Director of Public Prosecutions v Abdifar
[2015] VCC 1546
•10 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00863
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAM ABDIFAR |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 October 2015 | |
DATE OF SENTENCE: | 10 November 2015 | |
CASE MAY BE CITED AS: | DPP v Abdifar | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1546 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Defendant and co-accused, Mohammad Saleh, convicted by a jury of one charge of intentionally causing serious injury to a fellow prisoner at the Scarborough Unit at Port Phillip Prison – offenders secreted themselves in the victim’s darkened cell and jointly attacked him – defendant repeatedly struck the victim with a concrete rock while his co-accused repeatedly stabbed him with a metal shiv.
Legislation Cited:
Cases Cited:
Sentence: Sentence of 5 years' imprisonment of which 2 years and 6 months is to be served cumulatively on the sentence presently being served – new non-parole period of 3 years fixed in relation to all sentences
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P D’Arcy | Solicitor for Public Prosecutions |
| For the Accused ABDIFAR | Mr R Backwell | Valos Black & Associates |
HER HONOUR:
1 Sam Abdifar, following a jury trial, you have been found guilty of one charge of intentionally causing serious injury, which carries a maximum penalty of 20 years’ imprisonment.
2 The circumstances of your offending are that, on 5 November 2012, you and your co-accused, Mohammad Saleh, were prisoners at the Scarborough North Unit of Port Phillip Prison, as was your victim, Lucas Watson. Shortly after prisoners were permitted out of their cells on that morning, your victim left his cell which was on the upper level of the Scarborough North Unit, as he usually did, in order to obtain medication for long standing back pain. He later returned to his darkened cell intending to lie down. Whilst he was absent from his cell, you and your co-accused secreted yourselves behind the curtain of the shower in the cell. Your victim re-entered the cell and, while he had his back to you getting a drink from the sink, you and your co-accused emerged from the shower and viciously attacked him. You were armed with a large rock with which you repeatedly struck your victim to the head, trunk and legs. Your co-accused was armed with a metal shiv with which he repeatedly stabbed your victim, particularly on the torso and legs. At one point, your victim buckled at the knees and virtually went to the ground and you and your co-accused continued to attack him. He was then pushed up against his cell door and struck on the forehead with the rock, as well as being stabbed with the shiv. He had his hands up to try to protect himself and was struck to the arms. He was screaming and, ultimately, went to the ground. Then, the lights came on in his cell. I am satisfied beyond reasonable doubt that, at that point in time, you and your co-accused washed yourselves at the sink and changed clothing, as well as washing the rock and the shiv. The shiv was left in the sink and the washed rock was found under your victim’s bed. The photographs of your victim and his cell tendered at trial show a very bloody mess.[1]
[1] Exhibit A and B
3 I am satisfied beyond reasonable doubt by the evidence given before the jury that, following the attack on your victim, you left your victim’s cell and entered cell No 446. This was two cells down from that of your victim and was not your own cell, which was located on the lower level of the Scarborough North Unit. After the assault, there was a lock-down of the Unit and you were found in cell 446, along with other prisoners (who are not alleged to have been involved in the assault). In that cell, investigating officers found two damp white towels, a pair of Asic runners, which were wet, a pair of green prison tracksuit pants, a damp green prison windcheater and a pair of wet black underpants.
4 The green tracksuit pants which were found in cell 446 were analysed for DNA. DNA was located on the rear left hip region, which provided extremely strong support for the proposition that it had come from your victim, Lucas Watson. There was also a mixed DNA profile from at least two contributors on the front left thigh of these tracksuit pants, which provided extremely strong support for the proposition that your victim was the source and also moderate support for the proposition that your co-accused, Saleh, was a contributor. A mixed DNA profile from at least three contributors was obtained from the inside rear waistband of the tracksuit pants. This provided very strong support for Saleh being a contributor to that profile.
5 The prison windcheater which was found in cell 446 also had DNA detected on it. DNA on the right sleeve provided extremely strong support for the proposition that your victim was its source. On the rear left sleeve was a mixed DNA profile from at least three contributors, which provided moderate support that your co-accused, Saleh, was a contributor to this profile. A possible blood splatter stain on the left rear sleeve of the windcheater was also found to contain a mixture of DNA from at least two contributors and the evidence was that there was extremely strong support that your victim was a contributor to this mixed profile.
6 On the evidence given before the jury, there was no reason why clothing with the DNA of your victim or your co-accused, Saleh, should have been in cell 446. I am satisfied beyond reasonable doubt that, following the assault, you took the subject clothing from your victim’s cell to cell 446. I am also satisfied beyond reasonable doubt that, after the assault, your co-accused, Saleh, walked downstairs from your victim’s cell. There, he was chased by your victim who, by this stage, had blood running down his face from wounds on his head. When Saleh was being pursued by the victim, Saleh held up his hands in a gesture of innocence, as though he had no idea why the victim would chase him. A singlet which Saleh was still wearing was analysed and a mixture of a DNA profile from at least three contributors was found on the outer lower back hem of it. The evidence was that this constituted extremely strong support that your victim and Saleh were each contributors to that profile.
7 Your victim’s evidence given before the jury was that he could not recall how many times he was struck with the rock. He thought it was at least 20 times, all up, of which about 10 had been with absolute force. He was bleeding a lot from the head and initially thought his brain was exposed. He did not know how many times he was stabbed with the shiv. He said he had multiple holes, as though made with an “ice pick”, and they did not bleed a lot, however, he was in a lot of pain. He described his head as throbbing and the pain as being immense. He stated that he was just hoping that he would survive. He described the pain, at one stage, as being “20 out of 10” and said it was excruciating. He was in absolute agony and was administered Endone and morphine for it. He was taken to hospital by ambulance and stated that it was not until the third dose of intravenous narcotic analgesia that the pain was alleviated. Once at the hospital, he was examined by hospital staff along his spine and said the pain was excruciating, as he had been struck with the rock there too. He was in hospital overnight and then discharged to St John’s Ward at Port Phillip Prison, where he remained under observation for some seven to eight days. He recalled being told that he had received some 70 to 80 stitches to his head and had a broken nose, as well as the stab wounds and lacerations. Your victim said his head swelled to about double the size of what it should be, and he could not recognise himself in the mirror as his whole head was black and purple and he still gets severe headaches and migraines. [2]
[2]Trial transcript (“T”) 61-66, 164-166.
8 A Victim Impact Statement by Mr Watson was tendered as Exhibit “A” at the plea hearing. He is still in custody and he described being wary, as he fears payback for complaining to the police. This causes him to often stay in his cell, and he requires ongoing regular contact with his counsellor. He stated that his injuries remind him every day of the incident and he tends to avoid large crowds in prison for fear of attack.
9 Sam Abdifar, you are presently aged thirty-five years, having been born on 17 December 1979. You come before the Court with an extensive criminal history dating back to 1997. You have a very concerning history of violence, drug offences and dishonesty. Your most serious offending was the subject of a sentence in the County Court on 18 October 2010. You appealed to the Court of Appeal, which delivered judgment on 19 April 2012.[3] You had pleaded guilty to two offences of aggravated burglary, intentionally causing serious injury, intentionally causing injury, two offences of common assault, theft, criminal damage, two charges of possessing a drug of dependence, possession of a prohibited weapon and possession of property reasonably suspected of being the proceeds of crime. On appeal, you were sentenced to a total effective sentence of seven and a half years, with a non‑parole period of five years and nine months. That related to offending in January 2010.
[3][2012] VSCA 2012
10 Subsequent to the offending for which I must sentence you, on 5 December 2012, following pleas guilty, you were sentenced in the County Court for trafficking in a large commercial quantity of MDMA, trafficking in amphetamines, trafficking in cocaine, intentionally causing injury, making a demand with threat to kill or inflict injury and recklessly causing injury. These charges had been committed on various dates in late 2009 and early 2010. You were sentenced to a total effective term of imprisonment of six years, two years of which were to be served cumulatively upon the sentence which you were already undergoing, and a new non-parole period of seven years was fixed.
11 Mr Abdifar, the offence for which I must sentence you was a brutal and clearly premeditated attack. It was cowardly in that you and your co-accused hid in the dark and came up behind your victim in a totally unprovoked surprise attack. The two of you were armed and launched into a frenzied assault upon a defenceless man, who should have been entitled to feel safe in his own cell. As I have said, I am satisfied beyond reasonable doubt that you and your co-accused took steps to avoid detection by washing yourselves, your weapons and clothing, and that you changed your clothing and then split up, with you taking the clothing to cell 446, where you were located after the attack. You declined to cooperate with police in a record of interview and gave no evidence at your trial, as is your right.
12 Save for your victim stating that he had had some altercation with another prisoner of Middle Eastern background some weeks earlier in the Scarborough Unit and that he believed that this attack must have been some sort of retribution for that earlier incident, there is no explanation for this appalling conduct. In the face of what I consider to be a relatively strong prosecution case, your defence was that the prosecution case was one of mistaken identity and that your victim had got it wrong in his confused state following the attack. This defence was maintained, notwithstanding that you and your co-offender were well known to your victim as fellow residents of the Scarborough North Unit. You have shown no remorse for your conduct and, even now, in a psychiatric report tendered at the plea hearing, you have given a history to the psychiatrist that “I didn’t do it”.[4]
[4]Report of Dr Leon Turnbull Exhibit “D1-1”
13 In relation to the offending conduct, itself, there is no mitigatory material. All that can be said in your favour is that, unlike your co-accused, Saleh, you, at least, did not aggravate your offending by adding insult to injury in the way that you conducted the trial. You did not contest that your victim’s injury was serious. Your counsel, unlike Saleh’s counsel, did not cross-examine the victim in a way that belittled and trivialised his injuries. Saleh’s counsel even put to your victim that he had exaggerated his level of pain in order to receive narcotic analgesia from the ambulance and hospital staff.[5] Indeed, in his final address to the jury, he submitted that, on the spectrum of injuries, your victim’s injuries were towards the trivial end, like a paper cut or grazed knee. Hence, although I consider the manner in which your co-accused conducted the trial is an aggravating factor, this does not apply in your case. Apart from that factor, each of you played an equal role as a co-offender acting in concert in this serious, premeditated and brutal assault.
[5]T165 – 166
14 I should note that the plea hearing before me on 23 April 2015, was a joint plea hearing of yourself and your co-accused, Saleh. Tendered on behalf of your co-accused were two reports which contained a florid history of your co-accused allegedly having been incarcerated in Abu Ghraib Prison under the regime of Saddam Hussein in Iraq for six months, when he was aged eight years, and forced to witness atrocities as he was being recruited as one of Saddam Hussein’s youth soldiers. This history was relied upon to support a diagnosis of Post-Traumatic Stress Disorder.
15 I stated to your co-accused’s counsel, Mr Barker, that there was no mention of such history or diagnosis in the sentencing remarks relating to your co-accused by Justice Almond in the Supreme Court on 2 April 2012,[6] or in the judgment of the Court of Appeal on 31 August 2012,[7] albeit that there had been reference by Justice Almond to the extreme hardship and oppression of Saleh’s family life in Iraq and, also, as refugees in Jordan and Syria. When I indicated that I would require evidence in order to be satisfied of the alleged history and its contribution to the alleged Post-Traumatic Stress Disorder, your co-accused, who was in the dock, launched an aggressive verbal attack with repeated threatening hand gestures towards the Bench and abusively shouted things to the effect of “What are you saying? What have you seen? What would you know?” After standing the matter down, I took the view that a reasonable observer of the incident would likely consider that a Judge in my position would feel pressure to act in one way or another in relation to the evidence which was the subject of my query. Accordingly, I considered that my position was ostensibly compromised and I ruled that I should recuse myself from further hearing the plea of your co-accused. Thus, it was adjourned for hearing to 9 February 2016.
[6][2012] VSC 120
[7][2012] VSCA 210
16 As previously mentioned, during the plea on your behalf by Mr Backwell, a report from Dr Leon Turnbull, consultant psychiatrist, dated 7 September 2015 was tendered (Exhibit “D1-1”). He noted that you had been born in Turkey and had moved to Melbourne at age ten with your parents, and had experienced trouble at school due to being racially teased. You dropped out of school during Year 12 but, subsequently, managed to complete it at TAFE and went on to hold down long term employment in the retail area, at one stage working as a team leader and store manager.
17 He noted that, in your early twenties, you had found out that your father was not your biological father and that this had had a significant emotional impact upon you. You have never married and have no children. He stated that you had an established diagnosis of Bipolar Affective Disorder, which is a life-long psychiatric illness, and requires you to be on treatment indefinitely. He stated that it is a chronic relapsing condition that can be aggravated by one’s immediate environment. In this context, he noted that much of your period of incarceration had involved 22 or 23 hour lock-down. He considered that this was, at least in part, a contribution to a severe psychotic state which you had suffered subsequent to this offending in mid-2014, which necessitated a transfer to the Acute Assessment Unit of the Metropolitan Assessment Prison. He considered that your lock-down regime significantly contributes to the potential for a relapse and that you were overdue for psychiatric review. Your counsel stated that such psychiatric review had occurred since Dr Turnbulls report and you are back on antipsychotic medication, Olanzapine, and a mood stabiliser, the name of which you were unable to recall.
18 Mr Backwell referred me to the sentencing remarks of her Honour Judge Douglas when she passed sentence in the County Court on 5 December 2012. Her Honour had noted that, in your youth, you had mixed with other young boys, who had antisocial tendencies and, in your late teens, had commenced smoking cannabis, followed by the use of LSD and ecstasy, other amphetamines and cocaine. In 2001 your behaviour became so aggressive that you were made an involuntary patient for a period of six months, during which time you underwent electro-convulsive therapy. Following this, you managed to return to work in the retail industry from late 2001 to mid-2002 and then, in 2003, undertook an Advanced Diploma in Business and International Trade and Certificate IV in Business and International Business at Holmesglen TAFE. You continued to take mood stabilising medication and worked as a store manager at Carpet Call in Cranbourne in 2004 and 2005 and then from 2005 to 2007 as an assistant store manager with Harvey Norman.
19 Unfortunately, you then underwent some difficulties when you stopped taking your mood stabilising medication and, again, used illicit drugs. However, you managed to get back on track, and in 2008, obtained employment as an operations manager with Direct Security Group. In December 2009 your de facto relationship came to an end and you ceased taking your mood stabilising medication and, again, resorted to drugs of dependence and began trafficking in significant amounts of amphetamines.
20 In her sentencing remarks, Her Honour Judge Douglas noted the contents of a report from Dr Walton which stated that you had been incarcerated and placed at St Paul’s Psychiatric Unit from March to May 2010, where you were prescribed Epilim and Seroquel. Dr Walton considered that your Bipolar Disorder had been aggravated by your lengthy history of drug abuse. Her Honour accepted Dr Walton’s opinion that your Bipolar Disorder impaired your judgment during the period of offending for which she had to sentence you. She considered that principle 1 of Verdins[8] applied to reduce your moral culpability and, also, that principles 3 and 4 applied to reduce the weight placed on general and specific deterrence.
[8]R v Verdins, Buckley & Vo [2007] 169 ACR 581
21 Tendered by the prosecution at the plea hearing, was a report from Brendan Francis Money, Assistant Commissioner of the Sentence Management Branch of Corrections Victoria, sworn on 19 October 2015 (Exhibit “B”). It sets out that, since you were received into custody on 9 February 2010, you have been held at a maximum security prison, Port Philip. Further, since the offending for which I must sentence you, you have been housed in either the Charlotte Management Unit or the Borrowdale Intermediate Unit. In May 2014, you were transferred to the Acute Assessment Unit at the Metropolitan Assessment Prison for two weeks, followed by a period of observation at St Paul’s Unit and then another couple of weeks at the Spring Unit at the Metropolitan Assessment Prison. This was because you had exhibited serious psychosis. Ultimately, it was found to be drug-induced psychosis, as you had admitted having used LSD in prison,[9] as well as having ceased your anti-psychotic medication, although, as previously mentioned, Dr Turnbull thought that your onerous lock-down conditions had contributed, in part, to your psychotic condition.
[9]Paragraph 22 of Mr Money’s affidavit
22 Clearly, you have presented a difficult management problem for the prison authorities, having exhibited a number of challenging behaviours. It is not my role to punish you for any such behaviours. The fact is that you have been in custody continuously for over 5 ½ years and that, for much of that time, you have been subjected to 22 or 23 hour lock-down. At times, you have worked as a billet, which means that you have nine hours out of your cell to perform billet duties, instead of the usual two hours out of your cell, which would apply in the management or intermediate unit. Since July 2014, you have been at Borrowdale Unit. You are currently working as a unit billet which involves serving meals to other prisoners and cleaning the unit, which enables you to be out of your cell for nine hours per day in order to perform those duties. Mr Money noted in his affidavit that you now follow prisoner officers’ directions and have received excellent work reports. I consider it likely that the relief of being able to be out of your cell for a longer period of time and having some focussed activity has benefited your mood, along with the fact that you are now complying with your anti-psychotic medication. I also note that, when you have been well in custody, you have used your time productively to undertake various courses in cleaning, food handling and occupational health and safety, as well as a computer course. Mr Money also states that you have recently completed a 12 hour substance use program and a 12 hour relapse prevention program. It is in your best interests to be occupied and in the best interests of society that you have some skills to take with you when you are ultimately released back into the community.
23 Conditions of incarceration which involve 22 or 23 hour lock-down are extremely oppressive, particularly for someone like you, with a Bipolar Disorder. Although your behaviour in prison has been far from exemplary, I cannot help but be concerned that such oppressive conditions of incarceration will lead to a worsening of your mental health and behavioural issues. Dr Turnbull noted that you found your lock-down regime “particularly gruelling and anxiety-provoking”, as you found yourself “misinterpreting the noises and machinations of the prison system”. I accept Dr Turnbull’s opinion that the lock-down regime is likely to contribute to relapse of your Bipolar Affective Disorder. In arriving at the sentence which I intend to impose, I have taken these onerous conditions of imprisonment into account.
24 I have no jurisdiction over how or where you serve your period of imprisonment, but I do express my concern that it is not in the interests of either your mental wellbeing or your rehabilitation that you should be subjected to very lengthy periods of lock-down. I agree with your counsel that there is a very real risk of you becoming institutionalised and very seriously mentally unwell.
25 Although I accept that you have a lifelong mental illness by way of Bipolar Disorder, there is no evidence to connect this disorder with your offending and, accordingly, principle 1 of Verdins should have no application. There should be some moderation of the emphasis on general and specific deterrence by reason of your mental illness, but I do not think that it should be to a great extent. Although you have suffered psychotic episodes in 2014, it would appear that this is, in part, due to lack of compliance with medication or the taking of illicit drugs and, at the present time, you are appropriately medicated and not suffering from psychosis. As I have said, the crime for which I must sentence you was premeditated and carefully planned. It was a cowardly attack and you and your co-offender took deliberate steps to conceal detection. However, I do consider that principles 5 and 6 of Verdins case should apply in that there is evidence that your Bipolar condition makes it likely that your sentence will weigh more heavily upon you than upon a person in normal health, and I do consider that there is a serious risk of imprisonment having a significant adverse effect upon your mental health. In this regard, I note that you are also socially isolated. Apparently your mother and her partner used to visit you, however they separated in 2013 and her partner has not seen you since that time. Although your mother continued to visit you for a while, in January 2014, she returned to live in Turkey and, according to your counsel, since that time, you have had no visitors.
26 In sentencing you, I also take into account that there has been some delay in this case, which is not attributable to you. Although the offence occurred on 5 November 2012, it took some time before the victim was prepared to make a statement to police, because of his fear of retribution, and, hence, you were not charged until 17 January 2014.
27 I regard this offence as a fairly serious example of intentionally causing serious injury because it was carefully planned and there were two of you armed in a surprise attack against your single unarmed victim. The brutality of the frightening, frenzied attack upon your victim is indicated in photographs tendered at the trial, which showed the extent of blood smeared and splattered around your victim’s cell and dripping from his head. A person who is held in custody is already in a vulnerable condition by having his liberty curtailed. It is fundamental that prisoners must be safeguarded from the brutality of other prisoners, otherwise, the good order and management of our correctional facilities is in jeopardy. It is totally unacceptable that any prisoner should have to live each day fearing for his safety because of these type of attacks. Accordingly, this Court must denounce your conduct and, notwithstanding what I have said about some mitigation of the principles of deterrence, I still consider that general deterrence must be an important sentencing principle in your case, as must specific deterrence, in the light of you having a marked history of violence.
28 Unhappily, I am not optimistic about your prospects of rehabilitation. You have shown yourself over a number of years to be a very violent person. You have a mental illness exacerbated by long term drug abuse and lack of compliance with anti-psychotic medication. You have very few social supports and are likely to need a great deal of supervision once you are released back into the community. It is to your credit that you do have a history of being able to hold down a job when you are compliant with your medication and, if you can keep away from illicit drugs, it is possible that you may make something of your life.
29 There is no doubt that the only appropriate sentence is one of imprisonment. However, I must ensure, not only that the sentence is proportionate to the gravity of your offending, but, also, that the principle of totality is taken into account. In this regard, I note that you are already undertaking a sentence which is not due to be completed until 14 October 2018, with your earliest possible parole date being 14 April 2017.
30 Would you stand up, please.
31 On one charge of intentionally causing serious injury, you are convicted and sentenced to be imprisoned for a period of 5 years.
32 I direct that 2 years and 6 months of this sentence be served cumulatively upon the sentence which you are already serving. I set a new single non-parole period of 3 years.
33 By reason of your prior convictions, you come within the definition of a serious violent offender in s6B of the Sentencing Act. Accordingly, pursuant to s6F, I cause to be entered in the records of the Court that in sentencing you this day for the offence of intentionally causing serious injury, you have been sentenced as a serious offender.
34 Pursuant to s78(1) of the Confiscation Act 1997, I order forfeiture to the State of the property referred to in the schedule of this order and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by 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.
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