Director of Public Prosecutions v Aghan

[2019] VCC 1396

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT BALLARAT
CRIMINAL JURISDICTION

CR 19-00136

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEVEN AGHAN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Ballarat
DATE OF HEARING:	17 July 2019
DATE OF SENTENCE:	29 August 2019
CASE MAY BE CITED AS:	DPP v Aghan
MEDIUM NEUTRAL CITATION:	[2019] VCC 1396

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecution
For the Accused	Mr A. Paull	Adrian Paull Lawyers

HIS HONOUR: 

1Steven Aghan, you pleaded guilty to offences that were extremely frightening for the victims.  What can be seen by reason of the bizarre circumstances of your offending behaviour and your long-term history of mental illness is that you were far from stable at the time that you went to the victims' house on 9 April 2018. 

2On that night around 9 pm you knocked on the door of the victims' house.  The victims were complete strangers to you.  The male victim opened the front door, thinking it was probably his neighbour.  Once the door was opened you said you were not feeling well and asked the victim to call you an ambulance.  You tried to come inside the premises, but the victim prevented that, saying he would call an ambulance and then wait outside with you.  He said you were not coming inside his house.

3In the house was the victim's wife and his four children.  Naturally he was concerned for them.  He was being cautious and at the same time as generous and as helpful as he could be to you, but you did not accept what the victim said and pushed past the victim and went into the house.  You went straight to the kitchen and started opening drawers.  You became more erratic and kept saying that you needed a knife.  The victim struggled with you to get you out of the kitchen and the house.

4His wife was petrified and called the police.  One of the children wandered from his bedroom into the kitchen.  He was quickly sent back to his bedroom.  He kept searching the drawers, saying, 'I need a knife to stab you with'.  This was a frightening threat, given what you were doing and your erratic and unpredictable behaviour at the time.  Ultimately the victim got you in a headlock; in response you bit him on his chest, causing an injury.  You grabbed a spoon and said you were going to use that to stab the victim.  He disarmed you.  He grabbed you in a bear hug, at which point you put your fingers into his face, trying to gouge his eyes.  At one point you told the victim that people were after you.

5When the police arrived you repeated this delusional and paranoid belief.  You were aggressive with the police.  They took you to the Ballarat Hospital for a mental health assessment.  Later you were returned to the police station, where you made a no comment record of interview.  You were found with 8.6 grams of cannabis in your pockets at the time.  You were placed on remand where you have remained since.  That is for 507 days.  You pleaded guilty to an indictment containing a charge of making a threat to cause serious injury and intentionally causing injury.  You also pleaded guilty to the summary offence of trespass.  There was also a possession of cannabis charge.

6You offered to plead guilty to these offences in September 2018 before a committal was listed.  The matter proceeded to the County Court.  The offer was finally accepted by the prosecution on 22 March 2019.  I see this plea of guilty as an early one attracting a significant mitigatory benefit. 

7As is obvious from the description of the events, your crimes were frightening for the victims.  You have a history of concerning criminal activity which likewise was due to your deteriorating mental health.  I will discuss the relevance of your impaired mental health in terms of the need to ameliorate your moral culpability and general deterrence shortly, but first I need to acknowledge the impact of your crimes upon the victims.

8The male victim has said that these events caused anxiety to him.  He was anxious of course as he has to have blood tests to make sure he had not contracted any diseases and then had to be retested after six months.  He has become angry and upset as he relives the incident.  He has anxiety when people knock on the door.  He fears for his children, he is worrying about how this has affected them and his wife, who witnessed the whole incident.

9His wife in her victim impact statement indicated that she too is very scared when someone knocks on the door.  She is scared to be alone or at home just with the children without her husband.  She gets very upset when she thinks about this incident.  She is worried about her husband and how it has affected him, and worried about how it has affected the children, in particular the five-year-old, who saw some of the incident.  She does not want to go out as much as she used to and, when she is out, people try and talk about the incident and she does not want to.  She becomes angry and upset and frightened when out at night, taking into account the impact upon the victims.

10As I have mentioned more than once, you have a history of mental illness and you were mentally unwell at the time of this offending.  These matters are relevant, in fact significantly so, to my task of imposing sentence.  What also is highly relevant is that you also suffer from an intellectual disability.  I will outline your personal circumstances shortly, but at this point the most important sentencing consideration is how your mental illness and intellectual disability impact by moderating the weight to be given to denunciation and deterrence, both to you and generally.

11You are 28, soon to turn 29.  When you were born your mother was on a methadone program to help her drug addiction.  As a consequence you were born addicted yourself.  These early problems were added to by general family dysfunction in your earliest years.  You were put into foster care from the age of two.  You were returned to your mother's care when you were about eight.  You describe your childhood as involving physical and sexual violence.  Prior to returning to your mother you were living with an older half‑brother and his partner.

12Your schooling commenced in Melton South and it was quickly discovered that you had significant learning difficulties and behavioural problems.  At eight years of age you were assessed by an Education Department psychologist as having an intellectual disability.  You returned to you mother at that point going to a special school for the next four years, though you were often absent and there were behavioural problems.  It seems that after this four years at the special school you left and have never had any further education.  You have never had any work, your literacy and numeracy are poor.

13Your IQ was tested recently by Ms Cidoni, the psychologist.  The result was a full-scale IQ of 56, which reveals your extremely low capacity.  You have been eligible for disability services in the past and in recent times have been found eligible for services under the NDIS scheme. 

14You lived with your mother in the west of Melbourne up until her unfortunate death due to cancer in 2014.  You took to using ice and cannabis at around this time.  You remain troubled by these drugs until your remand.  After your mother's death you went to Ballarat to live with a cousin; however, with the now regular ice and cannabis use, your mental health deteriorated while in Ballarat.  You had auditory hallucinations often with voices telling you to hurt yourself.  You have been admitted to the psychiatric wards at hospitals in Shepparton and multiple times in Melbourne.

15One admission to hospital was following an incident at a pharmacy in Werribee in 2014.  I note you were put on your first community corrections order with a justice plan in December 2014.  This time, or because of this, your treatment has now included oral an injected antipsychotic medications.

16The community corrections order that I mentioned was breached in 2016 with no further order.  In 2017 you were before the Magistrates' Court in Shepparton for recklessly causing injury and assault and resisting police, and damaging property.  You were sentenced to imprisonment for 70 days together with an 18-month community corrections order and justice plan.  The offending before me breaches that community corrections order.

17A psychologist, Ms Cidoni, who saw you first in July 2018 said at that time you were acutely unwell, being delusional, psychotic, anxious and heavily medicated.  At a second interview in May 2019 you were more settled, though your intellectual deficits were still pronounced.  Ms Cidoni's observation aligns with the records of Justice Health.  She quoted from them in her report.  She said that in April 2018 you were admitted to a particular unit in the prison to deal with your very significant problems.  A review in August 2018 indicated low to medium risk of self-harm and suicide, paranoid persecution ideation.

18You were initially nursed in a safe cell, then moved to a normal cell, followed with your own self-imposed lockdown.  You indicated fears for your safety amongst other prisoners.  You stated that the auditory hallucinations have been commanding you to cut your throat, electrocute yourself or hang yourself.  You were compliant with medication. 

19Later in December 2018 it was indicated that you had minimal content in speech, your affect was blunted and you reported ongoing auditory hallucinations.  There were earlier in 2018 indications of paranoid persecutory themes, indicating schizophrenia, depressive disorder and an intellectual disability.  In January 2019 it was noted that you were compliant with prescribed medications, you had a mild intellectual disability, the schizophrenia and anxiety disorder.  These are symptoms of serious mental illness.

20Although there appears to be an improving trend with the appropriate medication, on the whole your time in prison has been grim and for you especially onerous.  On all the evidence both historical and the current offending, which includes the documentary history of your declining mental health, including the multiple in-patient admissions to psychiatric wards, the opinion of Ms Cidoni in the bizarre circumstances of your offending I have no doubt that you have an entrenched mental illness of schizophrenia together with depression and anxiety.

21You have also an enduring intellectual disability at a significant level.  These impairments were at play and causally involved in your offending, indeed to a significant degree.  As a consequence, your moral culpability is reduced, meaning less weight has been given to denunciation.  Separately, in my view your dual impairments are of a kind and at a significant level that general deterrence must be moderated significantly in your case. 

22Given your intellectual disability, you are not especially insightful.  I do not give much weight to specific deterrence in this case.  Here, while I am mindful that you have been on and breached community corrections orders with justice plans, it does not follow that I would no longer look to such an order so as to facilitate your reform.  To a significant degree the usual principles of specific deterrence must yield due to your impairments, in particular your intellectual disability.

23There is powerful evidence of how your experience of prison is more onerous on you than on someone without your impairments.  I have mitigated the sentence as a consequence of this fact.  Also, although you are now more settled and properly medicated, some of your problems, such as depression and anxiety, have likely worsened by incarceration and will likely worsen if there were further incarceration.  As a consequence, I have considered other sentencing options other than gaol.  In other words, each of the enumerated points in the well-known case of Verdins have applied and significantly so in mitigation.  Also I have applied the principle set out by the High Court in respect of intellectual disability, that case being Muldrock. 

24A factor not mentioned in Verdins but relevant is how your enduring intellectual disability and your treatment-resistance schizophrenia, and the nature of this offending, means that protection of the community is important.  I have also factored that into the equation.  While incarceration protects the community by incapacitating you from further offending, I think in this case supervision in the community and assistance by experts in disability services will be the best option to ensure that you do not fall into drug use, fall in with the wrong company and reoffend.

25As was said in Boulton v The Queen, further punishment and rehabilitation can occur simultaneously while on a community corrections order.  The High Court in Dalgliesh emphasised the role of individualised sentencing.  This case leads me to consider again an endeavour to try to facilitate your rehabilitation by imposing a community corrections order with a justice plan.

26I have had you assessed by a community corrections officer, who provided an extended pre-sentence report.  The writer applied the risk assessment tools and concluded that you are a high risk of recidivism.  The report addressed areas where risk could be ameliorated or exacerbated.  As to the latter, you must cease drug use.  You will need dedicated assistance in that regard.  Likewise but perhaps less acute is your problem with alcohol, which needs to stop. 

27A real problem properly identified by the community corrections officer was your limited options for stable accommodation.  Until this morning I was concerned about that, until told that, if released, there has been arrangements made by the ACSO staff, that is people involved in the criminal justice system that assist people like you, to secure accommodation at a local motel.  A booking has been made for you until 2 September.  You will be taken there directly there, if released, by your solicitor Mr Paull in another example of his dedicated work in this case.

28The attempt will then be made to find you permanent accommodation.  That will not necessarily be an easy task, but it seems to me that all involved appreciate that it is essential that you get a proper and appropriate permanent accommodation and do not become homeless.  You will have significant difficulties if you are homeless in complying with your community corrections order.  You have a cousin in Ballarat who you lived with from time to time, but you cannot stay there.  But at least you have some contact here.  More importantly, you have an aunt in Altona, who has kept in touch with you while you have been in remand.  She cannot have you live with her, but she is someone that is able to provide some support.

29The community corrections officer's assessment concluded that subject to the caveat relating to your accommodation you were suitable for a community corrections order, the justice plan.  A report secured from disability services, that is a client oversight and justice plan, indicated that while in custody you have been seen by those officers from the Ballarat region and you have commenced to develop an NDIS plan.  You indicated that you wanted to return to Ballarat, find accommodation and set up with their meaningful services to assist you.  Their report indicates that they will endeavour to establish this.

30You have NDIS funding to help you to find accommodation and engage in programs.  The report from the Department of Health and Human Services officers also makes clear that your problems with mental health and your inability to discern whether people that you may meet are good for you or not are where they will focus their attention.  A justice plan was provided recommending that you engage with a disability justice coordinator from DHHS and agree to support some treatments identified by them.  This will link the drug and alcohol treatment and anger management treatment.

31As identified, finding the accommodation is important.  I mentioned what I have learnt today, I take that into account, but what was causing great anxiety certainly was I simply could not warehouse you in prison until suitable accommodation was found.  It is very much up to the social welfare services to do what they can to get you somewhere permanent to live and provide support to you, given your very significant impairments both with your mental health and your intellectual disability.  There is funding for this by the NDIS for the workers to do this.

32In my sentence I have considered all the sentencing purposes and I am of the view that all sentencing purposes are met and are proportionately met if in effect there is a term of imprisonment, that is the time that you have thus served, together with a community corrections order that starts immediately.  The sentence that I impose will be a sentence of one year and four months.  That will be for the matters of the intentionally cause injury, the make threats and the trespass offending.  It is an aggregate term together with a sentence for each of those crimes of a community corrections order and for the possession of cannabis, the community corrections order of 18 months.

33I just pause there for a moment.  The cannabis charge will be just met by the community corrections order and no term of imprisonment is imposed for that crime.

34So the community corrections order will go for 18 months.  It will include conditions that are set out on the justice plan.  There will also be supervision by the Office of Corrections.  You will have to undergo drug treatment, treatment for alcohol abuse, assessment and treatment for your mental health and undergo programs that will assist you in preventing reoffending.  I will also include, as it is recommended, a judicial monitoring.  In your case I will make it sooner rather than later just to ensure that things have been set up or, if they have not, enquire why they have not.  To that end it will be in December this year; the date will be provided very shortly.

35Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a gaol term of three years with a non-parole period of two years.  There are orders sought relating to forfeiture that will be made.  There is also an order relating to the taking of a forensic sample and I intend to make that order.  I will explain that in more detail shortly.  A document will have to be produced, unfortunately with technology outside this court, and when that is done it will be provided to you.

36Is there anything else required, Mr Moore?

37MR MOORE:  No, Your Honour.

38HIS HONOUR:  So the judicial monitoring will be 16 December 2019 at 9.30.  You can appear by video link, that is suitable. 

39Mr Moore, I am at the point of simply reading conditions out to Mr Aghan relating to his community corrections order.  Ms Dunn is here in court.  If you wish to end the link and proceed on to other tasks you have in Wangaratta, there is no difficulty about that.

40MR MOORE:  I would be grateful to do that, Your Honour, but I just want to raise one matter in relation to another sentence you are proposing to deliver.

41HIS HONOUR:  Yes.

42(At this stage the court proceeded with another matter.)

43MR MOORE:  I will take my leave, thank you, Your Honour.

44HIS HONOUR:  Very kind, Mr Moore.  Thank you. 

45Mr Aghan, the community corrections order and justice plan you are on - you can stay seated - will last for 18 months.  The conditions apply to all community corrections orders, they apply to you, are they you must not commit an offence for which you can be imprisoned during the time the orders are on force.  So do not commit any more crimes.  You must comply with any obligations or requirements under sentencing regulations.  You must report to and receive visits from the Office of Corrections.  You must let the community corrections officers know within two clear working days of changing your address or your job, you cannot leave Victoria without getting permission and you obey all lawful instructions and directions.

46You must report to the Ballarat Community Corrections Service, 206 Mair Street, Ballarat within two clear working days.  Mr Paull, you will explain these all again ‑ ‑ ‑

47MR PAULL:  Yes, I will.

48HIS HONOUR:  ‑ ‑ ‑ with the document in front of him when he is released.

49MR PAULL:  Yes, Your Honour.

50HIS HONOUR:  Now, the conditions that apply to you, Mr Aghan, are important.  You have got to be under the supervision of the Community Corrections, so they will need to know what you are up to and talk about things.  You have got to go to see them.  You must undergo assessment and treatment for your drug problem, for your alcohol problem.  You must undergo mental health assessments and treatment.  You must participate in programs that address factors relating to your offending. 

51You have got to come and see me again.  You can do it on the video, but you have to do that on 16 December 2019 at 9.30.  I want to see that things are going well, all right?  And you have got to participate in the services that are set out in the justice plan.  So when you are released, Mr Paull will help you by getting you to a place where you are going to stay for a bit.  The key thing is to get back on your medication, to see your doctors, ensure that the medication continues and that you have the injections that you need to have, all right? 

52OFFENDER:  Yes.

53HIS HONOUR:  And you have got to stay away from people who are trying to get you into having a drink or taking drugs.  You have just got to stay away from them, they are not your friends, all right?  They are the ones, and people like them, that will cause problems so that you end up back here.  You have got to use people in the disability services to try and get yourself settled, have, as you said, some meaning, some real meaning in how your day goes.  All right.  Sign that document.

54Also I will just tell you at this time I have ordered that you go to the police station in the next couple of weeks to have a forensic sample, that is a scarping of your mouth, so that they can get your DNA.  Just cooperate with them.  If you do not, they can use force to get it done.  I have taken into account the seriousness of the circumstances, the prior history that you have and the fact that the granting of the order is in the public interest. 

55All right, those documents need to be signed I have made a forfeiture order relating to the cannabis.  I will just hand those back and, if he signs those, he will have to be taken downstairs, I assume, Mr Paull, just to make sure things - so if it is not crystal clear, I have declared that he serve 507 days of the sentence of imprisonment that I imposed.  I will enter that date or that declaration into the records of the court, meaning Mr Aghan has done each and every day of the one year and fourth months I have imposed.  Indeed he has done a few days more.

56Thank you, I have signed that document, so he can be taken downstairs and, Mr Paull, you are excused from the Bar table and head down and see what can be made of it.  The court is grateful for your very significant assistance in this case.

57MR PAULL:  As Your Honour pleases.

58HIS HONOUR:  Thank you.  Head downstairs, Mr Paull will see you shortly.  I am going to remain on the Bench.  Feel free to leave the Bar table.

59MR PAULL:  Your Honour, I understand you had some matters you wished to speak to me about, other matters.

60(At this stage the court proceeded with another matter.)

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