Director of Public Prosecutions v Barati
[2023] VCC 1096
•23 June 2023
B==n
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT Melbourne
CRIMINAL JURISDICTION
CR 21-01997
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMAD BARATI |
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JUDGE: | HIS HONOUR JUDGE BAYLES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 December 2022 | |
DATE OF SENTENCE: | 23 June 2023 | |
CASE MAY BE CITED AS: | DPP v Barati | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1096 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE.
Catchwords: Intentionally causing serious injury; Theft; Aggravated burglary; Common law assault; Severed hand; Deprived background; Bugmy principles; No criminal history; Multiple victims; Higher end of the range of offences; Deportation; Worboyes principles; Serious violent offender; Presumption of cumulation; Chopper knife.
Legislation Cited: Sentencing Act 1991 (Vic); Migration Act 1858 (Cth).
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen [2013] HCA 37; 249 CLR 571; Director of Public Prosecutions v Herrmann [2021] VSCA 160; 290 A Crim R 110; Director of Public Prosecutions v Attwell [2019] VCC 198; Jafari v The Queen [2015] VSCA 295; DPP v Meyers [2014] VSCA 314; 44 VR 486; Zhao v The Queen [2018] VSCA 267; Guden v The Queen [2010] VSCA 196; 28 VR 288; R v Storey [1998] 1 VR 359; 89 A Crim R 519.
Sentence:Total effective sentence of 17 years imprisonment with a non-parole period of 13 years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Devlin | Office of Public Prosecutions |
| For the Accused | Mr C. O'Bryan | Stary Norton Halphen Criminal Lawyers |
HIS HONOUR:
1
Mohammad Barati, you pleaded guilty to an indictment of six charges.
Three charges of intentionally causing serious injury; one charge of theft, one charge of aggravated burglary and one charge of common law assault.
2 The maximum penalties for these charges are as follows. For intentionally causing serious injury - 20 years imprisonment; for theft - 10 years imprisonment; for aggravated burglary - 25 years imprisonment and for common law assault - five years’ imprisonment.
3 You have no prior criminal history.
4 A summary of the prosecution opening was filed at your plea hearing. That was marked for identification P1. It was read for the Court by Mr Devlin who appeared on behalf of the prosecution in this matter. I adopt that summary as part of my reasons for sentence. The main features of your offending are as follows.
5 By way of background and at the time of the offences you were 54 years old and living in Dandenong. You had previously lived in Afghanistan and Iran and arrived in Australia in 2014.
6 You were married to Yasamin Panahi. Yasamin Panahi was previously married to your brother and they had two children of that marriage being Khorshid Barati and Taban Barati. I was informed that your brother died when Taban Barati was a newborn baby, and that you were culturally required to marry your brother's wife, being Yasamin Panahi. You then moved to live in Iran shortly after that marriage.
7
Whilst living in Iran, you and Yasamin Panahi had
five children together between 1996 and 2010. Those being Sedigheh, Mohammad Basir, Mahdieh, Mahdi and Hanieh.
8 In 2014, you immigrated from Iran to Australia with your wife and all of the children except Khorshid Barati, now an adult, who remained in Iran with her husband, Mohammad Joma Barati. Mohammad Joma Barati is your cousin. I was informed that he is known as Joma and I will refer to him hereafter as Joma Barati.
9 Khorshid Barati and Joma Barati have a son named Hamad Barati. Those three were sponsored by you and other family members to immigrate to Australia in January 2018. As a result of this, a debt accumulated owing to you for the cost of Joma Barati's family visas to come to Australia. That debt came to $72,000 and it was agreed to be paid back in instalments of $1,000 per month.
10 In March 2018, you separated from your wife and you moved out of the family home and you moved in with your elderly mother. From this time, I was informed that you would visit the younger two children on a semi-regular basis. However, I was informed that you ceased visiting the family in November 2019.
11 On 1 August 2020, Khorshid Barati sent you a text message stating that she would be unable to pay you the $1,000 repayments towards the $72,000 sum owed to you due to the coronavirus. You replied saying that you wanted payment made in cash and for your cousin, Joma Barati, to bring it to you and meet you in the park to do so. It was arranged through a series of text messages that Joma Barati would meet you at the Robert Booth Reserve in Dandenong at 2 pm the following day.
12 I pause to note here that this is the very limited amount of background information that was provided in this matter. I am unaware of whether any other events or interactions between the aforementioned people exist that may relate in any way to the events that follow.
13 You arrived at the Robert Booth Reserve, Dandenong at about 2 pm on Sunday, 2 August 2020. You parked your vehicle in the car park next to the playground. As I understand it, you got out of your vehicle and then waited on the other side of the car park. When Joma Barati arrived, you gestured to him to move his car to where you were standing.
14 He then moved his vehicle and parked facing Heatherton Road. You approached the boot of his car and opened it before Joma Barati had turned off the ignition. You then closed the boot and walked to greet him. You told him that you were wanting to buy a similar car and wanted to see how big it was. Joma Barati suspected that you had put something in the boot of the car so he opened it to check but he could not see anything out of the ordinary.
15 You asked Joma Barati for the keys to the car and told him that you wanted to test drive the car. Joma Barati told you that he was in a rush and his wife needed the car. You told him it was all right and not to worry. You said that you would drive to Kangaroo Park because there were hills along the way that you could test the car on.
16 You sat in the driver's seat and you told Joma Barati that the car needed fuel. He said to you that it was all right, but you insisted, telling him that you may be driving for a bit. You drove to a petrol station where Joma Barati filled the car with fuel and you went inside to the petrol station. When Joma went in to pay for the fuel you told him that you had already paid for it.
17 You left the petrol station and as you were driving Joma received a call from his wife enquiring how long he was going to be. You told Joma that the government was offering a house to your mother which was getting work done on it and asked him if he wanted to go and see the house. Joma Barati told you that he had work to do and did not have time.
18 You drove him back to the Robert Booth Reserve and you parked in the same car park that Joma had parked in before the two of you had left the reserve.
19 Joma reached into his pocket and pulled out $1,000. He counted it and passed it to you. You took the money and counted it twice before writing out a receipt. The two of you got out of the car and Joma walked around and sat in the driver's seat. Joma Barati put the key in the ignition and was preparing to leave.
20
It was said that you then opened the back door of the vehicle and took your backpack out of the back seat. You opened the driver's door and you took the key out of the ignition and said to Joma Barati: 'I've got to talk to you'.
Joma Barati said: 'Look, I will be paying you money anyway and I'm a bit upset with you because you keep trying to annoy us'.
21 It was said that you then moved quickly, going to the back seat of the vehicle and returning holding a large chopper knife. Joma Barati was still seated in the driver's seat holding the steering wheel with his right hand.
22 You grabbed Joma Barati's right hand with your left hand and pulled it towards you whilst holding the chopper knife in your right hand, you swung it down onto his right arm completely severing his hand from his wrist. That conduct is Charge 1, intentionally causing serious injury.
23
Joma Barati began screaming. You said: 'Okay. Go and get upset now'. Joma Barati got out of the vehicle and ran towards his severed hand and picked it up. He ran across the car park towards a witness, Sarbjit Singh, screaming for help whilst holding his severed hand. You took a few steps towards
Joma Barati and Sarbjit Singh before turning around and walking back to
Joma Barati's vehicle and sitting in the driver's seat. You were in possession of the car keys and you started the ignition. You reversed out of the car park and you drove in Joma Barati's vehicle away, towards Doveton. The taking of that vehicle constitutes Charge 2, being theft.
24 At the reserve, Sarbjit Singh called Triple 0 and numerous members of the public attended to assist Joma Barati. At about 3.11 pm, Senior Constable Dowsett and First Constable Calder arrived and assisted Joma Barati. Multiple police units and ambulances attended the scene to assist Joma Barati and coordinate the crime scene. You drove in Joma's vehicle for some short distance and parked it outside no.8 Simpson Drive in Dandenong North. The vehicle had smoke coming from the bonnet. You got out of the vehicle and began running, as I understand it, south on Simpson Drive and then turning right into Heatherton Road. A witness, being a Mr Koski, observed this and called Triple 0.
25 You continued running along Heatherton Road and took the next right turn into Hillside Avenue. At approximately 3 pm you knocked on the door of a house on Hillside Avenue in Dandenong North. At this time, there were a number of your family members at home in the house at that time. They were Hanieh Barati, nine years old; Mahdi Barati, 12 years old; Mahdieh Barati, 17 years old; Sedigheh Barati, 23 years old; Taban Barati and Yasamin Panahi.
26 The family was isolating as Sedigheh Barati had tested positive for COVID-19. The front wooden door was open and the wire door was closed and unlocked as it was a hot day. You walked in through the unlocked front door. You had no key. You had not lived at the former family home for more than two years at that time. It was also during the government imposed COVID-19 restrictions that prevented any visits to private homes. That entry into those premises in that manner constituted Charge 3, being aggravated burglary.
27 You encountered your 12-year old son, Mahdi Barati, in the entryway of the home. You asked where Yasamin Panahi was. Mahdi Barati told you that she was in the shower. You told Mahdi Barati to go to his bedroom and close the door. Taban Barati was in the kitchen. I also pause to note here that Taban Barati is, as I understand it, your now adult stepchild from the marriage between your brother and your wife. You walked behind Taban Barati and stood right up against her back. You said 'Taban' and grabbed her left hand. Taban Barati turned her head to look at you. You used the chopper knife to slice through Taban Barati's wrist, completely severing her left hand. You then threw her severed hand towards the entry of the kitchen. That conduct being Charge 4, intentionally causing serious injury.
28 You ran from the kitchen towards the hallway where Yasamin Panahi was now standing. You were still holding the chopper knife and began attacking Yasamin Panahi. You struck her with the knife causing a serious laceration through her palm and fingers. Taban Barati ran after you and used her right arm to hang from around your neck, pulling you away from Yasamin Panahi. That conduct in relation to Yasmin, constituting Charge 5, being intentionally causing serious injury.
29 Your son, Mahdi Barati, had walked out of his bedroom by this time and was told by Taban Barati to call the police. Mehdi Hosseini, who is the fiancé of Taban Barati, entered the house and helped to restrain you. Taban Barati and Mehdi Hosseini pushed you from the hallway to up against a wall between the kitchen and the dining room. Taban was holding you against the wall with her right arm against your chest whilst Mehdi Hosseini was standing directly behind Taban attempting to get your hands above your head. You were still holding the chopper knife and swinging it towards Taban and Mehdi Hosseini. Whilst Mehdi Hosseini was attempting to restrain you, you punched him, striking him in the left cheek causing soreness. That conduct being Charge 6, common law assault.
30 Mahdieh Barati, being 17 years of age, entered the kitchen and attempted to assist Taban Barati and Mehdi Hosseini with restraining you. Mahdieh Barati tried to grab the knife from your hand. You continued to swing the knife towards these people. Yasamin Panahi screamed for someone to call Joma Barati to come and assist them. You then laughed and commented that Joma Barati no longer had a hand. Mahdieh Barati then bit your hand causing you to drop the knife and Sedigheh Barati took the knife and hid it in her bedroom.
31 Yasamin Panahi and Mahdieh Barati were screaming at you asking you why you had done what you did. You continued to repeat: 'It's all your fault. It's all your guy's fault'.
32 Sedigheh Barati called Triple 0 and requested an ambulance. Whilst having advice provided over the phone, she attempted to administer first aid to Taban Barati's injured arm.
33 I also pause to note here that Sedigheh and Mahdieh Barati are your own daughters, being 23 and 17 years old, who witnessed parts of these events and assisted their mother in fending you off while still armed with and swinging the chopper knife. Your 12-year old son, Mahdi Barati, and your nine-year old daughter, Hanieh, were also inside the house, and Mehdi Hosseini is the fiancé of Taban Barati.
34 At about 3.09 pm, First Constable Lovelock and Senior Constable Datson arrived at Hillside Avenue in Dandenong North. They were met by Mahdi Barati at the front door of the house. Both police officers activated their body-worn cameras. You were located inside the house being held against the kitchen wall by Taban Barati and Mehdi Hosseini. You were arrested by Senior Constable Datson. Multiple police units attended the address and assisted with the coordination of the crime scene.
35 You were transported to the Dandenong police station and on arrival, Detective Senior Constable Bradley Allen seized the clothing that was being worn by you.
36 Joma Barati was transferred to the Royal Melbourne Hospital by ambulance.
37 Taban Barati was transported to the Alfred Hospital by ambulance.
38 Yasamin Panahi was transported to the Dandenong Hospital by ambulance.
39 At about 5.05 pm on 2 August 2020, the Major Crime Scene Unit attended and processed the crime scenes at the Robert Booth Reserve, at Simpson Drive in Dandenong North and at Hillside Avenue, Dandenong North and also Joma Barati's vehicle.
40 A number of your items were seized from various locations. A grey-blue backpack belonging to you was located at the house at Hillside Avenue. Police seized that backpack and it was later searched and found to contain the following items.
41 In the front pocket were a pair of rubber gloves, a fruit knife in its original sealed packet, sunglasses and a packet of face masks. In a middle pocket was a plastic bag containing various prescription medications in your name. In the main compartment of the backpack were the following items: a length of yellow rope; the empty packaging for a “Li jiacheng” chopper knife; an axe wrapped in plastic inside a green plastic bag; two glass bottles wrapped in orange cloth; 2 x 350 ml water bottles containing what was described in the summary of prosecution opening as yellow liquid that appeared to be petrol. In a side pocket were two lighters.
42 You were deemed not fit to participate in an interview by a police forensic medical officer.
43 As a result of the incident, Joma Barati suffered a severed right hand. He underwent emergency surgery to reattach his hand on 2 August 2020. He was transferred to the Intensive Care Unit and received complex care. He underwent a second surgery on 5 August 2020 for a skin graft. He was discharged from hospital on 15 August 2020. I was informed that he is attending regular hand therapy appointments to assist with the extensive rehabilitation process. Therapy reviews show poor extension but improved flexion.
44 Taban Barati suffered a severed left hand which initially was life-threatening due to loss of blood. She underwent seven hours of emergency surgery to reattach her hand. In addition, a plate was required to repair the severed radial bone. After her surgery, she was transferred to the Intensive Care Unit where she remained until 5 August and then transferred to a hospital ward until her discharge on 17 August. From then, her treatment was complex and she has required daily hand therapy, long-term splinting and multiple medications to control the pain. She was reviewed by a psychologist during her stay in hospital and was said to have been suffering from an acute trauma response associated with difficulty sleeping, hypervigilance and panic. She attended for weekly hand therapy appointments and has the probability of a long-term dysfunction.
45 Yasamin Panahi sustained a serious laceration to her left hand, including her middle finger, ring finger and little finger, including damage to tendons, nerves and blood vessels. She underwent complex surgery to repair the laceration and injuries and was discharged from hospital on 6 August 2020. She attends weekly hand therapy appointments to assist with the rehabilitation process but is predicted to face long-term dysfunction to three fingers.
46 I received five victim impact statements at the plea hearing. They were from Mohammad Joma Barati, Taban Barati, Yasamin Panahi, Sedigheh Barati and Mehdi Hosseini.
47 It is impossible to fully reflect the impact your crime has had on each of the victims. Throughout the victim impact statements, they all express the overwhelming horror and terror of your crimes. They speak of the imagery that continues to haunt them, the sleepless nights and the nightmares that occur when they are able to sleep. The effects of your crimes have rippled across your family creating fear and trauma in its members.
48 These crimes took place in the context of the COVID-19 pandemic which meant that the victims had to be apart from each other in the immediate aftermath. This separation compounded their trauma and suffering.
49 Each of the victims spoke about the enduring physical impacts from which they are still recovering. The extent of the injuries is such that they will never be the same again. They feel the consequences of the injuries every day and will do so for the rest of their lives. The pain does not stop with the physical injuries but continues with the flow-on effects including the loss of meaningful work, the loss of income and financial struggle.
50 The mental and emotional toll the crime has had on the family is evidenced in the devastating loss of hope for the future, the pervasive sense of fear and the heartache that is present in each of their statements. Each member expressed their condition as one of hypervigilance and constant alert. Their ongoing mental and physical suffering is palpable in the statements and the horror that has been inflicted from the actions of a family member.
51 Joma Barati describes that he was in so much pain from the injury that he became unconscious. He describes the multiple surgeries, the ongoing physical therapy and the fact that he will never be the same again. He is no longer able to work or care for himself and has become dependent on his wife to care for him. Without the use of his hand, he worries about when he will be able to work again and what kind of work he will be able to do.
52 Taban Barati describes blood pouring from her wrist as they all screamed and begged for help on the phone. She also has had numerous surgeries but still experiences nerve pain and bone ache. She struggles with the pain during day-to-day tasks and has been unable to complete her studies due to the physical difficulties that the injuries have caused.
53 Yasamin Panahi also underwent surgery and experienced severe pain for months after the surgery. At the time of writing the statement, she was waiting to hear if she required further surgery. She has flashbacks that will not stop. She describes the physical manifestations of feeling fear constantly. It results in her having headaches and a sore neck all the time. She worries about the children who are suffering and withdrawn.
54 Sedigheh Barati described a “house of horrors” and the fear of not knowing if Taban was going to survive. As Sedigheh Barati had COVID at the time of the attack, she had to spend the night in the house where she could “smell blood in every inch of the house”.
55 Mehdi Hosseini in his victim impact statement stated that he had never witnessed or experienced anything like this in his life before. He suffered damage to his teeth and eye. The damage to his teeth meant he had trouble eating and was costly to fix. The emotional impact has meant that Mehdi Hosseini has lost numerous jobs since the offences.
Defence Submissions
56 I turn to the defence submissions in this matter. Mr O'Bryan, who appeared on your behalf at the plea hearing, filed an outline of plea submissions (D1). Also filed in support of your plea was a defence chronology (D2), a letter written by Jacqueline Hoggart from Foundation House (D3) and a table of comparative cases (D4) and a family tree (D5).
57 At the plea hearing, Mr O'Bryan made submissions that were concise and helpful. He acknowledged appropriately the seriousness of your offending and that these were acts of significant violence that have had and will continue to have lasting impacts on the victims both physically and psychologically.
58 In relation to your personal background and circumstances I was provided with the following information. You have had a background of extremely significant trauma and have been the victim of significant violence.
59 You were born in Afghanistan in 1966 and as a Hazara and Shia Muslim, you are a member of a much persecuted ethnic minority. You are one of nine children with six brothers and two sisters. Five of your siblings are now either deceased or missing. Your early years were marred by trauma and deprivation at home. I was informed that your father was a violent man and from a young age you were beaten frequently and required to participate in strenuous manual labour for long hours. The domestic violence that you suffered often included weapons.
60 You have scars on your stomach from ferocious beatings as a child. At the age of seven, your father attempted to force you to drink acid. When you resisted, acid splashed on you and caused scarring on your leg. At a similar age, your father applied a hot iron plate to the back of your neck, burning and leaving scars of which you still have today. You also reported that on another occasion you had your head beaten against a wall until you lost consciousness.
61 Due to your status as a Hazara, there were limited opportunities for education and social integration in Afghanistan. However, around the age of nine, you were taken into a local school on the condition that you performed housework for the principal. You participated in schooling for two years in Kabul between the ages of about nine and 11 and that is the extent of your participation in formal education.
62 You instructed that you were mistreated during this time by the principal and other staff on account of being a Hazara and on one occasion, you were sexually assaulted by a teacher. Following the sexual assault, you left school and began working as a shepherd on a farm outside Kabul. I was informed that at the age of 11, you were raped by three men while out tending sheep. You suffered significant injuries as a result of that assault. You were mocked and laughed at in the village for your injuries. Following that, you tried to return home to live with your family but your father did not allow you to return and instead, you were sold to your aunt where you were required to perform strenuous manual labour without pay.
63 While living with your aunt, she would not let you live in the house and you were forced to live in a stable out the back of the house. If you did not work your aunt would not feed you or feed you very little. At the age of 13, you left your aunt's care and became homeless, initially sleeping in parks around Kabul before finding work as a street vendor. In around 1996, civil war broke out in Afghanistan and the Taliban seized control of Kabul. The persecution you suffered became worse after the Taliban seized power.
64 In 1996, your brother, Joma Khan, was shot and killed by the Taliban. Although you were engaged at the time of your brother's death, culturally you were obliged to marry your brother's wife so you left your fiancé. At this time in Afghanistan, there were no employment opportunities, and your family was living off potatoes.
65 You had worked with a man who subsequently joined the Taliban. This man, after the Taliban took control, came and captured you and you were taken to a Taliban facility. You were locked in a room and repeatedly punched and kicked for several days. This was the first of two or three arrests by the Taliban where you were subjected to torture and beatings. On one occasion, you reported that you had your hands and feet bound and were thrown into water.
66 In the early 2000s you fled Afghanistan and lived in Iran prior to coming to Australia on a humanitarian visa in October 2014. You are not an Australian citizen. You are a permanent resident by virtue of the global special humanitarian visa that you hold. It was submitted that you face a real risk of deportation at the conclusion of your sentence as a result of the mandatory visa cancellation pursuant to s501(3A) of the Migration Act 1858 (Cth).
67
Mr O'Bryan submitted that on the basis of your persecution as a Hazara and Shia Muslim, in addition to your early years being marred by trauma and deprivation at home, that the principles in Bugmy[1] are applicable to this case.
[1]Bugmy v The Queen [2013] HCA 37; 249 CLR 571.
I pause to note here that the prosecution did not dispute this proposition and
I accept that submission. Mr O'Bryan drew my attention to the following passage in Bugmy,
‘the circumstances that an offender who has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than that of an offender whose formative years have not been marred in that way.’
68 Mr O'Bryan also took me to DPP v Hermann[2] and highlighted the court's comments that it is the mark of a humane society that moral judgment expressed through sentencing should take account of the lifelong damage that may result from exposure to violence or abuse, parental neglect in an offender's formative years.
[2]Director of Public Prosecutions v Herrmann [2021] VSCA 160; 290 A Crim R 110.
69 The court in Hermann expanded on the principles in Bugmy and held that the significance of the general approach is that the relevance of deprivation to sentencing does not depend on proof of a nexus between that deprivation and the offending at hand. Further, the Court of Appeal cited with approval a submission by Victoria Legal Aid that the impact of disadvantage is complex, multi-layered, non-linear and not easily diagnosed or measured. Again, I accept the submission that these principles are applicable to this case.
70 Mr O'Bryan conceded that the offending falls at the higher end of the range for offences of this nature. However, the written submissions that were filed on behalf of the defence submitted that it is relevant to the assessment of the objective gravity that the offending was not prolonged, you were acting alone and not in company. Mr O'Bryan also provided a table of comparable or relevant cases drawing particular attention to the sentence imposed in DPP v Attwell,[3] a decision which I read.
[3]Director of Public Prosecutions v Attwell [2019] VCC 198.
71 It was submitted that the nature of the injury caused in Charge 5 here, being the laceration, although still serious is different from Charges 1 and 4 and that is a material difference in the objective gravity of that offence. In relation to Charge 3, the charge of aggravated burglary, Mr O'Bryan submitted that a number of the significant features of the aggravated burglary charge are also characteristics of the intentionally cause serious injury offences. It was, therefore, submitted that I must be cautious to avoid the risk of double punishment as between those charges and I was referred to DPP v Myers[4] and Jafari v The Queen.[5]
[4]DPP v Meyers [2014] VSCA 314; 44 VR 486.
[5]Jafari v The Queen [2015] VSCA 295.
72 Mr O'Bryan accepted that you will fall to be sentenced as a serious violent offender for Charges 4 and 5 and that there is a statutory presumption in favour of cumulation on Charges 4 and 5 in accordance with s6E of the Sentencing Act.[6] In relation to totality, it was accepted that the principle has reduced application given the presumption of cumulation. However, Mr O’Bryan referred me to the cases Newton v The Queen[7] and Zhou v The Queen[8] and submitted that totality still has a role to play despite the presumption of cumulation and that there is still a need to avoid a crushing sentence.
[6]Sentencing Act 1991 (Vic).
[7]Newton v The Queen [2021] VSCA 207
[8]Zhao v The Queen [2018] VSCA 267.
73 Your visa status is such that you face the risk of deportation upon your release from prison and your future is uncertain. In accordance with the principles in Guden,[9] it was submitted that your sentence should be moderated to take into account the impact that imprisonment is likely to have upon you both during the currency of the incarceration and upon your release.
[9]Guden v The Queen [2010] VSCA 196; 28 VR 288.
74 You are now 56 years of age and have never before been charged with a criminal offence. You were remanded on 2 August 2020 in the midst of the COVID-19 pandemic and it was your first time in custody. It has been particularly onerous due to periods of lockdown and quarantine and other restrictions on the operation of prisons in the State of Victoria during this time.
75 I was also informed that before this incident you had attended 55 sessions of counselling over a period of three years at Foundation House.
76 I received a letter from Foundation House that stated that you were referred to that service in November 2015. You attended for 55 sessions of counselling between December 2015 and August 2020. You received regular counselling, fortnightly.
77 That counselling focused on your past traumatic stress and depression associated with your torture experiences as well as early childhood trauma, grief and loss, particularly in relation to the deaths of your siblings. It was submitted in written submissions that this voluntary and consistent engagement combined with your lack of prior criminal history informs an assessment of your prospects of rehabilitation.
Prosecution Submissions
78 I turn to the prosecution submissions.
79 Mr Devlin, who appeared on behalf of the prosecution, highlighted the seriousness of the offending and submitted that a significant term of imprisonment involving a head sentence and a non-parole period was the only appropriate sentence.
80 It was accepted by the prosecution that your plea was an early plea and that you are entitled to a reduction in sentence to reflect that.
81 It was accepted that your plea of guilty has utilitarian value. It has spared witnesses and the family the ordeal of having to go through a trial and give evidence. Your plea also has utilitarian benefit that is more significant during the period of the COVID-19 pandemic and should be afforded greater weight than it would otherwise be the case. The prosecution did not dispute the application of the principles in Worboyes[10] and the fact that the pandemic has made time in custody more burdensome.
[10]Worboyes v The Queen [2021] VSCA 169.
82 Intentionally causing serious injury is a Category 2 offence and as such a custodial order is required unless certain criteria is met. Further upon being sentenced to a term of imprisonment on Charge 1, you then fall to be sentenced as a serious violent offender on Charges 4 and 5. Accordingly, there is a presumption of cumulation and protection of a community is to be regarded as the principal purpose for which the sentence is imposed.
83 Mr Devlin submitted that there was a level of planning and premeditation to the events. He submitted that this is demonstrated through the contents of your backpack and the time that elapsed as you drove to the second location to commit very similar actions. Mr Devlin also highlighted the unexplained circumstance that the outstanding money was, in fact, handed over by Joma Barati which makes the offending all the more inexplicable.
84 Mr Devlin also submitted that entering the premises with weapons and with the assault inside the house taking place so shortly after entering the premises indicates a level of premeditation and intention. You had time to reflect on your conduct on the drive there, but it is an important feature of the offending that the assault inside the house occurred almost immediately upon entering the house in circumstances where there is no explanation for the conduct.
85 The prosecution accepted that most of the offending occurred over a single, although prolonged, episode.
86 The prosecution accepted the relevance of the principles in Bugmy.
87 Mr Devlin highlighted the importance of general deterrence and he submitted more significantly denunciation. The prosecution submitted that the community must know that this kind of conduct will not be tolerated.
Analysis
88 I turn to the analysis of these matters.
89 At the plea hearing, it was submitted by Mr Devlin, and accepted by Mr O'Bryan that this offending can be categorised as being in the high range or higher end of the range. I took that to be a reference primarily to Charges 1 and 4 on the indictment and perhaps to a slightly lesser extent to Charge 5 and I agree with that characterisation.
90 This is extraordinarily serious offending. It is difficult to imagine the shock, the horror and the trauma that you inflicted on each of your victims through your conduct. From the beginning of this incident in the park, your assault on Joma Barati must have come out of the blue for him. The sudden escalation and the extreme nature of the violence and the utterly devastating impact that it would have on him.
91 Regardless of the precise nature of your intention in the lead-up to the assault on Joma Barati and how long you held it for, the nature of this action, of grabbing someone by the hand, of pulling it towards you and severing their hand with a weapon such as the chopper knife that you used here, it is clearly an act that is committed not just with an intention to cause serious injury but with an intention to cause the particular injury that it did. It is a vicious injury. It is an incident and an injury that would have been utterly devastating to be subjected to at the time, physically, psychologically and emotionally. The physical injury and its consequences as well as the trauma and psychological impact is ongoing.
92 In a public place, as I understand it, with some people nearby, at least one who saw some parts of this incident and several others who saw the aftermath, and some children nearby. People who went to help Joma Barati and called Triple 0. There is no victim impact statement from any of these people but this must have been a horrendous event for them to witness even for those who saw the aftermath of the events.
93 Having inflicting this suffering on Joma Barati, you then proceeded to steal his car by driving away in it and you left him at the reserve with a severed hand.
94 You then drove in this car for, as I understand it, some relatively short distance to 8 Simpson Drive where you left the car. It was said that there was smoke coming from the bonnet. It was not made clear to me how that occurred. Whether anything was done to the vehicle to make that happen. You then travelled further on foot to the house at 10 Hillside Avenue. You ran at least some of that short distance. You were observed by a witness who, whatever it was that he saw, he called Triple 0.
95 It should be noted that you must have taken the weapon that you had used against Joma Barati with you. It appears that you also took the backpack with you. You entered the house which was occupied by your former or separated wife, Yasamin Panahi. Inside that house were a number of people, including your nine-year old daughter, Hanieh and your 12-year old son, Mahdi. You asked Mahdi where his mother was and told him to go to his room and close the door. You then proceeded to assault Taban Barati in virtually an identical way to the assault on Joma Barati and then upon seeing your former wife, Yasamin Panahi, you assaulted her in a very similar way, causing serious injury to her hand.
96 Again, it is hard to fathom or understand this conduct or do justice to what this experience must have been like for your victims. For those inside the house, to be subjected to, to witness and to have to deal with and respond to these events.
97 Mr O'Bryan acknowledged that the offending on this day is inexplicable. No explanation of any kind was advanced before me. The escalation on the day, the sudden and dramatic escalation to extreme violence is unaccountable. I also note here that no psychological report was tendered at the plea hearing. No explanation or context was offered for why this offending occurred other than the general information about your history and background.
98 Mr O'Bryan submitted that I should be cautious to avoid double punishment as between the aggravated burglary charge and the charges for what followed inside the house. In particular, the intentionally causing serious injury charges that occurred inside the house. Mr O'Bryan also referred me to Meyers at paragraph 70 and 71, which I have read and taken into account.
99 In particular, the court stated the following:
'In accordance with the principles stated in Pearce v The Queen care must be taken in fixing the sentence for the aggravated burglary to ensure that the offender is not doubly punished for offences committed after entry into the house. Apart from supporting an inference as to what it was that he intended to do, the seriousness of what took place after entry cannot affect the sentence on the aggravated burglary charge. The offence of aggravated burglary is complete upon entry. The sentence on that charge cannot involve any element of punishment for what happens after entry'.
100 Mr O'Bryan also urged caution in my approach to the assessment of your intention on the journey from the park to the house and also the assessment of your intention at the point of entry insofar as that is part of the aggravated burglary charge.
101 I note the comment in Meyers with reference to Pearce's case about looking at the events that take place after entry as being capable of supporting an inference about what someone intended at the time of entry.
102
In relation to your intention and the notion of planning and premeditation, I make these observations. You took to the meeting with Joma Barati a backpack. Inside that backpack were a length of yellow rope; packaging for the chopper knife; an axe wrapped in plastic; two glass bottles wrapped in orange cloth;
2 x 350 ml water containers containing yellow liquid that was described as believed to be petrol and two lighters. It is not entirely clear to me where the chopper knife was located at all times, whether initially inside the backpack or elsewhere, but whatever the answer to that, you clearly took this weapon to the meeting with Joma Barati and had it accessible throughout these events including at the point of entry into the house.
103 As I follow the summary of the incident, after Joma Barati arrived at the Robert Booth Reserve you must have, at some point, put the backpack in the backseat of his vehicle. You then drove for some time and distance with you driving and Joma Barati a somewhat reluctant participant in the passenger seat. You put petrol in the car and you told Joma Barati that you may be driving for a bit. It is not clear what your purpose was at that time. I was informed that when you returned to the Robert Booth Reserve you took that backpack from the back seat. You went to the driver's side door, you took the car key out of the ignition and you said 'I've got to talk to you'.
104
The assault on Joma Barati followed. After the events at the reserve you then drove away in this vehicle, I take it with the backpack and the chopper knife. You stopped that vehicle some short distance from the house and were observed by a witness running on Simpson Drive and into Heatherton Road.
I take it that you also still had the backpack and its contents during that time as the backpack and these items were later located by police inside the house.
105 You also pleaded guilty to the charge of aggravated burglary on the indictment that particularised the meat cleaver, presumably that being a reference to the chopper knife; the axe and the knife, as offensive weapons in your possession at the time of entry into the house. When the contents of that backpack are considered in the context of these events, it becomes clear, in my view, that you must have planned and prepared for some kind of significant incident. You may not have known or decided precisely what you were going to do but there was clearly some preparation for events of the kind that did occur.
106 I do not find that you went to the reserve specifically to commit the crime that you did. Your precise intention may have been unclear and not completely formed. However, as I have stated, you clearly went prepared for some kind of incident and there must have been some kind of contemplation by you of events such as those that did occur.
107
When one looks at all of the circumstances of these events, including the contents of the backpack, the events at the reserve, the taking of Joma Barati's car and driving it straight to the house at Hillside Avenue. You entered that house and I was informed that you encountered your 12-year old son in the entryway of the home. You asked him where his mother was and told him to go to his room and close the door.
You then proceeded into the kitchen and assaulted Taban Barati in exactly the same way that you had assaulted Joma Barati using precisely the same weapon. You then assaulted Yasamin Panahi in a very similar way.
108 I am, of course, mindful of the principles in Storey's[11] case. In my view, the only reasonable inference is that when you entered the house you held the intention to commit the kind of assaults that you then did carry out. There is no other reasonable inference open.
[11]R v Storey [1998] 1 VR 359; 89 A Crim R 519.
109 I find it unnecessary to consider or make any finding about precisely what was your intention in the car journey from the reserve to the house except to say that it appears to have been a relatively short drive followed by a short distance on foot where you were observed by a witness to be running and you carried the weapons with you during this time.
110 That said, there is still a complexity to the assessment of the seriousness of this instance of the offence of aggravated burglary. The offence carries a maximum penalty of 25 years imprisonment. It must be taken to be considered by parliament to be a very serious offence. However, the offence is one that is complete at the moment of crossing the threshold into the premises. In this case, it was then followed by extremely serious assaults. In my view, it is in those assaults together with the assault on Joma Barati that the gravamen of this offending lies, and it is those offences that will attract the significant portion of the penalty in this case.
111 There was no forced entry. It was put that you knocked on the door, it was unlocked and you walked in the house. It is a house that you had previously lived in but had not lived there for some two years or so. As I understand it, you were not a part of this household and had not been so for some time. You clearly did not have authority to enter the premises as you did. At the same time, there is no evidence before me that you were specifically excluded.
112 It seems to me that the significant features of this instance of the crime of aggravated burglary are the nature of the weapons in your possession at the point of entry and the intention that you held as I have assessed it to be. These features make it a serious example of the offence. However, these features are all present in the intentionally causing serious injury charges that follow the entry and I have taken care to moderate the sentence to be imposed for the aggravated burglary charge to account for these overlapping features and to provide further moderation in the form of concurrency in order to avoid double punishment. I also note that aggravated burglary is not a serious violent offence for the purposes of Part 2A of the Sentencing Act, and thus there is no presumption of cumulation.
113 Before turning to the sentences, I will make these brief comments in relation to each of the charges on the indictment. Charge 1 is an extremely serious example of the offence. It was committed in a public place. There were members of the public in the vicinity, several of whom gave their assistance to the victim, Joma Barati. The victim impact is extremely significant. I view this as a serious example of the offence and towards the higher end of the range of offences of its kind. I must have regard to the maximum penalty of 20 years imprisonment.
114 The sentence that I will impose for this offence will be moderated for the mitigating features that I will state shortly. But I must impose significant penalty for this offence. The sentence that I impose must contain strong denunciation of this conduct. It must make a statement about the seriousness of this crime and reflect the condemnation of this kind of conduct that has absolutely no place in the community.
115 Charge 2, the theft of motor vehicle is a somewhat unusual example of this offence. I regard this as a significant example of the offence. Whilst I do not import circumstances of the assault on Joma Barati into the sentence for this charge, I take into account that in stealing his car you left Joma Barati at the car park with a severed hand and drove off in his car. In many regards, this charge is not a main feature of your offending but it is also a not insignificant part of the overall picture. The sentence that I impose on this charge will attempt to reflect this part of the offending. However, it will be moderated to avoid the risk of it being aggravated by reference to other events.
116 Charge 3, as I have stated, the aggravated burglary, is a serious offence as reflected by the maximum penalty of 25 years imprisonment. In my view, this is a serious example of the offence as I have formed the view that your intention at the time of entry was very significant, and given the nature of the weapons in your possession at the time. However, as I have stated, I will moderate significantly the sentence that I impose for this offence in order to avoid double punishment as between this charge and the charges that represent the conduct that followed after entry.
117 Charge 4 is the assault against Taban Barati. Like Charge 1, this is a serious example of the offence. In this case, it is an assault against a person in a home and as I understand it, and as I have previously stated, Taban Barati is what could be described as your now adult stepdaughter. It was a level of extreme violence that would have been sudden and unexpected for her. It must have been a shocking and horrific experience for Taban Barati and for all of those who were present inside the home, including four of your own children. Victim impact is extremely serious, similar to Charge 1. I view this as towards the higher end of the range of offences of its type and the sentence that I impose must reflect this.
118
Charge 5 is also a very serious offence that resulted in serious injury for Yasamin Panahi. Whilst serious, and in no way detracting from the suffering experienced by Ms Panahi, not just physically, but emotionally and psychologically, and I acknowledge the trauma of the incident and the ongoing trauma experienced by her as a victim in this offending,
I must view the injury caused here to be somewhat less serious than that caused in Charges 1 and 4 and the sentence to be imposed must reflect this difference.
119 Charge 6, the assault against Mehdi Hussani, is, of course, a considerably less serious offence, but a not insignificant example of the offence of unlawful assault when taking into account all of the circumstances in which this offence was committed. It was described in the summary of prosecution opening as being that after the assaults against Taban Barati and Yasamin Panahi, Mehdi Hosseini pushed you from the hallway against a wall. You were still holding the chopper knife and swinging it towards them. Whilst Mehdi Hosseini was trying to restrain you, you punched him, striking him in the left cheek and causing soreness.
120 You pleaded guilty to these charges and your plea has significant utilitarian benefit. That benefit is augmented by the principles discussed in Worboyes. You are entitled to a further reduction in your sentence following a plea of guilty entered during the period of the COVID-19 pandemic and its effects on the operation of the criminal justice system.
121 I also take into account that your time in custody so far has been during the period of the COVID-19 pandemic and the operation of prisons in the State of Victoria have been affected by this. For a variety of reasons, I accept that prison has been more burdensome than usual during this time.
122 You have no prior criminal history.
123 You have, yourself, a horrific background and personal history. You have suffered a lifetime of substantial and prolonged trauma that is complex and multilayered. I accept that the principles in Bugmy apply, and I accept that your moral culpability for this conduct is reduced on account of the traumatic history and deprivation that you have suffered both as a child and throughout your life. I accept the expansion of these principles discussed in Hermann, where the Court of Appeal commented on the general expression of the relevance of childhood deprivation to the assessment of moral culpability. Disadvantage of this kind is complex, multilayered, non-linear and not easily diagnosed or measured and I take these matters into account in my assessment of your moral culpability for this offending and I accept that general deterrence must be moderated on account of this assessment.
124 Due to your visa status, there is a likelihood of your deportation on release from this sentence.
125 Although there was no further evidence about that matter or its likely impact upon you, I am prepared to take into account that your future upon release will be uncertain and that is a matter that is likely to weigh upon you during your time in custody and make imprisonment more burdensome because of that matter. I take that into account as a moderating feature in accordance with the principles in Guden as I have already referred to.
126
Prior to this sentence date, I received a further written submission from the defence about the matter of delay. That submission was dated 5 June 2023.
I accept the matters outlined in that submission. It is well recognised that uncertainty created by having matters hanging over one's head for a significant time is an added burden. It is well understood that for an accused person on remand awaiting the outcome of their matter, that remand time is particularly onerous. I accept that a significant part of the delay has been as a result of the progress of your matter before the court and not due to any act or fault of yours. You have had the prospect of a substantial term of imprisonment hanging over your head for some time now and the uncertainty about how long that will be.
I accept that that will have been an added burden for you and I take that into account as a matter in mitigation.
127 I was provided with a number of comparable cases and I have endeavoured to take into account current sentencing practices, particularly for the offence of intentionally causing serious injury as far as practicable. Of course, each case will turn on its own facts and this case has its own very particular factual matrix. The case of Attwell is the only instance of the offence involving the severing of a hand that has come to my attention. There are many other instances of assaults committed with a knife or similar weapon involving stabbings with various injuries and consequences. I note in Attwell the offender was 19 years old. A psychological report was tendered that contained a number of matters that related to the assessment of prospects of rehabilitation.
128 Intentionally causing serious injury is a Category 2 offence. Although in this case, those provisions have little practical effect as a term of imprisonment is inevitable. As I have stated, after being sentenced to a term of imprisonment for Charge 1, you will then fall to be sentenced as a serious violent offender on Charges 4 and 5. Consequently, there is a presumption of cumulation for every sentence imposed for a relevant offence, in this case, for Charges 4 and 5. I must regard protection of the community as the principal purpose for which the sentence is imposed. A disproportionate sentence was not sought and will not be imposed.
129 Whilst these provisions do not extinguish the principle of totality, and I must apply the totality principle to avoid a crushing sentence in this case, it seems to me that the serious offender provisions must have some practical effect in this case. Charges 1, 4 and 5 must each attract significant terms of imprisonment and by ordinary principles, there must be some measure of cumulation as between these charges to reflect the criminality involved in each offence.
130 In my view, protection of the community already looms large as a sentencing objective in this case. The sudden and extreme escalation of violence without any apparent reason or basis in circumstance where no psychological material was provided, no explanation or reason was offered, it is very difficult to assess prospects of rehabilitation. I just want to reiterate here, my references to the absence of a psychological report, of course, are not used in any way as aggravating. But they simply limit the extent to which I am able to make a meaningful assessment of your prospects of rehabilitation in circumstances where there is such extreme violence without any apparent reason or basis.
131 Of course, having said that, that is not to say that there is no regard to rehabilitation as a sentencing objective and I will endeavour to allow for the possibility of rehabilitation in your sentence as far as practical in the circumstances.
132 In my view, just punishment and denunciation are significant sentencing objectives as is the protection of the community.
133 As I have stated I must also apply the totality principle as a moderating factor and take care to avoid a crushing sentence.
134 Taking all of these matters into account, Mohammad Barati, you will be sentenced as follows.
135 On Charge 1, intentionally causing serious injury, you will be sentenced to a term of 10 years imprisonment.
136
On Charge 2, theft of motor vehicle, you will be sentenced to a term of
nine months' imprisonment.
137 On Charge 3, aggravated burglary, you will be sentenced to a term of four years imprisonment.
138 On Charge 4, intentionally causing serious injury, you will be sentenced to a term of 10 years imprisonment.
139 On Charge 5, intentionally causing serious injury, you will be sentenced to a term of seven years imprisonment.
140 On Charge 6, being common law assault, you will be sentenced to term of nine months' imprisonment.
141 The sentence imposed on Charge 1 being 10 years imprisonment will be the base sentence.
142 Noting, of course, the presumption of cumulation on Charges 4 and 5 and a presumption of concurrency in relation to the other charges, for clarity I will state the periods of cumulation in relation to each charge at this stage. Although, I note the formal court order will be worded differently.
143 I order that three months of the sentence imposed on Charge 2, six months of the sentence imposed on Charge 3, three years and six months of the sentence imposed on Charge 4, two years and six months of the sentence imposed on Charge 5 and three months of the sentence imposed on Charge 6 be served cumulatively upon each other and cumulatively upon the base sentence.
144 That makes a total effective sentence of 17 years imprisonment.
145 I order that you must serve a minimum period of 13 years imprisonment before being eligible for release on parole.
146 It will be noted in the record that you fall to be sentenced as a serious violent offender on Charges 4 and 5.
147 I declare that you have served 1,055 days in custody as against this sentence and order that that number of days be deducted administratively from your sentence.
148 Pursuant to s6AAA of the Sentencing Act, I declare that had you not pleaded guilty to these charges I would have sentenced you to a period of 21 years with a non-parole period of 17 years.
149 HIS HONOUR: There is a disposal order having been applied for by the prosecution with a number of items listed on it. Can I confirm, Mr O'Bryan, that is by consent? Yes. Thank you. That order will be made and noted that that is being made by consent.
150 In relation to the mandatory licence order required by s89(4) of the Sentencing Act, it is, of course, difficult to see how any such order will have any practical effect. However, I order that any licence you hold be cancelled and you be disqualified from driving for a period of five years.
151 All right. Thank you. Are there any other matters?
152 MS WATSON: Nothing further, Your Honour.
153 MR O'BRYAN: No, Your Honour.
154 HIS HONOUR: All right. Good. Thank you both for your assistance in this matter. Yes. thank you. Adjourn the court.
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