Director of Public Prosecutions v Ahmadi
[2014] VCC 1018
•27 June 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 12-00801
CR 12-00800
CR 12-00799
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FARIBAH AHMADI BASHIR BARATAL MEHMET MEHMET |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATES OF HEARINGS: | Ahmadi – 5 May & 13 June 2014 |
| DATE OF SENTENCE: | 27 June 2014 |
| CASE MAY BE CITED AS: | DPP v Ahmadi & Ors |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 1018 |
REASONS FOR SENTENCE
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Subject: Trial and Plea - sentencing
Catchwords: Aggravated burglary – theft – kidnapping - make a threat to kill
- indecent assault - intentionally causing serious injury
- recklessly causing serious injury
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:Ahmadi - 54 months' imprisonment, non-parole period 30 months
Baratal - 3 years' imprisonment, non-parole period 18 months
Mehmet - 7 years' imprisonment, non-parole period 5 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J B B Lewis | Office of Public Prosecutions |
| For Accused AHMADI | Ms S Leighfield | Robert Stary Lawyers |
| For Accused BARATAL | Mr V G Peters | Chris McLennan and Co. |
| For Accused MEHMET | Mr J J Jassar | Melasecca Kelly & Zayler |
HIS HONOUR:
1Mehmet Mehmet, you have been found guilty by jury verdict of one charge of aggravated burglary, one charge of theft, one charge of kidnapping, one charge of make a threat to kill, one charge of indecent assault, and one charge of intentionally causing serious injury.
2Faribah Ahmadi, you have pleaded guilty to one charge of aggravated burglary, one charge of theft, one charge of kidnapping and one charge of recklessly causing serious injury.
3Bashir Baratal, you have pleaded guilty to one charge of aggravated burglary, one charge of kidnapping and one charge of recklessly causing serious injury.
4Aggravated burglary and kidnapping each carries a maximum penalty of 25 years’ imprisonment. Intentionally causing serious injury carries a maximum penalty of 20 years’ imprisonment. Recklessly causing serious injury carries a maximum penalty of 15 years’ imprisonment and each of theft, make threat to kill, and indecent assault carries a maximum penalty of ten years’ imprisonment.
5The circumstances of your offending are as follows.
6The victim in this matter, Jawid Nairan, is employed as a cultural liaison officer for an organisation called ‘Life Without Barriers’. He is married, however his wife and children still reside in Afghanistan. At the time of the incident in August 2011 he was living in a shared house in Dandenong.
7The three of you were involved in various offending against Mr Nairan.
8You, Mr Mehmet, owned a construction business at the time and were involved in building a house for Ms Ahmadi who was also a former employee of your construction business. You, Ms Ahmadi, were separated but still living with your former husband. You, Mr Baratal, worked as a painter for Mr Mehmet.
9You, Ms Ahmadi and the victim, Mr Nairan, worked together for Life without Barriers and developed a clandestine sexual relationship. However, after a time the relationship became strained and you broke up. The breakup of the relationship was acrimonious. It appears that you, Ms Ahmadi, feared that Mr Nairan would reveal details of your relationship and to prevent that occurring you decided to destroy any evidence by way of phone texts or emails, and to punish Mr Nairan and deter him from revealing what had occurred.
10Around 23 August 2011, Ms Ahmadi sent you, Mr Mehmet an image of Mr Nairan taken from Facebook. During the afternoon of the same day, you Ms Ahmadi rang a person named Sayed Qasem, who lived with Mr Nairan, two or three times in order to ascertain who would be present at Mr Nairan's house that evening. At about 5 p.m. that day, you contacted Sher Safari, who was 16 years of age and also lived at the house with Mr Nairan. You questioned him as to whether he would be present at Mr Nairan's house that evening, and repeatedly warned him not to be there.
11At about 8.40 p.m. on 23 August 2011, the three of you went to Mr Nairan's house in Dandenong in Mr Mehmet's car. You Mr Mehmet, and you Mr Baratal had between you a wooden baseball bat and a kitchen knife. Ms Ahmadi had a roll of gaffer tape and black plastic cable ties. You were all wearing gloves.
12Mr Nairan answered the front door and after a brief conversation, you Mr Mehmet, and you Mr Baratal, forced your way in. Mr Nairan yelled out to Sher Safari for help, however there was no reply. Mr Nairan was hit once to the face with a baseball bat by you Mr Mehmet. Mr Nairan was then hit and punched to the face. Mr Nairan was questioned about his identity, but gave a false name.
13At this point you, Ms Ahmadi, were called in to identify him. This conduct constitutes the charge of aggravated burglary.
14Mr Baratal and Mr Mehmet kept attacking Mr Nairan. Ms Ahmadi also pushed Mr Nairan, who by this stage was in the lounge room. Ms Ahmadi then provided gaffer tape which was used to wrap around Mr Nairan's head, covering his eyes and mouth. Mr Nairan's hands were bound behind his back, as well as his legs bound together.
15The house was searched to confirm that no one else was present, and various bedrooms were ransacked. You, Ms Ahmadi, were directing the two men what to do. You, Mr Baratal, also seemed to act on the direction of Mr Mehmet. Unbeknown to any of you Sher Safari, who had witnessed the initial stages of the assault upon Mr Nairan, had fled out the back bedroom window in fear and hid behind a tree in the backyard. He observed one of you three moving around the rear rooms of the house. He was too scared to call the police.
16Three mobile telephones, a laptop computer and a watch were stolen from the house. A schoolbag and jacket belonging to Sher Safari and a wallet belonging to Mr Nairan were also stolen. These aspects give rise to the charges of theft.
17Mr Nairan was carried out to Mr Mehmet's car by all three of you. He was put in the rear seat of the car. Ms Ahmadi sat beside him holding a knife. This conduct constitutes the charge of kidnapping, which also includes the following behaviour.
18Mr Nairan, fearing for his life, tried to escape. He was able to free his hands which in turn allowed him to pull the gaffer tape from his eyes and mouth. He then tried to get out of the car. You, Ms Ahmadi, were holding a knife and grabbed hold of Mr Nairan's neck and his hair to stop him. You dropped the knife and screamed out to the others to grab him and grab the knife.
19One of you two, Mr Mehmet and Mr Baratal, grabbed hold of the knife and held it to Mr Nairan's throat, threatening to cut his throat if he did not stop screaming and struggling. This conduct constitutes the charge of threat to kill.
20Mr Nairan eventually submitted, and was pushed back into the motor car and rebound with gaffer tape.
21The car was driven from Mr Nairan's house, and eventually to a car park in the vicinity of Churchill Park Drive, Lysterfield, located in bushland where there was no street lighting. Mr Nairan was then taken from the motor vehicle and dragged by his shoulders along the ground to the front of the car. Believing he was going to die Mr Nairan begged you, Ms Ahmadi, to spare his life. You responded "I don't give a shit". Nairan was placed in the headlights where he was further assaulted.
22Mr Nairan's clothing was removed except for his top. As Mr Nairan stood semi-naked between Mr Mehmet and Mr Baratal you, Ms Ahmadi, appeared to take a number of photographs of him using a mobile telephone. This conduct constitutes the charge of indecent assault.
23Mr Nairan was threatened that he had to resign from his job and move to Sydney. He was told that he should not report this incident to police or the naked photographs of him would be displayed on Facebook.
24Mr Nairan was struck a number of times to the face and body before he collapsed onto the ground, dazed and exhausted. Call charge records indicate that the time was about 9.30 p.m.
25Unbeknown to any of you at that time, Jawad Zahad, the nephew and housemate of Mr Nairan, had contacted Sher Safari at around 8.53 p.m. and was advised by him that Mr Nairan had been kidnapped.
26At 9.11 p.m., Mr Zahad was able to connect to Mr Nairan's mobile phone after a previous failed attempt. Shortly after, Mr Zahad went to the Camberwell Police Station. The police and Mr Zahad monitored this call which lasted for about 20 minutes. During this phone call, you Ms Ahmadi were heard to say "You're going to say what I did to other people.” … “Take the knife and beat him". You also talked about “Facebook” and “pictures”. Mr Nairan was also heard pleading, “don't beat me” several times.
27When Mr Nairan eventually regained consciousness he noticed that neither any of you three nor the car were present. Mr Nairan put his clothes on, minus the underwear, and fled into the bushland to hide. He saw the three of you return in your motor car and drive past several times before driving off about five minutes later.
28Mr Nairan, covered in blood, stumbled barefoot along the gravel edge of the road attempting to wave down passing motorists. None of the motorists stopped. At about 9.45 p.m., a passing motorist saw Mr Nairan stumbling along the road, near the roundabout at Churchill Park Drive and Power Road, Lysterfield. The motorist called police and an ambulance, but refused to allow Mr Nairan into his car because of his condition and drove off. At 10.08 p.m. Mr Nairan was located one kilometre up the road by police.
29As a result of this assault Mr Nairan sustained a broken nose and extensive swelling to his face and lips. He had lacerations to his eyebrow, cheek and thumb, as well as extensive bruising and abrasions to his whole body. He also had hearing difficulties in one of his ears.
30This assault gives rise to the charge of intentionally causing serious injury in your case Mr Mehmet, and the charge of recklessly causing serious injury in your cases Ms Ahmadi and Mr Baratal.
31A victim impact statement was tendered. In it Mr Nairan expresses the negative mental and physical impact on his life. He still suffers from the injury to his nose and may need surgery. He has difficulty breathing and he carries scars on his face.
32The mental scars are enduring. He feels stress, anxiety, inability to concentrate, insomnia, and episodes at night of hyper-vigilance. He feels he is just not the same person anymore and feels excluded from his community. He is, to this day, still really suffering.
33After the offending you, Mr Mehmet, came to the home of Clera and Kamal Sapkota who lived in the unit next door to Mr Baratal with Kamal's cousin Bed Prasad Sapkota. At the time you were building a new house for the Sapkotas, and the unit they were living in belonged to your mother-in-law. When the Sapkotas opened the door, they saw that you had blood on you. Clera Sapkota was concerned for you, but you told her not to worry as the blood was not yours. You came to the house and cleaned yourself up and were provided with some fresh clothing. You then asked for some soapy water and some towels so that you could clean your car. Clera Sapkota brought some outside and gave it to you Mr Baratal, who were outside, and the two of you then helped clean blood from the interior of Mr Mehmet's car.
34Clera and Kamal Sapkota then went into Mr Baratal's unit where you, Mr Mehmet, now were. Clera Sapkota asked you what had happened. You told her that you three had bashed up some Afghan guy and left him near either Lysterfield or Churchill. You said you had done so because this Afghan guy was threatening a lady called Fatima. At this point you, Ms Ahmadi, came into Mr Baratal's unit in an agitated state. You remained for about five minutes before leaving.
35On 24 August 2011 you, Mr Baratal, and you, Ms Ahmadi, drove to Doveton Creek and threw the three stolen mobile handsets, the laptop computer and the watch into the creek. Several of these items were subsequently recovered by the Police Search and Rescue Squad later that evening. You both also washed bloodstains from your clothes.
36Later that same day you were all arrested. Located in the front passenger floor of Mr Mehmet's car were three rolls of gaffer tape and a packet of black plastic cable ties, identical to cable ties found at Mr Nairan's house. Mr Nairan's blood was located in Mr Mehmet's car. A handwritten note was also found in the car. The Crown says that this note was created in preparation for the assault and the kidnapping of Mr Nairan.
37The note contained details about Mr Nairan, including his name, mobile telephone number and the identification of his car. Also noted was "reason - insulation installer or check light bulb replacement", which appears to be a pretext to gain entry into Mr Nairan's house.
38When you were arrested, Mr Mehmet, you were wearing a red t-shirt with a print on it. DNA testing indicated extremely strong support for the proposition that the t-shirt had blood on it belonging to the victim, Jawid Nairan. There was also extremely strong support that Mr Nairan's blood was found on the seatbelt lock, rear centre, in your car.
39Located at Mr Baratal's premises, among other items of property, was a baseball bat and a bloodied latex glove. DNA testing indicates that there is extremely strong support for the proposition that Mr Nairan's blood was on the latex glove.
40On 24 August 2011 Clera Sapkota became aware that the bloodstained clothing belonging to you, Mr Mehmet, was still at the unit and that police had failed to seize it. She contacted your son Adem, who instructed her to bring it to him. She did so, and he then drove her to a remote site and sought to burn the clothing.
41
On 29 August 2011, Mr Nairan was shown a photoboard containing photographs of 12 people. He was asked if he could identify anyone. He initially pointed at Photograph 8 saying "I am very suspicious of this man. His similar face to the person who beat me. That is Photo 8.” He then said, “But I am also more suspicious of Number 5. It is more Number 5. I have a feeling. The way Number 5 looks, the facial expression, the moustache. He looks like the first person who knocked on the door and beat me. When I opened the door he was standing there. I am most suspicious of 5". Number 5 was a photograph of you, Mr Mehmet.
42Between a few days and a week after 23 August 2011 you, Mr Mehmet, visited Clera Sapkota and her husband Kamal and asked them both to be alibi witnesses for you in relation to the evening of 23 August 2011. Between this discussion and late June 2012, a number of discussions took place between you and Clera and Kamal Sapkota in which you asked them to give evidence for you.
43The nature of the evidence that you asked them to give was to the effect that you had been with them at the time, discussing the kitchen in the new house that you were building for them. You also told them to say that while you were there Ms Ahmadi came to the door and handed over your car keys. Ultimately they refused to comply with your request and made statements implicating you and Mr Baratal, and gave evidence later on in your trial.
44You, Mr Baratal, participated in a voluntary interview with the police. You admitted that on 23 August 2011 you were picked up in a motor vehicle driven by Mr Mehmet, and Ms Ahmadi was sitting in the front passenger seat. On arriving at Mr Nairan's house you followed Ms Ahmadi and Mr Mehmet into the house. You stated that Mr Mehmet was lied to by Mr Nairan and that Mr Mehmet punched Mr Nairan two or three times to the face. You said you pushed Mr Nairan backwards, and then restrained him as he tried to fight back. You all then forced Mr Nairan into Mr Mehmet's car.
45You said you drove to Endeavour Hills on the instructions of Mr Mehmet. You said Mr Nairan made a couple of attempts to escape, but was restrained. You said Mr Nairan tried to get a knife from Ms Ahmadi, and tried to stab someone, so you all "controlled him". You dropped Mr Nairan off in a dark area. You admitted to hitting Mr Nairan two or three times during the incident. You denied seeing any knife earlier, a baseball bat or any gaffer tape. You denied any knowledge of any property being stolen from Mr Nairan's house. You said everything had occurred because of Ms Ahmadi.
46You also indicated a willingness to assist the prosecution in the contested trial of your co-accused Mr Mehmet. A statement was taken which sets out the evidence that you were prepared to give. In it you made admissions as to your presence with the others, but very much minimised your own role. Apart from saying you pushed the victim down at one stage, you denied punching him. You claimed that you were trying to prevent Mr Mehmet hitting the victim, and assisted the victim up and walked him into his living room and sat him down in the couch. You denied participating in any way with Mr Mehmet and Ms Ahmadi whilst at the Lysterfield location.
47You, Ms Ahmadi, also participated in a record of interview with police and made partial admissions. You claimed that the victim Mr Nairan wanted to marry you, but you had said no. You said Mr Nairan was threatening to expose your relationship. You admitted to attending Mr Nairan's house on 23 August 2011 with Mr Mehmet and Mr Baratal.
48You said you initially entered Mr Nairan's house alone to try to speak to him, but Mr Nairan became physically aggressive and the two men came into the house to support you. The physical altercation escalated, but you were not the instigator. You admitted that Mr Mehmet kicked and punched Mr Nairan for several minutes. You admitted to pushing Mr Nairan and losing your temper.
49You admitted you saw the two men threaten Mr Nairan. You said Mr Nairan was taken to Mr Mehmet's car under duress. You said that Mr Mehmet made Mr Nairan take his pants and underwear off and took photographs of him, threatening to place them on Facebook. You admitted to stealing Mr Nairan's three mobile telephones and watch. You denied that Mr Nairan's hands were tied with gaffer tape, that he was threatened with a knife, or that anyone assaulted him with a baseball bat.
50I now turn to your respective personal circumstances.
51As to you, Mr Mehmet, you are now aged 50. You were 48 at the time of the offending, and you have a history of some minor offending many years ago which I regard as largely irrelevant to these proceedings.
52You were married but have separated, and you have three children who are all very close to you. Your marriage was affected by the fallout from this offending. You are the son of a migrant family, came to Australia when you were eight, worked well through school, attended tertiary college and obtained a certificate in Mechanical Design and Drafting.
53Growing up, you assumed a lot of responsibility for looking after your brother who has a serious blood disorder. You have worked throughout Australia in a mechanical design capacity, including major mine projects and time with the Department of Defence.
54Approximately ten years ago you established a residential design, construction and material importing business. That business has suffered materially since your arrest on these charges and you have been declared bankrupt. Your assets, including your house, have been sold.
55I accept that since your reception into prison you have developed a significant depressed mood, and associated physical conditions. I also note that you personally appreciate that this is entirely reactive and appropriate to a situation you have been placed in through your perception that it has been through no fault of your own. There is no indication of any pre-existing mental condition.
56In mitigation, I accept that you have led a hardworking and productive life, raised a family and contributed unselfishly to the community and to your family. You come from a good and honourable family, and it is apparent that you have yourself otherwise led a good and honourable life. You have held responsible positions, and created a business which has employed other people.
57The character references attest to your goodness within your family, your ethnic community and beyond. The reference from Mrs May Tomlinson is an example. You have many good qualities, and this offending appears completely out of character. Your wife is not well and despite your separation it is clear that you still feel very lovingly towards her and regret the circumstances that now mean you will not be able to be present and comfort her. I accept that this separation from her and your family will be a great source of emotional pain for you. You have now been in remand custody for 367 days. I accept that the delay between the date of offending and resolution of this matter also needs to be taken into account.
58You pleaded not guilty, maintain your innocence, but were found guilty by the jury beyond reasonable doubt of all charges. In my view it was a strong prosecution case. You have, through your counsel, indicated your feelings of sympathy for the victim and written a lengthy letter to the court. I note your feelings of compassion for the victim; however this cannot be accepted as any indication of remorse.
59It is a sign of emotional maturity, however, that despite your protestations that you have been wrongly found guilty and remain the victim of a vicious conspiracy, you still maintain respect for the process of the trial.
60Despite your unwillingness to accept your role in this offending I have, perhaps somewhat paradoxically, formed the view that your prospects of rehabilitation are good. This is principally based on your maturity, your regret for your current circumstances and the fact that these offences were otherwise very much out of character.
61As to you Ms Ahmadi, you are aged 34 years now, you were 32 at the time of the offending and you have no criminal record.
62You have had a difficult life involving deprivation, abuse and mental illness.
63You were born in Afghanistan into the Hazara community. At the age of one your family moved to Iran to escape the fighting. Within your family you were seen as bringing bad luck being a female as first born, and blamed for further bad luck as further female children were born.
64There were many fights between your mother and father. You were hit by a cable at one stage as punishment, and on one occasion when you were only five you were deliberately scalded, resulting in hospitalisation and extensive scarring. Your community was subject to prejudice and discrimination because you were Hazara and Shi’ite and had physical features different from the majority in Iran.
65You had minimal schooling. At the age of six you commenced working picking fruit and vegetables and at 14 you entered into an arranged marriage with a first cousin who was 21. It was not a happy beginning. You were subject to abuse from your husband and mother-in-law.
66At age 15 you walked with your husband and his family to Pakistan. You had to carry your newborn baby. In Pakistan you had to live in a restricted area and were mostly confined to home because of discrimination and the fear of violence because you were Hazara and a woman.
67Eventually, with the birth of successive children, your family got to the point where there were two parents and nine children living within one room, and sharing a living area with other families in the same house. As a 22-year-old, you and your in-laws managed to migrate through Malaysia and settle in New Zealand, where at age 28 you were granted citizenship.
68
In 2009 you and your husband moved to Australia. By this stage you were nearly 30 and had four children. You filed for divorce from your husband in April 2009 and met the victim in December the following year. You have, however, continued living with your husband.
69You have experienced periods of mental illness, first recorded in New Zealand in 2004 when you were apparently overwhelmed and suicidal. This was followed in 2006 with a suicide attempt and a diagnosis of depression. It was noted that you had a long history of depression, anxiety and post-traumatic syndrome disorder. You have also experienced serious mental problems following the current offending.
70In August 2012, a few months after the committal proceedings, you were admitted to hospital suffering psychotic depression. In September you were again admitted as an inpatient and then again between June and August 2013. In February this year you took an overdose and were admitted to Dandenong Hospital. Whilst there has been a diagnosis of and treatment for schizophrenia, Dr Walton, a very experienced and respected forensic psychiatrist, considers your condition is better described as chronic major depressive disorder.
71In either case you present with a history of mental health disorder which impacts on both your reason for commission of the offending and your current ability to manage imprisonment.
72Your difficulties in life have been compounded by continuing problems in your marriage and the birth of a disabled child, now aged 7, who requires specialised care. Your 14-year-old daughter also has a mental health issue. Your 19-year-old son is undertaking a course in engineering at Monash University.
73Despite these difficulties and your lack of formal education, you have on occasion shown some quite remarkable abilities. You are fluent in five languages, and in 2005 received A+ results in chemistry and microbiology as part of a pre-nursing course in New Zealand, later completed a certificate in aged care work and have worked in a leadership capacity, with the Association of Hazaras in Victoria, with the Life Without Barriers organisation as a cultural support worker, and assisted as a counsellor with the Melbourne Immigration Transit Accommodation organisation.
74In mitigation, I accept the matters put forward very comprehensively by your counsel Ms Leighfield, including:
· your plea of guilty and the early stage at which it was made,
· your co-operation and, albeit qualified, assistance to the police enquiry,
· your remorse and acceptance of responsibility,
· the absence of any previous or subsequent offending,
· your voluntary work in assisting your community,
· your mental health disability, which I accept reduces your moral culpability for the offending and will mean that there is a serious risk that imprisonment will have a serious adverse effect on your mental health,
· your separation from your family, particularly your children, and that also in the context of your inability to care for your two daughters' special needs.
· the delay in this matter coming to resolution,
· the difficult life and violence you have endured which may have made you more susceptible to resolving a serious issue in a violent way, and
· your prospects of rehabilitation which, because of your otherwise good character, your commitment to work and your intelligence indicating a capacity for further academic achievement, I regard as good.
75
As to you Mr Baratal, you are aged 27 years now, you were 24 at the time of offending and you have a previous conviction imposed on 27 January 2011 for driving whilst suspended. You were placed on a community-based order for 12 months. The current offending took place within the operational period of that order.
76You were born in Afghanistan, but for reasons you do not know became the adopted child of parents living in Iran. You spent your childhood in Iran, attended secondary school and began employment in customer service and later at a dairy company. In 2008 at the age of 21 you came to Australia to join your adoptive family who had emigrated. You had been happy in Iran, and by 2009 you had become somewhat estranged from your family in Australia and were living independently in shared accommodation in the Dandenong area. You had established yourself as a painter, had studied English and began working for Mr Mehmet who was a builder.
77You saw Mr Mehmet as being very successful, and the two of you became friends. You had been working for Mr Mehmet for about six months prior to this incident. All you knew of Ms Ahmadi was that Mr Mehmet was building a unit for her and you believed that she and Mr Mehmet had a working relationship.
78Ms Lucy Page gave evidence on your plea. Ms Page has known you for two years and teaches English and skills for education and employment at TAFE. She originally taught you between March and November 2012 and again in early 2013. You became good friends and you have continued to be in regular contact.
79Ms Page spoke well of your character as she has been able to observe it over the past two years. She said you worked hard at classes to improve your education, are reliable, respectful of others and are thoughtful, kind and honest. Ms Page also spoke of your dislocation from family, and that you had formed new friendships whilst in custody.
80In mitigation, I have taken into account the matters submitted by your counsel. In particular, I accept:
· your plea of guilty and the remorse which that plea represents,
· the time already spent by you in remand custody,
· your age at the time of offending which can still be regarded as youthful,
· the time that has passed since the commission of this offending,
· the fact that you have not re-offended since this offending,
· the good character that you have demonstrated over the past two years as evidenced by the testimony of Ms Page,
· your participation in the crimes in the context of you being a young man with very little formal education, recently arrived in Australia with poor language skills, estranged from your adoptive family and very likely to have felt heavily under the influence of your co-offender and employer Mr Mehmet.
81I take into account to a degree your willingness to give evidence on behalf of the prosecution - with the qualification that I do not accept that your account of your involvement was wholly truthful, would be easily revealed to have been self-serving, minimising your role and playing into the hand of Mr Mehmet's defence at his trial that you and not Mr Mehmet were involved. This would have allowed Mr Mehmet's defence to emphasise matters including your fingerprints being on the baseball bat, your fingerprints on the note identifying the victim, the bloodied glove being found at your home and it being your home where Clera Sapkota found Mr Mehmet's bloodied clothes before destroying them. Mr Mehmet's defence at the trial was that he simply was not present or involved. In my view it was hardly surprising that, despite the apparent value of your evidence to the prosecution in providing direct evidence of Mr Mehmet's participation, you were not called to give that evidence. Nevertheless, I regard the fact that you were prepared to swear to a statement implicating your co-offenders and the value of your prospective evidence as of some weight, although not high, which should be acknowledged.
82Accordingly, in sentencing you I have allowed for this matter by imposing a slightly less severe sentence than would otherwise have been imposed and this will be noted in the court records as required by sub-s.5(2AB) of the Sentencing Act 1991.
83I take into account also in mitigation your role in the incident in which I have concluded that it is likely that you were not involved in the preparation or planning, were effectively co-opted as physical support and that you were quickly regretful afterwards of your involvement. I am satisfied beyond reasonable doubt that your version of your role in the offending, as recounted in your statement, is not truthful.
84I take into account also your prospects of rehabilitation which I regard as good.
85Despite the matters in mitigation and the importance of principles of rehabilitation applicable to a youthful offender with no previous history of serious offending, difficult circumstances and evidence of otherwise good qualities, principles of specific and general deterrence, punishment and denunciation remain significant in balancing the sentencing discretion in a case of this nature.
86The offending in which each of you engaged is very serious. The crimes of aggravated burglary and kidnapping in particular are amongst the most serious crimes that can be committed. The maximum penalties of 25 years’ imprisonment reflect how seriously Parliament views such conduct.
87
Home invasion itself is a terrifying experience, and the victim impact statement tendered in this case reflects that experience. Mr Nairan suffered badly and the effects, particularly emotional, can be longstanding. The crime of aggravated burglary undermines the sense of security people are entitled to feel in their homes, and the incidents of home invasions must be discouraged by the courts.
88It would only be in a rare case that such conduct would not result in a significant sentence of imprisonment. In this case your total culpability included tying the victim up, kidnapping him and assaulting him. Kidnapping is a further crime inducing great fear in a victim. This was a particularly brutal series of acts that terrorised, seriously injured and humiliated the victim. At various times within the incident he, unsurprisingly, thought he was going to be killed. Matters of deterrence, both general and specific, denunciation and protection of the community are significant sentencing factors.
89The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offences, your culpability for them, your personal circumstances and those of any victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society. Moderation needs to be applied in a variety of ways according to the mitigating aspects I have accepted in each of your individual cases.
90Parity of sentences between offenders is also important. In this respect the pleas of guilty of you, Ms Ahmadi, and you, Mr Baratal, must be accorded due weight. Aside from matters of established remorse, the plea of guilty provides benefit to the community in assisting the administration of justice by avoiding the expense of a long trial and further trauma and inconvenience to witnesses. Ancillary to this, the negotiated pleas of guilty have resulted in an acceptance of fewer charges and a lesser charge for the injury offence.
91These aspects provide the most significant distinction between you, Mr Mehmet, and the others. Particular roles in the offending also need to be considered. In this respect there are conflicting versions in the evidence of what precise role was played by each of you at certain times. In my view it is unnecessary to descend very much into that detail.
92What is clear is that you, Ms Ahmadi, fearing humiliation from possible disclosure of your sexual liaison with the victim, conceived the plan to punish and humiliate him and take any evidence which he might possess. You planned the operation, gave careful thought about others who might have been present at the home of the victim, recruited Mr Mehmet and provided necessary details. You were encouraging at the scene.
93Mr Mehmet, in turn, recruited the physical support of Mr Baratal. I am satisfied beyond reasonable doubt that you, Mr Mehmet, were the first to enter the home of the victim and were armed with the baseball bat. You were all acting with a common purpose. I am further satisfied beyond reasonable doubt that despite some differences in the detail of their respective accounts, the Sapkotas were truthful concerning your attempts, Mr Mehmet, to persuade them to give untruthful evidence in order to provide you with an alibi defence. In my view this is an aggravating aspect of your conduct.
94Whilst this is appalling behaviour I am however prepared to accept that it should only be regarded as moderately aggravating because it was likely the result of feelings of great panic, following realisation of the significance of the acts you had recently committed.
95I accept that the physical injuries actually suffered by the victim fall within the lower range; however this has to be balanced by the emotional impact of a terrifying ordeal.
96
As to matters of cumulation and concurrency, I accept that the entry into the victim's home and the subsequent assault and kidnapping are so closely related and inter-dependent that it can be reasonably said of them that they arise out of the one transaction and call for concurrency. The theft, threat to kill and indecent assault acts are acts further to the general transaction and call for some cumulation.
97Mr Mehmet, would you please now stand.
98On Charge 1 of aggravated burglary, you are convicted and sentenced to three years’ imprisonment.
99On Charge 2 of theft, you are convicted and sentenced to two years’ imprisonment.
100On Charge 3 of kidnapping, you are convicted and sentenced to six years’ imprisonment.
101On Charge 4 of make threat to kill, you are convicted and sentenced to one year’s imprisonment.
102On Charge 5 of indecent assault, you are convicted and sentenced to one year’s imprisonment.
103On Charge 6 of intentionally cause serious injury, you are convicted and sentenced to two years’ imprisonment.
104Charge 3 is the base sentence.
105I direct that six months of the sentence imposed on Charge 4 and three months of each of the sentences imposed on Charges 5 and 2 be served cumulatively on the sentence imposed on Charge 3 and upon each other.
106The total effective sentence is seven years’ imprisonment.
107I direct that you serve a minimum period of five years’ imprisonment before being eligible for parole.
108Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 367 days, not including today, be reckoned as time already served under the sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.
109At the plea hearing, the Crown sought an order for the retention of a forensic sample which was not opposed, and I have made that order today for the reasons noted on the order, namely, the seriousness of the circumstances of the offending warrants the making of the order, the order was consented to and the granting of the order is in the public interest.
110The Crown also sought a disposal order to which you consented, and I have also made that order today.
111Are there any other matters, counsel, with respect to Mr Mehmet?
112MR LEWIS: No, Your Honour.
113MR JASSAR: No, Your Honour.
114HIS HONOUR: Thank you, you may be seated Mr Mehmet.
115I now turn to sentence you, Ms Ahmadi.
116On Charge 1 of aggravated burglary, you are convicted and sentenced to two years’ imprisonment.
117On Charge 2 of theft, you are convicted and sentenced to one year’s imprisonment.
118On Charge 3 of kidnapping, you are convicted and sentenced to four years’ imprisonment.
119On Charge 4 of recklessly cause serious injury, you are convicted and sentenced to 18 months’ imprisonment.
120Charge 3 is the base sentence.
121I direct that six months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 3. The total effective sentence is four years and six months’ imprisonment.
122I direct that you serve a minimum period of two years and six months’ imprisonment before being eligible for parole.
123Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 53 days, not including today, be reckoned as time already served under this sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.
124Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty the total effective sentence that would have been imposed is six years’ imprisonment with a minimum period of four years to be served before eligibility for parole.
125At the plea hearing, the Crown sought an order for the retention of a forensic sample which was not opposed, and I have made that order today for the reasons noted on the order, namely, the seriousness of the circumstances of the offending warrants the making of the order, the order was consented to and the granting of the order is in the public interest.
126Two compensation orders were also sought to which you consented, and I also make those orders today. I order that you pay compensation in the sum of $2,311 to Jawid Nairan and compensation in the sum of $150 to Sher Safari.
127Are there any other matters with respect to Ms Ahmadi, counsel?
128MS LEIGHFIELD: Only custody management issues, Your Honour, which they're probably aware of already.
129HIS HONOUR: We can make a direction that there are custody management issues in relation to Ms Ahmadi to be taken into consideration.
130
MS LEIGHFIELD: Thank you, Your Honour.
131HIS HONOUR: Just before I proceed to Mr Baratal's sentence. Can I just confirm the number of days Mr Baratal has been in custody at this stage
132MR LEWIS: Yes, Your Honour, that's agreed at 199.
133HIS HONOUR: Yes, that makes sense.
134MR LEWIS: Thank you.
135HIS HONOUR: Yes, thank you. Mr Baratal, would you please now stand.
136On Charge 1 of aggravated burglary, you are convicted and sentenced to two years’ imprisonment.
137On Charge 2 of kidnapping, you are convicted and sentenced to three years’ imprisonment.
138On Charge 3 of recklessly cause serious injury, you are convicted and sentenced to 12 months’ imprisonment.
139The sentences are all concurrent.
140The total effective sentence is three years’ imprisonment.
141I direct you serve a minimum period of 18 months’ imprisonment before being eligible for parole.
142Pursuant to s.18(4) of the Sentencing Act 1991 I declare that the period of 199 days, not including today, be reckoned as time already served under the sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.
143Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty the total effective sentence that would have been imposed is four years’ imprisonment, with a minimum of three years to be served before eligibility for parole.
144At the plea hearing the Crown sought an order for the retention of a forensic sample which was not opposed, and I have made that order today for the reasons noted on the order, namely, the seriousness of the circumstances of the offending warrants the making of the order, the order was consented to and the granting of the order is in the public interest.
145The Crown also sought a disposal order as to the knife and the baseball bat to which you have consented, and I have also made that order today.
146Are there any other matters with respect to Mr Baratal?
147MR LEWIS: No, Your Honour.
148MR PETERS: No, Your Honour.
149HIS HONOUR: Thank you, you may be seated Mr Baratal. Mr Baratal and Mr Mehmet may now be removed from the court. Thank you Ms Ahmadi, we will now break the connection of the transmission to the court.
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