski was of a different character as it was committed in with the company of two others. Mr Dimovski was in a vulnerable position as he was set upon by a number of offenders who shoved, punched and kicked at him. It was a cowardly and more serious form of attack.

30 No victim impact statements were tendered or read during the course of the hearing of the plea.

31 Stefan Obradovic, you are aged 22 years, and were 21 at the time of your offending. You have been raised in a stable family, and still live at home with your parents. You are of previous good character, are well educated and have a good work history.

32 You have commenced an apprenticeship with Chris Baldyga, the owner and director of Discount Automotive, located in Ravenhall. He provided a letter to the Court showing that you have been an apprentice since July 2018. Mr Baldyga attested to your passion and diligence in your new employment. His reference was supported by a certificate from the Victorian Registration and Qualifications Authority dated 3 August 2018, which confirmed the registration of your apprenticeship in Light Vehicle Mechanical Technology.

33 I was also provided with a letter, supported by submissions from your counsel, indicating that you have been in a relationship with Ms Sandra Orellana, for over six years. Ms Orellana remarked that it is not in your normal character to be involved in fighting, and that she had never seen you show aggression. She expressed surprise that you were drunk on the night of the events that took place.

34 I was also provided with a report from the forensic psychologist, Pamela Matthews, dated 16 September 2018. Ms Matthews described you as an individual with no prior criminal history or violence, that you were an occasional consumer of alcohol, and that these events appear out of character. She opined that, developmentally, you remain an adolescent on the cusp of adulthood, but that you are prone to greater levels of risk-taking, particularly in a peer context, than that of an adult. She opined that cognitive and mental state factors did not contribute to your offending.

35 Ms Matthews stated that, in large part, your offending could be explained by the emotionally heightened atmosphere of the evening, which overrode your usual restraint in social situations. She described you as traumatised by the events before the Court and very remorseful for the behaviour for which you have been charged, particularly for the impact upon the family of the deceased man, Mr Dimovski.

36 Ms Matthews went on to describe you as a young man who has now found a career that suits you, and that this was a positive factor regarding your longer term rehabilitation.

37 Daniel Obradovic, you are now aged 23 years, and were 22 at the time of offending. As with your brother Stefan, you were raised in a happy and otherwise unremarkable and loving environment. You have always lived at home with your parents and brother.

38 You were educated to a Year 12 level, commenced a Diploma of Surveying at the RMIT, but deferred and later dropped out from the course. In 2014 you obtained Certificates in Security Operations and Aviation Transport Protection. More recently, your interests have turned to the real estate industry, in which you have worked since 2015. You are currently a sales consultant at real estate agents, Harcourts, in Caroline Springs.

39 You also do not have a prior criminal history, and your offending in this matter was out of your usual character, as a generally reserved individual. I was told that you can only explain your actions as having been influenced by the unusual amount of alcohol that you consumed, as well as some concern for your brother. You have never used illicit substances and you rarely drink at home. You had not been out on a social occasion for over three months before this incident took place.

40 I accept that you are remorseful for your behaviour and for the emotional impact on the family of the deceased, Mr Dimovski, and those present at the restaurant, including the owners.

41 As with your brother, I was provided with a report from the forensic psychologist, Pamela Matthews, dated 13 July 2018. Ms Matthews opined that your personality profile indicated you are a normal, stable and balanced young man who is unassuming and prefers to avoid leadership roles in social interactions and relationships.

42 Ms Matthews considered the CCTV footage of your involvement in these events and described you as being on the periphery of the group and, for much of the affray, at the back. She described that you are unable to understand why you either kicked or stepped on the deceased man at one stage.

43 Ms Matthews also described you as an adolescent on the cusp of adulthood, and someone who was an integrated part of your family. She opined that you were yet to establish financial, emotional, psychosexual, and personal independence. As with your brother, Ms Matthews stated your behaviour may be explained by the emotionally heightened atmosphere overriding your usual reserve in social situations.

44 Ms Matthews is of the opinion that you have found a career that suits you, and have begun to establish yourself. She is of the opinion that you have a high potential to develop into a well-socialised adult. Ms Matthews regards your continuing employment as your most significant rehabilitative need.

45 Stephen Motta, you are now aged 28, and were 26 at the time of offending. You have no prior convictions and are one of three siblings. You too, have grown up in a close family which has been free of abuse, conflict, and other traumas.

46 You are a carpenter and own your own business, employing three apprentices. You have a partner of eight years, with whom you are expecting your first child to be born in February 2019. You have just finished building a house in Caroline Springs, which you will be moving into shortly.

47 You were examined by consultant psychologist, Ian Mackinnon, who provided a report dated 9 August 2018. Mr Mackinnon described you as having no psychological disorders, nor appearing to suffer symptoms that met the clinical criteria for any major diagnosable psychological disorder. Your functional intelligence falls within the normal adult range, as does your general cognitive functioning. Mr Mackinnon described you as an exceptionally psychologically and emotionally stable individual, not possessing an inherently antisocial or criminal character. He reported that you are not prone to impulsive or aggressive behaviour. He described your relationship with your partner as very stable, and that you continue to enjoy the benefits of a close and supportive family.

48 Mr Mackinnon stated you appeared to be genuinely remorseful for your current offending. You indicated that you felt terrible about the events, and that you did not want anyone to die. You feel genuinely sorry for Mr Dimovski and his family. Mr Mackinnon stated you were mildly intoxicated on the night of the offence, but that you felt intoxicated as a result of consuming up to four containers of beer.

49 Mr Mackinnon is of the opinion that you are not prone to risk-taking behaviour, and that you do not have the time for, nor the inclination, to frequent bars and clubs. He regarded the current matters as representing an anomaly in your personal history, and that being in a bar and drinking alcohol was a rare event for you, given that you were usually home with your girlfriend on a Saturday night. Mr Mackinnon expressed the opinion that your risk of re-offending in any serious manner is low and that you do not need rehabilitative treatment, as you are essentially a law-abiding, conscientious and hardworking citizen.

50 Violence of the kind exhibited by the three of you during this affray must be deterred and strongly denounced by the Court as undesirable conduct with no place in our community. General deterrence and denunciation are significant sentencing factors in each of your cases.

51 You and the general community need to understand that it is not uncommon for affrays involving young men, fuelled by the over-consumption of alcohol, to get out of control. Nor is it uncommon for such violent group incident to lead to serious injuries or deaths. To that extent, your sentences must send a message to others that group violence is unacceptable to the general community.

52 As to the matter of rehabilitation, you have all pleaded guilty to the offending before the Court at an early stage. These pleas of guilty have utilitarian benefits, and confirm your remorse for your offending. None of you have prior convictions, violent histories or subsequent allegations of criminal conduct. Your involvement in the offending was a result of poor choices with a group of associates, in circumstances where each of you abused alcohol. Each of you know that you have brought shame on your families.

53 You will each live with the knowledge that you have been involved in events that ultimately led to the death of Mr Dimovski. None of you intended for that to happen and I am of the opinion that each of you are sorry for the part you played. You are not to be sentenced for involvement in his death.

54 I have heard credible evidence and submissions that persuade me that each of you have strong prospects of rehabilitation. There seems a good chance that none of you will come into contact with the criminal justice system again.

55 Stefan and Daniel Obradovic should both be regarded as relatively youthful offenders. Therefore, rehabilitation is a particularly important consideration. Mr Motta, although older, played a role of lesser significance in the events.

56 For the reasons I have discussed, I do not think that the sentences to be imposed require any significant component of specific deterrence for any of the three of you. I am satisfied that you each have good prospects of rehabilitation.

57 I also take into account that these matters could have been dealt with in a lower court, and that some of you faced more serious charges, from which you were discharged at the committal proceedings.

58 Stefan Obradovic, it was acknowledged that you performed the most overt acts of the three before the Court. This involved two assaults within the general affray. However, your counsel submitted that there was no reason for additional or separate punishments to be imposed. It was submitted that a Community Correction Order ('CCO') should be imposed for all three offences, and that this would satisfy the purposes of general deterrence, denunciation, punishment, and rehabilitation. Heavy reliance was placed on your youth at the time of offending, your lack of prior criminal history, that you were badly affected by alcohol, that you are in a strong settled relationship, and you have stable employment. It was submitted you were caught up in something much bigger than your experience would prepare you for.

59 Further, it was submitted that I should not order a conviction be recorded against you. I was referred to ss 8 and 40 of the Sentencing Act 1991 ('the Act') in this regard. Reference was also made to the possibility of the Court imposing a fine. However, I was told you and your partner are saving to purchase a house. In my opinion, the imposition of a fine would unnecessarily stand in the way of you attaining that rehabilitative goal.

60 For Daniel Obradovic it was submitted that you are extremely remorseful for your actions on the night of these events. You can only explain your behaviour as having been influenced by the unusual amount of alcohol you drank, as well as misguided concern for your brother. It was submitted that you had no intention of starting a fight, your acts were not intended to be malicious, and you acknowledge that your actions were stupid. Aspects of punishment, deterrence, and denunciation were accepted as relevant, and it was submitted that a CCO or fine were appropriate sentencing options open to the Court.

61 It was also submitted that a conviction should not be recorded in your case. You have embarked on a career in the real estate industry and are highly motivated. It was submitted that reputation is important in this industry, and I should take this into account in deciding whether a conviction is recorded.

62 For Stephen Motta it was submitted that a fine was the appropriate outcome. It was argued that this was open due to your lesser role in the offending, your unblemished background, stable work environment, settled relationship, and the expectation of the birth of your first child next year.

63 It was submitted that, in future, as your business develops, you are likely to seek government contracts, and that the recording of a conviction would risk materially blemishing your background. I note that you already have an established business, with the responsibility of three employees. I also note that you have been saving and that you and your partner are about to move into your new home. You are embarking on a new start and have an opportunity to put this offending behind you.

64 The prosecution submitted that a CCO is open in each of your cases, but that I should order that convictions be recorded. They referred to the inherent seriousness of affray, and submitted that recording convictions would deter others that might be minded to commit similar offences.

65 In each your cases, I have received pre-sentence assessments of your suitability to receive CCOs.

66 In the case of Stefan Obradovic, the report dated 13 October 2018 recommends that a CCO should be imposed for a duration longer than 18 months. This is to facilitate the inclusion of offending behaviour programs and other treatment programs. The report has assessed you to be at medium risk of general re-offending, in part due to the intake of alcohol, and negative peer associations at the time of your offending. Your risk level indicates that you may benefit from supervision and case management strategies to assist you in effecting positive behaviour change. Further, the author recommends a component of unpaid community work and programs to reduce the risk of re-offending, to be determined by the Corrections Victoria Offending Behaviour Programs clinicians at the reporting location.

67 You have been assessed as having medium needs in respect of alcohol use. This is a matter that will be addressed in the CCO that will be imposed upon you. The author also identified a number of protective factors that apply to you which will assist to reduce your risk of re-offending. These include familial and interpersonal relationships, employment, and ongoing support from your immediate family.

68 You do not present with any issues or barriers that impact on your ability to complete a CCO, and present as motivated to address your offending behaviour.

69 Accordingly, I will impose upon you a CCO for a duration of two years, with conditions to allow for the facilitation and inclusion into offending behaviour programs and other treatment programs as required. The conditions will include 100 hours of unpaid community work. I also impose, upon recommendation of the author, conditions that involve non-association, to assist you to avoid being influenced by negative peer associations.

70 Daniel Obradovic, the Court received a pre-sentence report in respect of you, dated 17 October 2018, of which I have also decided to accept the recommendations.

71 The author of the report assessed you as suitable for a CCO with a low level of intervention. You are assessed as having low risk of general re-offending, and displaying insight into your offending. The author notes that you appear remorseful regarding your role in the affray; you recognise that throwing the beer glass and pushing the deceased man were key instigating factors in the event, causing the incident to escalate. You feel guilt for the events that followed your actions.

72 A condition requiring unpaid community work is suggested, and can be managed around your employment.

73 I note that the over consumption of alcohol played a significant role in your offending on this night, but you are a person that does not appear to habitually abuse alcohol. You have displayed insight into your abuse of alcohol on this night and understand that, but for that over consumption, you likely would have conducted yourself differently. Although it is recommended, I do not see the advantage in placing on you a condition requiring you to abstain from alcohol. However, I will impose an alcohol treatment condition to give you the opportunity to address this factor in your offending.

74 You are maintaining pro-social supportive relationships with friends and family, and your employment is a significant protective factor. You are invested in your future. These factors are encouraging for your prospects of rehabilitation.

75 There are no notable barriers to your ability to carry out the obligations of a CCO. Accordingly, I will impose upon you a CCO for a duration of 12 months, with conditions including that you carry out 100 hours of unpaid community work.

76 Stephen Motta, I have received a pre-sentence report dated 13 October 2018, addressing the issue of whether a CCO is a suitable sentencing outcome for you.

77 You are assessed to be at medium risk of general re-offending. According to the author, you have recognised a need to participate in a pro-social activity to assist you cease contact with negative peers. The author notes that your financial situation is currently strained due to a debt you owe your parents for your legal costs, and costs associated with the construction of your new family home.

78 The author of the report describes that you were intoxicated and under the influence of alcohol at the time of your uncharacteristic offending. As alcohol is an underlying factor to your offending behaviour, the writer recommended an alcohol treatment condition. In your circumstances, I do not propose to add an alcohol exclusion condition, but I intend to add a condition to assist you to learn to manage your future intake of alcohol.

79 Further, while the author did not diagnose any major psychological disorder, he recommended a mental health treatment condition due to underlying factors that have contributed to your offending, and other programs to reduce your medium risk of re-offending. Such programs are to be determined by Corrections Victoria Offending Behaviours Programs clinicians at the reporting location.

80 In your circumstances, I will impose a CCO for a duration of 12 months, to which will be attached a series of conditions, including 75 hours of unpaid community work.

81 It is important that pre-sentence reports address the reasons why granting a CCO may, or may not be, an appropriate sentencing option in a particular case. I note that the three reports provided to the Court are of high quality and have specifically and clearly addressed the reasons why CCOs, and relevant conditions, are appropriate to impose in each of your cases.

82 Your counsel have each submitted that I should not record convictions against you. I have weighed the factors to be considered when addressing this issue, as set out in s 8 of the Act. The offence of affray is a serious public order offence. However, I am satisfied that each of your involvements were relatively short in compass, that you caused no injuries, and the events were not long in duration. Each of you have clear histories and, before these events, have been of good character. I regard these events as representing an anomaly in your lives. There is little to suggest you will have future involvement with the criminal justice system. In all the circumstances, I will give each of you the opportunity to avoid a conviction being recorded.

83 I declare pursuant to section 6AAA of the Act that, but for your pleas of guilty, I would have recorded convictions against each of you, and imposed CCOs for the durations of four years, two years, and two years respectively.

[1] Crimes Act 1958 (Vic) s 195H.

[2] Crimes Act 1958 (Vic) s 320.