Director of Public Prosecutions v Al Badri

[2014] VCC 2307

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-00564

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALI AL BADRI

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 July 2014
CASE MAY BE CITED AS:	DPP v AL BADRI
MEDIUM NEUTRAL CITATION:	[2014] VCC 2307

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Harper
For the Offender	Mr W. Toohey

HER HONOUR:

1Ali Hassan Al Badri, you have pleaded guilty to one charge of recklessly causing serious injury to Hussein Uda on 19 June 2012.  The facts surrounding your offending were fully set out in the prosecution plea opening, which is not disputed and which is Exhibit 1, and I sentence you on the basis of the facts set out in that document.

2It is sufficient for my purposes to note that prior to the offending you and the complainant were friends who lived together at one time, but who had grown apart.  You saw each other at a party in early June 2012.  You, Mr Al Badri, greeted the complainant and were upset when he did not respond.  On
19 June 2012 there was a scuffle between you and the complainant at KPAJ Motors in Reservoir, and you were both asked to leave.  You, Mr Al Badri, sent Mr Uda a text message asking to see him.  There was no response.

3You followed Mr Uda as he drove to the workshop and again demanded to see him.  At around 6 pm you called Mr Uda and he agreed to meet you at a car park.  You had three other people with you.  At the car park you wrestled with Mr Uda and you were holding him in a bear hug.  He punched you to the face in an effort to break free.  You then bit his right earlobe off and let him go. 

4He drove himself to hospital and was found to have his right earlobe missing, with cartilage visible.  This injury was sutured.  This is the injury the subject of the charge you face, although I note he also suffered bruises and grazing to other parts of his body.

5Mr Uda provided a victim impact statement dated 20 June 2014, which was Exhibit 3.  Relevantly, that statement indicates that he has added pain and insecurity about his appearance now that he has scars where his earlobe was, and fears that these will impact on his social and work opportunities.  He had to see specialists and take time off for treatment, which cost him job interviews.  He sometimes has nightmares of the incident and the offender.

6I note Mr Toohey's submission that the complainant's fear of you did not prevent him from approaching you in Shepparton in his car earlier this year, inviting you to get in and promising not to punch you.

7You were arrested and interviewed by police on 15 August 2012.  You admitted having a dispute with Mr Uda about not responding to your greeting at the party, that this dispute was rekindled at the KPAJ motor workshop, and that you were asked to leave the workshop and that you sent a text message to Mr Uda asking for his address.  However, you denied following him in your car, nor being in the car park, nor biting his ear.

8You pleaded guilty to the charge on 11 June 2014, which was the second day of the trial and no witnesses needed to be called.

9Your personal circumstances were fully explored in the psychological report of Dr Michelle Wauchope, forensic psychologist, dated 7 July 2014, which was Exhibit A.  You are 22 years old and live in Thornbury with your cousin.  Your parents and siblings still live in Basra, Iraq as part of a small Sunni minority in a largely Shiite town. 

10You come from a close family.  As a child you witnessed your father being attacked and injured and your brother being kidnapped.  He is still missing.  Your father's truck was torched and you were displaced from your home.  You worked as a labourer and saved money to flee Iraq.  You went to Malaysia and Jakarta before escaping to Australia by boat at the age of 17 on your own.  You were in detention for some months here before receiving your visa.  You have permanent residency here and plan to apply for citizenship.

11You and your cousin both worked in the security industry until you lost your licence as a result of this offending.  You have not been able to work since then and are receiving Centrelink benefits. 

12You drink heavily every weekend.  You were a heavy user of ice until you realised how angry it was making you and stopped in July last year.  You have stopped using other drugs.

13You attended counselling for some months for anxiety and depression after being attacked in Shepparton by a group of men while in a car with two girls.  The girls subsequently made a complaint of rape against you and you were held overnight in prison, required to strip naked and taunted by police.  You were released the next day.  You have not attended counselling for the past five months.

14Dr Wauchope diagnosed post-traumatic stress disorder due to the trauma of being exposed to violence and abuse as a child, and the violence of the attack in Shepparton.  She found you to be emotionally immature and very easily influenced by others, including your girlfriend.  She noted you told her that when Mr Uda started the fight your instincts for self-preservation took over and you attacked him in order to avoid being harmed yourself, and did not even realise you had bitten his ear. 

15She noted that you have no history of anger control issues and only retaliated when you felt threatened.  She concluded that your previous traumatic experiences had central relevance to your current offending in that they served to create hypervigilance and fear of being hurt, particularly when faced with a perceived threat.  She felt that you need professional help to address your trauma symptoms, including depression, anxiety, flashbacks, nightmares, intrusive thoughts and sleep difficulties.

16She noted that you have had counselling in the past and felt that you require counselling and treatment in the community to obtain better strategies and skills for coping with your emotions and any perceived threats so as to render it unlikely that you would reoffend in this manner.  She noted that given your condition you would find incarceration extremely difficult.

17It was submitted on your behalf that you are a young man with no prior convictions who acted in excessive self-defence when involved in a physical altercation with Mr Uda.  It was submitted that you did not make full admissions when interviewed because of your fear that your career in security work would be affected and that you might lose your residency status.

18You pleaded guilty on the second day of the trial and no witnesses had to be called. 

19As a result of the consolidation of a number of subsequent matters, you are currently undertaking a 15-month community corrections order with 140 hours of unpaid work. 

20It was submitted that given your youth and absence of prior convictions you have very good prospects of rehabilitation. 

21It was submitted that the appropriate disposition was the imposition of a further community corrections order.  The prosecution agreed that the imposition of a further community corrections order which was lengthy and onerous would not be inappropriate in the circumstances.  I indicated that in the light of Dr Wauchope's conclusions I would ask for you to be assessed for suitability for a CCO involving unpaid community work and conditions concerning assessment and treatment of your psychological condition, as well as full participation in relevant offence-specific programs, if any.

22An assessment for suitability for a CCO was undertaken earlier today, and the report of Mr Richard Templecamp indicates that you are deemed suitable to undertake a community corrections order. 

23In cases involving violence and the causing of serious injury general deterrence and denunciation are important sentencing considerations.  However, given your prior good character and the matters raised in the report of Dr Wauchope, I consider that specific deterrence should be sensibly moderated.  I note that you are young, without any nuclear family in Australia, that you have managed to find employment and that you have good prospects of rehabilitation.  It may well be possible for you in the future to re-establish your suitability to work in the security industry.

24In all the circumstances the interests of the community lie on balance with ensuring that you get some of the support and guidance you need to manage your emotional life more effectively.  You must remember that you have committed a serious offence and caused serious injury to another person, scarring them for life.  You should conduct yourself very carefully in the future to make sure you never behave this way again.

25Would you please stand, Mr Al Badri.

26On the charge of recklessly causing serious injury you are convicted and sentenced to a community corrections order for a period of two years, with the following conditions:

27that you perform 200 hours of unpaid community work, to be completed within the period of the order;

28that you undergo a mental health assessment and treatment as required;

29that you undertake any offence-specific programs as required; and

30that you receive supervision by Reservoir Community Corrections Service.

31In addition to the conditions that I have specifically imposed, you must also abide by the terms that apply to all community corrections orders.  These are that:

32You must not commit any other offences during the period of the order being in force, that is, two years from today; that is any offence for which you could be imprisoned, even if a court would not choose to impose imprisonment;

33You must report to and receive visits from a Community Corrections officer;

34You must report to the Community Corrections centre at Reservoir within two clear working days of today;

35Also, you must not leave Victoria without first getting permission from a Community Corrections officer; and

36You just inform the Community Corrections officer of any change of address of where you live or where you work within 48 hours of that occurring.  I note that you have had some difficulty with this in the recent past and so you should be careful to remember that it is your responsibility to notify them of any change in your circumstances.

37Finally, you must obey all lawful instructions from and directions of Community Corrections officers.

38Do you understand the conditions I have imposed and the general terms?

39OFFENDER:  Yes, I do.

40HER HONOUR:  Thank you.  Are there any other matters.

41MS HARPER:  No, it's a matter for Your Honour whether you make a 6AAA declaration or not.  Given the imposition of a community corrections order there's no requirement that you need to.

42HER HONOUR:  It's not essential, is it?  No, in that case I won't.  Anything else, Mr Toohey?

43MR TOOHEY:  Just one matter, Your Honour.

44HER HONOUR:  Yes?

45MR TOOHEY:  So that there's no confusion.  I notice that on the report that's been furnished, towards the end it says - and I did hear Your Honour say within two clear working days that he needs to report - it says Friday 18 July, and then further down it says before 4 pm on 21 July.

46HER HONOUR:  It's the 21st.

47MR TOOHEY:  Twenty-first, yes, I thought as much.

48HER HONOUR:  All right. 

49MR TOOHEY:  Thank you, Your Honour.

50HER HONOUR:  Have I said as much in my comments?

51MR TOOHEY:  I think the two clear working days covers that.

52HER HONOUR:  Yes, all right.  So it'll come up in the order as to when he should report.

53MR TOOHEY:  Thank you, Your Honour.

54HER HONOUR:  All right.  Take a seat, Mr Al Badri, we'll just prepare the orders and I'll just wait outside to sign them.  If there are no other matters I just will adjourn.

55MS HARPER:  No, Your Honour.

56HER HONOUR:  Thank you.

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