Director of Public Prosecutions v Ahmed
[2017] VCC 1353
•20 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01162
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RIYAD JAMAL AHMED |
---
JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 July 2017 and 20 September 2017 | |
DATE OF SENTENCE: | 20 September 2017 | |
CASE MAY BE CITED AS: | DPP v Ahmed | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1353 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords: One charge of aggravated burglary and one charge of threat to kill – Total effective sentence four years and three months with a non-parole period of two years and nine months
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N Goodenough | Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms M Mykytowycz | Valos Black & Associates Solicitors |
HER HONOUR:
1 Riyad Jamal Ahmed, you have pleaded guilty to one charge of aggravated burglary, which carries a maximum penalty of 25 years’ imprisonment and one charge of making a threat to kill, which carries a maximum penalty of 10 years’ imprisonment.
2 The circumstances of your offending are detailed in the summary of prosecution opening (Exhibit “A”). The victim of your offending is a female with whom you had been in a relationship which had ended some three months prior to the date of your offending on 26 November 2015. During that day, you had left voice messages and sent text messages to your victim which were of an insulting nature. That evening, you broke into the house where she was living by forcing a rear window and you had a small knife in your possession. This is the conduct constituting Charge 1, aggravated burglary.
3 Your victim shut herself in the bedroom and put her weight against the door, however, you forced your way into the room and grabbed her with your right hand to her throat. You had the small knife in your left hand and threatened to kill her. This is the conduct constituting Charge 2, threat to kill.
4 Your victim was screaming and you put your hand over her mouth and threatened to kill her if she called the police. She pleaded with you and you again threatened to kill her, the friend with whom she was living and yourself. You dragged her around the house and then back to the bedroom where you grabbed her by the throat and slapped her multiple times with your left hand. You put the knife up to her chin, stating “I love you, I don’t want to kill you, I want to kill your friend because of you.” Your victim told you that she loved you and apologised because she was so scared of you. At a later stage you, again, walked her around the house and, during this period, there was a knock on the door. You threw the knife you were holding under the couch and told your victim to tell the police there was nothing wrong. Police ultimately arrived and located you in the back yard and arrested you and found the small knife under the couch.
5 You are presently aged 29 years, having been born on 10 February 1988. You come before the Court with one prior appearance before a Magistrates’ Court on 4 February 2014 for offences of possessing a prohibited weapon, being drunk in a public place and stating a false name. On that occasion, the Court was satisfied that you were guilty of the offences, but dismissed the charges pursuant to s76 of the Sentencing Act.
6 In a plea on your behalf, the Court was told that you had been born in a village in Ethiopia and your ethnic background is Oromo. You have childhood memories of a traumatic nature, including seeing your father dragged from your home and shot and recollections of your mother periodically being assaulted and then locked up and then ultimately disappearing when you were about 11 years old, at which time you went with your younger siblings to live with an uncle and aunt. You left school after Grade 4 or 5 and worked in your uncle’s restaurant from approximately age 12 to 20 years. You recall being assaulted by people who were looking for your mother and, also, by your uncle.
7 Your counsel stated that your mother had found her way to the United States and, when you were approximately 20 years of age, she sponsored you and your siblings to join her. You had found it difficult being reunited with your mother as you felt angry about being abandoned by her. You worked in the United States in a abattoir for a while, and then came to Australia after having come into contact with the criminal justice system in the United States. The prosecutor advised the Court that on 31 May 2013, following a trial in Nebraska, you were convicted of first degree sexual assault. You were due to appear for a sentencing hearing on 18 July 2013, but failed to do so and a warrant was issued for your arrest. You apparently have no contact with any of your family members who remain in the United States.
8 While still in the United States, you had communicated via Facebook with the victim who is also from Ethiopia. You instructed your counsel that you and your victim had undergone some sort of traditional or customary marriage ceremony here in Australia in 2015 and that you lived together for a couple of months until August 2015. You instructed that you used ice intermittently and drank alcohol to excess because you were haunted by memories of your father’s death. You described yourself as being depressed and having been drinking heavily on the day of offending, with no recollection of how you found your way to your victim’s house.
9 At the plea hearing on 24 July 2017, a report was tendered on your behalf from Ms Carla Lechner, clinical psychologist, dated 8 July 2017. (Exhibit “1”) Ms Lechner had assessed you on 27 June 2017 at the request of your solicitors. Ms Lechner noted that on a self-report questionnaire (the Beck Depression Inventory), you reported a number of symptoms of depression which gave you a score in the “moderate” range, which she considered was consistent with your presentation at interview and a diagnosis of clinical depression. Whilst Ms Lechner considered that part of this depression was reactive to your current situation and an uncertain future (as your visa has expired and you are facing deportation), it was also suggestive of long-term mood disturbance that had never been properly diagnosed or treated. She noted your history that you had a traumatic background in Ethiopia and no guidance, such that you virtually raised yourself and had developed a heightened “flight or fight” response, a fragile self-esteem, and had no real sense of identity or belonging. She considered that, in addition to depression, you suffered symptoms of Post-Traumatic Stress Disorder relating to experiences of loss, abuse and immense emotional distress in your childhood, which you had endeavoured to address with the use of alcohol. Thus, she considered that you had an alcohol use disorder as well. She considered that you would benefit from treatment intervention.
10 I was somewhat concerned about the sketchy nature of the psychological material before the Court and adjourned the matter to today, so that a psychiatric assessment could be obtained from Forensicare.
11 Pursuant to the Court’s request, a report from Dr Ria Zergiotis, consultant psychiatrist, dated 18 September 2017, was tendered as Exhibit “B” at the hearing today. Dr Zergiotis noted a history of a traumatic childhood in Africa, with you telling her that your father was killed in front of you, seeing other people get killed, growing up in fear, having your mother disappear, and an uncle supposedly taking over your care. You described a childhood of neglect in which you wanted for food and clothing, and had left school after Grade 5. You described seeing your mother again in the United States and getting into trouble there, which you declined to discuss further. You stated you came to Australia three and a half years ago and had to fend for yourself. You described a disturbed sleep pattern and seeing images of your father being dragged and shot, having a poor memory and hearing voices at night when you were drifting off to sleep.
12 Dr Zergiotis stated that you were unable to elaborate about the nature of the voices and there was no evidence of increase in effect of intensity or distress when you spoke about them. She found no evidence of thought disorder or psychotic disorder. She considered that you came across as being of average to below average intelligence, had reasonable attention and concentration, but limited insight into your mental health issues. She noted that you were a difficult historian and declined to answer some questions in detail, and stated that only a superficial level of rapport was established. She noted that you have been assessed by a psychiatrist or psychiatric registrar in prison on at least three occasions during your remand, and had been diagnosed with adjustment disorder and anti-social personality disorder and prescribed anti-depressant medication. I here interpolate that your counsel told the Court today that you are not taking any anti-depressant medication at the present time and were unable to say when it was that you had taken such medication.
13 Dr Zergiotis thought you had, at least, mild depressive and anxiety symptoms. She considered it likely that you have features of both borderline and anti-social personality traits associated with your reported traumatic developmental history. She also stated that you presented with features consistent with a post-traumatic stress syndrome, but given the lack of detail regarding your symptoms, it was difficult to be definitive about a diagnosis of post-traumatic stress disorder. She also noted a history of both alcohol and cannabis dependence, and considered it likely that, at various times, you met the criteria for both abuse and dependence in relation to those substances, but such dependence was in full remission in the prison environment.
14 Dr Zergiotis considered that you required a high level of support in the community in order to reduce the risk of recidivism, drug and alcohol counselling, psychological therapy to address your personality issues and explore post-traumatic issues, and also case management support for accommodation and vocational and educational training.
15 It is difficult to be sure about your situation, Mr Ahmed, but doing the best that I can, I accept that you have suffered a childhood of marked disadvantage in terms of material wellbeing, educational opportunity and a lack of security, both in terms of attachments to adults who could guide you and a background of fear in a war torn country. In addition, it appears that you have been exposed to severely traumatic events, including the killing of your own father. It would appear that these factors have probably led to the development of what Dr Zergiotis describes as features of both borderline and antisocial personality traits as well as some features consistent with a post-traumatic stress syndrome, albeit that I cannot be satisfied that you do satisfy the diagnosis of Post-Traumatic Stress Disorder. Your presentation is complicated by the fact that you have abused alcohol for a significant period of time and, also, abused other drugs, in particular cannabis. On the day of your offending, you had apparently drunk a great deal of alcohol and also used ice, according to the history taken by Ms Lechner.
16 Although Ms Lechner’s report refers to you self-medicating symptoms of depression by substance abuse and you gave a similar history to Dr Zergiotis, I cannot be satisfied on the balance of probabilities that any mental illness was operative at the time you committed these offences. Indeed, your counsel did not make a submission to this effect. It seems that your offending occurred primarily in the context of you being distressed about the end of your relationship with your victim but, unhappily, it would appear that difficulties developed in that relationship which were aggravated by your substance abuse. You seem to have very little insight into the reasons for your offending, probably caused by your substance abuse. When arrested by police you denied that you had done anything. The histories given to Ms Lechner (that there had been arguments between yourself and your victim such that you had been absent from home for about a month) and to Dr Zergiotis (that you had climbed in through a window of the house to gain entry because you had lost your own key) bear very little relationship to the truth, namely that you and your victim had ceased to live together three months earlier and, indeed, she apparently had an Intervention Order against you.
17 Thus, while I take into account your traumatic background and consider that your long term undiagnosed and untreated personality disorders and symptoms of depression and post-traumatic stress should cause me to take into account that serving a term of imprisonment might be more burdensome for you than for others, there are other features of your presentation which cause me grave concern. Ms Lechner states that you are someone who appears to be impulsive, and your low tolerance for frustration is aggravated when you are substance-affected. You admitted to her that you have trouble controlling your anger. You appear to have no insight into the reasons for your offending or the capacity to reflect on the impact that your behaviour has had on your victim.
18 This was a nasty confrontational aggravated burglary in the context of a failed domestic relationship. It involved threatening your victim at night in a very frightening manner where you had possession of a knife and threatened to kill her. Although there is no victim impact statement, there can be little doubt that it must have been a terrifying and drawn-out ordeal for your victim, who was entitled to feel safe in her own home. Unfortunately, violence against former intimate partners and home invasions are prevalent crimes in the community. In sentencing you, the Court must denounce your conduct and give emphasis to general deterrence. That means that a message must be sent to other people in the community who might be minded to invade the homes of their former partners and assault or threaten them, so that they will know that they will be appropriately punished. It needs to be spelled out loud and clear that you do not own a woman with whom you have had a relationship and have absolutely no entitlement to pursue her, denigrate her and threaten her in the manner that you did.
19 It is very difficult to assess your prospects of rehabilitation. I find no remorse on your part. Although you initially pleaded guilty to the charges for which I have to sentence you back on 17 August 2016, you subsequently made an application to change your plea and that application was refused on 11 April 2017. It may be that your own psychological makeup has been so damaged that you are incapable of considering the impact on others of your impulsive and violent behaviour.
20 Mr Ahmed, I do take into account that yours has been an unhappy and unstable life. Your visa here in Australia has apparently expired and you face an uncertain future. You have had limited education and your work history is that of sporadic unskilled employment. However, it seems that, whilst not abusing substances, a better side of your character becomes evident. This is mentioned in the character reference by Ayyantu Ali who is President of the Australian Oromo Community of Victoria (Exhibit “2”). In that reference dated 21 June 2017, it is stated that you have been an active member of that association and have been involved in a number of community projects. A member of that organisation, Ms Madjona Aden, was in Court to support you at the plea hearing. In addition, whilst in custody you have undertaken a number of courses in cleaning operations and have qualified for a Certificate II in Cleaning Operations from Kangan Institute (Exhibit “3”). It is possible that with the right support and access to appropriate mental health treatment, you may be able to lead a productive life.
21 Mr Ahmed, in sentencing you I take into account that you have pleaded guilty and, ultimately spared the victim the trauma of giving evidence at a trial as well as having saved the time and expense of a trial. However, there can be no doubt that the only appropriate sentence for these serious crimes is a term of imprisonment with a significant immediate custodial component.
22 Stand up, please.
23 On Charge 1, aggravated burglary, you are convicted and sentenced to be imprisoned for a period of 3 ½ years.
24 On Charge 2, threatening to kill, you are convicted and sentenced to be imprisoned for a period of 2 years.
25 I direct that 9 months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1.
26 The total effective sentence is thus 4 years and 3 months’ imprisonment.
27 I direct that you serve a period of 2 years and 9 months’ imprisonment before becoming eligible for parole.
28 I declare a period of 494 days’ pre‑sentence detention to be time reckoned as already served under the sentence imposed this day.
29 Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the sentence imposed would have been 5 years and 3 months’ imprisonment with a non-parole period of 3 years.
30 Pursuant to s33(1) of the Confiscation Act I order that one pocketknife be forfeited to the Minister.
31 Mr Ahmed, I know that this is a hard time for you. I can only urge you to take advantage of what courses and support will be offered to you in custody and to keep away from drugs, which are still available in prisons, to give yourself the best opportunity to cope with the difficult and uncertain path you have ahead of you. This Court sincerely wishes you well in your rehabilitation.
- - -
0
0
0