Director of Public Prosecutions v Anand (a pseudonym)
[2023] VCC 1437
•17 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TARIK ANAND (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE D. SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 August 2023; 9 August 2023 | |
DATE OF SENTENCE: | 17 August 2023 | |
CASE MAY BE CITED AS: | DPP v Anand (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1437 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Causing Injury Intentionally; Affray; Make Threat To Kill; Conduct
Endangering Persons; Intentionally Damage Property
Legislation Cited: Sentencing Act 1991; Migration Act 1958
Cases Cited:R v Skura [2004] VSCA 53; R v Dowlan [1998] 1 VR 123; R v Sa [2004] VSCA 182; R v Hester [2007] VSCA 298; Ivanov (a pseudonym) v The Queen [2019] VSCA 219; Smith v The Queen [2010] VSCA 192; The Queen v Campbell [2005] VSCA 225; Rv Verdins (2007) 16 VR 269; Worboyes v The Queen [2021] VSCA 169; Guden v The Queen (2010) 28 VR 288; Allouch v The Queen (2018) 276 A Crim R 1; Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428;
Sentence: Total effective sentence of four years’ imprisonment with a non-parole period of two years and six months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N. Deltondo (Sentence) Ms F. Holmes (Plea) | Solicitor of the Office of Public Prosecutions |
| For the Accused | Mr C. O'Bryan (Sentence) Mr B. Johnston (Plea) | James Dowsley & Associates |
HIS HONOUR:
Introduction
1Tarik Anand[1], you have pleaded guilty to two charges of causing injury intentionally, which carries a maximum penalty of 10 years' imprisonment; one charge of affray, which carries a maximum penalty of five years' imprisonment; one charge of threat to kill, which carries a maximum penalty of 10 years' imprisonment; two charges of conduct endangering persons, which carries a maximum penalty of five years' imprisonment; and one charge of intentionally damaging property, which carries a maximum penalty of 10 years' imprisonment.
[1] A pseudonym.
Circumstances of the Offending
2At your plea hearing before me on 2 August 2023, through your counsel you admitted the factual basis of your offending, as contained in the Summary of Prosecution Opening for Plea dated 28 July 2023, Exhibit 1 at your plea hearing. Footage of at least part of your offending was played at your plea hearing, tendered by the Prosecution and marked Exhibit 2.
3Your offending can be briefly summarised.
4There are two victims of your offending, Ms Leila Mehmed[2], who was at the time of the offending your wife, and Abdul Hilal[3], who was at the time of the offending Ms Mehmed’s boyfriend.
[2] A pseudonym.
[3] A pseudonym.
5At the time of your offending on 18 January 2022, you were residing together with Ms Mehmed and your two young children in the family home in Narre Warren South. Your wife and Mr Hilal had apparently been seeing each other for approximately 18 months, and you had known about this for some 12 months as at 18 January 2022.
6At about 8.00 am on that day, you had some sort of verbal altercation with your wife outside the family home, when she was in her vehicle and you pulled in front of her in your white van, demanding that she get out of her vehicle. Ms Mehmed drove away.
7About 20 minutes later, your wife called you and asked what was wrong with you. You responded that you knew she was going to meet up with Mr Hilal, as you had seen his vehicle in the area. Your wife told you that she was going to an appointment and gave you the address, suggesting that you follow her if you did not believe her.
8Following a subsequent telephone conversation between Ms Mehmed and Mr Hilal, they agreed to meet at a location they had used to meet up at, on previous occasions, in Narre Warren.
9A few minutes later, Mr Hilal and Ms Mehmed arrived at the agreed meeting place, and Ms Mehmed got out of vehicle and into the front passenger seat of Mr Hilal’s vehicle, a red Ford Ranger.
10A short time later, you arrived at this location in your black Toyota Camry. You approached Mr Hilal’s vehicle at a rate of speed, braking suddenly and coming to a stop next to his car. You got out of your vehicle and approached Mr Hilal, who by this time had exited his vehicle to confront you.
11What followed took place in a public space on a suburban street in Narre Warren South.
12You yelled at Mr Hilal 'I'm going to kill you, I'm going to kill you', whilst you had in your hand an axe with a shortened handle and a large black axe head. This conduct forms part of the conduct referable to Charge 3 on the indictment, threat to kill.
13Mr Hilal retreated backwards towards the middle of the intersection. You continued to swing the axe towards him, and he had to take evasive action to avoid being struck with the axe. Your conduct in this regard represents the commencement of the conduct referable to Charge 4 on the indictment, conduct endangering persons, by violently swinging an axe at others.
14Whilst this was happening, your wife exited the vehicle to come to the aid of Mr Hilal. You then turned your attention to her, charging at her with the axe raised. She fell to the ground in the middle of the road, landing on her back in an incapacitated and vulnerable state. By this time, a neighbour who had heard screaming, ran outside and saw you standing over your wife.
15You raised the axe above your head with both hands gripped on the handle, yelling 'I'm going to kill you, you whore', this conduct forming part of Charge 3 on the indictment, threat to kill. You then swung the axe down towards your wife's head, this conduct forming part of the basis of Charge 4 on the indictment. Ms Mehmed raised her left arm up to protect her head, and the axe connected with her forearm and the right side of her forehead, causing a deep laceration to her left forearm and a laceration to the right side of her head, causing significant bleeding. Your conduct in relation to making contact with the body of Ms Mehmed with the axe forms the basis of Charge 1 on the indictment, causing injury intentionally.
16You raised the axe again, but thankfully Mr Hilal pushed you out of the way before you could strike your wife again. You then again targeted Mr Hilal, raising the axe and chasing him, continuing to swing the axe at him. Your conduct in this regard forms part of the conduct referable to Charge 4. Whilst this occurred, Ms Mehmed was able to get to her feet although injured, and screamed for help.
17By this time, the neighbour who had heard screaming managed to get in between you and Ms Mehmed whilst you were swinging the axe. The neighbour had located an aluminium mop handle on his property and used it to strike you in order to prevent further attacks on Ms Mehmed. You were repeatedly told to drop the axe and leave the area.
18You then approached Mr Hilal’s red Ford Ranger and smashed the driver's side front and rear window, and the passenger side front and rear window, causing them to completely shatter. You also smashed the right side of the windscreen and driver's side wing mirror before returning to the road. Your conduct in this regard forms the basis of Charge 5 on the indictment, intentionally damaging property.
19Once Mr Hilal and Ms Mehmud had managed to retreat to the outside of a neighbouring property, you picked up a rock near Mr Hilal’s vehicle and ran towards the neighbour and Mr Hilal, throwing rocks at them. Rocks were also thrown at you.
20You then returned to your vehicle and a short time later approached your wife's mobile phone, which was in the middle of the road, and used an unknown implement to smash the phone, causing extensive damage.
21The neighbour managed to chase you down the road. A short time later, you returned to the intersection on a phone call, walked around the corner and got into your vehicle. You travelled a short distance before performing a right hand U-turn, and then mounted the kerb outside one of the properties, driving up onto the garden bed and hitting a small palm tree and bush.
22Mr Hilal, who had been holding a towel on Ms Mehmed’s arm, noticed, along with Ms Mehmed, that you were driving directly towards them. Your conduct in this regard forms the basis of Charge 6 on the indictment, conduct endangering persons. They both retreated through the garden using a large tree as protection. However, Ms Mehmed tripped and fell to the ground onto her hands and knees. You accelerated and continued to drive at Ms Mehmed and Mr Hilal, the front bumper of your vehicle directly impacting Ms Mehmed and the tree, throwing her 2 to 3 metres onto the road. This resulted in Ms Mehmed sustaining a fractured ankle, and your conduct in this regard forms the basis of Charge 7 on the indictment, causing injury intentionally.
23Neighbours managed to pull you out of the driver's seat of your vehicle. Once out, you continued to swing the axe at Mr Hilal, who managed to retrieve the axe from you. You were restrained by neighbours until police arrived a short time later.
24Overall, your conduct which commenced with you threatening to kill Mr Hilal and swinging the axe, through until your restraint by the neighbours, forms the basis of Charge 2 on the indictment, affray.
25Ms Mehmed was transported by ambulance to the Alfred Hospital, where she was ultimately admitted for three nights and underwent surgery on her forearm requiring sutures, as well as sutures to her forehead. She also required a cast and occupational therapy with regard to the fractured ankle.
26You were also admitted to hospital overnight and treated for bruising to your head, a head laceration, a forearm laceration and rib fractures.
27You were subsequently interviewed by police on 19 January 2022, where you admitted to being present at the location and having an altercation with Mr Hilal. You claimed that Mr Hilal cut your left forearm with a knife, which is why you returned to the vehicle to get the axe. You admitted to trying to swing the axe at Mr Hilal, but instead hit your wife by accident.
28You also stated that you were attempting to drive away from the scene, lost control of the vehicle and did not realise that you had hit anyone.
29You were initially remanded in custody before being bailed 23 days later on 9 February 2022. You remained on bail until 2 August 2023.
30The matter proceeded through the preliminary stages in the Magistrates' Court, before you indicated a guilty plea on 24 October 2022. Clearly, however, there were factual matters in dispute until the day of your plea hearing, 2 August 2023.
Victim Impact
31Subsequent to your plea hearing before me on 2 August 2023, Victim Impact Statements from your victims, Leila Mehmed and Abdul Hilal, were completed on 9 August 2023 and filed with the Court and read today as amended by the Prosecutor, Ms Deltondo.
32In her amended statement, your wife, Leila, indicates that if you go to gaol this will damage her and her children's future and will mentally affect them. She refers to the physical impact of your offending upon her as being only minor. She refers to the family's reliance upon you for financial help with expenses, and refers to the social impact upon her, namely that due to your cultural background, she cannot go anywhere socially without you.
33Mr Hilal’s Victim Impact Statement is equally supportive. He describes your offending against him as being an accident, and indicates that if you are sentenced to jail, the emotional impact upon Mr Hilal will get worse. He refers to your freedom and reunion with your family and community as bringing a relief to him.
34The Victim Impact Statements provided in this case highlight the complexity of sentencing. Given your role within the family unit and your respective cultural background, it is perhaps unsurprising that your victims express support for you, and express concerns should you receive a sentence of imprisonment. Pursuant to s5(2)(da) of the Sentencing Act 1991, I must have regard to the personal circumstances of the victims of the offence, and pursuant to s5(2)(db) of that Act, I must have regard to any injury, loss or damage resulting directly from the offence. Evidence that your victim has forgiven you may indicate that the effects of the offences have not been long-lasting. Where the offence occurs in a domestic situation, the attitude of the victim may also be relevant to the question of rehabilitation.[4] In that regard, I have taken into consideration the Victim Impact Statements in formulating an appropriate sentence in your case. However, just as an unfavourable Victim Impact Statement cannot be used to justify a sentence which is not just in all the circumstances, a favourable Victim Impact Statement cannot be used to usurp the function of the sentencing judge.[5] The attitude of the victim cannot govern the sentencing approach.[6] The victim might not always be able to assess what is in their own best interest.[7] Furthermore, evidence of forgiveness of the victim of domestic violence should be treated with extreme caution.[8] There is a need for sentencing courts to be very careful in cases of domestic violence with regards to the weight to attach to favourable Victim Impact Statements.[9] Finally, crimes of violence frequently create alarm and distress to people other than the immediate victims, and in assessing the need for general deterrence, the Court must have regard to the impact of the crime more broadly than merely upon the immediate victim.[10] Overall, it is the judge who must determine the appropriate sentence, not the victims, and that is so whether the victims are forgiving or vengeful. The sentencing judge will, of course, have all of the relevant facts, and it cannot be expected that victims will be aware of all of the aggravating factors relevant to sentencing, nor of the relevant sentencing purposes such as the need for general deterrence.[11]
[4]R v Skura [2004] VSCA 53 at paragraphs 47-58, per Eames JA.
[5]Skura at paragraph 12; R v Dowlan [1998] 1 VR 123, 139-40, per Charles JA.
[6]R v Sa [2004] VSCA 182 at paragraph 38, per Eames JA.
[7]Sa at paragraph 39, per Eames JA.
[8]R v Hester [2007] VSCA 298 at paragraph 27, per Neave JA.
[9]Ivanov (a pseudonym) v The Queen [2019] VSCA 219 at paragraphs 103-105, per Emerton JA and Croucher AJA; Smith v The Queen [2010] VSCA 192 at paragraph 8, per Beach AJA.
[10]Sa at paragraph 38, per Eames JA.
[11]The Queen v Campbell [2005] VSCA 225 at paragraph 15, per Eames JA.
Nature and Gravity of the Offending and Level of Culpability
35In written submissions your counsel accurately described your offending as serious, comprising a frightening and sustained attack with a weapon and a vehicle, in the context of a domestic dispute, in broad daylight and seen by members of the public. You had, it seems, known of your wife's affair with Mr Hilal for some 12 months, but for some reason on the day of your offending, 18 January 2022, you essentially exploded in a fit of rage, engaging in a sustained period of violence against your wife and Mr Hilal. Your conduct was far from accidental, or minor. Your conduct represents an extremely serious example of family violence, in a public setting. Any penalty I impose must reflect the important sentencing purposes of denunciation, general deterrence, and community protection.
36Whilst I accept that your cultural background may well have caused you to feel particularly aggrieved in relation to the status of your relationship with your wife, your outrageous conduct was completely indefensible. In addition to threatening to kill both Mr Hilal and your wife, whilst holding an axe in a threatening manner, you denigrated your wife, calling her a 'whore'. After charging at your wife with the axe raised, causing her to fall to the ground, I find your conduct with regard to swinging the axe down towards your wife's head whilst she was on the ground in a vulnerable state to be particularly egregious. The axe connected with your wife's forearm and head, causing significant bleeding and injuries which required hospitalisation. Having struck your wife with the axe, you raised the axe again before Mr Hilal pushed you out of the way before you could again strike your wife.
37You then turned your attention again to Mr Hilal, chasing him whilst swinging the axe at him, further demonstrating the sustained nature of your violence. By this time, neighbours had started to intervene, highlighting the very public nature of your attack. You then turned your attention to Mr Hilal’s vehicle, engaging in vengeful destruction of his vehicle, essentially rendering it undrivable.
38Charges 6 and 7 on the indictment occurred after you had momentarily left the immediate scene of your attack, providing time for you to reflect and desist from your serious criminality. That you would return and engage in further serious criminality elevates your culpability, in my view, for what followed. You essentially used your vehicle as a weapon, driving at your wife and Mr Hilal and ultimately causing a fractured ankle to your wife when you struck her with the vehicle. The CCTV footage of your offending, in particular in relation to this aspect of your offending, can only be described as chilling.
39In formulating an appropriate sentence in your case, there is a need, in my view, to reflect the distinct criminality associated with each charge on the indictment, though I have taken care to avoid doubly punishing you, given aspects of overlap between the offences. Overall, the totality of your offending during a very sustained incident of violence represents serious criminality. Your conduct must be condemned; a strong message must be sent to the community that such behaviour is completely unacceptable; and you must be justly punished.
40Your counsel did not submit that your moral culpability was in any way reduced due to the Verdins[12] mental impairment principles; nor was it suggested that you were in any way affected by substances at the time of the offending. Whilst I am not satisfied beyond reasonable doubt that your conduct was premeditated or planned, your conduct was sustained and extremely violent. I regard your culpability for your offending as being significant.
[12]R v Verdins (2007) 16 VR 269.
Personal Circumstances
41I turn now to a consideration of your personal circumstances, and the impacts of your background on the sentencing exercise. I accept that you have a background of considerable hardship, adversity and instability by virtue of you being part of a much-persecuted minority in your country of origin and that this will weigh heavily on you, both during the sentence to be imposed and beyond.
42You are 43 years of age. Although, it is noted by your counsel that due to your cultural background this is an approximated age.
43At age 43 and having been in Australia now for some 10 years, to your credit you have no prior convictions, and accordingly you fall to be sentenced as a man with prior good character.
44You were born in a rural area of your country of origin where your family owned some land on which crop and livestock were raised. Your family consisted of a father who had two wives, and 10 other children, all of whom lived within the same household. Your early life was essentially subsistence living, with no access to schools or electricity.
45You reported that your education consisted of attending classes with a Mullah for instruction in the Koran. In the course of these teachings, you learned to read and write at an elementary level and could read a little Arabic. You have not reported any disciplinary or developmental difficulties in your early life and you have indicated your family life was harmonious with minimal violence.
46During your adolescence, there was fighting between rival groups in the district you were raised. Your counsel's written submissions outline how you have reported seeing bodies of people who had been killed during this conflict, many of these people whom you knew.
47After growing instability in the region, you left the country at the encouragement of your family. The following decade was characterised by displacement and insecurity.
48You initially lived in Pakistan, before moving to Iran and gaining employment making women's handbags. You had no legal status there. You then decided to seek asylum in Europe. You spent some seven months in Turkey before travelling to Italy, part of which was on an unseaworthy boat with 450 other migrants. There, you were detained for 18 days before settling in Rome for a month. You report that at some stage in 2003, you hid in a truck with 30 others bound for the United Kingdom. You were apprehended on arrival, and eventually given accommodation in Northern England. While there, you worked in a hotel, and then in a steel factory.
49In 2005, after a failed application for asylum in the UK, and numerous appeals, you moved back to your country of origin. During your time away from your home, your father had died. You lived in your village and spent time in the city where your mother introduced you to the woman you would later marry, Leila.
50You were unable to find work while there and began a migration that would ultimately bring you to Australia. You travelled to Pakistan and on to India where you engaged a people smuggler. After several months, you made your way to Malaysia and Indonesia before making a perilous nine day boat journey to Australia. This journey, according to you, was undertaken with 55 others, and was close to sinking before being rescued by the Australian Navy and taken to Christmas Island.
51You were detained on Christmas Island for six months, during which time your wife gave birth to your first child. You were transferred to a detention facility in Queensland for 13 months, and then held in a centre in Tasmania for a few months before being granted a Permanent Protection Visa in 2011. You reported immigration detention being a difficult experience due to having no idea when you would be released, and witnessing distressed people, some of whom self-harmed. Your counsel indicated in written submissions that you saw one person take their life by hanging, however, in oral submissions indicated that there may have been more.
52After being granted a visa, you moved to Melbourne and began working in a chocolate factory. You briefly moved to Sydney to work as a painter and maintained this line of work upon your return to Melbourne up until 2017.
53In 2013 your wife and son moved to Australia under your sponsorship. You all resided in Hallam and report that you settled into married life well. You have indicated that the marriage was warm and harmonious, with you both having compatible expectations and a stable routine. You reported being active in your ethnic community in Melbourne and having a traditional group of friends who were all supportive of each other.
54Your daughter was born in 2015. You report your family life being stable and harmonious in this time. You felt close to your children and spent time with them whenever you could.
55In 2017 you began working at your brother's bakery as both a manager and a baker. You reported enjoying this work and felt proficient in your role. In 2019 your wife Leila decided to find employment and commenced a two day per week aged care course. You were apparently supportive of this decision.
56Your marriage was apparently harmonious and happy up until 2020, when you began to suspect your wife was having an affair. It seems from this period of time your apparently happy marriage and family life unravelled in the context of your growing suspicions of your wife and her connection to Mr Hilal, a man whom you had known from your ethnic community.
Applicable Sentencing Factors
57In formulating an appropriate sentence in your case, I have taken into consideration various matters. I have already referred to the relevant maximum penalties, the nature and gravity of your offending, and your culpability for it.
58As I have indicated, you fall to be sentenced as a man with prior good character, with an absence of prior convictions. This very much stands to your credit. You have also overcome significant adversity to create a life for yourself and your family in Australia, and your family, employment, and cultural activities in Australia are positive matters in the sentencing exercise.
59As at the date of your remand in custody on 2 August 2023, you were working in your brother's bakery. Your brother attended your plea hearing in support of you, as did other members of your community, reflecting the ongoing supports that you enjoy.
60The Summary of Prosecution Opening for Plea dated 28 July 2023, Exhibit 1 at your plea hearing, contained various key procedural dates. According to this information, you indicated a guilty plea as early as 24 October 2022, subsequent to a number of committal mentions and committal case conferences in the Magistrates' Court jurisdiction. No witnesses were cross-examined in relation to this matter, a matter of some significance, given that one of your victims is your wife and your offending involves family violence.
61Furthermore, the resolution of this matter occurred in the context of the COVID‑19 pandemic and its now well-known, unprecedented consequences for the administration of justice in this Court. Given the ongoing adverse consequences of COVID‑19 on the delays associated with the disposition of matters in the County Court, the utilitarian benefit of your plea of guilty to these charges is considerably enhanced, warranting a significant discount on penalty.[13]
[13]Worboyes v The Queen [2021] VSCA 169.
62However, the magnitude of such a discount is impacted to a degree through your maintenance until quite recently of a desire to challenge the factual basis of your offending through cross-examination of your victims. As recently as 26 July 2023, a transcript of a directions hearing before Judicial Registrar Avis reveals your intention through counsel to cross-examine both your wife and Mr Hilal as to the events that occurred. Presumably on instruction, your then counsel indicated that your offending occurred after Mr Hilal stabbed you with a knife. It was only at your plea hearing before me on 2 August 2023 that your counsel indicated that the matter would not proceed as a contested plea.
63On a related issue, an assessment with regard to your remorse is somewhat problematic. You have of course pleaded guilty and avoided the need for cross‑examination of your victims. I accept that your plea reflects your acceptance of wrongdoing and your willingness to facilitate the course of justice. I accept also that you have abandoned your previous position with regard to any contribution by Mr Hilal to the offending. As indicated in the Summary of Prosecution Opening, when initially interviewed by police you maintained that Mr Hilal had cut you with a knife. You also stated that you struck your wife with the axe by accident, and subsequently attempted to drive away from the scene but lost control of your vehicle and did not realise you had hit anyone. These sentiments of course are very much at odds with the summary of your offending and the footage which I have viewed of your offending.
64A psychological report from Mr Guy Coffey dated 23 July 2023 was tendered at your plea hearing and marked Exhibit B. You gave an account to Mr Coffey in June of this year with regard to the lead-up to your offending, and your offending itself. It seems clear from Mr Coffey's report that you maintain that Mr Hilal cut you with a knife, and you attribute various threatening aspects to Mr Hilal in the lead‑up to the offending. According to Mr Coffey, whilst you are remorseful, this is 'in a way that is somewhat qualified and which falls short of unalloyed contrition'.[14] Whilst you were clear that your offending was wrong and unacceptable, and you denounced the use of violence as a means to solve problems, according to Mr Coffey you understated the harm you caused your wife and the potential that you could have caused her much more harm, and you essentially tended to cast yourself as a victim. In these circumstances, I am not satisfied that you are truly insightful with regard to your conduct and its impacts upon your victims, and any mitigatory allowance on the basis of remorse must, in my view, be minimal.
[14]Psychological report of Guy Coffey dated 23 July 2023 at paragraph 97.
65I am satisfied that the sentence of imprisonment which I am about to impose will be particularly onerous for you. You have no prior convictions. Whilst intervention orders have no doubt impacted upon your involvement with your family, I have no doubt that being separated from your two young children will be particularly onerous for you. You have a traumatic history with regard to your experiences of periods of confinement, and I accept that you have borne witness to distressing acts of self-harm. Furthermore, you are not an Australian citizen. You are a permanent resident. Upon completion of your sentence, I accept that you face the real risk of deportation, given the provisions of the Migration Act 1958. You have created a life here in Australia, particularly in Melbourne. Your young children reside here. Your brother, with whom you are apparently close, resides here with his family. Whilst you have extended family back in your home country and elsewhere in Europe, I accept that your ethnic and religious heritage will very much make a return to your country of origin problematic for you.
66Pursuant to the principles articulated in Guden[15] and Allouch,[16] a mitigatory allowance is warranted due to the risk of deportation in your case, due to the increased hardship felt by you, and uncertainty as to whether at the end of your sentence you will be required to uproot yourself and return to your country of origin. I also accept that a sentence would be felt more punitively, given the risk that your opportunity to settle permanently in Australia may be destroyed. The hardship in relation to the risk of deportation is, in my view, a significant mitigatory factor. However, it cannot remove the need for appropriate punishment with regard to your serious criminality.
[15]Guden v The Queen (2010) 28 VR 288.
[16]Allouch v The Queen (2018) 276 A Crim R 1.
67In addition to the hardship of custody occasioned by virtue of your personal circumstances and risk of deportation, I have made a mitigatory allowance due to the ongoing impacts of COVID‑19 in the custodial environment. Whilst the situation does appear to have improved, the impacts of COVID‑19 are still being felt in the custodial setting, with restrictions on freedom of movement, access to visits, and access to employment and various therapeutic activities. A mitigatory allowance is therefore warranted due to the impacts of COVID‑19 in the custodial setting. As I earlier stated I have taken into consideration as appropriate the two Victim Impact Statements and the views of your victims, who clearly support you. Equally clear is the unfortunate impact of the sentence of imprisonment I am about to impose, upon your wife and young children. Your counsel did not, however, submit that such hardship was exceptional so as to warrant a further mitigatory allowance pursuant to authority.
68Whilst neither the prosecution nor defence provided any relevant authorities, and having regard to the principles articulated in the High Court decision of Dalgleish,[17] I have had regard to current sentencing practices when formulating an appropriate sentence in your case. Whilst each case is fact-specific, and current sentencing practices remain just one of the many sentencing factors in the sentencing exercise, sustained violent offending in a public setting, particularly in a family violence context, has warranted significant sentences of imprisonment.
[17]Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428.
69Given the nature of your offending, any penalty I impose must serve to denounce your serious criminality. Furthermore, the community must be protected from such behaviour. Given the prominence of family violence, any penalty imposed must appropriately send a message to the broader community that such conduct is completely indefensible and will attract significant penalties.
70In formulating an appropriate sentence, I must also seek to facilitate your rehabilitation to the extent appropriate. Whilst there are some concerning aspects to the psychological report from Mr Coffey, ultimately he concludes that your risk of recidivism of any kind, including violent offending, is low. Mr Coffey refers, amongst other factors, to your absence of any prior offending, your age when you first offended, your stable personality functioning, your lack of anti-social traits, the absence of major mental illness, your productive lifestyle, your lack of criminal associates, the apparent absence of any previous family violence, the absence of substance use, the absence of any beliefs supporting violence, and your progress whilst on bail, to justify such a conclusion. I note in that regard that you were on bail for some 18 months before being remanded in custody at your plea hearing on 2 August 2023, and there are no allegations of any concerning conduct of any kind whilst you were on bail. Your good progress whilst subject to an extended period of bail, when this matter no doubt weighed heavily on you, augers well for your prospects of rehabilitation.
71Whilst on bail, in addition to attending multiple appointments with Mr Coffey, you have completed a Men's Life Skills program through the Salvation Army, as evidenced by the certification of completion tendered at your plea hearing and marked Exhibit C. I accept, as indicated by your counsel, that you have essentially engaged in and completed a Men's Behaviour Change program dealing specifically with issues related to family violence. In all the circumstances, I do regard your prospects of rehabilitation as being favourable.
Sentencing Submissions
72The prosecution submitted that the only appropriate sentence in your case was a sentence of imprisonment incorporating a non-parole period.
73Your counsel conceded the serious nature of your offending, and conceded that the only appropriate penalty was a sentence of imprisonment incorporating a non‑parole period. Reliance was placed upon the mitigatory aspects to which I have referred in order to mitigate the length of any sentence of imprisonment.
Sentence to be Imposed
74In all the circumstances, I have concluded that nothing short of a sentence of imprisonment of some length is warranted in your case, given the nature and seriousness of your criminality. In formulating an appropriate sentence, I have taken care to avoid doubly punishing you, though in my view there is a need for a measure of cumulation between the charges, to reflect the distinct criminality involved, subject as always to the overarching principle of totality. I have mitigated the length of both the head sentence and the non-parole period, due to the mitigatory factors to which I have referred. Mr Anand, I now come to the portion of my remarks where I announce the sentences to be imposed upon you for each of the charges on the indictment.
75On Charge 1, intentionally causing injury, you are convicted and sentenced to two years and three months' imprisonment. This is the base sentence.
76On Charge 2, affray, you are convicted and sentenced to 15 months' imprisonment.
77On Charge 3, make threat to kill, you are convicted and sentenced to 16 months' imprisonment.
78On Charge 4, conduct endangering persons, you are convicted and sentenced to 18 months' imprisonment.
79On Charge 5, criminal damage, you are convicted and sentenced to 12 months' imprisonment.
80On Charge 6, conduct endangering persons, you are convicted and sentenced to 20 months' imprisonment.
81On Charge 7, intentionally causing injury, you are convicted and sentenced to two years' imprisonment.
82I order that three months on Charge 2, three months on Charge 3, four months on Charge 4, two months on Charge 5, four months on Charge 6, and five months on Charge 7, be served cumulatively upon each other and upon the base sentence imposed on Charge 1, making a total effective sentence of four years' imprisonment.
83I order that you serve a period of two years and six months before becoming eligible for parole.
84Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of 38 days pre-sentence detention, and order that this be administratively deducted from your sentence.
85Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty but been found guilty by a jury, I would have imposed a total effective sentence of six years' imprisonment with a non-parole period of four years.
86Finally, I will make the disposal order sought by the prosecution, this application not being opposed by you. Turning firstly to you, Ms Deltondo, any issues or ambiguities…
87MS DELTONDO: No, Your Honour.
88HIS HONOUR: …with the sentence or have I missed anything?
89MS DELTONDO: No, Your Honour.
90HIS HONOUR: Mr O'Bryan, likewise?
91MR O'BRYAN: No, thank you, Your Honour.
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