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Good Samaritans who took law into own hands over Bourke Street assault of woman escape conviction

Date

Steve Butcher

Two young good Samaritans who helped a woman punched unconscious in a street have avoided convictions for seriously assaulting her attacker.

A Melbourne magistrate told both men that if not for the physical violence they committed, they would be "highly praised for your actions in going to the aid of a woman rendered unconscious by a man in the street".

Magistrate Kate Hawkins said regarding Jack Martinelli and Christopher Azar, both 20, as "heroes" was "stating it too highly", but "you are certainly entitled to be praised for your actions".

"Your great error of judgment was taking the law into your own hands," Ms Hawkins said, because their violent use of "fists and feet" was unacceptable.

Melbourne Magistrates Court heard on Thursday that Ashley Rafati sustained injuries that included a fractured skull and brain haemorrhaging when the pair assaulted him with a third man, who was not charged, about 2.30am on June 30 last year.

Prosecutor Senior Constable Josh Diemar said Martinelli and Azar were earlier standing with two friends in Bourke Street, Melbourne, when they saw a man punch a woman in the face. She "collapsed, unconscious" to the ground.

Senior Constable Diemar told the court the group checked the woman and ensured she was off the road before they followed her attacker for 60 metres and then confronted and surrounded him.

Rafati "took a swing" at Martinelli that missed, before he then punched Rafati in the face, the prosecutor said. Aziz kicked Rafati before he went to ground and Martinelli kicked him after he fell.

Senior Constable Diemer said there was no suggestion either man knew or was aware that the victim had lost consciousness.

In a victim impact statement, Rafati spoke of his injuries, being unable to play sport since the incident and his frustration at hearing troubles in his right ear.

He also referred to his three-week recovery period, a fracture to the tip of a knee and two weeks on sick leave.

Fairfax Media has learned that earlier this year he was put on a community corrections order after pleading guilty to recklessly causing injury to the woman.

Rob Stary, for Martinelli, who pleaded guilty to recklessly causing serious injury, said police had agreed for the case against both men to proceed by way of a diversion hearing on Thursday morning, but another magistrate had refused to grant the application.

Mr Stary said Rafati, a "person of large stature", was present at court, had opposed a diversion outcome and later had to be escorted from the building by protective security officers.

Martinelli, a former Xavier schoolboy now employed by the National Australia Bank after completing a bachelor of commerce, "unequivocally acknowledged his wrongdoing", said Mr Stary.

Martinelli, who had written a letter of apology to Rafati, did not rely on having been drinking on a night out with friends as any explanation for conduct he took full responsibility for.

He had "made a bad error of judgement in an emotionally charged environment" during which "what only can be described as a cowardly attack" on a woman had occurred, he said.

Gulshan Price, for Azar, who pleaded guilty to assault by kicking, was "very, very remorseful" for his conduct, for which he had accepted full responsibility after having gone to the woman's aid.

Mr Price said Azar, who planned to become a real estate agent and, like Martinelli, had no prior convictions, was a "very smart, articulate man".

In her sentencing remarks, Ms Hawkins said the defendants were not the instigators of the violence, but warned any violence, which included street violence, "cannot and will not be tolerated by courts".

Ms Hawkins said no-one should take the law into their own hands, but "it's desirable to encourage young men to come to the aid of women who are being assaulted by men in the street".

She had to deter both defendants from "using your fists again", but thought it unlikely they would again be seen in the criminal justice system charged with offences.

She also remarked that "I have never before seen a case like this recommended for diversion", let alone one where such serious injuries were inflicted, and "it speaks of the unusual circumstances that police were prepared to recommend the matter for diversion in the first place".

Ms Hawkins ultimately felt it was appropriate to use her discretion not to convict the men.

Martinelli, of Sandringham, and Azar, of Dingley, were each put on undertakings to be of good behaviour for two years, with the former ordered to pay $1500 to the court fund and complete a positive lifestyle course he has started.

Azar was ordered to pay $1000 to the court fund and enrol in a positive lifestyle and an anger management course.

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