Director of Public Prosecutions v Bahrami
[2012] VCC 1006
•23 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. 11-01596
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NAHEEM BAHRAMI |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 June, 16 July 2012 | |
DATE OF SENTENCE: | 23 July 2012 | |
CASE MAY BE CITED AS: | DPP v Bahrami | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1006 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – Sentencing – intentionally causing serious injury – recklessly causing injury – related and unrelated summary charges – Circumstances justify disparity of sentence for co-offender.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms L. Ruschena | Office of Public Prosecutions |
| For the Accused | Mr M. Kowalski | Grigor Lawyers |
HER HONOUR:
1 Naheem Bahrami, you have pleaded guilty before me on indictment 1107770.1 to one charge of intentionally causing serious injury and one charge of recklessly causing injury.
2 In addition, you consented to a related summary matter being transferred to this court pursuant to s.145 of the Criminal Procedure Act and you pleaded guilty to that charge, one charge of contravention of a Crimes (Family Violence) Act order.
3 Your matter was then adjourned to enable a supplementary report to be obtained from Dr Anthony Cidoni, psychiatrist.
4 In the interim, a further indictment relating to three charges of possess drug of dependence has now been laid and you have now pleaded guilty to indictment C1208570 to three charges of possess drug of dependence, one charge relating to possession of cannabis, one charge relating to possession of amphetamines and one charge relating to possession of alprazolam, which is also known as Xanax.
5 In addition, in respect to related and unrelated summary matters, application was made to uplift charges pursuant to s.243 of the Criminal Procedure Act 2009 and you agreed to further charges being dealt with by this court and have pleaded guilty to three charges of contravention of a Crimes (Family Violence) Act order, one charge of use drug of dependence namely amphetamine, one charge of fail to appear on bail, and on charge of possess ammunition without a license.
6 The offences that are before the court are serious and that is reflected in the maximum penalty prescribed by Parliament. For intentionally causing serious injury, it is 20 years imprisonment. For recklessly causing injury, it is five years imprisonment. In respect to breach of Crimes (Family Violence) Act order, it is two years imprisonment or 240 penalty units. For possession of ammunition, it is 40 penalty units. For possession of cannabis for personal use, it is five penalty units. For possession of amphetamines and alprazolam it is 30 penalty units or one years' imprisonment. For failure to appear on bail, it is one year imprisonment.
7 I shall first deal with the offending the subject of indictment number 1107770.1 and the summary charge of contravention of a Crimes (Family Violence) Act order.
8 The context of that offending concerns your difficulties associated with the breakdown of a long-term relationship that you had been in with Samantha Ametoglou. On 15 October 2009, a final intervention order had been granted against you prohibiting you from approaching or threatening Ms Ametoglou or abusing her in any way. You had been served with a copy of that order and you were aware of the terms of that order.
9 In the early hours of 5 December 2010, accompanied by three other males, you attended an address in Dandenong. Ms Ametoglou was living there with others. It is not clear what motivated you to gain entry to the dwelling and then assault both Ms Ametoglou and her male friend Mohammad El-Hennaway.
10 The Crown opening was read into the transcript and I shall proceed to sentence you on the basis of that opening, there being no objection taken to that at the plea hearing.
11 At about 6.30am you entered the premises accompanied by three others, including one co-accused Mr Ashrafi. You proceeded to assault Mohammed El-Hennaway, who was aged 18 at the time, and was living at the premises. Mr El-Hennaway was first struck to the head by your co-accused Mr Ashrafi, who was armed with a piece of brick. He fell to the ground and was then struck three or four times by Mr Ashrafi. You then punched and kicked Mr El-Hennaway and threw him around the room whilst continuing to punch and kick him. You grabbed his penis and squeezed it extremely hard and you hit him with a brick. Two other male assailants who were also present also punched and kicked him. Mr El-Hennaway managed to reach the bedroom door but was dragged back into the bedroom and punched and kicked again. He tried to stand but his legs gave way and he fell over, hitting his head on the television unit, losing consciousness.
12 Ms Ametoglou was struck to the face by you, causing both you and her to fall towards the shower.
13 As a consequence of the assault, Mr El-Hennaway was taken to hospital, where a diagnosis of depressed open skull fracture, multiple scalp lacerations and abrasions and contusions over the scapula area of all four limbs was made. He underwent surgery to repair the skull fracture.
14 Ms Ametoglou suffered a swollen, deformed, deviated nose that required reduction of the fracture and realignment of the nose.
15 Subsequently, you were arrested by police and when interviewed on 5 January 2011, you told them that Ms Ametoglou opened the door and let you in to have a chat. Otherwise, you made a no comment record of interview.
16 Two other men were charged by the police in relation to this offending, however, those men were both discharged at committal because of real difficulties concerning their identification.
17 These events would have been terrifying for each of the occupants who were present at the time. There are no victim impact statements. The informant requested them but neither Mr El-Hennaway or Ms Ametoglou wish to make a statement.
18 I consider that these offences are a serious example of this type of offending. You attended a person's home in the early hours of the morning in company with three others and viciously assaulted Mr El-Hennaway without there being any reason. It was an unprovoked and cowardly assault. You also assaulted your former girlfriend and by your actions you were also in breach of the Crimes (Family Violence) Act order that applied.
19 The Court has already dealt with your co-accused Sayed Ashrafi. He was 18 at the time of offending and is now 20. He is considered at law a young offender, such that different sentencing considerations apply. His rehabilitation is paramount. He had no prior criminal history and there were a number of circumstances and factors that allowed the court to make a finding that exceptional circumstances existed, such that it was in the interests of justice for a wholly suspended term of imprisonment to be imposed. The Court imposed a two year sentence in respect to one charge of intentionally causing serious injury relating to Mr El-Hennaway. That was wholly suspended for a period of two years.
20 There are a number of features of your offending that distinguish your situation from Mr Ashrafi and justify a different disposition. You are much older. You are now 31 and you were 29 at the time of offending. You have admitted your prior criminal history. There are three court appearances spanning the period from 17 June 2003 to 29 February 2008. You have convictions for possess cannabis, traffic ecstasy, criminal damage and various driving offences including failure to stop at a traffic light, driving whilst disqualified, exceed .05, use an unregistered vehicle and state false name.
21 You also have the additional charge concerning Ms Ametoglou arising out of the incident and the breach of the Crimes (Family Violence) Act intervention order. There are also the further unrelated indictable matters and unrelated and related summary matters to which I shall now refer. I note however, that there are no previous convictions for crimes of violence against a person. I have taken that into account.
22 In relation to the other matters, on 9 March 2011, police attended outside the Springvale Cemetery. You were seen lying on the ground crying hysterically, being comforted by Ms Ametoglou. You were arrested and charged with contravention of a family violence intervention order.
23 On 31 July 2011, you received a telephone call from Ms Ametoglou asking you to take her to the Dandenong Police Station. You drove her there. Subsequently, you were arrested and charged for a breach of a family violence intervention order.
24 On 5 August 2011, you stayed with Ms Ametoglou at her request for a period of two days. You were arrested and charged again for breach of a family violence intervention order.
25 On 1 September 2011 at 5.15 am, police intercepted you whilst you were near your four wheel drive vehicle that had been parked in the driveway at your address. You were nervous and consented to a search of the vehicle. Police found 44, 9mm rounds of ammunition in the vehicle, as well as eight Xanax tablets and a small quantity of cannabis.
26 On 10 January 2012 at Dandenong Magistrates' Court you failed to answer bail without reasonable cause in accordance with an undertaking you had signed and entered on 1 September 2011 at Dandenong Police Station.
27 On 21 July 2011, you were seen driving your vehicle along Power Street, Dandenong. There were outstanding warrants for your arrest. You were then intercepted and you then identified yourself to police. At that time, police conducted a search of you and they located a white zip-lock bag in your jeans. You admitted that the white power was amphetamines and the weight of the amphetamines is said to be 1.14 grams. You admitted to police that you had used amphetamines.
28 Mr Kowalski, on your behalf, submitted during the plea hearing in relation to the unrelated indictable and summary offences, that the circumstances of those offences speak for themselves and bespeak of a young man who was in the grip of a heavy polysubstance abuse problem, who was not coping with the breakdown of his relationship with Ms Ametoglou.
29 He emphasised that the additional charges for breach of family violence intervention order, were, of themselves, bare breaches. He explained that the cartridge ammunition had been given to you by friends but really there is no explanation as to why you had kept them in your possession. There is no suggestion that you had any guns in your possession.
30 By way of background, you are from Afghanistan. You came to Australia as a refugee. You are the youngest of eight children. Your family is of Tajik ethnicity and as a young boy you were exposed to many acts of violence. Many of your relatives have been killed as a consequence of the civil unrest in Afghanistan, including two brothers and six uncles. You fled Afghanistan in 1989. Your family then spent two years in Pakistan and eventually you resettled in Australia as refugees in August of 1991. You completed Year 10 and started but did not finish Year 11. You have an excellent work history.
31 On 9 February 2012 you did not attend a plea hearing and therefore warrant for your arrest was issued. You have been on remand since 22 March 2012 and there are some 123 days pre-sentence detention to be declared. This is your first time in custody and I accept that your experience has been a real wakeup call. This series of offending has highlighted underlying problems that you have had with drugs over the years. Notwithstanding that you have a good work ethic and have had regular employment over the years.
32 Prior to your arrest, you lived in Dandenong and operated a business known as “Fire on Lonsdale” - a pizza shop - and another business, the “Afghan Tasty Foods Bread Shop”. Your older brother, Muheen, is maintaining your business, “Fire on Lonsdale”, whilst you are in custody and it is intended that upon your eventual release you will resume working in the business. You have very strong support from your family members, all of whom were present during the plea hearing.
33 Dr Anthony Cidoni, consultant psychiatrist, has interviewed you and documents your significant substance abuse history. He noted you started using ecstasy from age 16 to 20, you have used amphetamines from age 17 including ice, you have used cannabis several grams daily for several years and also cocaine occasionally. You described to him weekly intoxication with alcohol. In the past, you have had no substance abuse treatment.
34 Since being in gaol, you have properly utilised the opportunity to address the problems that are relevant to your drug history and psychological problems. I accept that this offending occurred in the context of the difficulties that you experienced following the breakdown of your long term relationship with Ms Ametoglou. You were very unhappy about her forming a new relationship with Mr El-Hennawy and you told Dr Cidoni that you struggled to recall the incident the subject of the indictment 1107770.1 and that you were intoxicated from a combination of whisky, amphetamines, cocaine and antidepressants.
35 Dr Cidoni expressed the opinion that you suffered from a first episode psychosis, the most likely cause of which schizophrenia with a depressive component. He suggested that you require ongoing treatment and monitoring with mental health officials.
36 In terms of the offending involving Mr El-Hennawy and Ms Ametoglou, he considered substance intoxication appeared to be a relevant factor in terms of disinhibition of behaviour. There were clearly no delusions or hallucinations relating to the offending, although he said a psychotic illness may have had an indirect effect on offending in terms of impaired judgement and agitation. I accept, having regard to his expressed opinion, that that does provide some explanation for your behaviour on this occasion, however that in no way excuses your behaviour and I still consider that your moral culpability is high.
37 In sentencing you, there is a need to emphasise both general and specific deterrence. Courts cannot tolerate home invasions and the infliction of injuries to resolve personal issues.
38 However, I accept Dr Cidoni's expressed opinion that by reason of your psychiatric condition, your experience of imprisonment will be far more difficult than it would otherwise be for a person of normal health and it is highly likely your psychosis and depression will worsen. Therefore, your sentence will be reduced to reflect those considerations in accordance with the Verdins principles.
39 Dr Cidoni in his supplementary report of 21 May 2012, notes that you report ongoing psychotic symptoms and depressive symptoms. You have not responded thus far to the antidepressant medication. He states that you have completed drug and alcohol and anger management courses whilst in custody, certificates for which were exhibited during the plea hearing. He recommends urgent psychiatric review and treatment. His reports will be provided to the prison authorities and the Adult Parole Board for action and future reference.
40 I note that you no longer have any contact with Ms Ametoglou and you now have an expressed desire to not have any further dealings with her.
41 I have had regard to the comments of Mr Bashir Kashtair, who provided a reference on your behalf. He confirms that it is his opinion that you have learned from your mistake and that you now take your life more seriously and have committed yourself to begin a new life based on mutual respect, co-existence and tolerance.
42 Overall, I consider that your prospects for rehabilitation are very good, particularly now that you are receiving appropriate psychiatric treatment and have committed to ongoing treatment for drug and alcohol counselling and adequate follow up following your release.
43 In sentencing you, I have taken into account your plea of guilty. I accept that you now acknowledge what you did was wrong and you express regret for your behaviour. You spared the victims, particularly Mr El-Hennawy and Ms Ametoglou, the trauma and inconvenience of having to come to court and give evidence on your trial. You saved the state the cost and inconvenience of a trial and thereby facilitated justice and your sentence will be discounted accordingly. I accept it was an early plea of guilty.
44 In his submissions, Mr Kowalski emphasised that is not a case where it could be said that your deteriorating mental health status was directly linked to your offending. Rather, your mental condition added to your disinhibition and wrongful thinking and that contributed to the offending. The fact that you had taken drugs and also alcohol in combination also contributed to your disinhibition.
45 I accept his submissions that a lesser sentence ought to be imposed, having regard to the principles set out in Verdins, having regard to the fact that imprisonment is going to weigh more heavily upon you by reason of your present mental impairment and it is likely your illness is likely to be aggravated by imprisonment.
46 A letter was provided to the court from your mother and that sets our her present situation. She is now 82. She suffers multiple medical conditions. She suffered greatly as a result of the very traumatic experience that she has had to endure living in Afghanistan and suffering the loss of her two younger sons and her young brothers. She has diabetes, high blood pressure, high cholesterol, osteoporosis, depression and other medical conditions. She says that you are a very kind, helpful and supportive, taking her to doctors, giving her medications and meals on time and she now feels lonely and stressed.
47 Whilst acknowledging that the circumstances described by your mother are difficult, Mr Kowalski accepted that they do not satisfy the legal test for hardship as set out in various authorities. However, he urged upon the court to impose a merciful disposition, having regard to all the matters that he had put in mitigation and in particular the personal circumstances relevant to your situation.
48 Mr Bahrami, in sentencing you, I must impose just punishment and, on behalf of the community, formally denounce your behaviour. Your actions insofar as what happened to Mr El-Hennawy and Ms Ametoglou are not acceptable and you shall be punished accordingly.
49 Having regard to all the circumstances, Ms Ruschena on behalf of the Crown submitted a head sentence of between three and a half to five years with a non-parole period of between two to three and a half years was appropriate.
50 Mr Kowalski submitted that the range submitted by the Crown was excessive and a lower sentence could be imposed which could still serve the object of sentencing. He submitted that it was in the court's discretion to impose a sentence that allows you to not serve any further time in custody.
51 You have only served 123 days in custody and I consider a minimum term in excess of that time is warranted, particularly having regard to the seriousness with which I view the first two charges, namely Charge 1 and 2 on indictment 1107770.1.
52 Having considered the circumstances of your offending, I consider a gaol term to be immediately served is appropriate and I have allowed a longer than usual non-parole period to enable you to have a supported release and continue your treatment in the community to facilitate your ultimate rehabilitation.
53 Could you please stand now, Mr Bahrami?
54 I will deal firstly with indictment number 1107770.1.
55 The formal Orders of the Court are:
56 On the first charge of intentionally causing serious injury, you will be convicted and sentenced to four years imprisonment.
57 On the second charge of recklessly causing serious injury to Ms Ametoglou, you will be convicted and sentenced to two years imprisonment.
58 I order that six months of the sentence imposed with respect to Charge 2 shall be cumulative upon the sentence imposed upon Charge 1.
59 That makes a total effective sentence of four years and six months and I fix a non-parole period of two years imprisonment.
60 In respect to the related summary charge, contravention of a Crimes (Family Violence) Act order, you will be convicted and fined $500.
61 In relation to indictment number C1208570, Charge 1, possession of a drug of dependence, you will be convicted and fined $500.
62 In respect to Charge 2, possession of a drug of dependence, you will be convicted discharged.
63 In respect to Charge 3, possession of a drug of dependence, you will be convicted and fined $500.
64 Now, I will deal with the related and unrelated summary charges. On Charge 1 where the informant is Lavery Stevens, fail to appear on bail, convicted and sentenced to seven days imprisonment.
65 Charge 2 where the informant is Lavery Stevens, using a drug of dependence namely amphetamines, you will be convicted and discharged.
66 Charge 1, where the informant Lavery Stevens, contravention of a Crimes (Family Violence) Act order, convicted and fined $500.
67 Charge 2, where the informant Lavery Stevens, contravention of a Crimes (Family Violence) order, convicted and fined $500.
68 Charge 1, where the informant Jennings, contravention of a Crimes (Family Violence) Act order, convicted and fined $500.
69 Charge 1, where the informant Lavery Stevens, possess cartridge ammunition without a license, convicted and fined $500. That makes a total fine of $3500.
70 I make the following declaration pursuant to s.6AAA of the Sentencing Act. But for your plea of guilty, I would have imposed a gaol term of five years to serve a non-parole period of three years.
71 I make the order sought pursuant to s.464ZF(b)(1) in relation to the obtaining of a forensic sample. I make that order. Having regard to the seriousness of the circumstances of the offending, I consider it warrants the order. The order is not opposed and the granting of the order is in the public interest.
72 I make the disposal order sought and the forfeiture order sought.
73 The totally effective sentence that I have imposed is four years and six months imprisonment with a non-parole period of two years and a total fine of $3500. Mr Grigor, do you wish to have a stay for the payment of the fine?
74 MR GRIGOR: Three months would be good, Your Honour.
75 HER HONOUR: I will make an order for a stay of the fine for three months. The only other declaration I need to make is the pre-sentence detention, which is 123 days. I direct that that be entered into the records of the court. I believe I have covered everything now?
76 MS PAPADOPOULOS: I believe so, Your Honour.
77 HER HONOUR: Yes, all right. Mr Grigor, do you just want to spend some time with your client here just explaining to him the sentence before he is taken downstairs?
78 MR GRIGOR: I will see him downstairs, Your Honour.
79 HER HONOUR: You will see him downstairs, all right. Well, that completes my task. I will just provide the signed orders to the Crown. Otherwise I will step off the bench until we are ready for the next matter.
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