Director of Public Prosecutions v Ahmed & Yat
[2023] VCC 1638
•5 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00779
CR-23-00780
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TALORER AHMED DUNG YAT |
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JUDGE: | JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 August and 5 September 2023 | |
DATE OF SENTENCE: | 5 September 2023 | |
CASE MAY BE CITED AS: | DPP v Ahmed & Yat | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1638 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – sentence
Catchwords: Pleas of guilty – assaults of custodial officers on duty – recklessly cause injury - Category 1 offence– not a premeditated attack but both offenders engaged in repeated acts of violence once instigated – prior criminal histories - significant delay – extra curial punishment – general deterrence
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Worboyes v. The Queen [2021] VSCA 169; R. v. Verdins (2007) 16 VR 269; DPP v. O’Neill [2015] VSCA 325; DPP v. Hudgson [2016] VSCA 254; DPP v. Lombardo [2022] VSCA 204
Sentence: AHMED: total effective sentence of 12 months’ imprisonment with a non-parole period of six months fixed
YAT: total effective sentence of 14 months’ imprisonment with a non-parole period of eight months fixed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Hotchkin | Office of Public Prosecutions Victoria |
For Talorer Ahmed For Dung Yat | Mr M Brugman Ms K Ballard | Geelong Lawyers Slades & Parsons Criminal Law |
HER HONOUR:
1
Talorer Ahmed and Dung Yat, you have each pleaded guilty to one charge of assaulting Gregory Lee, a custodial officer on duty contrary to s31(1)(b) of the Crimes Act 1958, the maximum penalty for which is five years’ imprisonment and one charge of recklessly causing injury to Leroy Doherty, a custodial officer on duty contrary to s18 of the Crimes Act 1958, the maximum penalty for which is
five years’ imprisonment.
2Mr Yat, you have also pleaded guilty to one charge of assaulting Stephen Marsh, a custodial officer on duty, contrary to s31(1)(b) of the Crimes Act 1958.
3These charges arise from an incident in the Cassia Unit at Barwon Prison where you were both held in custody on 27 June 2020. Mr Ahmed, you were 24 years old and you, Mr Yat were 23 years old, at the time of the offending.
Circumstances of offending
4The circumstances of your offending are detailed in the Summary of Prosecution Opening for Plea dated 9 August 2023 which is the agreed basis upon which you are to be sentenced.
5The Cassia Unit at Barwon Prison is a reception unit for mainstream prisoners. The unit allows prisoners to mix in the common areas of the main compound.
6
On 27 June 2020, custody officers Leroy Doherty, Gregory Lee and
Stephen Marsh were conducting prison guard duties in the unit. Acting Senior Prison Officer, Nicole Brown, was also working on the unit at this time.
7At approximately 2 pm that day, a prisoner count was called. Prisoner counts are conducted at regular intervals throughout the day, with an announcement broadcast over the prison’s PA system notifying prisoners to stand by their cell doors for the count.
8On this occasion, there was a delay with the count caused by some prisoners ignoring directions to stand by their cell doors.
9Mr Doherty approached those prisoners and asked them to comply, stating that everyone else was waiting for them. This request was ignored.
10Until this point, Mr Yat, you had been standing outside your cell door. However, you then ran over to the area where the other prisoners were refusing to comply. As you did so, Mr Doherty told you to, ‘Get by your door’, but you ignored this instruction.
11Mr Doherty considered that your conduct warranted disciplinary action, and told you and the other prisoners that he would be removing the television set screens in your cells if you did not stand by your doors. You, Mr Yat, and the other prisoners continued to ignore Mr Doherty’s direction for a period, until you eventually complied and the count was completed at around 2.15 pm.
12
Soon after this, Mr Doherty told you he intended to remove the television from your cell for one night due to your behaviour. Other prison officers, Ms Brown and
Mr Lee, were both present during this conversation.
13Mr Yat, you then walked back into your cell and Mr Doherty approached the entrance. You refused to give him your television. In response, Mr Doherty asked for the aerial that plugs into the wall, and you again refused. After attempts to negotiate with you, Mr Doherty directed you to go to the holding cell.
14At this point, you, Mr Ahmed, were standing several metres away from the entrance to Mr Yat’s cell, observing the interaction between him and the prison officer.
15From this period in time, the incident was captured on CCTV footage, which I have viewed.
16
You, Mr Yat, refused to go to the holding cell. You became agitated and stepped towards the three prison officers. Mr Doherty and Ms Brown attempted to close your cell door, while you were still inside. Mr Doherty can be seen pushing you to the chest to stay inside your cell, but you push your way outside the door.
Mr Doherty stepped back from the doorway of the cell and Ms Brown called a ‘code blue’ alarm on her radio.
17You, Mr Ahmed, had moved in close and threw a punch at Mr Doherty with your left fist, in a jab-like motion, narrowly missing his head. Mr Yat, you immediately lunged from the doorway of your cell, and threw two punches at Mr Doherty’s head using your right and left hands, in a hook-like motion. The force of this action caused Mr Doherty to fall backwards onto the floor.
18Mr Lee rushed in to try to assist the other prison officers. Mr Ahmed, you then struck Mr Lee to the head with your left fist, causing him to fall to the floor, tripping on Mr Doherty as he did so. When he was on the ground you, Mr Yat, then turned and punched Mr Lee three to four times to his head and chest area as he lay on the floor.
19
Mr Yat, you then moved in the direction of Mr Doherty, who had regained his footing by this time, punching him directly to the head with your right fist, in a
hook-like motion. The force of this action caused Mr Doherty to fall backwards, knocking his head on the cell door before falling to the floor. You then turned and ran back to Mr Lee, who was attempting to stand up, kicking him to the head. You, Mr Ahmed, then stomped forcefully on Mr Lee in the area of his neck and head.
20Another prison officer, Mr Marsh moved towards the altercation at this time, holding both hands up in a non-confrontational manner. Notwithstanding this, you, Mr Yat, threw several punches at his head, knocking him to the floor.
21In response to the code blue alarm, other prison officers attended the area. The situation was brought under control when you, Mr Yat, lay on the ground facedown having been told to do so, otherwise the prison officer would deploy his OC spray. You were then placed in handcuffs. Mr Ahmed, you were then escorted out of the area.
22Following the incident, you were both placed in the Acacia High Security Unit at Barwon Prison.
23The prison officers were taken to the emergency department at University Hospital in Geelong for assessment and treatment. They were discharged that day.
24Mr Doherty was assessed as suffering minor soft tissue injuries to the left side of his face and neck, and a tendon injury to his right ring finger. His finger required a splint and referral to the outpatient hand clinic, however an X-ray confirmed he had not sustained any hand fracture. The injury Mr Doherty sustained from the assault gives rise to the charge of recklessly causing injury (Charge 2).
25Mr Lee had a CT scan which confirmed he had suffered no fractures or brain injury. On examination, Mr Lee was found to have a 5 mm scratch to his left ear, bruising to his left upper arm, and abrasions to his left elbow and tenderness to his neck and jaw.
26Mr Marsh presented at hospital with bruising and tenderness above his left eye and a headache, but that resolved with analgesia.
27Investigators did not interview either of you in relation to the incident.
Procedural history
28There has been significant delay associated with these proceedings for which neither of you are responsible.
29As stated, the offending occurred on 27 June 2020.
30However, for reasons the prosecution is unable to fully explain, you were not charged until 21 months later, in March 2022. Mr Ahmed, you were charged on summons on 26 March 2022, and you, Mr Yat, were charged on the following day by summons. As best as can be ascertained by the prosecution, although the CCTV footage and statements were taken soon after the incident, when the first informant went on maternity leave, the matter was not acted upon by investigators until March 2022.
31There was further delay associated with the committal proceedings. Charge 2 is an indictable offence. Although s102 of the Criminal Procedure Act 2009 requires that a filing hearing be conducted in the Magistrates’ Court within 28 days of a charge-sheet being filed with a summons, in this case a filing hearing was not conducted until eight months later, on 1 December 2022. The prosecution is also unable to explain the delay associated with the conduct of this matter in the Magistrates’ Court, other than to note that it appears the charges were erroneously listed for mention in the summary jurisdiction.
32At a committal hearing on 15 May 2023, you both indicated an intention to plead guilty to the charges for which you are now to be sentenced without the need for a contested committal hearing.
33I will return to the relevance of this delay to the sentences to be imposed later in my reasons.
Offence gravity
34Viewed objectively, this was extremely serious offending. You were both in custody at Barwon prison: you, Mr Yat, were on remand and you, Mr Ahmed, were serving a sentence for other matters.
35The incident was a fast-moving violent attack on three prison officers that quickly escalated after the first punch was thrown. The offending is aggravated by the fact that you offended in company, elevating the risk of harm to the prison officers. The gravity of the offence also derives from the fact the assault was committed against custodial officers, entrusted with the proper management of the prison, in the execution of their duties.
36The charge of causing injury recklessly (Charge 2), is a Category 1 offence if the victim is a custodial officer on duty. In this case, you were both aware of that fact. As such the Court must impose a term of imprisonment (not including a term of imprisonment combined with a community correction order) unless an exception under the Sentencing Act 1991 (‘the Act’) applies. Further, s10AA(4) requires the court to impose a term of imprisonment of not less than six months’ duration, unless a special reason exists under s10A of the Act. Such provisions reflect the intention of Parliament that conduct such as yours is considered serious.
37The level of violence and the role you each played is also relevant to sentence.
38You, Mr Ahmed, are responsible for instigating the offending when you threw the first punch at Mr Doherty. You, Mr Yat, immediately responded with violence, repeatedly punching the victims to the head. In the case of Mr Lee, you did so as he lay on the ground, unable to defend himself. The degree of force you used in striking Mr Doherty to the head, after he had regained his footing, is apparent from the CCTV footage. Then shockingly, as Mr Lee was attempting to stand, you kicked him directly in the head.
39Mr Ahmed, in an act of appalling violence, you then stomped on Mr Lee in the region of his head and neck. You had previously punched Mr Lee to the head with sufficient force to knock him to the ground.
40When Mr Marsh approached with his hands held out, without provocation, Mr Yat you assaulted Mr Marsh by punching him several times, again with sufficient force to knock him to the floor.
41
Mr Ahmed, you are responsible for instigating the violence in this incident and engaged in an act of considerable violence directed at Mr Lee. However,
I consider that the role played by you during the incident is not as significant as that of Mr Yat, particularly in respect of the offending against Mr Doherty. I also note that you are not charged with offending against Mr Marsh.
42
This was clearly a serious incident. It was a matter of luck that Mr Doherty and the other custody officers were not more seriously injured. Your conduct, in company, involved multiple distinct acts of violence. Although this was not a planned or premediated attack, you both enthusiastically engaged in repeated acts of senseless violence once the confrontation escalated. The incident was
short-lasting. However, it only ended, and you only desisted from further acts of violence, when other prison officers intervened.
43Great weight should be given to the sentencing consideration of general deterrence for such offending. The sentence must make it less likely that others in custody will engage in acts of violence directed at those who undertake work in Victorian prisons.
44You both bear a high moral culpability for your violent conduct in custody.
45As the victim impact statement of Mr Marsh attests, although not physically injured by your acts, for him your conduct has had other enduring consequences.
46Mr Marsh states that this assault has had a significant impact on many facets of his life, and has prevented him from returning to work with prisoners due to his mental trauma and resulting anxiety. He says flashbacks of the incident make him angry, upset and anxious and that this has affected his quality of life. I take the contents of his victim impact statement into account in sentencing you.
Personal circumstances
47I turn now to your personal circumstances.
48Mr Ahmed, you are now 27 years old. You were 24 years old at the time of this offending.
49You were born in Melbourne in February 1996, two years after your parents arrived from Somalia. You are the fifth child of 10 siblings. Your father worked as a taxi driver and your mother cared for the children. Your parents have recently separated, but you retain their support and are particularly close to your mother.
50You are the only member of your family that has ever been in trouble with the law.
51
Your education was limited. You left school at the age of 15 and enrolled in a
pre-apprenticeship course in bricklaying at Newport Victoria University. You completed that course, and have a Certificate III qualification in bricklaying. However, you have never held any paid employment. In 2016, while on parole, you completed a Warehouse Logistics and Forklift Certificate II at Laverton Training Institute, which is to your credit.
52You have a history of alcohol and illicit substance abuse. You began drinking and using cannabis after leaving school. You were drinking heavily and were regularly using methylamphetamines (ice) and other illicit drugs prior to your arrest in 2017. You have also experienced periods of homelessness, and were living on the streets before going into custody at that time.
53You have spent much of your life in prison since the age of 18, and through your counsel, you say that it is no longer worth it. You have a desire to return to the community, supported by your family, and to obtain employment in traffic management, warehousing or construction.
54You have a significant and concerning prior criminal history. In June 2018, you were sentenced to five years, 10 months’ imprisonment for your role in an armed robbery and other offences, including being a prohibited person in possession of a firearm, committed when you were 21 years old. In sentencing you for this offence, His Honour Judge Gamble described your prior criminal history comprising sentences imposed for 37 offences from four court appearances between March 2013 and April 2016, as a 'somewhat disturbing criminal record'. These prior convictions include a sentence of two years’, eight months’ detention in a Youth Justice Centre imposed by her Honour Judge Cohen in April 2016, for one charge of armed robbery, two charges of robbery and other dishonesty offences.
55In sentencing you in June 2018, Judge Gamble also referred to matters for which you had subsequently been sentenced at that time, including a sentence imposed in October 2017 for an assault in company. This is a relevant prior matter as it involved an assault committed by you in custody whilst serving the sentence of detention. On that occasion, you were one of four offenders who assaulted another detainee, by punching and kneeing them numerous times.
56On 18 September 2018, you were sentenced to two months’ imprisonment for criminal damage, and on 15 June 2023, you were sentenced to seven days’ imprisonment for an affray committed in custody on 21 August 2022.
57
Following the offending for which I am sentencing you, you were immediately placed in a management unit at Barwon Prison. You have remained in various management units, due to this and other incidents in custody, with the exception of 160 days from 19 August 2021 and a further 147 days from 8 April 2022.
During those periods in mainstream custody, you took the opportunities available to you to obtain various certificates aimed at improving your prospects of rehabilitation, including a four hour intensive substance use program and a violence intervention program.[1]
[1]Exhibit 5 – Certificates of Participation
58As stated, in August 2022, you were involved in a violent incident in custody for which you were sentenced for the offence of affray to seven days’ imprisonment. You have been held in various management units, currently in the Charlotte Unit. While you are held in management units, you are locked down in your cell for all but one to two hours per day.
59On 9 October 2020, you were notified that your application for parole had been deferred due to the fact these charges were pending.[2]
[2]Exhibit 4 – letter of Adult Parole Board dated 9 October 2020.
60The sentence imposed by Judge Gamble expired on 21 June 2023. You have remained on remand in respect of this matter. You have no subsequent matters pending and, on a positive note, are employed as unit billet which demonstrates a willingness on your part to take on a role of responsibility.
61Mr Yat, you are now 26 years old. As stated, you were 23 at the time of this offending.
62
You were born in Egypt in May 1997. Your parents are from South Sudan.
They met and married in Egypt. The family moved to Australia when you were three years old, and you have been granted Australian citizenship. You and your three siblings were raised in Dandenong. You enjoyed a positive childhood as part of a close, law-abiding family.
63However, during your teen years your behaviour at school began to deteriorate. This coincided with your escalating use of cannabis and alcohol. You were asked to leave Nazareth College in Noble Park during Year 9.
64Prompted by this, your parents sent you to an international boarding school in Kenya for 12 months. Over this period, you were expelled from three different schools, which you describe as particularly strict.
65Before returning to Australia, you travelled to South Sudan to visit family. This was in late 2013. While you were there, conflict erupted and you were trapped in a rural area where you were staying with your cousin. Through your uncle, you were rescued with the assistance of the military but witnessed some of the horrors of the civil war. You fled to a UN refugee camp and were ultimately flown to Uganda, before returning to Australia. You were 16 at this time. This was undoubtedly a traumatic experience for you at that age.
66
When you returned to Australia, you enrolled at Lindale Secondary College but left soon after. At this time, you began to use methylamphetamine (ice) regularly.
You attempted, but did not complete, an electrical pre-apprenticeship. You have not held steady employment since leaving school.
67
You also have a relevant and concerning criminal history that commenced with appearances in the Children’s Court in 2015, including breaching a probation order imposed for offending including robbery and burglary. In 2016, you were convicted and fined $1,000.00 for resisting an emergency worker on duty. Of further relevance to this matter, in August 2017, you were sentenced to an 18-month Community Correction Order for offences including assaulting a police officer, assaulting an emergency worker on duty, resisting a protective services officer and other offences whilst on bail. You were sentenced to a further 12-month Community Correction Order in September 2017 for the offence of robbery,
two charges of assault in company, a charge of unlawful assault and failing to answer bail.
68You breached both of those Community Correction Orders. In June 2018, you were sentenced to six months’ imprisonment for offending involving the theft of a motor vehicle and dangerous driving while pursued by police.
69On 11 April 2019, you were sentenced by the County Court to 12 months’ imprisonment in combination with a two-year community correction order for the offence of home invasion, with intent to steal. In February 2020, you were found to have breached the community correction order, and were resentenced to one year, nine months’ imprisonment with a non-parole period of 14 months for that offending.
70
You have also been sentenced to a term of imprisonment following this offending. On 13 July 2022, you were sentenced by his Honour Judge Maidment to
three years, six months’ imprisonment with a non-parole period of two years,
four months’ imprisonment for the offences of carjacking, common assault, possession of drugs of dependence and other offences. You have been eligible for parole since September 2022, but have not applied due to this matter being outstanding.
71Mr Yat, you were also moved to the Banksia Management Unit on 27 June 2020, in response to this incident. On 19 July 2020, you were classified as a long-term management prisoner and were scheduled to exit on 3 September 2021. However, on 15 December 2021, you were involved in another violent altercation with another prisoner (for which you have not been charged) and were again classified as a long-term management prisoner on 18 January 2022 and you remain in a management unit at Barwon Prison. Under this arrangement, you remain in your cell other than for one to two hours per day.
72On a positive note, you too have obtained employment as a billet within your unit since 15 July 2023, demonstrating a willingness on your part to take on a role of responsibility within the unit.
73Other than the matters to which I was referred today, you have not been involved in any alleged incidents for the past 10 months.
74You continue to enjoy the support of family and receive regular visits from your mother who has returned from Alice Springs, and attended your plea hearing to demonstrate her support for you along with other family members. You also receive calls from other family members who reside in Alice Springs.
Matters in mitigation
75A number of matters were raised by both defence counsel that operate in mitigation of the sentence to be imposed.
76Firstly, you both pleaded guilty to the offences at the earliest available opportunity. In doing so you both accepted responsibility for your conduct. There is also utility in your guilty plea, which saved the court and the community the time and expense associated with a trial, and saved any witnesses from having to give evidence or be cross-examined. As your guilty pleas were entered at a time when delays in the criminal justice system continue in the wake of the pandemic, they have even greater utility.[3] You are both entitled to, and will receive, a significant sentencing discount for your early guilty pleas.
[3]Worboyes v. The Queen [2021] VSCA 169
77
Secondly, and perhaps most significantly, there was substantial delay associated with these proceedings through no fault of yours. There was a delay of 21 months before you were charged in March 2022. The filing hearing did not proceed until
1 December 2022 in the Magistrates’ Court, approximately two and a half-years after the offending.
78This is a matter that is relevant in mitigation of your sentence in a number of ways. Firstly, it was inevitable you would be charged with this offending, and you have had this fact hanging over your heads for three years, not knowing the outcome. The second aspect is the impact of the delay in having these matters considered earlier. The prosecution fairly accepts that given the charges resolved to an early guilty plea, it is likely you would have been sentenced at a much earlier point in time had the charges been brought before the court in a timely manner.
79For you Mr Yat, the delay means that you lost the opportunity of having this matter heard and determined at or around the time you were sentenced by the County Court in July, 2022. While that sentence does not expire until November 2023, you also have not had the benefit of parole, although I note that no application was made by you due to the fact of these charges. While I am unable to speculate about any decision the Adult Parole Board may have made, I accept that the delay heightens the need to consider the sentencing principle of totality.
80
For you Mr Ahmed, the situation is slightly different. At the time of this incident, you were serving sentence imposed by the County Court in June 2018.
That sentence has now expired. The delay meant you lost the opportunity for a sentence to be imposed earlier and for the sentencing principle of totality to be applied by some level of concurrency with the now completed sentence subject to s16 of the Sentencing Act 1991. It is clear the Adult Parole Board rejected your application for parole in October 2020 due to the pending investigation of this matter. However, beyond that I am unable to speculate about the reasons for subsequent decisions of the Adult Parole Board, noting you were also involved in a further incident in custody in August 2022. I do recognise however, that you have now served the entirety of that sentence.
81Thirdly, the consequences of this offending in custody were immediate. You were both transferred to management units, where you have both remained, other than for various periods, for much of this time. During this period, although you have been permitted visits, you are largely isolated from other inmates and your time out of your cell is severely restricted. This form of restrictive custody is itself a form of extra-curial punishment, and I have taken into account in moderating your sentence.
82You Mr Ahmed were released from the management unit in June 2021, but following another incident in custody in August 2022, returned to the restricted environment of a management unit where you have remained ever since.
83Mr Yat, you were endorsed to leave the management unit on 2 September 2021, but following another alleged incident in custody in December 2021, you too have remained in a high security or management unit since this time.
84At various times you have both been the subject of the handcuffing regime in custody.
85
The second period you were both placed in restrictive custody, whilst not a response to this incident, has added to the burden of your time in custody.
I have also had regard to the fact that much of your time in custody has run parallel to the COVID-19 pandemic and the restrictions that entailed, particularly on
face-to-face visits with family.
86For you, Mr Ahmed, the impact of the past three years in management units was considered by Ms Lechner, who reports you 'struggle mentally in solitary confinement, often feeling angry and frustrated'.
87Ms Bovenkerk also considers that for you, Mr Yat, ongoing periods of incarceration will 'perpetuate his risk of institutionalisation, criminal associations, and unfavourable attitudes towards convention'. She observes that your status as a long-term management prisoner limits your access to programs and interventions that are required to address your poor mental health, and the risk of reoffending.
88
I have taken the added burden of your time in custody over much of the past
three years into account in sentencing you both.
89Lastly, although neither of you are youthful offenders, you were both young offenders at the time of this offending on 27 June 2020. Over three years has passed since this time, and you are now 26 and 27 years of age respectively, with much of your lives to live.
90Mr Ahmed, when you were sentenced by Judge Gamble, he had the benefit of a report from forensic psychologist, Jeffrey Cummins who assessed you on 21 May 2018. Mr Cummins then assessed you as being of below-average intelligence, relatively immature and at risk of being diagnosed with an Antisocial Personality Disorder. He did not assess you as suffering any specific mental health condition, other than that of poly-substance abuse.
91For the purposes of this matter, you were further assessed by psychologist, Ms Carla Lechner, whose report dated 21 July 2023 was tendered at your plea hearing. Ms Lechner also assessed you as being 'psychosocially immature' with cognitive limitations. She considers that you have a 'potential' diagnosis of ADHD, which may contribute to poor impulse control. However, Ms Lechner was unable to express such a potential diagnosis more definitively. You explained your offending as being action taken to 'support [my] mate' but in Ms Lechner’s opinion, you struggled to explain your behaviour.
92Mr Yat, when you were sentenced by Judge Maidment in July 2022, you had been diagnosed with a complex post-traumatic stress disorder (PTSD) and a depressive disorder of at least moderate severity. For the purposes of this matter, you were assessed by another forensic psychologist, Ms Marlese Bovenkerk, who undertook extensive psychometric testing.
93
In her report dated 31 July 2023, Ms Bovenkerk concludes that your symptoms of PTSD have continued to decline over time, and now fall below the clinically significant range. She does however report that such symptoms can fluctuate.
Ms Bovenkerk reports that your mood remains depressed, particularly in relation to your current situation and ongoing management regime. She diagnoses you with a persistent depressive disorder, leading to feelings of hopelessness and low
self-esteem.
94In a supplementary report tendered today, Ms Bovenkerk states it is difficult to retrospectively comment on whether you met the diagnostic criteria for PTSD in June 2020. Ms Bovenkerk concludes that while your symptoms have slowly reduced in intensity and severity over time (such that they no longer meet the threshold for a formal diagnosis of PTSD at this time), these symptoms are still clinically significant. She states they are unlikely to resolve completely without treatment.
95On your behalf, it was submitted that your PTSD operates to enliven the principles in Verdins[4] on the basis that this condition impairs your ability to regulate and control your emotional responses. This is based on Ms Bovenkerk’s opinion that it 'seems fair to opine that Mr Yat would have continued to be impaired by symptoms of PTSD at the time of the offending', making it more likely that you would respond to situations with anger and aggression. In the opinion of Ms Bovenkerk, these symptoms reduce your capacity to regulate your emotions and make it more likely for you to misinterpret situations as hostile or threatening.
[4]R. v. Verdins (2007) 16 VR 269
96For limbs 1 to 4 of the authority in Verdins to be enlivened, the impairment of mental functioning must have caused or contributed to the offending or have some realistic connection with the offending. As the case of O’Neill[5] makes clear, whether there should be any moderation of general deterrence, and if so, its degree, will depend on the nature and severity of the impairment of mental functioning. In this case, in part due to the delay associated with this matter, this is difficult to determine with precision.
[5]DPP v. O’Neill [2015] VSCA 325
97Based on Ms Bovenkerk’s assessment, while your PTSD symptoms are now less severe, I accept that your symptoms at the time are likely to have continued to impair your decision-making and ability to regulate your emotional responses, and I attach some limited weight to that fact in moderating general deterrence.
98I also have regard to the fact your persisting depressive disorder makes your experience of custody more difficult than may be experienced by other prisoners, particularly in the restrictive environment of a management unit. This finding enlivens limb 5 of Verdins and I have taken this into account in further moderation of your sentence. At the plea hearing, your counsel did not persist with an argument that limb 6 was also enlivened.
99Mr Yat, Ms Bovenkerk also assessed you as being posing a high risk of future violent offending. In relation to you Mr Ahmed, Ms Lechner did not assess your risk of recidivism, other than to report that you struggle with expressions of empathy due to your 'genuine cognitive limitations' and difficulty in considering the perspectives of others.
100Given your past criminal histories, it is difficult to assess either of you as having positive prospects of rehabilitation at this point in time. I remain concerned about the ability of both of you to remain offence free into the future, although I do not conclude that either of you have no hope of rehabilitation. You are still young men, now 26 and 27 respectively, with hopes of securing employment upon your release. In this regard, it is positive that you both retain the strong support of your family despite your past history.
101The sentence I impose, however, must still operate to deter you from future acts of violence, but also promote your future rehabilitation.
Other sentencing considerations
102On your behalf, both defence counsel argued that the extensive delay associated with these matters, combined with the extra-curial punishment associated with your time in restrictive custody and the burden of your time in custody over the past three years, coupled with the utility of your plea, constitute a special reason for the purposes of s10A of the Sentencing Act 1991. It is argued that these matters, in combination, are substantial and compelling circumstances that are exceptional and rare and that justify not imposing the mandatory minimum term of six months’ imprisonment on Charge 2. Both counsel argue that your future rehabilitation is best addressed through the imposition of a community correction order for this offending.
103In order to consider these submissions, you were both assessed for a community correction rder, but despite initially being found suitable, in a supplementary report provided by Community Corrections, you were each found unsuitable for such an order. In summary, you were both found to present a risk to the safety of the corrections officers based on your prior history and record of incidents in custody. The manager of the author of that report gave evidence at the plea hearing today. Ultimately, as I outlined to counsel, I have not had regard to the opinions and conclusions reached by Community Corrections in my consideration of the sentence I am about to impose. To be clear, I have not formed a concluded view as to the risk you may pose to community correction officers in the community.
104The defence submissions on sentence were opposed by the prosecution. Although the prosecution accepts that the matters are each relevant in mitigation of sentence, the Crown’s submissions highlighted the importance of general deterrence and denunciation in cases such as these and argues that the gravity of the offending warrants a term of imprisonment with a non-parole period fixed.
Consideration
105As stated, as Charge 2 is a category 1 offence, s5(2G) of the Sentencing Act 1991, mandates a sentence of imprisonment (other than a combination sentence) for that offence, and s10AA(4) requires that sentence be a term of not less than six months’ imprisonment, unless the court finds that a special reason exists under s10A of the Act.
106Section 10A(2)(e) of the Act, provides that a court may make a finding that a special reason exists if an offender proves, on the balance of probabilities that –
(e)there are substantial and compelling circumstances that are exceptional and rare and that justify doing so.
107It is clear that Parliament has imposed a stringent standard to be met in order to establish substantial and compelling circumstances. When considering this expression in the context of s5(2H) of the Act, the Court of Appeal explained that 'the circumstances must not only be powerful, but also "wholly outside" the "run of the mill" factors seen in offending of the relevant kind'.[6] The Court of Appeal explained that the test involves two steps, firstly whether there are ‘substantial and compelling reasons’, in the sense that the circumstances are ‘weighty and forceful and powerful’ and secondly, if so, whether the circumstances are also ‘exceptional and rare’.[7] This threshold must be met to justify not imposing the mandatory minimum term of six months.
[6]DPP v. Hudgson [2016] VSCA 254 at [112]
[7]DPP v. Farmer [2022] VSCA 204 at [65]-[67]
108In determining whether the circumstances are substantial and compelling, the court must have regard to the factors set out in s10A(2B) of the Act, namely that general deterrence and denunciation have greater importance than other sentencing considerations and that the court must give less weight to the personal circumstances of the offender than other matters, including the nature and gravity of the offence. Section 10A(3)(ab) expressly requires the court to have regard to Parliament’s intention that a sentence of not less than six months should ordinarily be imposed for Charge 2.
109In my view, the unexplained delay of 21-months before being charged was an inordinate delay. Once the CCTV footage and statements were obtained, which occurred soon after the incident, there was no further investigation required. There is no justification for the inaction of investigators in bringing the charges until so much later. Moreover, through no fault of yours, the matter was not listed as required in the committal stream in the Magistrates’ Court until December 2022. All told, I consider a delay of close to two-and-a half years until a filing hearing to be unjustifiable and highly unusual.
110The effect of this delay has been multi-faceted. As stated, you both fall to be sentenced over three years after these events, even though you both entered a guilty plea at the earliest opportunity. As a consequence, in your case Mr Yat, you missed the opportunity to be sentenced in July 2022 and for you, Mr Ahmed, for this sentence to be imposed at a time where some concurrency may have been available. Moreover, while custody management is a matter for prison authorities, the fact of this delay means you have been held in highly restrictive conditions for the majority of those three years.
111In my view, the cumulative impact of these factors combine to make these circumstances substantial and compelling. I am also satisfied they are exceptional and rare, in that a delay of this magnitude is out of the ordinary, and fortunately rare, particularly where an early guilty plea has been entered.
112
Section 16 of the Sentencing Act 1991, also requires that a cumulative sentence be imposed on any uncompleted sentence where it is imposed in respect of a prison offence, of which this is one, unless exceptional circumstances exist.
For the reasons I have explained, I have found that the circumstances in this case meet that test.
113In the Court of Appeal decision of De Castres & Kent, Justice Ashley outlined the relevant sentencing considerations for offences of this kind, stating:[8]
'The fact that an offence of violence is committed in a custodial setting renders general deterrence of paramount importance as a sentencing consideration. In part, that is because the victim has no choice but to be where he or she is, and has at least a reduced ability to take prudent measures for his or her own safety.
'Particularly if the offender has a past history of violence, commission of an act of violence in a custodial setting will underline the importance of specific deterrence as a sentencing consideration.
'In the presence of the two circumstances described, matters going in mitigation of sentence will be of lesser weight in the sentencing synthesis. The question in the particular case will be the extent to which the circumstances tending towards a heavier sentence operate'.
[8]De Castres v The Queen; Kent v The Queen [2011] VSCA 377
114In sentencing you for this offence, the sentence I impose must operate to deter others in custody from like offending and clearly denounce your conduct.
115This is a difficult sentencing task. You both have a number of powerful matters that operate in mitigation of sentence. Against that however, this was serious, violent offence against custody officers, who were just doing their jobs. As the authorities make clear, the sentencing considerations of general deterrence and denunciation are considerations of great weight, and eclipse other matters in mitigation. Additionally, given your prior criminal convictions, the sentence must also operate to deter you specifically from future acts of violence. I have ultimately concluded that a sentence of imprisonment with a non-parole period fixed is the only available sentencing disposition to meet these sentencing considerations.
116I have however, attached considerable weight to the cumulative impact of delay and the onerous conditions of your time in custody, in imposing a considerably lower sentence on each of the individual offences than I would otherwise have imposed, and in determining appropriate periods of cumulation, having regard to the sentencing principle of totality. That said, some measure of cumulation is necessary to reflect the offending against separate victims.
Sentence
117Balancing the matters to which I have referred, whilst having regard to the maximum penalty for each offence, I now sentence you as follows. Mr Ahmed and Mr Yat, if you could please stand.
Talorer Ahmed
118
Mr Ahmed, on Charge 1: assaulting a custody officer on duty being Mr Lee – you are convicted and sentenced to 10 months’ imprisonment. On Charge 2: recklessly cause injury to Mr Doherty – you are convicted and sentenced to
six months’ imprisonment. Charge 1 is the base sentence in your case. I order that 2 months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1.
119This gives a total effective sentence of 12 months’ imprisonment. I order that a non-parole period of six months’ imprisonment be fixed.
120I direct that 76 days of pre-sentence detention be reckoned as served. Have a seat Mr Ahmed.
Dung Yat
121
Mr Yat, on Charge 1: assaulting a custody officer on duty – you are convicted and sentenced to 10 months’ imprisonment. On Charge 2: recklessly causing
injury – you are convicted and sentenced to 11 months’ imprisonment. On
Charge 3: assault custody officer on duty – you are convicted and sentenced to six months’ imprisonment. Charge 2 is the base sentence. I order that 2 months of the sentence imposed on Charge 1 and one month of the sentence imposed on Charge 3 be served cumulatively upon Charge 2 and upon one another.
122This gives a total effective sentence of 14 months’ imprisonment. I order that a non-parole period of eight months’ imprisonment be fixed.
123Pursuant to s16 of the Sentencing Act 1991, I am satisfied the delay associated with these matters constitutes exceptional circumstances for the purposes of that provision, particularly having regard to the lost opportunity for this matter to dealt with by this Court in July 2022. Accordingly, I order that this sentence be served concurrently with any uncompleted sentence being served by you.
124Pursuant to s14 of the Sentencing Act 1991, I direct that the non-parole period of eight months from today’s date be the new single non-parole period in respect of all sentences you are serving.
125
Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, the sentence I would otherwise have imposed is a sentence of 15 months’ imprisonment with a non-parole period of 11 months’ imprisonment for you
Mr Ahmed, and a sentence of 18 months’ imprisonment with a non-parole period of 12 months’ imprisonment for you Mr Yat. In giving this indication, there is an obvious artificiality in doing so given the other matters to which I have referred in mitigation.
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