Director of Public Prosecutions v Al Wahame

[2016] VCC 1309

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-01073

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMMAD AL WAHAME

---

JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:	25 August 2016
DATE OF SENTENCE:	2 September 2016
CASE MAY BE CITED AS:	DPP v Al Wahame
MEDIUM NEUTRAL CITATION:	[2016] VCC 1309

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions
For the Offender	Mr R. De-Vietri	Victoria Legal Aid

HIS HONOUR:

1Mr Al Wahame, you have pleaded guilty to one count of recklessly causing serious injury. Further you have consented to two summary offences being dealt with by this court pursuant to s.145 of the Criminal Procedure Act.  Those two summary offences are two counts of failing to answer bail.  You have heard the learned prosecutor, Mr Roper, tell this court that the maximum sentence that can be imposed for the offence of recklessly causing serious injury is that of 15 years' imprisonment.  On the two summary offence counts of failing to answer bail, on each count the maximum sentence that can be imposed is two years' imprisonment.

2For having pleaded guilty I will impose a lesser sentence than I otherwise would have imposed.  In other words you receive a discounted sentence for having pleaded guilty. 

3Mr Al Wahame, it was on the evening of Friday 30 October 2015 that the victim, Mr Brown, had worked late at his business which was known as "Quality Teams".  His business was situated in Benalla Road, Shepparton.  His family were out for the evening so he decided to get dinner from Mustafa's Kebabs, which is located in Vaughn Street, Shepparton.  Mr Brown drove to Vaughn Street and parked near to Chemist Warehouse, which is across the road from Mustafa's Kebabs.

4You and your girlfriend, Ela Peniana, had been dropped off at Mustafa's Kebabs earlier that evening.  You intended to have a meal at the restaurant and you were seated in an area next to the servery.  At approximately 9.15 pm you and Peniana had an argument.  Peniana was not happy with you.  She says that you were yelling at her in that public area so she decided to leave the restaurant without you.  She walked out the front door and walked away along Vaughn Street.  You followed her and continued to yell at her in front of other people at the restaurant.  Peniana described you as being angry. 

5It was as Peniana and yourself were walking down Vaughn Street that Mr Brown happened to walk into the same area as he approached the restaurant. 
As Peniana walked away on the footpath on Vaughn Street she heard you yell out "What the fuck are you looking at?"  Then, "Why are you looking at me? 
You want to fight?"  Peniana turned around and saw you, Mr Al Wahame, arguing with a man, the victim, Mr Brown.

6Peniana observed that Mr Brown was not aggressive in any way.  He was just standing there looking at you, apparently confused about why you were yelling at him.  When Mr Brown tried to walk away you then pushed him in the chest.  Brown remained non-threatening and was then seen on CCTV from the restaurant to be walking backwards away from you whilst lifting both arms up in what appears to be a non-aggressive, surrendering gesture.

7You then punched Brown with your left fist hitting him on the right side of his face.  The force of the punch appears to have caused Brown to lose consciousness as he fell backwards uncontrollably and hit the rear of his head on the road.  You then left the area on foot.  The CCTV footage shows that
Mr Brown remained motionless on the road for a number of minutes before others in the area put him into a recovery position.  Mr Brown remained unconscious after he was placed in that position.

8I just pause there for a moment.  You know that there was a CCTV film shown and I certainly could not see that on the CCTV but somebody has seen that on a CCTV program.  All I could see was an obscure movement just to the top right hand corner of the CCTV.  So obviously somebody is looking at some other footage that I have not seen.

9I proceed.  Mr Al Wahame, shortly thereafter you were found by police officers at a nearby business.  You were then arrested and taken to the Shepparton police station where you took part in a record of interview.

10When interviewed you claimed that the victim, Mr Brown, had "got in your face" and pushed you.  That is what you told the police officers.  You then said to them "When somebody pushes me, you don't take it".  Then you said that you felt like you were in danger so you used your fists.  You said that Brown pushed you with two hands.  "I just snapped out of it and swung at him".  Mr Al Wahame, if one accepts the version given by Peniana, that is nonsense.  I accept the version of events as given by Ms Peniana. 

11You told the investigating police officers that you had not had any alcohol or drugs on this night.  You further said that if you had been calm it would not have happened but you were already angry.  Now in fairness to you, you also said this, "Now that I've come to my senses that I feel sorry for the poor bloke.  Brown didn't deserve it.  I shouldn't have done it".

12Mr Brown was tended to by ambulance staff and taken to the Gippsland Valley base hospital commonly known in the community as the Shepparton Hospital.  On arrival at the hospital and on examination it was revealed that Mr Brown had suffered a skull fracture and bleeding on the brain.  Shortly after 2.00 am
Mr Brown was then transferred by Air Ambulance from Shepparton to the Alfred Hospital in Melbourne to receive specialised treatment.

13A CT scan showed a right subdural haematoma and traumatic subarachnoid haemorrhage with left occipital fracture.  Mr Brown's traumatic brain injury was managed non-surgically with routine neurological observation and monitoring.  The CT scan also lead to an incidental finding of a right trigonal meningioma tumour.  An operation to remove that tumour was carried out on 11 November.  Mr Brown was later transferred to from the Alfred Hospital to the Epworth Rehabilitation in Richmond on 19 November 2015.  There he was admitted as an inpatient in the Epworth Acquired Brain Injury Rehabilitation Unit until
8 December 2015.

14About one month later a cognitive assessment of Mr Brown was completed.  This assessment identified some cognitive changes with a clear disparity between visual and verbal cognitive abilities.  Deficits were noted in visual task performance.  Based on the information available the traumatic brain injury suffered by Brown was estimated to have been of moderate severity. 
It appeared likely that the operation to remove the tumour would have also contributed to his cognitive presentation.

15Mr Brown also had difficulties with his balance and fatigue management following his head injury.  Problems with fatigue management are very common after head injuries and that was likely to have been caused by this incident. 
Mr Brown continued to attend the Epworth Outpatient department following his discharge from that hospital. 

16As of April 2016 he had not been able to return to work due to ongoing issues with fatigue and reduced cognitive function.  He also suffered from depression and was referred to a neuro-psychiatrist who subsequently diagnosed him with major depressive disorder.  He is being treated for that but has only had a partial response.  His brain injury has probably contributed to his relative treatment resistance.  There have been significant and ongoing impairments in
Mr Brown's function at social, interpersonal and vocational and familial level.  They are due to the combined effects of his depressive relapse, cognitive impairment and post head injury fatigue.  All of which have directly resulted from this incident.  His prognosis is guarded due to the ongoing nature of a number of these symptoms.

17Both Mr Brown and his wife have filed victim impact statements.  The prosecutor has read Mr Brown's statement into the court transcript.  As was revealed when his victim impact statement was read out, prior to this incident Mr Brown was a very active member of the community.  He was in numerous organisations and family functions.  For instance he was a director of a business employing
12 people, which kept him very busy.  He was an active father with his children.  When active he was involved in sport and games with them.  Further he is a football coach.  Indeed, as I understand it, he is an ex-League footballer.  He is also the president of the club where he coaches.  Not content with that busy life he is also the chair of the local school board and that is a function that, up until this time, took considerable amount of his private time.

18The impact of not being able to be involved with this active activities, to quote Mr Brown, he said this:  "It affects me.  I have depression and mood changes.  I have anger and frustration.  All of which impact on my life and that of my family".  Not being fit and well has significantly affected Mr Brown's income and financial affairs because he cannot participate in those activities. 

19Mrs Brown's victim impact statement, which I said is now part of the transcript of the court reflects the enormous impact of Brown's injuries and what they have had upon herself personally and her children.  Further, she raised the difficulties emerging because of his non-involvement now in the family business and he is not involved also with the partners that he had in that family business.

20Associate Professor Walter Fang first saw Mr Brown on 2 April 2016, some six months after the incident had occurred.  In a report dated 26 July, which was only shortly before the hearing in Shepparton, among other things the Associate Professor said, and I quote from his report, this is what he said:

"Following his acquitted brain injury and the uncertainty regarding his employment and insurance status, in addition to ongoing cognitive sequelae of his brain injury and fatigue, Paul suffered a significant depressive episode with features of withdrawal, hopelessness, negative cognition and at times irritability with significant insomnia.  He had a sad and hopeless mood which had been of three to four months duration and at times he had wished that his life would not continue.

At times, when his mood has been low his wife has been concerned about his safety and the effects of his social withdrawal on his relationships with his children and herself in addition to other members of the family.  Because of his difficulty enjoying his usual leisure and family pursuits, this has placed on an extra stressor on all family relationships".

21Professor Walter Fang goes on to say, "I diagnose Paul with major depressive disorder and given he'd only had a partial response to other anti-depressant medication, I added the anti-depressant Desvenlafaxin".  So he has added an extra medication.  "This was increased from 50 mg to then 100 mg and most recently because of ongoing depressive symptoms has been increased to 150 mg". 

22The Associate Professor says:

"Paul does have a number of persisting problems following his brain injury.  He struggles with emotional regulation in particular irritability.  He also continues to struggle with frustration tolerance.  His mood is much lower currently than it has been prior to the injury and he only as a partial response to his anti-depressive treatment at this stage.

His acquired brain injury has probably contributed to his relative treatment resistance.  His social withdrawal, irritability and lack of enjoyment has meant that he is struggling to spend time with his wife and children.  It has impacted significantly on his capacity to engage with the community and also to function at work.  This is not just because of his depression but also ongoing fatigue and the cognitive sequelae of his illness.

In summary there have been persistent and ongoing impairment to Paul's function at a social, interpersonal and familial level in addition to vocationally.  These are due to the combined effects of his depressive relapse, cognitive impairment and post head injury fatigue, all of which have directly resulted from this incident.  His prognosis is guarded to the ongoing nature of a number of these symptoms".

23My observation is that this unprovoked and violent assault upon Mr Brown by you, Mr Al Wahame, has had devastating and continuing effects upon this unfortunate man.

24Mr Warren Simmonds, consulting psychologist, has provided a report dated
27 July 2016.  In that report Mr Simmonds, among other things, reports on your personal history and I quote from that report.  Mr Simmonds said this when speaking of you:

"Mr Al Wahame is a 19 year old man who was born and raised in Beirut, Lebanon, migrating to Australia at age ten with his family, meeting up with his father who had arrived sometime previously.  They settled in Reservoir initially before moving to Shepparton.  His mother is aged 53 and was born in Iraq adding that she has always remained at home.  His father is aged 55 and is of Lebanese descent, revealing that he is now a pensioner.  Although he did work at whatever work he could undertake previously but he now suffers from various health problems that I will not read out. Mr Al Wahame has three older siblings.  Fatima, aged 25, Ali, aged 23 and Zaynab, aged 22.  With Mehdi and Zara, aged seven and six respectively".

25Mr Simmonds then, in depth, describes your growing up in Beirut.  This was no doubt a very disturbing and difficult time for you and your family.  I do not propose to read that into the transcript because it is not very pleasant reading and obviously very, very difficult.  However I propose to exhibit Mr Simmonds' report to these reasons.  Therefore any person who is need of referring to these sentencing comments will have access to what Simmonds said about your time back in Lebanon.

26I then again quote from Simmonds and he says this:

"Arriving in Australia Mr Al Wahame said that he found it quite isolating as he had no friends.  His priority was to learn English and certainly conversing with Mr Al Wahame suggested that he did this well despite commencing at age ten and one would think that he had learnt it from a young age".

27Under the heading of "Education and Employment" Simmonds says that,
"Mr Al Wahame said he struggled at school adding that he was 'resistive' and there was significant physical discipline in class".  I understand he is, at this time, speaking of your school days in Lebanon.

"… where he would be hit with a stick.  He struggles in reading Arabic and never really enjoyed school.  He admitted being in trouble with his teachers but said there was only token support at home for him doing homework, adding he never had any and there was no follow through from his mum.  He stated he thought he was doing well and was only in one fight in primary school".

28Mr Al Wahame, you then attended primary school when arriving in Australia in Reservoir East and you completed Years 5 and 6.  You then attended Maguire College.  You were expelled in Year 7 for too many fights.  I then again quote Simmonds who says this about you:

"After attending Shepparton High School for four weeks Mr Al Wahame was expelled after he stabbed a student in class who was talking in an offensive manner about Al Wahame's mother.  Mr Al Wahame added he had warned the student to not repeat what he was saying and stabbed him when he did not.  Mr Al Wahame stated that this resulted in his first court appearance.

Since leaving school Mr Al Wahame said he has worked here and there including a fast food store, a kebab shop and undertaking farm work.  He added he loses his jobs because of his drug use, admitting that employment has been intermittent.  He added that there has not been any serious work in the last five years. 

In part Mr Al Wahame has also had no stable accommodation explaining he has had a falling out with his father and his relationship with his parents has been strained ever since he was sent to a residential unit.  In fact he stated that he has not spoken to his parents now for at least ten months".

29Mr Simmonds report that you commenced using cannabis when you were aged 12.  You were then introduced to methamphetamine when aged 14.  As to this use of illicit drugs, Simmonds says this - you said to Mr Simmonds:

"He revealed that his use of the drug was initially intermittent because it was quite expensive.  He smoked the drug, he found that it helped him to stay up all night and it was in this context that he began stealing motor vehicles.  By 15 he increased to daily with Mr Al Wahame adding that it peaked at about two grams a day.  Although he indicated he was using up to an 'eight ball' (which is 3.5 grams) at the time he was remanded".

30You commenced using alcohol when age 12 but now you only drink on special occasions.  You informed Mr Simmonds that for two years you intermittently used GHB and cocaine.  You disclosed that you injected methamphetamine on a few occasions but "has generally not done that".

31Mr Al Wahame, it is revealed in the report from Youth Justice that there have been several incidents whilst you have been in custody.  Two of these incidents were that you were unable to provide drug tests.  Another incident was that pills and other smoking paraphernalia was found in your cell and then in June drugs were found under your mattress.  In July you returned a positive drug screen.  It is trite of me to say that you are still using illicit drugs even whilst in prison.  Substance abuse is a massive problem in your life. 

32Mr Al Wahame, your first court appearance was on 26 June 2011, which is over five years ago.  You have reappeared in court since then on at least ten separate occasions before this current hearing.  You have been sentenced to Youth detention at least three times and you have breached Youth supervision orders.  Indeed you were placed on a community corrections order only five or six weeks prior to committing this offence.  That community corrections order was imposed by the Shepparton Magistrates' Court.  As I understand it, you are now in breach of that community corrections order and no doubt some steps will be taken in relation to that breach.

33Furthermore, further aggravating the difficulty that you find yourself in, not only have you breached the community corrections order at the time you committed this offence, you were also on bail for other matters.  All aggravating features that you are not taking notice of what the law is.

34It is not then surprising that the Office of Corrections report that you are not suitable for a further community corrections order.  Not only that, as you know, the Youth Justice report reports that you are not assessed as suitable for a sentence to be served in Youth Justice.

35As I understand it, there are some 52 counts that have been dealt with by  - various different counts dealt with by the courts on 11 separate court hearings.  At least ten of those offences are for offences of violence. 

36You have, in addition to illicit drug issues, a significant anger management problem.  That might relate to what is being raised by that clinician at the Children's Court about your intellectual deficits.  It may be because of that deficit that you struggle with managing your anger.

37The one punch delivered by you to Mr Brown has had catastrophic consequences flow there from to that man.  Your conduct has to be denounced in the strongest of terms.  Both the principles of specific deterrence and general deterrence are of significant importance in the circumstances surrounding this offending now before this court. 

38Your prospect of rehabilitation has to guarded, if not poor taking into your conduct since going into custody.  Mr Simmonds observed, and he said this, "Certainly from discussions with Mr Al Wahame it would appear that he views this lifestyle - " that is your lifestyle:

"… as quite positive.  In that he has a level of cache and therefore boosts his sense of self-esteem.  However Mr Al Wahame is frustrated at spending time in custody indicating that he has spent his last three birthdays in prison.  However Mr Al Wahame appears to struggle making the connection between his criminal behaviour and what he finds attractive in that life and the fact that he ends up in custody.  To that extent, he is unable to perceive that one comes with the other". 

39That all causes concern about your prospect of rehabilitation and again it no doubt endorses the observation made by your barrister that perhaps the intellectual deficit that you may have might be interfering with good judgment.  Would you stand up, please.

40Mr Al Wahame, I assure you that I have taken into account all that has been said on your behalf by Mr De-Vietri.  I do take into account the fact that you did plead guilty.  That guilty plea means that there are significant savings to cost, to witnesses coming to court, to witnesses getting in the witness box and stressful giving of evidence, being cross-examined and things of that nature. 
You must be given credit for that.

41As I have said this offences is an extremely serious matter and both Mr Roper and Mr De-Vietri said the principles of sentencing for young offenders must be addressed.  You heard Mr Roper just recently mention Mr Batt J.  I am not going to go through all of the cases but one of the - probably highly quoted and highly respected judgments from the Court of Appeal was the matter of Mills where it is said the rehabilitation of an offender is more important than punishment. 

42At the end of the day you have got to really take into account what has happened.  You have got a shocking track record in terms of your forensic history.  You have got a shocking track record in terms of the number of times you have been involved in assault type matters, all pointing towards anger management issues.

43Taking all of those matters into account, you will be convicted and sentenced to be imprisoned for a period of six years.  You are to serve a minimum term of four and a half years before being considered as eligible for parole.

44Pursuant to s.18 of the Sentencing Act you are to be given credit for having already served 211 days of imprisonment.  Had it not been for your plea of guilty, a task I find difficult, but I believe I would have imposed a penalty at least of seven and a half years gaol, if not eight, with a minimum term of five and a half years.  Thank you, remove the prisoner.

45MR DE-VIETRI:  As Your Honour pleases.

46MR ROPER:  As Your Honour pleases.

47HIS HONOUR:  The summary offences.  I need - I am sorry.  The summary offences, convicted and sentenced to seven days on each matter.  Each of those matters to be served concurrently with the base sentence.  Sorry I missed that earlier.  Thank you.  Thanks, Mr De-Vietri.

48MR DE-VIETRI:  Thank you, Your Honour, see you next time.

49HIS HONOUR:  Thank you, no other matters?

50MR ROPER:  No, Your Honour.

51HIS HONOUR:  Thank you.  Adjourn.

- - -