DPP v Rivas [2016] VCC 1072

Sentence summary: Intentionally causing injury

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The offenders were brothers who shared a history of antagonism with the victim, who lived nearby. The victim approached the second offender and told him he wanted to fight his brother, the first offender. The offenders confronted the victim together. They smashed the victim’s beer bottles with a baseball bat, whereupon the victim lunged at the first offender with a shard of glass, giving him a small laceration on the neck. He then tried to run away. The second offender tripped and kicked the victim to the head and upper body; the first offender struck him with the bat around the head and torso. Neither stopped when the victim lost consciousness. The offenders then abandoned the victim in a defenceless position on a road.

Both offenders pleaded guilty to intentionally causing injury.

The judge held it was at the upper end of the spectrum of seriousness for the offence. It was a savage attack out of all proportion of any perceived provocation on the part of the victim.

There were a number of aggravating features. It was a sustained joint attack in a public place. It involved the dangerous use of a baseball bat to strike the victim around his head. It continued while he was lying defenceless on the ground. Both offenders abandoned the unconscious victim in a vulnerable position on a road. The victim suffered injuries and lasting psychological trauma.

The offenders’ moral culpability was high. They made the joint decision to arm themselves, pursue the victim and attack him. Sentencing needed to deter and denounce such behaviour and protect the community.

The offenders displayed slightly differing levels of remorse and rehabilitation prospects. However, they were equal participants in the execution of the crime, warranting the same sentence to be imposed on each of them. Their early guilty plea warranted some mitigation in sentence.

Both offenders were sentenced to 12 months’ imprisonment followed by a Community Corrections Order for two years.

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Page last updated: 20 September 2019