Director of Public Prosecutions v Amin

[2020] VCC 800

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01512
CR-19-01513

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAVID AMIN
KALID SAID

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2019, 10 February 2020, 23 March 2020, 14 May 2020, 21 May 2020
DATE OF SENTENCE:	5 June 2020
CASE MAY BE CITED AS:	DPP v AMIN
MEDIUM NEUTRAL CITATION:	[2020] VCC 800

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For Accused AMIN	Mr J. Willard	Michael J Gleeson & Associates
For Accused SAID	Mr J. Miller	Balmer & Associates

HER HONOUR:

1Javid Amin and Kalid Said, you have each pleaded guilty before me to one charge of causing serious injury intentionally, in circumstances of gross violence.  You, Mr Said, have also pleaded guilty to a summary charge of committing an offence whilst on bail and have also admitted prior convictions.

2The facts underlying your offending are as follows.  At 3.59 am on 1 March 2017, the two of you were in the housing commission high rise at 229 Hoddle Street, Collingwood, and you entered the lift on Level 19.  The victim in this matter, Mr Ross William Johnson, who was then aged 41, entered the same lift at Level 10.  He was acting erratically.  He had a history of paranoid schizophrenia, alcohol and drug use. He lived at the housing commission flats.  Neither of you knew him.  There was CCTV footage of the inside of the lifts at the time the three of you were present in it and the victim, Mr Johnson, spat at you Mr Amin, hitting you in the facial area.  On Level 3, you two left the lift and you spat back at Mr Johnson and rushed at him.  At about 4.01 am, and this is all captured on CCTV security footage, Mr Johnson left the building via the northern stairwell and walked away on the building service road.

3A minute later, the two of you left the building through the front door before
Mr Johnson and followed him on the service road.  The CCTV footage then showed you, Mr Amin, rushing up to Mr Johnson and grabbing him, pinning his arms.  You, Mr Said, then approached Mr Johnson, who kicked out at you, and you fell to the ground.  You then, Mr Amin, body slammed Mr Johnson to the ground.  While he was on all fours, the two of you then kicked Mr Johnson to the head, leaving him prone.  You, Mr Amin, then stomped on the victim and delivered a soccer styled kick to his head.  You, Mr Said, stomped on his shoulder and stomped on his body.  There was some issue about whether you, Mr Said, in fact attacked Mr Johnson after he became unconscious and it was clear and I made the finding on the hearing that whilst you were extremely violent to him, you did not continue attacking him at that point, while he was unconscious.

4You picked up a hammer from Mr Johnson's clothing,
and handed it to Mr Amin and you Mr Amin then repeatedly struck his leg.  You, Mr Said, hit Mr Johnson to the face twice.  You then dragged Mr Amin away.  You, Mr Amin, returned to stomp on Mr Johnson's head.  After a break of about twenty-seven seconds, you returned to Mr Johnson, whilst Mr Said initially tried to restrain you, and kicked his back and then stomped on his ribs.  At this stage, Mr Johnson was lying face up and was clearly unconscious.

5You, Mr Amin, then jumped on Mr Johnson's ribs and fell over and you inexplicably, Mr Said, delivered a kick to Mr Johnson's back.  You,
Mr Amin, then stomped on Mr Johnson's stomach.  Police located the CCTV footage from the lift, foyer and external areas of 229 Hoddle Street, which as I have said, showed the behaviour of both of you and as I said, also this was played in court.  They also found a Sprite drink bottle under a car nearby the assault location, which had your fingerprints, Mr Said, and police also located a small silver hammer from the garden bed out the front of 229 Hoddle Street.

6Mr Johnson received multiple injuries, including unconsciousness, bleeding to the right side of the brain, complex fractures to the left ribs, seven to ten, a fracture to the right sixth rib, a complex fracture to the left shin, with a 10 centimetre laceration. He suffered multiple face and scalp lacerations, including a three centimetre laceration to the forehead and he has also suffered, cognitive impairment or brain damage.

7The medical evidence was that the combined injuries were serious life threatening injuries.  Both of you were arrested later that morning in Collingwood where the victim's phone was also located, this being an un-charged act.  The two of you were interviewed on 1 March 2019.  You, Mr Said, denied any involvement in the assaults, but said that at the time, you had been drinking and had taken Xanax.  You, Mr Amin, made a no comment record of interview, but told police you did feel bad for the person.

8A committal was heard on 1 August 2019, however, submissions were only made in regard to incapacity.  The CCTV footage also indicated that after an initial knee to the head, Mr Johnson was prone and incapacitated or unconscious.  There was then some minor movement and a submission made about whether Mr Johnston was conscious or not.  This went to the question as I understood it of gross violence, so I accept that it was an extremely limited committal, centred around a legal issue.  The matter was finally resolved to a plea on 25 September 2019, in your case Mr Amin, and on 30 September 2019, in your case, Mr Said.  In the circumstances, given that this offending occurred on 1 March 2019, I do regard this as an early plea by each of you.  The maximum penalty for the offence of intentionally causing serious injury in the circumstances of gross violence is 20 years imprisonment and in relation to you, Mr Said, the maximum penalty for committing an indictable offence on bail is 30 months imprisonment or 30 penalty units.

9I now turn to the personal circumstances of each of you. Before I do so, I need, however, to outline a matter that has been the subject of much submission by both counsel on your behalf, in relation to s.10(1) and 10A of the Sentencing Act 1991. Section 10(1) imposes a mandatory minimum period of four years imprisonment for the charge of intentionally causing serious injury in the circumstances of gross violence.

10There are exceptions to this if it can be established by defence that special reasons exist pursuant to s.10A(2)(c)(i) and (ii). There was a great deal of argument about that. There was argument as to whether you, Mr Amin, suffered a mental impairment which had a causal connection to your offending in this way and it was submitted in relation to both of you, pursuant to s.10A(2)(c)(ii), that each of you suffers a mental impairment, such that the ordinary risks and burdens of imprisonment would be greater for you. I will refer to this later in my sentencing remarks.

11I now turn, as I have said, to the personal circumstances of each, starting with you Mr Amin.  You are now 19 years of age.  You were 18 at the time of this offending and you have no prior convictions.  You were born in Kabul, one of eight children and your family fled there when you were seven, although your father left five years before and came to Australia.  You and your family lived in Pakistan as a refugee until you were eight, when you came to Australia and re-joined your father.  I note that your father had a very difficult time and was held in detention here and was involved in serious protest before he was released into the community and he now works in security.  You underwent 18 months of English school then attended Fitzroy Primary School and then Fitzroy High School, which you left halfway through Year 11.  You are a talented soccer player and you gained a scholarship to go to a soccer school with the Melbourne City Youth Team.  You also earned money, about $200 a week, coaching people on the side.  You come from a law abiding family and they are supportive of you and your father and siblings came to court to the hearings.

12Unfortunately about aged 16, you began using cannabis and at the age of about 17 to seventeen and a half, you started using ice as this was available and you rapidly became addicted. There are a number of psychological reports tendered in your case, Mr Amin, but you have given people varying reports that you were using from about three and a half to four points daily at its height.  This is a very large and expensive habit and you developed paranoia and depression.  You paid for your drugs with money made from the coaching.  Your habit had a negative impact on your soccer and your mental health and you also began taking Xanax, to come down from your ice use.  You had been to the same premises obviously, as Mr Said that night, to a flat in the housing commission high rise which was a place where people obtained drugs and partied using drugs.

13Your second counsel at a further plea hearing told me that you had used ice earlier in the day.  I am really not sure what the situation was.  It was put to me at the first plea hearing by different counsel that you were very much affected by Xanax and ice when you offended.  Further it was submitted that spitting for you is a very grave cultural offence, a very grave insult and that you took it extremely seriously.  There was a change of counsel in this matter, but your first counsel submitted that your reaction to Mr Johnson should be seen in the context of being heavily intoxicated from using ice and Xanax.

14You did express remorse for your offending in your record of interview, which was otherwise uncooperative and you have expressed remorse to Mr Watson-Munroe, whose psychological report was received on the plea, together with Ms Carey, a neuropsychologist, and to a limited extent, to Dr Linda Borg, also a neuropsychologist, although you told her that you felt sorry for
Mr Johnson's family, but that he did deserve it for spitting at you, but 'maybe not to how much I went'.

15There was some suggestion that you had suffered a number of head injuries in your life.  I ordered a further neuropsychological report and investigation as it was mentioned by Mr Watson-Munroe, that you possibly has some sort of acquired brain injury.  He diagnosed you as suffering from depression, the concern with that being that that depression may well have arisen because of your time in gaol, which has been difficult for you.  You have never been in custody before, you are  young man and you went straight into adult prison and that is very very difficult.

16I had some concerns over the neuropsychological material.  Dr Borg reported that she was unable to assess you because she felt that you were malingering, that you were exaggerating, you were not cooperating.  I allowed you then to obtain a second neuropsychological report.  Dr Susan Carey found that you did not display that sort of problem, although she said there might be some exaggeration by you of your emotional situation and your emotional state and she assessed an overall IQ after testing of 74, but said she could not be entirely sure of it.

17What is of importance is that both Dr Borg and Dr Kerry, as well as Mr Watson-Munroe did find that you had a depressive condition and after testing, it was
Dr Carey’s view that you also suffered from ADHD, attention-deficit hyperactivity disorder.  She said that this had a causal effect in that it meant that you were scattered and not focused, and the way you reacted to dysregulation of your emotions and played indirectly to you reacting in the way that you did.

18I have some difficulty with that submission. I also had some difficulties with the evidence that Dr Carey gave on the plea at the second hearing. She spoke about you having an impulse control disorder, but specifically stated in her report, that investigation did not find that you suffered this. In any event, I am not satisfied that there is a causal link between your ADHD condition and your depression with the offending that you unleashed on Mr Johnson on that night. I am going to return to outline your personal background Mr Said, and then I will return to the submission made in relation to s.10A(2)(c)(ii) on behalf of each of you.

19Mr Said, you are now aged 20.  You have had a difficult upbringing.  You are born in Australia to Ethiopian parents and you have an older brother who is working and to whom you are close.  You grew up in North Fitzroy with your father who was a taxi driver and your mother worked in a key factory.  However, they separated when you were nine and your father went onto re-partner and have two more children.  Your father took you to Ethiopia to visit your family and this was a difficult visit for you there as you were the subject of a nasty assault.  Your difficulties continued after your parents separated.  First of all, I was told that your parents both fought physically and were violent to each other which you witnessed and then after they separated, your mother had difficulties with alcohol and you and your brother very much had to look after yourselves and attend to household tasks.

20You attended local schools.  You attended Fitzroy Secondary College, which you left at the start of Year 12.  Since 2014, your mother has suffered from cancer, from Hodgkinson's disease, and was away from home for treatment for months at a time. Again, this was extremely difficult for you and your brother.  You engaged in cannabis use from about the use of 11 or 12 and this has been a major problem for you.  In about Year 11, you started using Valium and Xanax, taking about 12 to 16 tablets daily.  Alcohol is not a massively huge problem for you and on the night in question, when you committed this offending, you had in fact smoked ice for the first time.

21What is concerning for this court is you have a very troubling prior criminal history going back to 2015.  You have since been dealt with for charges including affray, attempted robbery, assault in company, possessing the proceeds of crime, motor vehicle theft, recklessly causing injury, intentionally causing injury, robbery, burglary, for attempted robberies, you were dealt with for aggravated burglaries and armed robberies, all committed in company.

22I was given summaries of your offending.  You hung around with boys who were snatching phones from people in the street, who were holding up people in the street, using weapons to steal from them.  On one occasion, you were involved in an aggravated burglary on a house in Epping where you all broke in and a gun was held to the owner's head.  Keys were stolen and a car was stolen.  You have been dealt with for handling stolen goods and a second aggravated burglary on an apartment in the Docklands.

23You have been placed in Youth Justice on a number of occasions.  Whilst in Youth Justice, you were also dealt with for assaulting another inmate.  You have, as I have said, and that is a fairly rough summary of it, a long and consistent history of serious violence.

24Turning to the formal record of your prior convictions, as I have said, the offending that you engaged in began in 2015, but you were first dealt with in February of 2017 in the Collingwood's Neighbourhood Justice Centre for thefts of cars and so forth.  Then in June of 2017, you were dealt with for committing an indictable offence on bail, assisting an offender in armed robberies, burglary, attempted robbery, assault in company, robbery, entering a private place, attempted robbery, assault in company, recklessly causing injury, unlawful assault intentionally causing injury and tampering with a motor vehicle.  You were placed in a Youth Justice for a period of 132 days for that offending.

25I received psychological material also in relation to you, Mr Said, and you have been diagnosed as currently suffering post-traumatic stress disorder which arose from your assault in Ethiopia and that you ended up using Xanax essentially to self-medicate, for the recurrent distressing dreams that you continued to experience and the flashbacks that bedevilled you and unfortunately, this simply became a terrible habit for you over the years.

26Looking at the psychological report of Daria Sesenko and Pamela Matthews dated 24 October 2019, you were diagnosed as meeting the DSM-5 criteria for sedative hypnotic or anxiolytic use disorder, that is, you present with a pattern of Benzodiazepine use, mainly Xanax, and with symptoms of a post-traumatic stress disorder. In relation to your offending, it was the opinion of the psychologist that the consumption of Xanax, alcohol and methamphetamine were significant contributing factors to your offending, as you told them that you struggle to control your emotions when under the influence of substances.  It was also opined that other symptoms of post-traumatic stress disorder may have played a role in your offending.

27What is of more significance, in both the case of you and Mr Amin is that each of you, I am satisfied, do suffer from impaired mental functioning, which pursuant to the definition of s.4 of the Mental Health Act, means a substantial mood disorder that, as the section states:

'Would result in the offender being subject to substantially and materially, greater than the ordinary burden or risk of imprisonment'.

28I am satisfied that each of you does suffer such emotional difficulties, so that I am not bound by the mandatory minimum that can be applied in this case.  Having said this, my problem is this.  The offence that you committed was so incredibly serious that a four year minimum term in adult custody is in my view an appropriate minimum sentence for each of you. I am now going to turn to the victim impact statements.  It is quite clear that you caused permanent brain damage to this man.  The victim impact statements which were written by Mr Johnson's sisters and his mother and which they read out at the hearing, indicated firstly of course, the extraordinary trauma that each of those family members went through, when they discovered that their son and brother, who already had a very difficult life because of his psychiatric problems, was kept in hospital, might die from the injuries you inflicted.  They went through enormous trauma whilst he was in hospital and being treated.  And now they are left with a brother who suffers, it is clear, permanent brain damage. All the medical material points to that.

29He has developed a massive anxiety.  He rings his mother up to twenty times a day.  He rings his sisters over and over and over.  They constantly have to be in contact with him and to care for him.  The fact that this man is now left with this permanent impairment, this permanent brain damage, brings your attack into an incredibly serous category.  I am aware that you are both really young men.  I am aware that you have got your lives in front of you.  I am aware,
Mr Said, that you in particular, have had until recently, a very very difficult time in custody.  You were held at the Melbourne Remand Centre.  You were being picked on by other inmates, you were having run ins with staff.

30Mr Amin, I accept that it was difficult for you, although you were held at Ravenhall which I know is a very strongly rehabilitative gaol and even though, it is always very difficult for a young person to be in adult custody, I do find that your time there has been easier.  But what we call the objective gravity, the seriousness of your offending means that I cannot, in my view, look at sending either of you to Youth Justice Centre.  Your offending is simply too serious.  This is a serious example of a serious crime.

31Ordinarily, particularly at your age, courts do everything they do to keep young men of your age out of gaol, especially given the fact that you have no prior convictions Mr Amin.  These factors are what actually keeps the minimum term down to four years.  If you did not have those factors in your life, I would be looking at imposing more.  I have not quoted a great deal from the victim impact statements, but I found them quite shocking and quite horrifying.  I find the fact that a already damaged man, living in difficult circumstances, now is permanently brain damaged to be a very serious and shocking result of your offending. 

32Even though you have more prior convictions, Mr Said, I am satisfied you played a lesser role in the offending.  I am satisfied that initially you did not attack Mr Johnson whilst he was unconscious, but as against that, you do have prior convictions, whereas Mr Amin does not.  But you, Mr Amin, played by far the more serious role.  It was you who started this.  It was you who cannoned into Mr Johnson, who followed him.  I understand there is a cultural insult involved, but that by no means, entitles you to react in the way that you did and to continue the way that you did.  You pummelled that man, you caused him to become unconscious, you attacked him viciously while he was still unconscious, you hit him with a hammer, you caused fractures to his legs.  You, Mr Said, came back, you kicked him in the head.  You, Mr Amin, threw yourself on him, you stomped him.  This man not only suffered life threatening injuries primarily because of the brain damage, but multiple broken ribs, complex fractures to his leg.  This was an awful attack.

33As I said to you during the plea, you are so lucky he did not die.  If he had, you would be looking at a minimum of 15 to 16 years in gaol.  I will of course be taking into account and ordering the time you have already served.  I want to make the comment that both counsel could not have tried harder on behalf of each of you.  Each counsel was desperate to keep you out of adult gaol.  It is a tragedy to put young men in adult custody, but when you look at something like objective seriousness, do you know what I am talking about objective seriousness?  Just how bad this assault was.  Just how bad the effect on him was.  I cannot see my way to doing anything but placing you in adult imprisonment. 

34In all the circumstances, as I have said, I must find that notwithstanding that I am satisfied each of you have the emotional conditions that I have outlined, notwithstanding the rehabilitative signs that each of you have shown (I note that you, Mr Said, had later settled down, and taken steps to work in youth work) and that each of you have strong supportive families.

35I accept that both of you do have remorse for your crime.  I accept that the committal hearing was conducted on a very narrow point.  I accept that Mr Johnson has not had to be called to give evidence, although at the same time, this was a very strong prosecution case because it was all filmed on CCTV footage.  I accept that both of you, even you with your priors, Mr Said, have got futures and it is the earnest hope of this court that you do go on to have productive futures.  You have both got it in you to do this, but in all the circumstances, as I have said, just punishment, denunciation of what you did, the objective seriousness of your crime, general deterrence, that is sending out a message to this community that other people who offend as you do, simply will not be dealt with by the court any other way than with the utmost seriousness, means that I must sentence you in a way that I am going to.

36In relation to each of you, on the charge of intentionally causing serious injury, you each sentenced to six years imprisonment, but I order that you serve a minimum term before becoming eligible for parole.  What is the pre-sentence detention please?

37MR DEVLIN:  Four hundred and sixty-two days, Your Honour.

38HER HONOUR:  Sorry, what was that Mr Devlin?

39MR DEVLIN:  Four hundred and sixty-two days, Your Honour.

40HER HONOUR:  I declare that each of you have already served 462 days of that sentence by way of pre-sentence detention, that will come off.  In relation to the charge of committing an indictable offence whilst on bail, Mr Said, I am going to sentence you to one month's imprisonment, which will be served concurrently with the other sentence.  Do you understand both of you what has happened now?

41OFFENDER AMIN:  Yep.

42OFFENDER SAID:  Yes, Your Honour.

43HER HONOUR:  And I hope you understand why.

44OFFENDER AMIN:  Yep.

45OFFENDER SAID:  Yes.

46HER HONOUR:  I know it is no comfort to you, the court does not like sentencing young men like you, but this, as I said, was just far too serious an offence.  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of seven years and order that you serve a minimum term of five years.  Is there anything else that I need to attend to
Mr Devlin?

47MR DEVLIN:  No, Your Honour, but I just confirm there was just a very slight drop out.  Your sentence is six years, with a minimum sentence of four years?

48HER HONOUR:  Yes, and with pre-sentence detention of the four hundred and I think seventy-two days that you said.

49MR DEVLIN:  Four hundred and sixty-two days.

50HER HONOUR:  Four hundred and sixty ‑ ‑ ‑

51MR DEVLIN:  Yes Your Honour, that's clear.

52HER HONOUR:  Four hundred and sixty-two days.  All right, I thank counsel again very much for their assistance in this matter and again, I congratulate you both on the very thorough job that each of you carried out on behalf of your clients.  Is there anything further that I need attend to?

53MR DEVLIN:  No, Your Honour.

54HER HONOUR:  Thank you very much.

55COUNSEL:  No, Your Honour.

56HER HONOUR:  We will adjourn to 9.45 next Tuesday morning.  Thank you.

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