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DPP v Suliman [2025] VCC 38 (30 January 2025)

Last Updated: 3 February 2025

CR-23-01799

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REASONS FOR SENTENCE
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Subject: Recklessly cause serious injury & related offending. Punch with clenched fist. Catastrophic serious injury. Plea of guilty, limited prior history.

Catchwords:

Legislation Cited:

Cases Cited:

Sentence: TES 6 years and 6 months imprisonment; NPP 4 years and 6 months.

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HIS HONOUR:

1. Mr Suliman, you have pleaded guilty to four charges each of which occurred on 30 October 2022, arising out of the same incident: Charge 1 of causing serious injury recklessly to Kevin Vidovic; Charge 2 of affray; Charge 3 of assault of Michael Rahmani; and Charge 4 of assault of Semih Senvardar.
2. Charge 1 of recklessly causing serious injury has a maximum penalty of 15 years' imprisonment and the remaining charges each have a maximum penalty of five years.
3. Tendered on the hearing of your matter was a prosecution summary outlining the circumstances of your offending. Having regard to this, I will summarise them in briefer fashion.
4. At around 10.00 pm on 29 October 2022, you drove to the Soho Restaurant at Riverside Quay in Southbank with a co-offender, Khalid Haddara. Whilst there, you met up with another unnamed male.
5. Throughout the course of the evening, various interactions took place which are not necessary to recount for the purpose of these sentencing reasons.
6. At about 12.30 am on 30 October, the restaurant closed and patrons were leaving the venue going out onto Southbank Promenade.
7. Your victims, Kevin Vidovic, Michael Rahmani and Semih Senvardar, had also attended the restaurant on the same night and were in the process of leaving.
8. As Mr Rahmani walked out of the restaurant, he brushed shoulders with an unknown male, Mr Rahmani apologised and continued outside. The unknown male shouted at him and Mr Rahmani asked him to calm down and stretched out his hand to shake. A verbal argument then commenced between yourself, Mr Haddara and the unknown male. Mr Senvardar tried to diffuse the situation and Mr Vidovic and a female patron tried to separate the parties.
9. You, Mr Suliman, struck Mr Rahmani and a fight started. This was captured on CCTV footage, which was played as part of the opening, as well as mobile phone footage from a bystander in the vicinity.
10. Mr Vidovic saw his friend being assaulted and ran towards the group. You, Mr Suliman, struck Mr Senvardar. Punches were being thrown as well as pushing and yelling. Mr Rahmani can be seen covering his head trying to protect himself. Mr Senvardar can be seen trying to pull Mr Rahmani away from you. The CCTV footage depicts you, Mr Suliman, punching Mr Rahmani to the head, and Mr Rahmani stumbling backwards.
11. Mr Haddara then pulled Mr Rahmani's denim jacket, which caused him to lean forward. Whilst Mr Rahmani was in this position, you, Mr Suliman, punched Mr Rahmani to the head with an uppercut, with a significant degree of force. You aimed a second uppercut but missed. Mr Haddara then pulled Mr Rahmani's denim jacket over his head, and Mr Haddara kicked out at Mr Rahmani while he was bent over, however, his kick missed.
12. Mr Suliman, you can then be seen covering your head with a hoodie and an unknown male can be seen attempting to separate Mr Haddara away from Mr Rahmani, however, he would not let go.
13. Efforts were made to try and diffuse the situation and separate the parties. A female patron, Ms Nikoloski, was hit to the mouth and knocked to the ground as part of this process. She states that this is when Mr Vidovic tried to intervene, and she describes the fight as 'disgusting and vicious'. Other bystanders were in the vicinity of the fighting.
14. Whilst Mr Haddara still had hold of Mr Rahmani, he swung a punch but missed. Mr Vidovic observed this assault and rushed toward Mr Rahmani. Mr Vidovic grabbed Mr Haddara around the waist from behind and got him off Mr Rahmani. Mr Vidovic kicked Mr Haddara, striking his right thigh and caused Mr Haddara to stumble backwards into an outdoor restaurant umbrella. Mr Vidovic can be seen motioning with his hands at Mr Haddara. Haddara regained his stance and Mr Vidovic kicked at him again. Mr Haddara attempted to punch Mr Vidovic but missed. Mr Haddara continued toward Mr Vidovic who was moving backwards and had both arms extended and pushed Mr Haddara. An unknown male tried to separate them at this stage. Mr Haddara then moved forward and Mr Vidovic raised his leg toward Haddara, creating some distance between them.
15. While Mr Vidovic was facing Mr Haddara, you, Mr Suliman, positioned yourself behind Mr Vidovic while Mr Vidovic continued to move backwards while facing Mr Haddara. You, Mr Suliman, punched Mr Vidovic, striking him with force to the back of his head. Mr Haddara then swung a punch at Mr Vidovic, however, missed him. Mr Vidovic stumbled backwards and whilst you, Mr Suliman, were positioned to the left of Mr Vidovic, you leaned forward and punched Mr Vidovic to the face. This was a forceful blow and Mr Vidovic fell backwards and was unable to brace his fall. His arms were in mid-air as he fell. The back of his head then hit a concrete pavement and Mr Vidovic's head is noted to have bounced and hit the pavement again.
16. Witnesses describe hearing the loud sound of Mr Vidovic's head hitting the concrete. Ms Nikoloski states:

As soon as he punched him I witnessed Kevin basically turn white and he fell directly back onto the concrete. You can tell Kevin was probably unconscious before he hit the ground, he fell like a matchstick, his knees didn’t even buckle or bend.

17. You, Mr Suliman, left Mr Vidovic on the ground and then moved towards Mr Senvardar who raised his arms to create some distance between you. You can be seen squaring off against Mr Rahmani before he moves away.
18. You, Mr Suliman, Mr Haddara and the unknown male then depart the scene.
19. Mr Vidovic was described as lying motionless and unresponsive, bleeding from his ear and mouth. Mr Vidovic was conveyed to the Alfred Hospital for emergency treatment with life threatening injuries. Emergency specialist neurosurgery was undertaken on Mr Vidovic.
20. On 30 October, he was described by medical personnel as:

sedated and intubated and in a critical condition in ICU. He is still being assessed and his prognosis is questionable at this time.

21. Mr Vidovic sustained a severe traumatic brain injury.
22. Alfred Health reported on 13 January 2023 that:

Mr Vidovic has suffered an extremely severe traumatic brain injury. He is gradually progressing to consciousness. He is currently severely impaired requiring full nursing care to fulfil his basic needs. He is currently unable to communicate in any meaningful fashion. It is likely he will remain severely impaired and be unable to live without a high level of physical and cognitive support however his condition continues to change. He will require prolonged rehabilitation.

23. A report from the Victorian Institute of Forensic Medicine states that Mr Vidovic has severe brain damage and impairment. In greater detail, the report states:

There was evidence of blunt trauma to the head resulting in catastrophic injury constellation of skull fractures and severe brain damage. A punch to the head and an additional subsequent head strike on the hard concrete ground are feasible mechanisms. It is possible for a hard punch to fracture the temporal bone and cause brain injury and intracranial bleeding. The punch stunning the brain could have had the effect of preventing Mr Vidovic from bracing himself and breaking the fall so that an unprotected head strike on the hard ground occurred. It is not possible to say which particular skull fractures or intracranial bleeds were the result of a punch, and which were the result of a fall. The injuries were so severe that Mr Vidovic required long-term total care due to being unable to perform the most trivial body movements as late as January 2023. The clinical features and medical findings indicate that Mr Vidovic is likely to have a short life expectancy or a slow, incomplete recovery taking many years without ever being fully functional again.^[1]

24. As of December 2022, Mr Vidovic was unable to speak, his eyes were fixed to the right. He had nil eye tracking. Whilst able to hear in his right ear, his hearing in the left ear was difficult to assess and he required total assistance for all activities of daily living.
25. Mr Rahmani was treated by the Alfred Hospital. He sustained multiple jaw fractures, a severely displaced left lower jawbone, nasal bone fractures on both sides of his nose that required specialist maxillofacial surgery requiring internal fixation. He also lost a tooth.
26. Mr Senvardar sustained a broken nose and was also treated at the Alfred.
27. On 4 November 2022, police executed a number of search warrants and you were arrested. When interviewed, you answered 'no comment' to investigators questions.
28. Tendered on the hearing of your matter were a number of victim impact statements. I will have regard to the relevant and admissible portions of these.
29. In a victim impact statement on behalf of Mr Vidovic's family written by his brother Ivan, amongst other things he states that your actions have:

not only altered Kevin's life irreversibly but have also left an indelible mark on our family, redefining our existence and imposing a burden that is both tangible and intangible.

He speaks of the family having been handed a life sentence, stating:

Kevin's disabilities are profound, encompassing an inability to eat as he relies on a surgically inserted tube for sustenance. His gaze, once vibrant now seems to blankly stare into the void.

He describes the family as:

now completely drained, financially, emotionally, and physically. We are all dealing with our grief in silence, and it has become increasingly difficult to connect with one another or with others. We have fallen into a routine, focused on caring for Kevin, with our main goal being to remain sane amidst the immense emotional and physical strain we endure each day ...

30. In addition, photographs and a video were shown of Mr Vidovic displaying his parlous state.
31. Both the victim impact statements of Mr Senvardar and Rahmani make reference to the significant consequences of your actions and their grief at the condition of their friend, Mr Vidovic.
32. The charges to which you have pleaded guilty demonstrate a degree of factual overlap, and to avoid doubly punishing you I will moderate the sentence I impose on the charge of affray.
33. The charge of affray encompasses all of the fighting that you engaged in given that bystanders were present at the time at the area of Southbank where this incident took place. The sentence I impose on this charge is directed toward your contribution to the seriousness of the attack occasioned to Mr Vidovic and his friends, Rahmani and Senvardar, and the terror caused to those in the vicinity. This is distinct from the specific acts underpinning the other charges which you face.
34. The respective assaults of each of Mr Rahmani and Mr Senvardar encompass your application of force toward them. You were aggressive and in particular heavily involved in the fighting concerning Mr Rahmani, initially striking him and later on when Haddara had hold of his jacket delivering a forceful uppercut to Rahmani
35. Yours is offending which evolved as opposed to being premeditated and planned, and whilst you did not resort to the use of a weapon and none of the offences to which you have pleaded guilty involve you intending to cause serious injury to Mr Vidovic and injuries to Mr Rahmani and Mr Senvardar, nonetheless yours is self-evidently serious offending.
36. The charge of recklessly causing serious injury to Mr Vidovic involves the two blows with a clenched fist that you delivered to him, the initial punch to the back of his head and the second punch to his face as he was walking backwards, which saw him brought to the ground. As appears on the CCTV, he was backing away when you were to the side of him. I infer to the requisite standard that he did not see the punch coming given where you were positioned and the manner in which you delivered it, in light of the fact that he did not take any defensive steps. Essentially he was defenceless. After this forceful blow was delivered, as I have earlier recounted Mr Vidovic did not brace his fall in any manner and simply hit the concrete footpath. At the time you struck the blows to him, Mr Vidovic did not present a threat to you. At the time of your first blow Mr Vidovic was interacting with another who was engaged in unlawful fighting, and at the time of the second blow he was not presenting as a threat to you and was backing away.
37. Mr Vidovic has suffered catastrophic injury as a result. He requires full time nursing care and has lost the ability to amongst other things speak and feed himself. The impact on his family is ongoing and profound.
38. So far as the charge of recklessly causing serious injury is concerned, your guilty plea admits that you were aware of the probability that serious injury would result and notwithstanding this engaged in the relevant conduct. It does not involve foresight of the specific serious injury which Mr Vidovic sustained, nor as I have said earlier intending to cause a serious injury.
39. Whilst foresight of the specific serious injury or injuries caused is not an element of that offence, the actual harm caused to Mr Vidovic including his significant serious physical injuries, is a matter that I must take into account in sentencing you under the Sentencing Act.^[2]
40. The assessment of the seriousness of a particular instance of recklessly causing serious injury will involve considering both the degree of probability that serious injury will result, and the degree of seriousness of the probable injury. In Ashdown^[3], Maxwell P, observed:

Of course, a clenched fist can be a lethal weapon when used to deliver a hard punch to a person's head.^[4]

41. Whilst you did not resort to the use of a weapon, you struck Mr Vidovic while he was vulnerable on two occasions. Once from behind and on the second occasion when he was backing away and you were off to the side of him. Your second blow was a forceful blow to his face. Notwithstanding the application of the principles in Bugmy's case^[5] and Verdins' case^[6] which I will shortly deal with, your moral culpability is nonetheless high. Such an attack must carry with it a high degree of probability that a serious injury will result. The serious injury in this case is catastrophic.
42. It follows that general deterrence and the court's denunciation of your conduct must be appropriately emphasised in my sentencing of you.
43. You are of course entitled to have your personal mitigatory matters taken into account and to these I now turn.
44. So far as your background is concerned, much of this is contained in a psychological assessment of Patrick Newton dated 26 April 2024. Your counsel further supplemented this.
45. You are currently 28 and were 26 at the time of your offending. You have a prior criminal history which includes charges of reckless conduct endangering serious injury, concerning your driving of a motor vehicle, and driving whilst suspended.
46. You were born in Sudan and are the third of five siblings. You lived in Sudan until you were about seven and report that your parents came from two tribes who were at war with one another. You report that your extended family did not approve of your parents' partnership and you experienced severe mistreatment and violence at the hands of your extended family, including being burnt with a cigarette lighter, being partially drowned and being the victim of an attempted kidnapping.
47. Your family moved to Egypt when you were about seven to escape the conflict in Sudan. During this conflict, you were exposed to distressing scenes and the deaths of multiple relatives and friends. You describe living in rudimentary conditions with an aunt in Egypt and experiencing a lot of racism.
48. In a reference of 2 December your mother recounts:

In his young years in Sudan, it was unfortunately not uncommon for Suliman to be severely abused, hit, bullied, spat on and to come home with bruises and also disregarded by older family members who wish my kids were never born. Over the years he has opened up to me about how bad the abuse was in Sudan especially from his uncles who disapproved over my marriage with his father to the point where they tried to take him when he was just a toddler. We could not take it anymore and so once the opportunity presented itself, we had to run to Egypt where although we were safer, we were poorer and treated worse than animals due to arriving from Sudan and the associated racists stigmas that followed. I sometimes cry about the life Suliman and his siblings had to live and endure in their young years.

We then came to Australia with Suliman having to flee the chaos and conflict that plagued our homeland. This transition was not merely a change of location; it represented a dramatic upheaval that cost Suliman crucial early years of development. In the midst of severe violence and uncertainty, Suliman has lost the opportunity to experience a stable childhood, severely affecting his ability to cope with the demands of education.

49. When you were about 10 you moved to Australia with your family. Briefly you lived in Brisbane before moving to Ministry of Housing accommodation in Melbourne. You found the move to Australia difficult, only speaking Arabic when you arrived, and you struggled to fit in.
50. You report being close with your siblings and that prior to my remanding you, you lived with your parents. Your father works at a wrecking yard and your mother performs home duties. Your parents separated when you were about 12 and reunited when you were about 15.

51. You attended a number of primary schools in Melbourne as your family moved houses and your academic development had some disruption. You struggled with school and left during Year 10. You report having been bullied and socially isolated based on what you believed to be your race, and you were involved in a number of fights. You faced repeated disciplinary action and were suspended on at least one occasion. You report that bullying, as well as your desire to provide for your family, were the primary drivers of you leaving school.
52. It is apparent that you have had a background of disadvantage and dysfunction at a number of levels. In Bugmy's^[7] case the majority of the High Court, at paragraph 43 of that judgment, stated:

A background of childhood disadvantage is a feature of a person's make-up and does remain relevant to the determination of an appropriate sentence because the impacts of profound childhood deprivation do not diminish with the passage of time and repeated offending ...

53. The High Court spoke of it being correct to give full weight to an offender's deprived background in every sentencing decision, and accordingly I allow for some sensible reduction of your moral culpability.
54. Upon leaving school, you commenced an apprenticeship, however, you did not complete it. You have completed certificates in real estate, civil construction, mechanical and automotive engineering and plastering.
55. You have worked in both a cleaning business and in the construction industry. You ran your own business as a subcontractor in the construction industry operating excavating equipment until I remanded you.
56. You report a history of significant drug and alcohol abuse which commenced in your teenage years. Your use of alcohol increased from about the age of 18 in social contexts and you report that you would drink about half a bottle of spirits every second day up until the time of your offending.
57. You commenced using cannabis at around the age of 16. You also report using various substances in your late teens. You have not sought professional help in relation to substance abuse in the past. You report that you had consumed 'a fair bit' of alcohol and about a gram of cocaine on the night of the offending.
58. You report your substance abuse stopped while you were initially remanded and you report that you have returned to your Islamic faith so no longer drink alcohol. You report having relapsed in relation to your drug use on a number of occasions since you were released on bail and you attribute these to periods of elevated stress.
59. When you were 19 you embarked on your first significant relationship lasting approximately two years and you were engaged. Your most recent relationship commenced some time prior to the offending but ended due to the stress of this prosecution. You are currently I am told in the early stages of a new relationship.
60. I have had regard to the personal references, many of which are from family members, tendered on your behalf, as well as other materials and they do speak highly of you.
61. In his assessment of you Mr Newton, psychologist, reported that you told him your memory of the incident is unclear, stating to Mr Newton that you had grabbed your best mate and we sort of walked off. That you feel that you blacked out and were scared and angry.
62. Whilst you accept that you acted as you have, your description of events bears little resemblance to what actually happened.
63. Mr Newton states at paragraph 68 of his report:

... His early experiences of conflict and instability have left him wary and insecure in his interactions with others and reactive in the face of conflict. Beyond this he has a limited level of insight into his emotions in general and his anger in particular. That is, he has ongoing difficulty identifying the physical cues that signal he is becoming angry, and his accounts both of the offending itself and of other similar situations indicate that he experiences his anger as coming upon him without warning only after it has reached extreme levels. These features make it difficult for him to exercise appropriate control of his anger.

64. Mr Newton diagnosed you as having a post-traumatic stress disorder in partial remission. Mr Newton states at paragraph 82 of his report:

Mr Suliman's PTSD is connected to his offending by increasing his social anxiety and the reactivity he experiences in unfamiliar social situations. As noted in paragraph 68, Mr Suliman is wary and sensitive to indications of threat in social situations. His heightened anxiety leaves him prone to experience stronger reactions than is typical, while the issues in his emotional self-awareness limit his capacity to recognise his anger before it has escalated to a significant extent. Each of these factors contributed to his reaction on the evening of the offending.

65. In light of Mr Newton's observations it is fair to say that your insight into the factors lying behind your offending conduct appears somewhat limited.
66. You have recounted being under the influence of alcohol and cocaine at the time of your offending. Whilst this may contextualise your offending, it does little to mitigate it and its primary relevance lies in my assessment of your rehabilitative prospects.
67. At paragraph 85 of his report, Mr Newton states:

Mr Suliman's PTSD and substance use disorder combined to make it more likely that he would engage in impulsive, aggressive acting out towards others whom he perceived as threatening. Each condition would have contributed to this breakdown in behavioural controls, with the specific proportion contributed by each being impossible to delineate at this distance in time.

68. Both parties, prosecution and defence agree that your PTSD ought operate to modestly reduce your moral culpability, and the operation of punitive sentencing measures on you, independently of their joint position, in accord with Verdins' case I agree.
69. In addition, I agree with both parties that as a result of this condition your imprisonment will be more burdensome than for another and I allow for some modest reduction of sentence as a result of this.
70. It is to your credit that you have entered your guilty pleas at a relatively early time. These have saved the expense of a trial and the witnesses both the trauma and inconvenience at having to attend court and give evidence in front of a jury. In addition, you have expressed your remorse in various of the materials before me and I accept that you exhibit a degree of remorse for your conduct.
71. Over two years have elapsed since your offending and my sentencing of you.
72. A chronology of events includes the following matters:
73. On 30 October 2022, the offending.
74. On 4 November of that year is the date you were charged.
75. On 6 March 2023, a committal case conference occurred which was adjourned for the provision of forensic medical reports.
76. On 1 May 2023, at a committal case conference it was adjourned for resolution discussions.
77. On 16 October 2023 a contested committal hearing was listed. The matter resolved however, and no witnesses were called. An application for summary jurisdiction was made which was refused and you were committed to this court.
78. On 14 May 2024 your matter had been listed in this court however was adjourned at your request due to a change in solicitors.
79. On 9 September 2024, again your matter was listed for plea in this court, however adjourned again at your request as funding was not in place.
80. On 26 November, your matter commenced before me.
81. In the period since your offending I accept that you have had the anxiety and uncertainty of having the prospect of a sentence hanging over your head during this time and I take it into account. During this time you have been subject to bail conditions and I further take these into account.
82. In addition, a process of rehabilitation has been commenced by you. You still however have some way to go in this regard. It is to your credit that you have been gainfully employed, not re-offended, that your prior criminal history is limited, and you have attended a Men's program run by Next Door Psychology. Regarding this programme however, in his report Mr Newton says that you could not articulate to him the content and benefit of the program, and Mr Newton describes you as having limited self-awareness.
83. You have vowed to leave drug abuse behind you. Since your offending you have had mixed success with this and you have not undertaken any form of treatment for your drug abuse.
84. On the whole of the materials before me I assess your rehabilitative prospects as reasonable, however further work on your part is required.
85. I remanded you into custody at the date of your initial plea hearing before me on 26 November 2024. At that time your counsel indicated that he sought to make further submissions in response to a fairly brief list of cases provided by the prosecution regarding current sentencing practices. I duly adjourned the matter.
86. So far as the various authorities regarding current sentencing practices and sentencing principles for this type of offending, I have had regard to them. Each case is however different. So far as sentences imposed on other occasions are concerned, they are not binding precedents. Current sentencing practices are one of the many factors that I must consider in arriving at a sentence that is just in all of the circumstances.
87. My sentencing of you does not and cannot represent a value being placed on the pain and suffering experienced by Mr Vidovic or loved ones, nor does it represent a value of the changed circumstances of his life.
88. My role in sentencing is to address the fundamental sentencing aims of punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. I must balance matters such as the seriousness of the relevant offence, your culpability for it, your personal circumstances, the community's interest in deterring and denouncing your conduct, along with the community's interest in ensuring that so far as possible you are rehabilitated.
89. Further reference material was also received when the matter returned before me, on 9 December and I further raised a sentencing query with counsel and I have exhibited my query and counsel's response to this as part of the tendered materials.
90. In the days leading up to today further reference material has also been provided and now tendered.
91. Regarding hardship caused to others as a result of your incarceration, in
    Markovic v The Queen^[8], a five member Bench of the Victorian Court of Appeal reaffirmed the established position at common law, that family hardship could only be regarded as a mitigating factor in exceptional circumstances.
92. It follows that if I am to take into account hardship occasioned to third parties as a result of your imprisonment, circumstances of exceptional hardship must exist.
93. In this regard when your matter returned, further reference material was exhibited, which included the following.
94. Your mother in her reference of 2 December, after your remand into custody states:

In the past two years, however, Suliman has demonstrated significant personal growth and positive change. He has redirected his focus towards work and has taken on the responsibility of supporting his family. His commitment to his family has not only become his priority but has also instilled a sense of purpose within him that had been missing during his earlier years. His efforts to find stability through employment display a determination to create a better life for both himself and his loved ones.

My son Suliman is the one I turn to for emotional and financial support. His business is doing well and he in return tries to help me financially as well as trying to ensure the home stays clean and looking after me due to my very bad health conditions.

95. Two brief medical references were tendered also. One relates to your mother and the other your father.
96. So far as your mother is concerned, the author Dr Omar Zitoun of Werribee, in a reference dated 28 November, states that your mother lives with you and your younger brother, that she has medical issues including heart attack, mitral incompetence, and cardiac failure, that she subsequently had a mitral replacement, that she has hypertension and internal carotid aneurysm for which she has a procedure at the Royal Melbourne Hospital. She also has parathyroid adenoma for which she sees a specialist, and the author goes onto state that you are her main emotional, psychological and financial support.
97. In a reference from the Mandalay Medical Clinic at Footscray, after reciting various conditions attributed to your father, Mr Izeldin Yagoub, the author, makes a one‑line statement that:

Due to his chronic medical conditions, he needs the care and support of his son, Mr Suliman Suliman.

98. I note there is no further analysis of your father's needs and/or how you assist him.
99. A reference from one of your sisters tendered today deals with your support of her children. After reciting your financial support of her she states:

Your Honour, I kindly ask for leniency in Suliman's case. He is not only a brother but a father figure, a role model, and a selfless provider who has made countless sacrifices for the sake of family. He is the cornerstone of our household, and without him, our lives have become far more challenging. I hope you can see the positive influence he has had on our lives and consider his extraordinary character as you make your decision.

100. It is unfortunately to be expected that any term of imprisonment will visit hardship upon a prisoner’s dependents. It has been referred to as the 'tragic but inevitable consequences of almost every conviction and penalty recorded in a criminal court'. What needs to be demonstrated is more than that. What is required is cogent evidence of exceptional hardship.
101. You have a younger brother living with your mother according to the reference material, and father and other family members available to care for her. The financial support which you have provided for family members is not exceptional. Accordingly, I am not satisfied that exceptional circumstances of hardship exist in your case and sensibly, given the nature of the material placed before the court your counsel did not suggest that this was the case.
102. Absent exceptional circumstances however, third party hardship may still be relevant to sentencing.
103. In Markovic v The Queen, the court distinguished the hardship which imprisonment places upon an offender's family from the effect on the offender of hardship caused to family members by imprisonment^[9].
104. I do accept that your period in custody will be more burdensome given your concerns regarding your mother and father's wellbeing given their various health and related conditions, as well as your concern about other family members.
105. Your co offender, Haddara pleaded guilty in the Magistrates' Court to one charge of affray and common assault of Mr Rahmani, he received an 18 month correction order. Haddara has a prior history which includes appearances in 2017 for robbery and conduct endangering serious injury.
106. Disparity of sentence is justified by differences in age, background, criminal history, general character or the part each has played in the relevant criminal conduct or enterprise.
107. In sentencing you, Mr Suliman, I have had regard to the important sentencing principle of parity. This rests on the principle of equal justice which requires that like should be treated as like, and that the difference in treatment of different persons should be rational. Different sentences may reflect differences in culpability or personal circumstances in offenders. In reaching the sentences which I will impose shortly, I have had regard to your and Haddara's respective roles, personal matters as they have been made known to me, and the different charges which each you face. You face more serious charges than Haddara did, and your role was more aggressive and your culpability significantly greater than his, with you commencing the fighting by striking Rahmani, causing serious injury to Mr Vidovic, including the second of your blows to Mr Vidovic occurring whilst he was backing away from you, and you also engaged with Mr Senvardar. Your contribution to the affray is greater than that of Haddara's given that yours was a more active and violent role in the fighting than that of Haddara. My sentencing of you takes place in a very different factual context to that of Haddara.
108. Making full allowance for the mitigatory matters put forward on your behalf, I cannot agree with your counsel's submission that a combined term of imprisonment not exceeding 12 months to be followed by a correction order represents an appropriate penalty in your case. Nothing other than a substantial term of imprisonment is appropriate in all the circumstances given in particular the gravity of your conduct as an example of recklessly causing serious injury to Mr Vidovic.
109. Balancing all matters, I will sentence you to a total effective sentence of six years and six months' imprisonment and I will fix a period of four years and six months before you are eligible for release on parole. Whether you are paroled or not is a matter for the Board and outside of my control.
110. The individual sentences making this up are:
111. Charge 1 – Five years and three months' imprisonment.
112. Charge 2 – 12 months.
113. Charge 3 – 22 months.
114. Charge 4 – 14 months.
115. The sentence I have imposed on Charge 1 is the base sentence and I cumulate on it and on each other, four months of the sentence imposed on Charge 2, seven months of the sentence imposed on Charge 3 and four months of the sentence imposed on Charge 4.
116. I will declare pre-sentence detention at what is an agree figure between the parties once they make that known to me.
117. MS HOGAN: It's 71 days not including today, Your Honour.
118. HIS HONOUR: All right, 71 days, and I am required to state the sentence that I would have imposed but your guilty pleas in this matter. In doing so I note it is highly artificial plucking one matter out in isolation and seeking to ascribe a value to it. Nonetheless doing the best I can, but for your guilty pleas I would have sentenced you to a total effective sentence of nine years' imprisonment and directed you not be released until the expiration of seven years.
119. Is there anything further required?
120. MS HOGAN: Yes, there was a disposal order, Your Honour.
121. HIS HONOUR: All right I'll make that.
122. MS HOGAN: Thank you, Your Honour.
123. HIS HONOUR: All right, thank you.
124. MS HOGAN: As the court pleases.
125. HIS HONOUR: If Mr Suliman can be taken back into custody. We'll adjourn till the next matter.

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^[1] See report of Dr Schreiber.

^[2] see Sentencing Act 1991 (Vic) s 5(2)(daa)-(db);Eade v The Queen [2012] VSCA 142 [34]; Best v The Queen [2015] VSCA 151 [70-72].

^[3] Ashdown  [2011] VSCA 408 ; (2011) 219 A Crim R 454, 465 [23].

^[4] Ashdown  [2011] VSCA 408 ; (2011) 219 A Crim R 454, 465 [23], further recounted in DPP v Russell [2014] VSCA 308, at [51], see also DPP v Betrayhani [2019] VSCA 150, at [44]

^[5] (2013) 249 CLR 571; [2013] HCA 37

^[6] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins')

^[7] Ibid.

^[8] [2010] VSCA 105; (2010) 30 VR 589.

^[9] Ibid 595 [20].