IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2023 0137

DIRECTOR OF PUBLIC PROSECUTIONS	Crown	
		
v		
		
IVAN DEAK	Accused	

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JUDGE:	CHAMPION J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	19 September 2024	
DATE OF SENTENCE:	16 October 2024	
CASE MAY BE CITED AS:	DPP v Deak	
MEDIUM NEUTRAL CITATION:	[2024] VSC 723	

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CRIMINAL LAW — Sentence — Causing serious injury intentionally — Plea of guilty — Unique circumstances — Accused physically assaulted father in context of recent death of mother and long history of abuse by father — No premeditation — Absence of weapons — Bugmy considerations — Limited criminal history — Positive prospects of rehabilitation.

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APPEARANCES:
	Counsel	Solicitors	
For the Crown	A Moran	Office of Public Prosecutions	
			
For the Accused	S Thomas	Tait Lawyers	

HIS HONOUR:
1	Ivan Deak, on 4 July 2024, you pleaded guilty to one charge of intentionally causing serious injury to your father, Ivan Deak senior. On 19 September 2024, you were re‑arraigned and pleaded guilty on the same charge due to an amendment having been made to a particular of the charge of intentionally causing serious injury.
2	The maximum penalty for intentionally causing serious injury is 20 years’ imprisonment.
Background to the offending
3	Your offending took place in unusual and highly emotional circumstances, which I shall discuss in a moment. It is first necessary to explain some of the background setting to your offending.
4	You are the eldest child of Ivan Deak senior and Rita Deak. You are one of four children of your parents. Your father Ivan was born in Ukraine and spent much of his childhood in Croatia before moving to Italy and then Australia. Your parents met in a migrant camp.
5	In August 2019, your father Ivan was diagnosed with dementia, the symptoms of which had developed over a period of time. Despite his declining condition, it is said of him that he was a strong man, albeit walking slowly in his last days, and sometimes unsteady on his feet, but nevertheless up until about a month before he died he was able to move heavy objects.
6	The summary presented to the court by the prosecution details a lengthy history of your father’s aggression towards you and others in the family as you grew up, and up until his death. On occasions he was violent. It is not necessary for this court to over emphasize matters that members of your family will find difficult and distressing, or to provide details of violent conduct on the part of your father. Examples of these events are set out in the prosecution summary, and it only needs to be observed that it is accepted by the prosecution and defence that an atmosphere of fear in the family existed over the years, and there were occasions when some of your siblings were scared of their father. On occasions he would lose his temper for no apparent reason, become intoxicated, become agitated and strike out. There were occasions when he would threaten one or other of the children. Regrettably, he appears to have assaulted your mother a number of times. On occasions you were concerned for the safety of your mother and your brother. In summary, it is accepted that the circumstances within the family over many years were difficult and often emotionally charged.
7	At one point in March 2019, an intervention order was obtained after an altercation between your father and you, with you alleging that your father threatened to shoot you.
8	On 5 July 2022, your mother was hospitalized after suffering a stroke. She remained in hospital for just over three weeks, and later that month she was transferred to an aged care facility in Bell Park. Her absence placed additional pressure on the family and attempts were made to get assistance for your father’s care. Steps were taken to try to obtain guardianship orders over your father, and you were receiving support from some of your siblings.
9	On 28 July 2022, your sister contacted triple 000 requesting assistance and seeking help due to your father’s dementia, and there being at that stage no‑one to adequately look after him. On that occasion, she expressed concern that your father would get violent if she returned to the house, and as a result, police attended and retrieved her belongings from the house.
10	A few days later, on 1 August 2022, she again called 000 seeking involuntary admission of your father due to his dementia condition and the continued inability of anyone to look after him adequately. She reported that your father almost hit her a few days previously and also that he might injure himself. Ambulance and police arrived but she was told that your father was not going to be removed or taken to hospital.
11	It was clear that things were deteriorating at the house and becoming more difficult to manage.
Circumstances of the offending
12	Sadly, within the next few days, on the morning of 6 August 2022, your mother passed away. You were notified by a friend of yours and your brother Lenny, and in a subsequent call, assisted breaking the news of your mother’s death to your father. He cried on receiving the news. During the morning, an arrangement was made for you, your brother Lenny, and your father to meet at the family home. You went there and during the course of that afternoon you and your brother drank alcohol that had been purchased.
13	At around sunset, your father left the house to tend to his geese, which was his normal routine. By this time, you and your brother had been drinking for most of the afternoon. Your father went to a neighbouring property asking the occupants for help, and to call the police, telling them that his wife had died and that, ‘they say I killed her’. He said he could not go home because of that and the neighbour called the local police suggesting that someone should go next door to the family home, and alert your brother Lenny. One of your neighbours went to the house and saw you and Lenny, and you both appeared affected by alcohol.
14	At one point, your father left the neighbour’s house to return home. As that happened police arrived with your brother Lenny, they having picked him up from home, and your father was taken back to the house by the police officer. The officer then left, and things appear to have returned to a ‘kind of normal’. You and Lenny continued drinking. By about 8:00pm, your brother Lenny recalled having drunk about 12 cans of alcohol.
15	At around that time, you stood and started yelling at your father and grabbed the scruff of his shirt, shaking him. You were erratic. You accused your father of killing your mother, with him yelling back at you with words like, ‘get stuffed’, and he got up and headed towards the laundry. Lenny remained on the couch. You went into the laundry and there was a physical altercation between you and your father. It is alleged, and you accept, that you hit your father multiple times to different parts of his body with your fists. It was in the course of you lashing out in anger and frustration towards your father that you accept by hitting him you caused him serious injury, and you did so intentionally. It is these blows, and these assaults, which caused him physical damage, that form the charge on the indictment, to which you have pleaded guilty.
16	Shortly after 8:00pm, your brother Lenny called your sister Victoria, telling her that you were hitting your father and asking whether she could hear it. Your sister was able to hear what sounded like your father moaning and groaning in pain, and she told your brother to call an ambulance. About 10 minutes later, Lenny called 000 and asked for police. He told the operator that he did not know what your father was doing, but he was trying to attack his brother, referring to you. He also added that your father might need an assessment, and that he had threatened to hurt you. He said that his father was angry and aggressive at that moment, but later recalled that he may have said this in order to ensure his father was committed to an appropriate home.
17	Your father was crying out your brother’s name from the laundry. He then came out of the laundry into the living room and his face and head were covered in blood. He then went to his bedroom and lay on his bed.
18	Lenny called 000 again, whereupon the operator asked Lenny to ask you what happened. You said, ‘he fell over’.
19	Shortly after 8:30pm, a police officer arrived. He spoke to you and you said that your father had come at you and that you lost your temper and shoved him. The police officer went to your father’s bedroom where he saw your father lying in his bed, with a large amount of blood over his face and on his pillow. His eyes and face were swollen, and he was bleeding from his nose and eyes. There was blood smeared in the corner of the laundry, and a blood trail leading to your father’s bedroom. At one point you told the police officer that your father had fallen over. He noticed you had an injury to your forehead.
20	The police officer went into the laundry and saw large amounts of blood in the room, and a vacuum pole with blood on it. He formed the opinion that your father had not just fallen over. Paramedics also arrived and attended to your father.
21	A police investigation then took place and you were detained by the police and later taken to the Bannockburn police station. At one point, you were told there would be a family violence safety notice issued on you to protect your father, with your response including some abusive remarks about your father, and a comment that ‘My father abused my mother for her whole life, and all us children’.
22	Your father was taken to the University Hospital Geelong for treatment. He remained in hospital after his admission, but passed away on the night of 9 August 2022 from a stroke.
23	As to his injuries, which you accept were inflicted by you, he was found to have suffered multiple and extensive bruising and abrasions to his face, neck, ears, right frontoparietal region, scapula, right temporal muscle, chest, abdomen, arms and legs. Further, he suffered a nasal fracture and fracture of the left superior horn of the thyroid cartilage and of the right corner of the hyoid, which was consistent with blunt force trauma.
24	In order to make it clear, your father died of a stroke and the prosecution does not allege that the assault was a substantial and operative cause of his death. However, it is put by the prosecution that the injuries inflicted on your father by you, while not of themselves life‑threatening for a person of average age and fitness, were nevertheless life‑threatening to a person of your father’s age and poor health.
25	A police investigation took place, and you were interviewed in the course of that. You mainly exercised your right to make no comment, but in the course of the interview you said that you had a head injury, that you were attacked and that you were afraid, having been attacked by your father. You said your father was very violent and that he had dementia, and that he had threatened your sister several days previously.
26	It is of some significance that you were examined by a forensic medical officer and that you were found to have a 3 cm long open wound on the left side of your forehead, and some abrasions on your right knuckle. The medical officer took a photograph of your injuries and expressed the opinion that the injury to your forehead was either a laceration or incised wound, but more likely to be the latter caused by a sharp or cutting force.
27	On searching the laundry of your home, the police investigation revealed the presence of significant blood staining, and a vacuum pole that contained an imprint your right palm on the item. Again, to make it clear, the prosecution does not allege that the pole was used to inflict any of the injuries on your father.
28	Soon after, you were charged with the murder of your father and remanded in custody.
Victim impact statements
29	The court received two victim impact statements, one from your sister Michelle Deak, and one from your brother Lenny Deak.
30	Michelle Deak writes that she misses your father. She remembers many good times growing up with him, speaking of a trip to Europe, family outings locally and around Victoria, his purchasing cars for her, teaching her to weld, and his care for family pets. Speaking of the impact of your crime, and your father’s death on her, she says he should not have had violence done against him, and she has forgiven him for the bad things that happened when she was younger, accepting that he saw bad things happening in his country when he was growing up and this affected him in an enduring way. She said there were many positive things that the family had when growing up. She says that your crime has affected her, that she no longer wants to have anything to do with you, that she does not feel like mixing with people anymore, and that she feels she has lost her social life, stresses over what has happened, and often gets very emotional, and feels lost. She misses both your father and mother, noting that they died within days of each other.
31	Your brother Lenny writes in his victim impact statement that his enjoyment of life has been affected by your crime, and that he has experienced hurt, anger, fear and frustration because of it. He says he has found it hard to sleep and eat because of what happened, that he needed to see a counsellor because of the effect of the crime on him, and he has experienced grief. Further, he writes that he was unable to work for some months, had to take time off work following the events and that this has had an impact on him being able to pay necessary bills. He also notes that he now sees less of his family than he used to, and that your crime has affected his feelings of personal safety.
Personal background
32	You were born in 1962. You were 60 years old at the time of your offending, and you are now 62.
33	You have had a number of significant relationships over the years, one of approximately three years, and the other of approximately seven years. You have a daughter, Victoria.
34	It is submitted on your behalf that you had a difficult upbringing, with you and your siblings suffering physical and mental abuse at the hands of your father. It is submitted that as a male, and the eldest of the siblings, you were subjected to more abuse than the other children in the family. You were also exposed to witnessing your mother subjected to abuse from your father from an early age.
35	Your family fractured as a result of domestic violence, with one of your sisters becoming estranged from the family.
36	Nevertheless, you had a close relationship with your mother and despite the poor relationship with your father you remained engaged with both your parents, including assisting with work on the family property. You continued to visit the family home during adulthood and kept in touch with family members, despite your father continuing to act aggressively towards you and the others.
37	You continue to have support from most of your family members. You have a number of friends, some of whom have provided character references for you.
38	You were brought up on a relatively isolated rural property outside Geelong and were educated to year 10 level. You moved out of home when you left school to avoid the abusive environment and from the age of 16 you were in regular employment in the retail, building and transport sectors, ultimately operating a business in Geelong for approximately 25 years. In general, you have a good work history.
39	At the time of your offending in this matter, you resided in Glenpatrick and led a somewhat isolated lifestyle. You did not have a driver’s licence, and you had not been in a relationship, or employed, since 2015 when you were incarcerated for 12 months. When you are released from custody you intend to return to live at your property at Glenpatrick.
Character references
40	A series of eight character references were tended to the court on your behalf. These included references from your sister Rita Moore, your uncle, Michael Deak, and friends Donna McGushin, Dean Kenny, Pasquale Sciarrone, your cousin Mary Smith, and mental health support worker, Andrew Taylor, who has known you for about 11 years, and finally, Robert Corrie, a friend.
41	In various ways these references tendered on your behalf speak about a number of different aspects of your life, including in some detail about your difficult family background, and your usual personality. With respect to your personality, it appears that you are regarded as someone who normally has a big heart, a friendly gentle character, patient and playful with children, generally kind and considerate to the people around you, having a solid reputation in your community and being known for your caring nature and generosity, with more than one of your friends and acquaintances expressing the opinion that the violent offending against your father was out of character with your normal disposition.
Psychological assessment
42	Two reports dated 24 February 2022 and 16 September 2024, both authored by Dr Aaron Cunningham, forensic psychologist, were filed on your behalf, and referred to. In the first report, prepared for the purposes of a court matter involving driving offences, Dr Cunningham opined that you presented with symptoms of trauma, however, did not meet the full diagnosis of post‑traumatic stress disorder, and that from a psychological perspective you would benefit from a disposition that facilitated your rehabilitation. He suggested that you would benefit from psychological intervention to treat your trauma.
43	In the later report of 2024, Dr Cunningham expressed the opinion that your mental state assessment was not consistent with the presence of any mental illness. He reflected on the fact your current offence behaviour occurred in the context of a series of stressors, that you had used a significant amount of alcohol with your brother by the time of your offending and could not recall your offence behaviour. Dr Cunningham opined that you did not present with mental illness and that your offence behaviour occurred in the context of alcohol abuse, grief and loss within the history of abuse and conflict with your father. He opined that these events would have caused a heightened level of stress between you and your father at the time. Again, he expressed the opinion that from a psychological perspective you would benefit from a disposition that facilitated your rehabilitation. You do not present with mental health or drug and alcohol needs. You are motivated to continue your largely solitary lifestyle in the community.
Prior criminal history
44	You have a prior criminal history which occasions occurred between 1995 and February 2022. In short, they have comprised a number of driving offences, drug offences, an offence of theft, and one of possession of a prohibited weapon. The most serious of these matters appears to have involved the cultivation of cannabis, for which you received a sentence of 12 months’ imprisonment plus a two‑year community corrections order. Otherwise, mostly the sentencing outcomes have involved fines or without conviction dispositions.
45	It is accepted that you do not have a history for violence, and you have only served one sentence of imprisonment.
Submissions for the prosecution
46	As to the gravity of the offending committed by you, the prosecution accepts that whilst the injury caused by you to your father was serious, it falls at the lower end of the spectrum of serious injuries. However, it is submitted that your offending more broadly is aggravated by the age, frailty and vulnerability of your victim.
47	As to your moral culpability, the prosecution agrees that the principles set down in Bugmy have a role to play in the sentencing exercise, and that a modest reduction of the role of general deterrence and also moral culpability is open to the court in your case.
48	In general terms, the prosecution accept that your offending occurred in ‘unique circumstances’, and was ‘highly context dependent’. In this regard, the prosecution accepts that the prospect of similar future offending by you is low.
49	Ultimately, the prosecution submits that the only available disposition for you is a term of imprisonment with a non‑parole period, but notes that the time already served by you is approaching an adequate non‑parole period. Thus, so far as disposition is concerned, the prosecution accepts that in all the circumstances, including the time that you have spent in custody waiting for these proceedings to end, it would not be outside of the range of dispositions for the court to pass a sentence that could lead to the availability of immediate parole.
Submissions for Ivan Deak
50	As to the gravity of your offending, it is submitted that the events occurred in the emotionally charged circumstances of the death of your mother on the same day, in the context of a fractured and abusive relationship between you and your father, as well as the recent incident of aggression towards your sister by your father. It is submitted that family members were frustrated by your father’s refusal to engage in an assessment and treatment for his dementia, and the failure to be able to obtain support in managing his needs, and circumstances.
51	It is pointed out that your offending was not premeditated, and that you had been drinking and were affected by alcohol at the time. It is conceded that you and your father engaged in a verbal argument where you were both angry. A physical altercation took place in the laundry, but was not seen by any witnesses. It is pointed out that you received an injury to the left of your forehead consistent with a laceration or incised wound, and injuries to your hand. It is further pointed out that the incident was of short duration, and although the injuries turned out to be serious, your father was able to walk away from the incident and go to his room.
52	It is submitted that the offence should be seen in the context of you losing control when you and your father argued against the background of long‑term conflict and resentment, and that you had no history of previously assaulting your father.
53	It is submitted that the assault you committed on your father was out of character for you. In this regard, it is pointed out that your friends and family have described you as generally a pleasant, respectful and gentle person; you are not normally aggressive; you are usually placid and chatty when you have been drinking; you are not violent or confrontational by nature; you have a heart of gold and are a kind‑hearted person; you do not appear to rise to anger easily; and finally, you are generally regarded as a considerate person. In particular, it is submitted that you do not have a prior history of aggression when you are affected by alcohol.
54	It is submitted that despite the vulnerability of your father, your offending should be considered as falling towards the lower end of the scale for this type of charge. It is pointed out that you did not intend to commit really serious injury or the maximum possible injury, that no weapon was used to inflict the injuries, that the assault was of short duration, and was not premeditated, or involved other offenders. It is put that you lost control when you and your father argued against the background of long‑term conflict and resentment.
55	It is further pointed out that you were initially charged with murder, and that you were committed for trial on that charge. Ultimately, following the exploration of the issue of causation, on 17 April 2024, you offered to plead guilty to intentionally causing serious injury, but that offer was rejected on this occasion. After pre‑trial proceedings, the prosecution indicated it would reconsider the previous offer, and as is known, your offer was later accepted on or around 4 July 2024. It is put on your behalf that your plea of guilty should be regarded as an early plea, which ultimately is not argued against by the prosecution.
56	By way of mitigation, it is submitted that because you were a victim of violent and disadvantaged upbringing, the principles in Bugmy apply to you. As such, it is submitted that your background mitigates your offending by way of reducing your moral culpability, and should result in the moderation of the role of general deterrence. In this regard, a number of character references were placed before the court that attest to this aspect of your background.
57	Furthermore, it is submitted that given your particular background, and all of the factors discussed above, including the very unusual circumstances of the day of your offending, combined with a history of non‑violent behaviour, the risk of your reoffending is low, and thus your rehabilitation prospects are good. You will have the support of friends and relatives on your release. Accordingly, it is submitted that the role of specific deterrence is lessened in your case. You have used your time well in the prison setting and have not caused trouble to the authorities. I also note that some of your time spent involved crossing into the end period of COVID‑19 related lockdowns, and also that there has been a degree of delay in this matter being resolved.
58	As of today, you have been in pre‑sentence detention for 798 days. Ultimately it is submitted that the time served on remand by you is now sufficient, and that this court should impose a sentence which will allow you to be released so that you will become immediately eligible for parole.
Sentencing factors
59	As to the objective gravity of your offending, the prosecution accept that the injuries inflicted on your father fall towards the lower end of seriousness for the type of offending, whilst submitting that there were some circumstances of aggravation, including the age and vulnerability of your victim. On your behalf, it is submitted that the offending falls towards the lower end. Taking into account all the circumstances, I assess your offending falls in the lower range of seriousness.
60	As to the level of your moral culpability, material has been placed before the court that satisfies me that the events of this day were committed in highly unusual and emotionally charged circumstances. Your mother had died earlier in the day, and you had been in the company of your brother during the afternoon and evening, and drinking to excess, to the point where you were affected by alcohol, and emotional. You then argued with your father in the longer‑term context of an upbringing that had been violent, and difficult with respect to your family circumstances.
61	I am satisfied that you lost control of your emotions, in circumstances where this was not your normal character, and to this extent the assault on your father was uncharacteristic for you. You do not have a violent background, and your offending was not premeditated, and was short in duration. At the same time, I also accept that your father was of advanced years, and suffered from dementia, so I regard him as being a vulnerable man, despite the fact that he was regarded as a strong man, albeit with a history of assaulting and being aggressive to members of his family. It is not to your credit, however, that you repeatedly struck an older man that was in the condition he was and was unlikely to have been able to defend himself from an attack of fists and blows from you being younger, and stronger.
62	Taking into account all factors, and weighing them, in all the circumstances I consider that your offending falls towards the lower end of seriousness of this kind of offending, which I find did not involve the use of a weapon.
63	As to the level of moral culpability, a number of things already remarked on lead me to conclude that your moral culpability for your offending should also be assessed as towards the lower end.
Sentencing principles
64	General deterrence, special deterrence, protection of the community, rehabilitation, punishment, and denunciation, are all factors required to be taken into account in the sentencing calculus to varying degrees. I observe that no mental health issues are apparent as you do not suffer from any significant deficits in that regard. I accept that the aspect of general deterrence can be moderated somewhat by the application of the Bugmy principles. I have made observations about the lessened need for special deterrence, protection of the community, and your positive prospects for rehabilitation. It remains, on behalf of the community, to denounce your violent conduct towards your father as being totally unacceptable. The sentence to be passed must involve an appropriate element of punishment for your actions.
Current sentencing practices
65	I have had regard to the sentencing statistics of the Sentencing Advisory Council.
Discussion
66	Given your limited criminal history, your age, the nature of your particular offending, and the strong character material put forward on your behalf, I do not consider that issues of special deterrence or protection of the community need be given significant consideration or weight in your case, and I am satisfied that your prospects of rehabilitation are good. In coming to this conclusion, I have had regard to the fact that you do not appear to have expressed remorse for your actions. I consider this is likely, in part, to the difficult upbringing you had, and the enduring effects of that on you. I accept that that you have experienced a very difficult upbringing as has been described and to that end, I accept that Bugmy considerations apply to moderate your moral culpability. As conceded by the prosecution, the events of the day, and your offending, were attended by unique circumstances, and the chances of this kind of violence occurring again are low, in my judgment.
67	In assessing the appropriate sentence to be passed in your case I take into account that you have pleaded guilty to the offence alleged in the indictment, noting that you were charged with murder, and were remanded in custody on that basis until the point where the matter was resolved and your plea to the lesser charge was accepted. That is no small matter, and as a result you faced the stressful experience of being charged with that most serious offence for a considerable time.
Sentence
68	In all the circumstances I sentence you to be imprisoned for 4 years.
69	I order that you serve 2 years and 2 months before you become eligible for parole.
70	Pre‑sentence detention at the time of the plea hearing in this matter amounted to 771 days. The period is now 798 days, as at today. I make clear my intention is that the non‑parole period I have ordered represents what in my view is an appropriate period of imprisonment for you to serve, which should result in your early, if not immediate release.
71	I also state that pursuant to s 6AAA of the Sentencing Act that had you not pleaded guilty to the charge I would have sentenced you to a period of 5 years’ imprisonment, with a non‑parole period of 3 years.
72	I have signed the Disposal order as requested.
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