DPP v Brown & Ors [2018] VCC 405 (23 March 2018)

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IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

GAPO NAPOLEAN BROWN, MATTHEW CAVALIERI & ANTHONY KARAS

JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	14 & 15 February and 14 March 2018
DATE OF SENTENCE:	23 March 2018
CASE MAY BE CITED AS:	DPP v Brown & Ors
MEDIUM NEUTRAL CITATION:	[2018] VCC 405

Subject: Unprovoked attack on victim in a bar and affray – multiple co-offenders, some of whom have not been identified.

Brown: total effective sentence of 7 ½ years with a non-parole period of 5 years on charges of Intentionally causing serious injury and affray.

Cavalieri: total effective sentence of 4 years Community Corrections Order on charges of intentionally causing injury and affray.

Karas: total effective sentence of 3 years Community Corrections Order on charge of affray.

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M Wilson	Solicitor for the Office of Public Prosecutions

For the Accused Brown	Ms G Morgan	Stary Norton Halphen
For the Accused Cavalieri	Mr A Patton	Patrick W Dwyer, Solicitor
For the Accused Karas	Mr C Nikakis	Haines & Polites

1 Gapo Napolean Brown, Matthew Cavalieri and Anthony Karas, you have each pleaded guilty to one charge of affray relating to conduct which occurred at Bar Eight in Bundoora on the night of 18 November 2016. This charge carries a maximum penalty of five years’ imprisonment. You, Mr Brown, have also pleaded guilty to one charge of intentionally causing serious injury to Mr Ignjat Filipovic, which carries a maximum penalty of 20 years’ imprisonment. You, Mr Cavalieri, have also pleaded guilty to one charge of intentionally causing injury to Mr Ignjat Filipovic, which carries a maximum penalty of 10 years’ imprisonment.
2 The circumstances of your offending are summarised in the Prosecution Opening (Exhibit “A”). On the relevant night, the three of you were part of a large group of people who attended Bar Eight in order to celebrate Mr Cavalieri’s birthday. Your victim, Mr Filipovic, and his friend, Mr Dragisic, were playing pool at the venue. A member of your group, whose identity is unknown, approached your victim and asked what he was staring at and what his problem was. Following this event, there were various exchanges between your victim and several members of your group. CCTV footage from the venue (Exhibit “E”) shows these exchanges. Your victim is shown to have removed himself from contact with your group by going to a bar area, where he is talking to an unknown man, who has a shoulder bag or satchel slung across his body. Your victim appears to be minding his own business, conversing with this man, when an unknown member of your group, who was wearing a long-sleeved white top with a black cap, aggressively confronts your victim and appears to challenge him to step outside to fight. A female, wearing black, who was apparently Ms Georgia Lu, the manager and owner of the venue, came between him and your victim and gestured him away. You, Mr Cavalieri, are seen to be in the vicinity.
3 The CCTV footage shows you, Mr Cavalieri, leaving the bar area where your victim is speaking to the man with the satchel, and going to another part of the venue where you confer with a number of men in your group. You then return to where your victim is seated, lean across in front of the man with the satchel and appear to be speaking with your victim. It is not suggested by the prosecution that there was aggression exhibited by you towards the victim at this stage. Whilst this is occurring, you, Mr Brown, are seen to walk past behind your victim and then go a pool area at the venue and speak to one or two of your group. You, Mr Brown, then return to the bar and state to your victim, “Are you talking to my boys like that, you wanna fuck with my boys?” and, without any warning, you punched your victim to the face. You, Mr Cavalieri, are in the immediate vicinity when this occurred, as are a number of other people.
4 Your victim retaliated by punching you, Mr Brown. You, Mr Karas, had been standing in the background and, then, you punched your victim once to the face and knocked him backwards.
5 Following this, another member of your group then punched your victim from behind, which knocked him to the floor. While he was on the floor, your victim was surrounded by you, Mr Brown, you, Mr Cavalieri, and at least two other unidentified members of your group. You, Mr Brown, and, at least, two other members of your group, whose identity is unknown, proceeded to punch and kick and stomp on the victim’s head and body, leaving him incapacitated on the floor. By this stage, you, Mr Karas, had retreated and played no further role in the attack.
6 Whilst your victim was clearly incapacitated, lying face up on the floor with multiple people kicking and punching and stomping on his head and body, his friend, Mr Dragisic, tried to assist him by crouching over him and sheltering him from the blows. You, Mr Cavalieri unsuccessfully attempted to pull Mr Dragisic away. You then kicked Mr Dragisic. Then, you grabbed a metal bar stool and raised it to just below head height, before throwing the stool down onto Mr Dragisic. You then walked away from the attack. By your actions, you assisted Mr Brown to continue his attack on your victim, with the intention that your victim would suffer injury, even though you, personally, did not make physical contact with him. Hence, the charge of intentionally causing injury to your victim, to which you have pleaded guilty.
7 You, Mr Brown, are then seen to pick up the same bar stool with both hands, raising it high above your head, and throw it with force onto your victim’s head, as he was lying face-up and defenceless on the floor. This was a terrifying, brutal and cowardly act, which was of such force that Ms Lu told police in her statement that she thought your victim would have died because it hit him so hard.[1]
8 Exhibit “C” comprises still images taken from the CCTV footage. They show you, Mr Cavalieri, wielding the bar stool towards Mr Dragisic and you, Mr Brown, holding the stool above your head prior to slamming it onto your victim’s face.
9 As your victim lay unconscious on the floor and bleeding from the face you, Mr Brown, were being held by others, but kept trying to return to attack your victim. You appeared to be successfully restrained by two people and were taken to the bar area, where your victim had formerly been speaking with the man with the satchel. Then, one security guard was left restraining you with his right arm over your right shoulder and around your neck. However, you were in such a hyped-up, angry state that you reached across the bar and grabbed a glass, which you then threw at your unconscious victim. The glass smashed on the floor, narrowly missing your victim’s head.
10 The CCTV footage shows multiple people endeavouring to stop the violence, which, from the time of your first punch, Mr Brown and then, your punch, Mr Karas, moved from one area of the venue to another. Other patrons are screaming and clearly appalled at what is occurring. This is the conduct constituting the charge of affray to which each of you has pleaded guilty. Somewhat extraordinarily, all three of you and your unknown co-offenders managed to leave the venue in the confusion of police and ambulance being called and the victim being assisted by bar staff and onlookers.
11 Your victim was transported by ambulance to the Royal Melbourne Hospital. He suffered a period of unconsciousness and extensive swelling and bruising to the face, as well as abrasions to the cornea, back of the head, left arm and chest. X-rays revealed extensive facial fractures. He remained in hospital for two days, but had to be released in order for the swelling to subside, before surgery to repair the fractures could be undertaken on 7 December. On that day, surgical repair took place of fractures to the left eye socket, nasal bones, left cheekbone, left maxillary sinus wall, left lateral orbital wall and left orbital floor. The surgery required the insertion of numerous plates and screws. Your victim was in hospital for a number of days and required follow-up appointments later in December 2016 and in January 2017. Exhibit “D” comprises two photographs taken of your victim showing extensive injuries, particularly to his left eye and left side of his head.
12 In a Victim Impact Statement made on 24 January 2018 (Exhibit “B”), Mr Filipovic speaks of the emotional stress that he and his family have suffered following this appalling assault upon him. He describes having trouble sleeping, as he kept thinking about the assault, and felt exhausted and stressed. He describes having scarring around his left eye which is a constant bad reminder of your brutal attack. He states that he requires revision surgery for the scarring. He was unable to work in his employment for some three months and lost approximately $15,000 by way of income, which impacted upon his ability to pay his mortgage and other expenses. All of these consequences described by Mr Filipovic are understandable and foreseeable consequences of your grossly violent and antisocial conduct.
13 You, Mr Brown, were interviewed by police on 30 December 2016. You admitted to attending Bar Eight on the night and identified yourself in the CCTV footage. You stated that you knew there was a fight but were unable to remember the details due to your heavy drinking on the night. You stated “I feel bad for him. I threw the stool”, and agreed that, by the time you threw the stool, your victim did not look conscious or able to defend himself. You told police that you did not know it was that bad, as you thought it had just been a punch. When shown a photograph of your victim’s injuries, you described him as looking “pretty fucked up”.[2]
14 When your victim’s injuries were described, and you were told he could not work at that stage because of his injuries and that he had a wife and two kids, and you were asked how you felt about it, you responded “fuck, shit, bro. Fuckin’ hell”. You agreed that the seriousness of what you had done was starting to sink in. You said you did not know it went that far, but had to “wear it” and stated “I feel bad but I can’t take it back, what’s happened”.[3]
15 Mr Brown, you are presently aged 24 years having been born on 8 October 1993. You come before the court with a number of prior appearances before the Children’s Court at Heidelberg, and also before Melbourne Magistrates’ Court. Some of your offending relates to dishonesty and driving offences. However, it is of concern that you have previously been before the Children’s Court for affray and, on two separate occasions, for recklessly causing injury, and, on another separate occasion, for assault with a weapon. Also, you were convicted at Melbourne Magistrates’ Court of charges of intentionally causing injury and reckless conduct in danger of causing serious injury.
16 In the Children’s Court you received various dispositions, namely, a bond (without conviction), and two probation periods (without conviction), the latter of which you breached. At the breach hearing on 24 April 2013, the original probation order was confirmed. This order, as well as the original one made on 8 February 2012, had a condition that you complete an anger management course. Meanwhile, in the Magistrates’ Court on 14 December 2012, you had been ordered to serve 12 months detention in a Youth Training Centre. This was in relation to the offences of intentionally causing injury, engaging in reckless conduct in danger of causing serious injury, and other offences relating to dishonesty, failing to answer bail and driving offences.
17 There is no record of you offending between your last appearance at Heidelberg Children’s Court, for breach of probation, on 24 April 2013 and this offence on 18 November 2016. However, by your prior offending, you have shown yourself to be a person capable of uncontrolled outbursts of temper and serious violent behaviour.
18 Exhibit “F” is an agreed summary of some of your prior offending. The assault with a weapon for which you were dealt on 8 February 2012 relates to you having attended, with your brother, at the home of your victim at 3.40am on 20 March 2011. The victim opened his front door and walked out into the driveway, where he was confronted by you and your brother, who produced machetes and waved them about before leaving the scene.
19 The conduct for which you were sentenced on 14 December 2012 involved two road rage episodes on the evening of 4 October 2012. You were a passenger in a vehicle, which stopped at lights. You got out and walked towards the driver of another vehicle and threw punches at him. You opened the door and continued to assault him, punching him in the face approximately four or five times. The vehicle continued driving and attempted to pass the vehicle you were in. At that stage, you leaned out of the window and threw a tyre iron at the other car, causing the window to shatter, with both persons in the front of the vehicle having glass showered over them.
20 In a plea on your behalf, Ms Morgan made submissions which I take into account:
• You pleaded guilty to the offences at the committal on 18 September 2017, prior to any witnesses being called. I accept that you have shown some remorse by the previously quoted parts of your record of interview and that this has spared your victim and other witnesses reliving the trauma of this violent night. You have very recently written a brief letter of apology to your victim which was tendered as Exhibit “D1-1” at the plea. It also states that you are willing to pay for any of your victim’s lost time from work and concludes by stating to your victim “I hope you are well and healthy”.
On the first day of the plea hearing it was raised that you were prepared to consider paying compensation to your victim for the amount of money he had lost through being unable to work ($15,000). I consider that a letter of apology tendered at a plea hearing, particularly given that one year and two months have elapsed since the offending, should be afforded limited weight as evidence of remorse, as should an offer to pay compensation (particularly in circumstances where your counsel has indicated that you have been fully employed over the period of time between the commission of the offence and the plea hearing). On the date of the adjourned hearing on 14 March 2018, a receipt for one tenth of your victim’s lost income, namely, $1,500 restitution paid to your victim on 7 March 2018, was tendered as Exhibit “D1-6”. Your counsel stated that this amount came from your income protection account and was all that was left after your partner had packed up your home and moved to your mother’s house, after you had been remanded in custody on 14 March 2018. I take into account that this is, at least, a gesture of good will towards the victim.
As I have stated, I accept that you have some remorse. In this context I note that a forensic psychological assessment by Dr Matthew Barth (Exhibit “D1-4”), records you as being a psychologically unsophisticated person.
• You have had a background of disadvantage. Your parents were violent towards each other and you suffered physical abuse at the hands of your father. You endured multiple changes of address and schools, and, ultimately, you left school after completing Year 10. By that stage you were 18 years of age, having previously repeated a year in primary school.
Mr Barth considered that your abusive history and emotional instability had had a pervasive effect on your personality adjustment, in that physical abuse and neglect had resulted in you considering that, either you must assert your authority, or be exploited. He opined that you suffer noteworthy anger management issues, which could be related to anxiety resulting from childhood exposure to conflict. He stated that you had engaged in various impulsive and reckless behaviours by way of heavy substance abuse and aggressive behaviour in order to mask your own feelings of sadness, worthlessness and sense of emptiness. He considered that you suffer an Adjustment Disorder with mixed disturbance of emotions and conduct, part of which is attributable to the aftermath of your offending for which I must sentence you.
It was not sought to argue that any of the principles of R v Verdins [4] should apply in your case, particularly given that Dr Barth considered that you only narrowly failed to meet the DSM-V criteria for the diagnosis of a personality disorder. He considered that your personality adjustment is indicative of prominent features of borderline and antisocial personality disorders. Nevertheless, I take into account your disadvantaged background and the fact that this can have an enduring impact throughout life.
• Since the offending occurred, you have made some gains in terms of insight into your reasons for offending. I have already referred to Dr Barth’s assessment of you as being unsophisticated, and he describes you as having simplistic social reasoning.
In this context, it is to your credit that you have undertaken four group sessions of the 180-Program Anger Management Course, conducted by the Victorian Behaviour Change Centre between 4 and 25 October 2017. This is referred to in a letter from Sally Nichols, Program Manager, and the accompanying certificate, which comprise Exhibit “D1-2”.
In addition, a reference from your partner of four years, Ms Elishia Atta, states that you have embarked on counselling relating to your hurt and pain from childhood, which was something that she had been trying to have you do since you commenced a relationship together. (Part of Exhibit “D1-1”).
You attended your general practitioner, Dr Frank, in July 2017 for depression and anxiety, and he prepared a mental healthcare plan and referred you to a psychologist, Mr Adler. However, as Mr Adler was consulting with one of your co-accused, it was necessary for you to seek assistance elsewhere. Ultimately, you were referred to Francis Acquah, a specialised psychiatric nurse, who holds a doctorate of science, whom you saw on five occasions between 14 September and 2 December 2017.
Dr Acquah stated that, having undertaken the four day, eight hour anger management course, you now appear to understand how to respond to anger by ceasing to use violence as a way of dealing with your feelings. Also, since being remanded in custody, you have taken steps to undertake an anger management program. I accept that this shows some steps towards rehabilitation, but it is very early days and it seems that your trait of anger is well entrenched, judging from your first and subsequent appearances in the Children’s Court some eight years ago.
It is also of concern to this Court that you have a long history of drug and alcohol abuse, in particular, binge drinking. Indeed, your counsel stated that you usually consumed 24 full strength beers on weekends. You told police in your Record of Interview that you were so drunk on the night of your offending that you could not recall the full extent of the fight until you were shown the CCTV footage. Nevertheless, you made no attempt to address your substance abuse, at all, prior to the plea hearing, and it is only since being remanded in custody that you have taken steps to obtain a place in an alcoholic treatment course.
I here note that Dr Barth described you as having a significant alcohol dependence, and the severity of your drinking remains at a level which is physically hazardous. He assessed you as suffering an alcohol use disorder of a moderate to severe level such that extensive alcohol-related treatment is warranted.
• Notwithstanding your limited education and substance abuse, it seems that you have managed to achieve a relatively stable employment history as a concreter. This is certainly to your credit. The letter from your partner, Ms Atta, refers to your reliability in earning an income and assisting your parents with needs for your two younger siblings. A letter from your mother confirms this to be so, as she and your father have been struggling financially.
Your counsel stated that for some four or five years you have maintained long hours of work as a concreter. A reference from Veronica Roberts, the Chief Executive Officer of Nationwide Concrete Pumping, dated 11 February 2018 (part of Exhibit “D1-1”), states that you have worked full-time for that company for over a year, initially operating the pump but working your way up to driving trucks without supervision. She states that you are an asset to the company, and often clients specifically request you to work on their sites. Ms Roberts states that you fully disclosed your legal situation. She was shocked, but states that you have conducted yourself well and she admires your energy and enthusiasm for work. She states that she will have a full-time position available for you once you are at liberty to take it.
I accept this work history and support from your employer and Ms Atta and your mother are factors in your favour. However, given that you have not addressed your binge drinking, which Dr Barth noted would continue to the point where you become unconscious, and given that you were clearly intoxicated and in a state of frenzied, unrestrained anger at the time of offending, and that you have long-term anger management problems associated with prior offending and this offending, I am guarded about your prospects of rehabilitation. The references tendered on your behalf refer to you being a caring and giving person. It may be that if you can rehabilitate yourself from long term alcohol abuse and somehow learn to control your anger, the better side of your character will be able to assert itself. However, your rehabilitation in this regard has barely begun, and I view protection of the community as a relevant principle in sentencing you.
21 Mr Brown, the violence perpetrated by you and your cowardly associates upon your victim was of a gross kind. The CCTV footage shows you and, at least two and possibly three, other persons of similarly large and powerful build to yourself, punching, kicking and stomping upon your victim, who was already disabled and lying face-up on the floor. It makes for nauseating viewing, reminiscent of a scene from the film, “A Clockwork Orange”. You and the others with whom you acted in concert were merciless in your attack and literally smashed your victim’s face. The footage then shows you lifting the metal bar stool (which had been discarded by Mr Cavalieri) with both hands high above your head and bringing it forcefully down on your victim’s head. It is fortunate that injuries of even greater seriousness (such as brain injury) did not eventuate for your victim. Indeed, they may well have eventuated had you not been physically removed from your victim by security guards.
22 You are clearly a very strong person because the footage shows that two security guards tried to restrain you, but you struggled with them and tried to return to the attack. You were in such a violent frenzy that, even after being restrained and removed from the attack, you picked up a glass at the bar and threw it towards your victim. By this stage, he was well and truly motionless on the floor, bleeding from the face and unconscious. Even after this, as two security guards show you out the door, you are still forcefully resisting them.
23 I regard this as a serious example of the offence of intentionally causing serious injury. It was a very deliberate attack, as evidenced by you having walked behind your victim only a very short time before your totally unprovoked first punch. At various times, the CCTV footage shows discussions between members of your group. The gratuitous ferocity with which you and others pursued the attack against your victim and your brutal smashing of the stool down onto his upturned face, while he was already immobilised, show an intent to cause really serious injury with great violence. Your victim was on the floor, totally vulnerable, and you and your associates laid into him. He may well have been unconscious before you smashed his face using the metal stool as a weapon. Although the attack did not last long it was brutal, relentless and involved at least three people against the one victim.
24 The pain of the victim due to the multiple facial fractures, once he recovered consciousness, must have been immense. Exhibit “D” shows extensive bruising and swelling and a severely blacked left eye with suturing very close to the temple side of that eye. Your victim required two separate episodes of surgery and is yet to undergo revision surgery for scarring near the left eye, as depicted in Exhibit “G”. Clearly, he suffers ongoing psychological distress from your attack, as mentioned in his Victim Impact Statement.
25 In sentencing for such grotesque violence, the Court must denounce your conduct, emphasise general deterrence and impose appropriate punishment. A message must go out to the community that such senseless attacks, particularly when perpetrated by multiple offenders who kick and stomp upon the body and head of a disabled victim, will merit stern punishment. There is also a need for some emphasis upon specific deterrence in the light of your prior history involving four offences of violence and one offence of affray, although I do note a gap of some 3 years since you were last before a court prior to the subject offending. Clearly, you are not to be sentenced again for your prior offending, but in all the circumstances, there is only one appropriate sentence for the very serious attack upon your victim and that is an immediate custodial sentence of some magnitude.
26 In sentencing you on the charge of affray, I take into account that there is some overlap between it and the charge of intentionally causing serious injury. However, it is plain that you and your associates created a very frightening atmosphere, as the affray moved some distance from one area to another at the venue. It upset a number of other patrons, who were clearly very distressed by witnessing your hideous attack upon your victim. Indeed, the CCTV footage shows a number of females screaming and trying to pull the attackers off your victim. For this reason, although the principle of totality must be applied, there must be some cumulation.
27 On Charge 1, intentionally causing serious injury, you are convicted and sentenced to be imprisoned for a period of 7 years.
28 On Charge 3, affray, you are convicted and sentenced to be imprisoned for a period of 18 months.
29 I declare that 6 months of the sentence imposed on Charge 3 be served cumulatively upon the sentence imposed on Charge 1.
30 The total effective sentence is thus 7 ½ years’ imprisonment. I direct that you serve a period of 5 years’ imprisonment before becoming eligible for parole. I declare a period 37 days presentence detention to be reckoned as time already served under the sentences imposed this day.
31 Pursuant to s78(1) of the Confiscation Act 1997, I order forfeiture to the State of one red baseball cap and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
32 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 9 ½ years’ imprisonment with a non-parole period 7 ½ years.
33 Mr Cavilieri, you are presently aged 27 years, having been born on 16 November 1990. You come before the Court with no prior criminal history.
34 In a plea on your behalf by Mr Patton, the Court was told that, prior to your offending on 18 November 2016, you were a person of good character, as attested to in a reference from a long-term family friend, Melanie Brown, who describes you as being kind, well respected, loyal and mature (Exhibit “D2-5”).
35 In addition, the Court was asked to note that you had had developmental difficulties, as attested to by your mother in Exhibit “D2-6”. Your mother claims that you were diagnosed with pervasive developmental delay, ADHD and autism at the age of two years and three months, and that you attended a play group at an autistic school, and had two outreach sessions each week before you attended primary school. She stated that, as an adult, you had also experienced panic attacks and, following the death of several friends in a car accident in or about 2010, you suffered severe depression and post-traumatic stress symptoms, as well as beginning to exhibit autism behaviours, again, which required further treatment (Exhibit “D2-6”).
36 Tendered as Exhibit “D2-4”, were various reports and records from Dr Michael Welham, consultant child and adolescent psychiatrist. These reveal that he became involved when your mother sought a referral to him in May 2003, at which stage you were aged 12½ years and in Grade 6 at Yarrambat Primary School. Dr Welham records a history of you having been diagnosed at aged 5 years and 9 months with Autism, unpredictable behaviour and difficulty with change, as well as difficulty coping with groups of people. You had also been seen by a consultant paediatrician and treated with Lovan to assist you with anxiety. The Austin Crisis Assessment Summary in May 2003 noted you as having Higher Functioning Autism with Post-Traumatic Stress Disorder – the latter being related to a car accident and an incident at school in which a boy attempted to strangle you. There are references to you being bullied by a particular boy at school.
37 In June 2003, Dr Welham noted that you seemed happier after moving to live with your father, particularly as you were able to sleep in your own room with a television and a computer, and access to the internet. Mr Welham administered the Schopler Childhood Autism Rating Scale on 9 July 2003 and noted that you achieved a score of 31 points, which is just above the threshold for a diagnosis of Autism. He considered that you had made major progress since your initial diagnosis, but did exhibit deficient concerns in the areas of social interaction, communication and language, and lack of imaginative play, sufficient to warrant a diagnosis of Pervasive Developmental Disorder Autism. He noted the diminution in your anxiety symptoms since changing to live with your father, and suggested that the Lovan medication be reviewed and maybe extended to cover your transition to secondary school in early 2004. It seems that Dr Welham noted, in 2005, that you were very anxious, at times, and your fine motor skills were such that you could not manage your shoelaces. By 2007, he noted that you were doing quite well in Year 10 . You were continuing to have 20 milligrams of Lovan, but he had discussed weaning you off it. In 2008, Dr Welham noted that you had difficulty comprehending social situations and appreciating social requirements beyond a black and white interpretation. He wrote a letter in support of waiver of a fine for you using public transport with a student concession ticket without the appropriate student concession card.
38 It seems that Dr Welham last saw you on 1 September 2008 and, in a letter dated 23 June 2010, to your general practitioner, Dr Robert Smith, Dr Welham stated that your earlier diagnosis of Autism was questionable, but you were certainly anxious and lacked social judgement.
39 Also tendered on the plea were two reports from Dr Simon Croke, consultant psychiatrist, dated 8 and 23 February 2018 (Exhibit “D2-2”). Dr Croke had first seen you on 30 June 2011 and, thereafter, intermittently, sometimes on a monthly basis, and at other times, with several months between appointments. He noted that, prior to him seeing you, you had been diagnosed with Autism in childhood and Intermittent Explosive Disorder (a propensity to sudden outburst of extreme anger) in young adulthood. He considered that during the period in which you had seen him, the angry outbursts had reduced significantly and, by the time of the offending in 2016, he was not aware of any significant episodes having occurred for a period of years.
40 In his second report, Dr Croke stated that his impression of you as an adult is that you do not meet the full criteria for a full diagnosis of Autistic Disorder or Asperger’s Syndrome, but you do present with some “spectrum” traits. He noted that you had an active network of friends and, at that stage, a girlfriend, which would not be consistent with social impairment associated with a pronounced autistic or Asperger’s state, but he did say that you presented with some emotional and social restriction during interviews. He considered that you were in the low-average range intellectually. He noted that, in 2010, a car accident had caused the death of five people whom you knew, and you then became anxious about the welfare of people around you. In 2015, you had become particularly distressed following the break-up with your girlfriend, which lead to a presentation to the local Emergency Department, and he noted that there had been other presentations to hospital and emergency psychiatric services with acute self-harm ideation. However, he considered, as mentioned in his first report, that by the date of your offending behaviour, you had largely recovered from the diagnosis of Major Depressive Disorder which he made following the car accident involving the death of your friends and, although you suffered some anxiety, you gradually returned to a more normal level of social functioning.
41 Dr Croke considered that some of your “spectrum” traits may possibly be relevant to your offending, such as misreading of social situations and anxiety about the safety of friends, making it more likely that you would react impulsively or inappropriately when faced with conflict. However, he noted that you had been drinking heavily and possibly also taking illicit drugs, which were likely to contribute significantly to poor judgement and impulsive behaviour. Indeed, in his first report, he had stated:

42 On your behalf, Mr Patton did not submit that any of the medical or psychiatric material enlivened the principles in R v Verdins & Ors [5]. However, he asked the Court to note that your “spectrum traits” were a possible contributor to your conduct on the night, insofar as you had anxiety about the safety of your friends and difficulty reading situations, and a propensity to impulsive behaviour.
43 I am not satisfied on the balance of probabilities that any of these “spectrum traits” had a direct causative link with your offending on this night. The fact of the matter is that at least three of your associates were kicking and punching the immobilised victim who was alone on the floor, and defenceless. In my view,tThere is no way that you could have misread the situation as interpreting there to be a danger to your friends in that context. The victim’s friend, Mr Dragesic, appears in the CCTV footage to have been something of a peacemaker between the victim and other members of your group, who had some issue with him. Mr Dragesic is the person who appears to have encouraged Mr Filipovic to remove himself from the pool area where you and your friends were gathered and to go to the bar where he was positioned, talking to the man with the satchel, for quite some time before the attack on him began. Whilst there, you and other members of your group approached him. Mr Filipovic did not initiate contact with any of your group. He went to aid the defenceless victim, who was being attacked in a vicious and cowardly fashion by Mr Brown, and at least two others of your group. It was a most extraordinary, cowardly act by you to have picked up a stool and striking Mr Dragesic with it, thereby depriving the victim of any assistance, and leaving him wide open to continued attack from Mr Brown and the others of your group, who were behaving in a most brutal and thuggish fashion. I am satisfied beyond reasonable doubt that your behaviour on this night was triggered by the fact that, as you told police in your Record of Interview, you were intoxicated and had also taken five Ecstasy tablets.
44 Nevertheless, it is plain that you are someone who has had psychological troubles from an early age, and I take the medical and psychological factors into account as part of your relevant personal circumstances. Your counsel stated that, after completing Year 12 in 2008 you obtained part-time employment at McDonalds, and later at VicRoads. However, following the 2010 motor vehicle accident, in which a number of your close friends were killed, you have been in receipt of a Disability Support Pension for Post-Traumatic Stress Disorder and Anxiety.
45 I must say that the basis for the ongoing receipt of a Disability Support Pension remains unclear to me, given that your treating psychiatrist, Dr Croke, stated that you had largely recovered from the Major Depressive Disorder, which he diagnosed following the death of your friends, prior to your offending in 2016 and, also, he had not been aware of any angry outbursts for a period of years prior to your offending. Moreover, your counsel indicated that there was no evidence that you had been prescribed Lovan for Anxiety since it was last mentioned by your treating child and adolescent psychiatrist, Dr Welham, who ceased to treat you on 1 September 2008. Given these factors, and that the Court was told that you are a keen tennis player who trains and competes socially, and maintains a small but strong social circle of friends, it is difficult to know why you have not worked for the last ten years.
46 It would appear that you had an ongoing significant relationship with a girlfriend of some 6 years, up until sometime in late 2015 or early 2016. Apparently, following the end of that relationship, you began to drink heavily and, on the night of your offending, as I have said, you were significantly intoxicated and had also taken five Ecstasy tablets with alcohol. You told police that you had no independent memory of the events and were unable to explain why you had become involved in the fight.
47 It is not suggested by the prosecution that you were involved in starting this attack upon your victim or the affray. Indeed, the CCTV footage shows you behind Mr Brown and you appear to fleetingly have a restraining hand upon him before he suddenly punches Mr Filipovic. You do not personally join in the physical assault on the victim, at all, as the affray starts and Mr Karas and one other member of your group each punch the victim knocking him to the floor. Certainly, you are not with Mr Brown and the other unidentified assailants who punch, kick and stomp at the victim’s head and body, leaving him incapacitated on the floor. Like your two co-accused, you are a powerful build. It is extraordinary that you should have deemed it appropriate to interfere by, first, attempting to pull Mr Dragisic away, and, then, grabbing the bar stool and throwing it down onto Mr Dragisic, so that he was unable to assist the victim. You then walked away and played no role in the assault which ensued. However, you had had clearly made it possible for Mr Brown to continue his attack, although it is not put that you in any way acted in concert with him or the other attackers who struck the victim or with Mr Brown when he picked up the bar stool and forcefully assaulted the victim’s head with it.
48 I must say, you are fortunate that you were not charged with an assault upon Mr Dragisic. I am to sentence you solely for the charge of intentionally causing injury by making it possible for Mr Brown to continue to attack the victim. Your behaviour in exposing the victim to further attack by Mr Brown was callous and cowardly. However, at least, you did not join in personally with the physical beating of Mr Filipovic.
49 I have wrestled with the sentence to be imposed upon you. The prosecution has submitted that only a sentence containing some immediate custodial component will suffice to reflect the gravity of your involvement. On the other hand, your counsel has urged that this offending be regarded as a bad error of judgment by you, whilst intoxicated and affected by ecstasy. He submitted submitted that your involvement was fleeting, before you completely withdrew from the vicious attack by Brown and others of your group. Your counsel submitted that the Court should be satisfied that this offending was out of character for you and, given your background of anxiety and other psychological problems, including your ability to misread social situations, you would be very vulnerable in a prison environment.
50 After anxious consideration, I have, but only just, determined that I should favour the submission from your counsel as the appropriate course. Whatever my own personal view about the appropriateness or otherwise of your having not worked for the last 10 years, it is plain that you have a longstanding history of psychological vulnerability. This included being bullied at school, and being an adolescent who was more at ease with computers and television sets than with social interaction with your peers and, once you did have a coterie of friends, suffering severe depression when a significant number of them were killed in a car accident in 2010 rendering it necessary for you to engage with psychiatric treatment as an adult.
51 I accept the material before me that you are generally a gentle person who avoids conflict. I also take into account that your only significant intimate relationship had come to an end after six years, not long before this offending occurred and this meant the removal of a significant support structure in your life. Further, I accept that you have been deeply troubled by your involvement in this offending, such that you have again sought psychological help. The reference from Ms Melanie Brown states that you discussed these charges with her at length on multiple occasions and that you have shown great remorse and you continue to struggle in your day to day life and are often visibly distressed and withdrawn. You spoke to her seeking professional support to assist you with your mental state and, then, from 3 January 2017, you began to consult with Mr John Alder, counselling psychologist. In his report dated 9 February 2018 (Exhibit “D2-1”), Mr Alder states that you have suffered depression, anxiety and stress arising from your offending behaviour. He states that the earlier sessions with him were concerned with your shock at your angry outburst experienced on the night of the offence, which you reported was out of character for you and, indeed, you had made explicit attempts to avoid physical confrontation by advising security staff of the emerging verbal conflict. I here interpolate that it is apparent from the CCTV footage that you were speaking with a security guard and motioning to the victim at the bar prior to any conflict breaking out and prior to you standing at the bar with the victim. As I have said the prosecution does not contend that you were aggressive to the victim at that stage. Indeed, a security guard was in close proximity behind your victim at the time that this was occurring. Mr Alder’s report states that you had difficulty comprehending the emergence of the conflict and your engagement in the violence, and were relieved, on viewing the CCTV footage, to find that you were not part of the group that stomped and kicked on the victim’s head and body. Mr Alder stated that you saw him on a total of six occasions up to 16 August 2017.
52 I accept that the concern expressed to Mr Alder is consistent with you telling police that you felt “pretty sick” watching the CCTV footage and now understood why you had had to see your psychiatrist and a psychologist following the incident. You told police that you had asked a security guard to request the victim to leave the bar in order to diffuse the tension and, had you not mixed alcohol with ecstasy that night (which made you unable to remember the exact circumstances of the incident), you would have had nothing to do with it. You also told police that you felt upset about the victim’s injuries. This is consistent with you generally being a decent person for whom this sought of conduct is out of character and I accept that you are genuinely remorseful.
53 In all of the circumstances, I consider that you were on the edge of the affray and, in what would appear to be an impulsive gesture, you joined in fleetingly to get Mr Dragisic out of the way and then absented yourself from any further involvement in the abhorrent assault upon the victim. Although your depriving the victim of Mr Dragisic’s support and thus enabling Mr Brown to assault the victim in the serious way that he did with the bar stool, is a significant criminal act, it is nowhere near the hideously inhumane way in which Mr Brown and others of your group behaved towards the victim. Unlike Mr Brown and, indeed, Mr Karas, you have no prior criminal history. I consider that your early and remorseful pleas of guilty, coupled with your genuine concern to try to understand how you became involved in this behaviour, which is aberrant for you, mean that I cannot be satisfied that the sentence of last resort, imprisonment, is the only appropriate sentence, indeed I assess your prospects of rehabilitation as being good.
54 Accordingly, I consider it appropriate to sentence you to a reasonably lengthy Community Correction Order and, as you have been assessed as suitable for such an order and have indicated to Community Corrections officers that there is no reason why you would be unable to participate in unpaid community work, I consider that to be an appropriate punitive element of the order, coupled with specific conditions concerning supervision and drug and alcohol and mental health treatment and programs.
55 On Charge 2, intentionally causing injury, you are convicted and sentenced to undertake a Community Correction Order for a period of 4 years. The following terms are attached to the Community Correction Order.
(a) You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(b) You must comply with any obligation or requirement prescribed by the regulations;
(c) You must report to and receive visits from the Secretary or his delegate during the period of the order;
(d) You must report to the Community Corrections Centre specified in the order within two clear working days after the order comes into force;
(e) You must notify the Secretary of any change of address or employment within two clear working days after the change;
(f) You must not leave Victoria except with the Secretary’s permission, either generally or in relation to a particular case;
(g) You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
56 In addition, the following conditions apply:

(e) any other treatment and rehabilitation including personal development and vocational programs to assist with your rehabilitation;

57 On Charge 3, affray, you are convicted and ordered to undertake a Community Correction Order for a period of 1 year with the standard terms for a Community Correction Order and all conditions applying to the Community Correction Order for the charge of intentionally causing injury, save for the unpaid community work condition. I direct that this order be served concurrently with the order imposed on Charge 2.
58 Mr Cavalieri I cannot make a Community Correction Order unless you agree to it. Do you consent to an order with the terms and conditions I have read out?
Mr Cavalieri: Yes, Your Honour.
59 You must be aware that if you do not comply with the Community Corrections Order, then a breach of it is another criminal offence, which is punishable by a maximum of 3 months imprisonment. In addition, a breach by you may result in me cancelling the Community Corrections order and resentencing you to a term of imprisonment on the original charges.
60 Pursuant to s464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with sub-division 30A Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I further order that pursuant to s464ZF(9) for the purpose of undergoing the said procedure you must report to the officer in charge of the Epping Police Station at 78 High Street, Epping during the period of four weeks commencing 28 days after the day of sentence, or once any instituted conviction appeal is finally determined the conviction for the forensic sample offence is upheld, whichever is the later. I consider that this order is warranted by reason of the seriousness of the circumstances of the offending.
61 Mr Cavalieri, this procedure involves you cooperating by putting a cotton swab in your mouth to ensure that a sample of saliva is taken. In the event that you do not consent to the taking of such a sample, then police may use reasonable force to enable that forensic procedure to be conducted.
62 Pursuant to 6AAA of the Sentencing Act 1991 that, had it not been for your pleas of guilty the total effective sentence imposed would have been 4 ½ years imprisonment with a non-parole period of 3 years.
63 Mr Karas, you are presently aged 27 years, having been born on 13 February 1991. You come before the court with two prior court appearances. On 16 September 2010 at Heidelberg Magistrates’ Court, you were dealt with for charges of recklessly causing injury, driving in breach of a permit condition, possessing a dangerous article in a public place, and using cannabis. Without conviction, you were placed on a Community Based Order for a period of 12 months. Tendered as Exhibit “K” by the prosecution was a summary of your offending conduct relating to the charges of recklessly causing injury and possessing a dangerous article in public.
64 On 3 October 2009, after two persons who were uninvited guests at an 18th birthday party were refused admission, these two persons re-attended the address of the party in the early hours of 4 October 2009 in a group of approximately 20 people. Police, who had previously attended the scene, re-attended and heard loud banging and the smashing of glass coming from the vicinity of the garage at the address. A number of the group, of which you were a part, began to kick the garage roller door. One of the people who was formerly refused admission to the party struck a guest to the chest. The other person who had been refused admission was armed with a broken hockey stick, and he then struck the same guest to the left side of the head with it, rendering him unconscious. There was other antisocial conduct engaged in by these people and the group, and police arrested you, as you were armed with a broken-off garden stake which was approximately 30 centimetres in length. You lied to police, claiming that you had attended the address by yourself and had just picked up the garden stake there “to muck around with”.
65 On a subsequent occasion on 4 November 2010, you appeared at Heidelberg Magistrates’ Court charged with possessing cannabis. Without conviction, the matter was adjourned for a period of six months.
66 In a plea on your behalf, Mr Nikakis urged the court to find that, after having been drinking alcohol, you made a spur of the moment decision to become involved, in a very limited way, by delivering one punch to the victim and then retreating immediately and taking no further part in the action. Having viewed the CCTV footage, I do not know that I can be satisfied, on the balance of probabilities, that this was a spur of the moment decision to be involved, as there had been much coming and going and consultation between members of your group before the gratuitous first punch thrown by Mr Brown. While this occurred, you are visible, along with some other members of your group, in the background and, as soon as the victim retaliates by punching Mr Brown, you quickly move in and deliver a forceful punch to the victim’s face which knocks him backwards. This was followed up by another of your cowardly group punching your victim from behind, which knocked him to the floor.
67 The footage shows that you do not actually retreat immediately but, rather, walk away and then return to watch and go forward and back on the edge of the fighting as it moves from the bar area to an adjacent area at the venue. It is after you go forward and back on a couple of occasions that you then exit to the right on the footage and are not seen again. However, I accept that there is no evidence that you were involved in attacking your victim after that one punch and you were not involved in the appalling conduct of kicking and stomping on his body and face, engaged in by Mr Brown and other unknown persons in your group.
68 Nevertheless, you are fortunate not to have been charged with assault as a consequence of the aggressive punch which you delivered to the victim. Like Mr Brown and Mr Cavalieri, and other members of your group, you are a large and powerful build. Your behaviour this night was thuggish, and by joining in as a second attacker of the victim after Mr Brown’s initial punch, you contributed to escalation of the incident into a violent affray.
69 It is of concern that this is the second occasion in which you have been involved in a situation of highly antisocial mob violence, albeit that the last occasion was now quite some years ago, the offence having been committed in 2009.
70 When interviewed by police on 6 April 2017, you gave a “no comment” record of interview, which is, of course, your legal entitlement. After being charged, you entered an early plea of guilty, which the prosecution accepts has significant utilitarian benefit and has facilitated the course of justice. Like your co-accused, the timing of your plea spared the time and cost of a contested committal and trial, as well as sparing your victim and other witnesses having to give evidence.
71 Mr Nikakis stated that you acknowledge that you were drunk and made a bad decision to be involved, but should be given credit for your positive decision to leave the scene after you threw the punch at the victim and the violence escalated. I accept that you should be given such credit.
72 The court was told that after leaving school, you completed a couple of years of a plumbing apprenticeship and then worked in the security industry for a while, and then decided to return to complete your plumbing apprenticeship, which you did in 2015 and 2016.
73 Tendered as Exhibit “D3-2” is a reference from your current employer, Mr Evan Sulaiman, of Plumboss Plumbing Melbourne. Mr Sulaiman stated that you completed the last year of your apprenticeship with him and he has found you to be a knowledgeable, hardworking, punctual and extremely honest person. He considers that your behaviour in this offending is out of character for you – “a one time mistake”. Clearly, Mr Sulaiman was not appraised of your earlier criminal conduct which resulted in you appearing before the Heidelberg Magistrates’ Court on 16 September 2010.
74 Three other references were tendered. One from Ranjit Singh, who worked with you as a security guard for approximately three years from 2013 onwards. He states that you show the utmost respect towards others, that you are remorseful, and he does not believe that it is in your character to be violent; another reference, from Calvin Robinson, states that he has known you for over nine years and he finds you to be ambitious, loyal and kind-hearted. He also states that you are remorseful and embarrassed by this criminal offending as you are not a violent person, but usually avoid conflict and are the one to break up a fight. He says you come from a good family, have worked hard to finish your plumbing apprenticeship, and are a respectful, kind and polite person.
75 A reference from another person, Syed Faisal Ashraf, (Exhibit “D3-3”) states that he has known you since 2008, when you were a teenager who would visit the local shopping centre, and he always regarded you as being the quiet member of your group of friends, who would calm a situation if it became rowdy. He later worked alongside you as a security guard and praised your work, particularly for bridging the generation gap when it came to security issues with a number of local youths who had dependency issues and challenging behaviours. He says he has never seen you show any violent or confrontational behaviour.
76 It would appear that none of the authors of the references are aware of your prior criminal history or, if they are, they do not refer to it. Indeed, it is surprising that someone who has been before a court on a charge of assault should have been permitted to work as a security guard. Having been trained as a security guard, and worked for some years in that capacity, it is all the more shameful that you should have become involved in this incident, instead of trying to diffuse it. Nevertheless, it is to your credit that you have persevered and worked hard to complete your plumbing apprenticeship. It is plain from your references that you do have some positive aspects to your character which bode well for your rehabilitation.
77 Mr Nikakis urged the court to make a non-conviction disposition on your behalf. In fairness, this submission was made before your prior criminal history coming to light. It came to light because I asked that you be assessed for a Community Correction Order, and the assessing officer made reference to you having previously successfully completed a Community Correction Order in 2010. You were assessed as suitable for another Community Correction Order, noted to be a medium risk of re-offending, and a supervision condition was recommended along with unpaid community work and alcohol treatment conditions.
78 Mr Karas, as I have said, having worked in the security area, you instinctively should have been trying to diffuse rather than becoming involved in this incident. You were drawn into mob violence back in 2009 and you should have grown up sufficiently to know how to behave better than you did on the night of this offending. A number of referees refer to you being remorseful. I must say I have no way of gauging whether you are or you are not.
79 Your counsel stated that when interviewed by police you were shown still photographs which had been taken from the CCTV footage, but not the CCTV footage itself. Once you saw the CCTV footage you determined to plead guilty and did so in September 2016, without contesting a committal.
80 In all the circumstances, and noting that the prosecution takes no issue with a disposition of a Community Correction Order in your case, I consider it appropriate to make a Community Correction Order. However, Mr Karas, it is appalling that people at a hotel, who were there to enjoy themselves should have had to put up with this affray. You played a part in it occurring and escalating. In sentencing, the court must emphasise that this conduct will not be tolerated. Let it be known to the community that big mobs of men who go out drinking together and swagger around throwing their weight around will not be tolerated and will be appropriately punished.
81 I make it plain, Mr Karas, that there will be a punitive element to this order, namely that you undertake unpaid community work. I note that you are employed full-time as a plumber. You must ensure that you give priority to your obligations under the Community Correction Order, otherwise, proceedings for breaching it will be brought against you. If you are back before me for failing to properly engage with the Office of Corrections, then I may well have to consider an alternative disposition, even imprisonment. Bear in mind that breaching a Community Corrections Order, of itself is an offence, which carries a maximum sentence of 3 months imprisonment.
82 It is possible to combine full-time employment with your commitments under a Community Correction Order. You must ensure that you organise yourself to do so.
83 On one charge of affray, you are convicted and sentenced to undertake a Community Correction Order for a period of three years.
84 The following terms are attached to the Community Correction Order:
(a) You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(b) You must comply with any obligation or requirement prescribed by the regulations;
(c) You must report to and receive visits from the Secretary or his delegate during the period of the order;
(d) You must report to the Community Corrections Centre specified in the order within two clear working days after the order comes into force;
(e) You must notify the Secretary of any change of address or employment within two clear working days after the change;
(f) You must not leave Victoria except with the Secretary’s permission, either generally or in relation to a particular case;
(g) You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
85 In addition, the following conditions apply:

86 Mr Karas, I am not able to make a Community Correction Order unless you consent. Do you consent to an order with the terms and conditions that I have just read out?
Mr Karas: Yes, Your Honour.
87 You need to be aware, Mr Karas, that if you breach the Community Correction Order by non-compliance or further offending during the term of three years of the order, then that, in itself, constitutes an offence which carries a maximum penalty of three months’ imprisonment. As I have said, in addition, you will be brought back before me and it may well be, that as a consequence of the breach, I will make an order cancelling the Community Correction Order and make an alternative disposition on the charge of affray, which could include a term of imprisonment.
88 Pursuant to s464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with sub-division 30A Part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.
89 I further order that pursuant to s464ZF(9) of the Crimes Act, for the purpose of undergoing the said procedure, you are to report to the officer in charge of the Mill Park Police Station at 151 Centenary Drive, Mill Park during the period of four weeks commencing 28 days after the day of sentence or once any instituted conviction appeal is finally determined and the conviction for the forensic sample offence is upheld, whichever is the later.
90 I consider that the seriousness of the circumstances of your offending justify the making of this order.
91 Mr Karas, you need to understand that if you do not consent to the taking of a sample of saliva by inserting a cotton swab into your cheek under the supervision of an authorised member of the police force, then police may use reasonable force to enable that forensic procedure to be conducted.
92 Pursuant to s6AAA of the Sentencing Act 1991, I state that had it not been for your plea of guilty, the sentence imposed would have been 12 months’ imprisonment with a non-parole period of six months.

^[2] Answer to question 254 of the record of interview, page 143 of the depositions

^[3] Answer to questions 255-259 of the record of interview, pages 143-144 of the depositions

County Court of Victoria