Director of Public Prosecutions v Baig

[2016] VCC 687

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00195

DIRECTOR OF PUBLIC PROSECUTIONS

v

MIRZA RASHED BAIG

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 May 2016
CASE MAY BE CITED AS:	DPP v Baig
MEDIUM NEUTRAL CITATION:	[2016] VCC 687

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Cameron
For the Offender	Ms O. Trumble

HER HONOUR: 

1Mirza Rashed Baig, you have pleaded guilty to one count of recklessly causing serious injury.  The maximum penalty for this offence is 15 years' imprisonment.

2The circumstances of this offending are set out in the summary of prosecution opening, Exhibit A, and can be summarised as follows:

3On Monday 17 November 2014, Mohamed Di Mohamed, who was working as a tow truck driver travelled to your friend's house, Abdul Jameel Sheik, to collect a red Mazda.  When he got to the house no-one answered the door.  You arrived with Sheik at the house soon thereafter but you remained in the car.  Inside the house at this time was Mohamed Iftika.

4The red Mazda was placed on the tow truck but there was a verbal dispute about the price.  This resulted in Sheik and Mohamed pushing and grabbing at each other.  You got out of your car and approached them on the nature strip.  Without speaking, you walked up and punched Mr Mohamed to his right cheek.  You struck him a second time to his eye, causing him to fall.  As a result
Mr Mohamed lost consciousness for a brief period of time.  You then left the scene. 

5Mr Mohamed was subsequently taken by ambulance to the Royal Melbourne Hospital Emergency Department.  His injuries included fractures to the left eye socket, with swelling and bruising, bleeding and bulging of the eye, blurred vision and a two centimetre laceration above the eyebrow.  He underwent specialist eye socket reconstruction surgery, where a metal plate was inserted.  The laceration to his eyebrow was sutured.  Following surgery his pupils were unequal and he attended a review three months later where he was experiencing double vision and pupil enlargement.  There are ongoing future risks associated with his recovery.

6When police arrived at the scene, Sheik spoke to police and told him he had a dispute with Mr Mohamed that escalated with him pushing Mr Mohamed to the chest before Sheik went inside the house to get some money to give to him.  He lied to police, saying he saw an unknown male fighting with Mr Mohamed when he came outside.  He provided this account in a sworn statement to police.

7Police subsequently identified the car that you were using as registered to Sheik's housemate, Mohamed Omar.  Omar subsequently told police that he had lent the car to Sheik and that one of Sheik's friends had been driving it for some time. 

8Sheik attended the police station on 5 January 2015 and was arrested.  He participated in a recorded interview and again gave a false account.  He did not implicate you in the assault, rather a gentleman named Ekiel.  At a later date, after you had admitted your involvement to police, Sheik made another statement consistent with the prosecution opening.  He said he previously lied as you had helped him in the past.

9On both 27 January and 1 February 2015, you were intercepted by police driving the relevant car and you also matched the description and image of the person provided to police by Mr Mohamed.

10On 12 April 2015, you were arrested at your home.  You participated in a recorded interview and denied being responsible for the offending.  You said the car belonged to Omar.  You said you had used the car for pizza deliveries and had only been driving it recently.  You denied using it on the day of the offence.  You answered "no comment" to the allegation of assault and subsequently denied it.

11On 18 February 2015 you voluntarily re-attended the police station and provided a handwritten note to police.  The note indicated that you saw Sheik and Mohamed pushing each other and you intervened.  There was a scuffle leading to Mr Mohamed falling to the ground.  You told Sheik to call the police but Iftika came out of the house and told you to leave immediately.  You were scared and that is what you did.

12You participated in a second interview and made admissions consistent with that note and signed a statement.  Additionally, you said that when you were first interviewed you were scared and shocked and that you were the only person that could take care of your children and wife, that was the reason you did not tell the truth.  Also, Iftika told you that if you stayed at the scene you would go to gaol and have problems with your citizenship.

13I received a victim impact statement from Mr Mohamed, Exhibit B.  Additionally, I was provided with photos as part of the depositions of Mr Mohamed soon after the assault, taken whilst he was in hospital.  There can be no dispute as to the categorisation of his injuries as serious.  In his statement he says:

"Six months have passed since the day of the assault but the emotional trauma still persists.  Confusion, guilt, distress, shame, self-blame and insecurity are the burden that I have to fight with every day.  I am embarrassed to tell anyone that I have been beaten up.  I am often overwhelmed by a sense of isolation because I feel no-one truly understands the impact of what has happened to me.  I feel helplessly depressed and frustrated after losing my good health, enjoyment of work and life.  I became so sensitive that I get easily upset with minor matters.  It really hurts to see my family watch me deteriorating.  My family have to put up a frustrated paranoid man, rather than a loving husband and a father that they used to have."

14The effect on the victim has been longstanding and significant, particularly with regard to his sight.

15You are currently aged 36 and are unemployed on a disability pension.  You came to Australia with your wife in 2014 and she is an accountant and came here with a skills visa.  You have three children aged six, five and two months.  You also have the care of a ten year old niece.  You have been married for
12 years. 

16Your immediate family live in India.  As a child you suffered polio, a matter to which I will refer to later in these reasons.  Your mother passed away in 2013 and your father is a retired police officer.  Your older brother is a lawyer in India.  I was informed that you were close to your family even though they are in India and that you are in regular communication with them

17Your wife's health is not good.  She has had significant weight loss over a recent pregnancy and her condition is such that she is expected to lose more weight.  Her family are all in the United States.  You and your family have a limited support network in Melbourne.

18You were educated to Year 12.  You have had various jobs in the construction industry as a draftsman and in other administrative positions.  As previously mentioned you suffered polio as a child and you have been able to control the effects of this condition most of your life.  However, since the end of 2014, you have experienced degeneration of that condition.  Since in Australia you have worked various jobs driving, as your professional qualifications are not recognised.  However, as the pain associated with your condition has increased, you have been more limited in what you can do, unable to stand for extended periods of time.

19I received a bundle of medical reports regarding this condition.  It is apparent that you are currently on various medication for pain management and that you are reliant on a single crutch for stability.  It is anticipated your condition will worsen, without specialist intervention, to ultimately complete disuse of both of your lower limbs.  It is your doctor's opinion that any period of incarceration may be detrimental to your condition and may hasten its deterioration. 

20You have concerns about not being able to provide for your family.  It is difficult with both your wife's and your own health issues.  I received a letter from your wife regarding her own health state and the circumstances at home, and I take that into account.

21You have no prior convictions and no matters outstanding.  I received two character references indicating this behaviour was out of character for you and your lack of involvement in any criminal behaviour is consistent with that view. 

22I take into account your plea of guilty.  Despite your conduct immediately after the incident I accept that this was motivated by fear of the consequences for your migration status and that you were scared.  I accept that you are remorseful for your actions.  You ultimately were co-operative with police and there is a utilitarian benefit in the plea.  None of the witnesses were required to give evidence and you have saved time and cost to the community by not running a trial.

23Given your lack of prior history, family support and role, good work history and your plea and remorse, I accept your rehabilitation prospects are good and that specific deterrence has more limited application to you. 

24There were, however, some aggravating features of this offence.  It was an unprovoked, vicious attack by you.  Although there was no weapon used and the assault was of short duration, the effect on the victim has been profound and his sight remains affected.  The victim was entitled to feel safe in carrying out his work duties.

25Principles of general deterrence, denunciation of conduct and just punishment are applicable to your offending. 

26Your counsel submitted that all sentencing purposes could be met with the imposition of a community correction order, relying on Boulton and the principles therein.  The prosecution submitted that a community correction order was within range.  I had you assessed by Corrections for the purpose of determining your suitability for such an order.

27Your conduct in engaging in this unprovoked act of violence is troubling.  Although I accept that this action was out of character, no explanation has been proffered as to why you became involved and acted in the manner in which you did.  Mr Mohamed was seriously injured by your actions and the effect on him has been long lasting.  Your conduct warrants significant punishment.

28Given your personal circumstances, including your current health, family situation and your previous good character, I am prepared to place you on a community correction order with the punitive aspect being work in the community.  I am conscious that given your health you will be more limited in the tasks that you can undertake, but that will be a matter that you will need to discuss with Corrections.  You will be required to be subject to supervision and to participate in offence-related programs as directed.

29In respect of the one charge of recklessly causing serious injury, you are convicted and placed on a community correction order for a period of three years.  You will be required to do 125 hours community work.  You will be subject to the supervision of Corrections and you will also be required to participate in offence-related programs as directed.

30Mr Baig, you should be aware that if you breach that order or commit any other offences in the course of that three year period, the matter will be breached and brought back before me and I will have to re-sentence you and I will have no hesitation in placing you in custody in relation to this matter if that is the situation.

31An application has been made for a forensic sample.  Did I make that order the other day?

32MS TRUMBLE:  It is not made, Your Honour, but it was consented to.

33HER HONOUR:  Yes, all right.  Have you got the ‑ ‑ ‑

34MR CAMERON:  I have draft orders to hand up to Your Honour.

35HER HONOUR:  All right, I will sign that. 

36Pursuant to s.6AAA, Mr Baig, if you had not pleaded guilty to this matter I would have sentenced you to a period of imprisonment of 12 months.  I will just sign that 464.

37If you could take the community corrections order down to Mr Baig please.

38Thank you.  All right, I will just stand down, thanks.

39(Section 464ZF order signed and acknowledged.)

40(Community corrections order signed and acknowledged.)

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