Director of Public Prosecutions v Dastmozd
[2023] VSC 29
•17 February 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0118
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALI DASTMOZD |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12, 15-19, 22-24 August, 17 November 2022 |
DATE OF SENTENCE: | 17 February 2023 |
CASE MAY BE CITED AS: | DPP v Dastmozd |
MEDIUM NEUTRAL CITATION: | [2023] VSC 29 |
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CRIMINAL LAW – Sentence – Aggravated burglary – Causing serious injury intentionally – Damaging property – Offender forced his way into former wife’s home, looking for her male visitor – Intentionally stabbed visitor multiple times with a knife he had brought with him, causing serious injuries – Damaged visitor’s vehicle as he left – Motivated by jealousy and anger – Offended in presence of young children – No remorse – No prior convictions – Mixed prospects of rehabilitation – Prospect of deportation at end of sentence – Sentenced to a total effective sentence of 10 years and 2 months’ imprisonment with a non-parole period of 7 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R Harper Ms D Caruso | Ms A Hogan, Solicitor for Public Prosecutions |
| For Mr Dastmozd | Mr N Papas KC Mr C Edwards | Emma Turnbull Lawyers |
HER HONOUR:
Ali Dastmozd, you have been found guilty by a jury of aggravated burglary and intentionally causing serious injury. You have also pleaded guilty to causing criminal damage to property. The offending all occurred on 1 October 2020, at the Mulgrave home of your former wife, Sahar, from whom you had been separated for more than 18 months.
At the time, Sahar was living in the former matrimonial home with your two young children. You were living elsewhere in the Dandenong area. Occasionally, you would visit or stay at the Mulgrave house to look after the children. When you did so, it was always with Sahar’s permission.
A few weeks before the offending, Sahar had started a relationship with Mohammad Nejad. On the evening of 1 October, he parked his Hilux ute on the street in front of her house, and ate dinner with her and the children.
Between 8:34pm and 9:06pm, you called Sahar’s mobile phone four times. Call records show that none of the phone calls were answered. You then drove to the Mulgrave house, arriving a short time later. You knocked and said, “Open the door”.
Sahar was scared. She told Mr Nejad to go into her bedroom, so nothing happened. He went into her bedroom and sat on the bed.
Sahar went to the front door and opened it. You said you were worried about her. You asked if you could come inside and have a cup of tea. She told you that you couldn’t, because she had a guest. You said, “I know who he is”. You pushed past Sahar, and entered the house. That conduct constitutes charge 1, aggravated burglary.
Mr Nejad heard you yelling, “Who is here, where is he”? You searched the house and found Mr Nejad in Sahar’s bedroom. You demanded to know what he was doing there. You said, “This is my house. This is my wife”. Mr Nejad saw you holding a knife and ran out of the bedroom, into the sitting room where the children were. You chased after him.
You pushed Mr Nejad onto the couch, where you attacked him with the knife. You stabbed him multiple times to the neck, arm and head. While stabbing him, you were repeatedly yelling, “I kill you”. That conduct constitutes charge 3, causing serious injury intentionally.
Mr Nejad tried to defend himself, as you continued stabbing him. Eventually, he managed to wrestle the knife from you. He ran out of the house. You chased after him, swearing at him in Farsi, and trying to get the knife back. Mr Nejad threw the knife into the yard of a neighbouring property, and ran towards another house looking for help.
Meanwhile, Sahar and her son fled to the house of the next door neighbours, the Mecca family. Sahar was hysterical, and screaming something about her daughter (who was still inside the house) and a knife. The Meccas called 000.
Karen Mecca bravely left her house to go and look for the little girl. As she went to do so, she saw Mr Nejad standing on her front porch, with a huge cut on his neck. You were standing on the driveway behind him. As you came closer to her house, Mr Nejad jumped over the porch railing and ran off down the street.
You went and spoke with Mrs Mecca, in an angry and agitated manner. During that conversation you asked her, “Where is he, where is he”? She said she didn’t know. You replied, “If he’s not dead, I’m going to kill him”. You also said, “I told her that if I ever come here and she has boyfriends here, I will kill the motherfucker”.
After speaking to Mrs Mecca, you spoke briefly to Sahar through the security door of the Meccas’ house.
You then went back to where your van was parked, collected a tool from it, and went over and used it to smash Mr Nejad’s vehicle, causing almost $13,000 worth of damage to it. That conduct constitutes charge 5, causing criminal damage to property.
In the meantime, Mr Nejad had run away down the street, and collapsed outside the house of another neighbour.
Emergency services arrived around 9:30pm. At 9:42pm, you were arrested. You lied to police at the scene, telling them you had only used fists in the fight, and had then hit your head and blacked out.
Mr Nejad was taken by ambulance to the Alfred Hospital. He sustained injuries to his neck, arm, hand and head, and lost about one litre of blood. One of the most serious injuries was a large 20cm long laceration to the neck, which cut his jugular vein and auricular nerve. Without medical intervention, Mr Nejad’s life could have been in danger. Mr Nejad is lucky to have survived the injuries that you caused to him; however, they continue to cause him pain and affect him in his daily life.
I turn to consider the seriousness of your offending.
Although you had visited the house before, since your separation, you had only done so with Sahar’s permission. On this occasion, you arrived at night-time, with no prior invitation. Sahar specifically told you that she had a guest, and you could not come in. In a highly agitated and aggressive state, you pushed past her and entered the house despite her objections. Sahar’s home was a place where she was entitled to feel that she, her children and guests, were safe from uninvited intruders.
In relation to charge 1, the indictment alleged that the aggravating feature of the burglary was entry whilst a person was present in the house and/or entry with an offensive weapon. Given that there was no dispute that the presence feature was clearly made out, the prosecution simplified things for the jury by only relying on that feature in their closing address. Accordingly, it was not necessary for the jury to come to any finding as to whether you entered the house with the knife. It was enough that they were satisfied that you entered the house, without permission to do so, while other people were inside.
Whilst searching the house, you found Mr Nejad in the bedroom. He was a complete stranger to you. He was unarmed. He was also in a physically vulnerable position, in that he was in an enclosed room, with you positioned between him and the doorway. You were holding a knife in your hand.
After Mr Nejad managed to escape the bedroom, you immediately chased him into the sitting room, where your children were. In their presence, you repeatedly stabbed him in multiple areas of the body, including to a particularly vulnerable part of the body, the neck, as he cowered on the couch, trying to protect himself.
It is an aggravating feature of your offending that you did these things in front of your young children, who were both less than 10 years old. As their father, you should have protected them from harm. Instead, driven by your jealous rage, you exposed them to what must have been an incredibly frightening scene.
As you were stabbing Mr Nejad with a dangerous weapon, you were yelling that you would kill him. Although the jury found you not guilty of the charge of attempted murder, your repeated threats to kill must have been terrifying for Mr Nejad and your family members to hear. You were clearly stabbing him with the intention of causing significant injuries to him. Your later comments to Mrs Mecca confirm the seriousness of your intentions. And, as already mentioned, the injuries you did inflict on Mr Nejad were very serious indeed.
As the sentencing judge, it is necessary for me to consider the extent to which your offending was spontaneous or planned; this is not a matter which the jury needed to consider to arrive at their verdicts.
Although Sahar had experienced some recent mental health problems, I am satisfied that you attended her home that night not out of concern for her wellbeing, but because you suspected she had a male visitor. I am also satisfied beyond reasonable doubt that you did not pick the knife up inside her house; rather, you brought it with you, intending to at least confront any male visitor with it. Upon learning that your suspicions were correct, you immediately forced your way inside, searching for the other man. As soon as you located the other man, you confronted him, then chased him around the house until you were able to stab him repeatedly. You were clearly acting out of jealousy and anger, and in complete disregard of Sahar’s right to invite into her own home anyone that she chose.
I am not in a position to determine precisely when it was that evening that you decided to go over to Sahar’s house armed with a knife, or when you decided to use the knife to stab, rather than merely threaten, the man you found there. Even before that evening, you were clearly very possessive of your former wife, and unhappy at the prospect that she might start a relationship with another man. You went over to her home within an hour of her not answering your calls, during which time your suspicions and emotional state must have been growing. Although the amount of pre-planning was not extensive, the aggravated burglary and intentionally causing serious injury offences were not entirely spontaneous offending.
For these reasons, this is a serious example of the offence of intentionally causing serious injury.
Even though the offence of damaging Mr Nejad’s vehicle is the least serious of the offences, it further illustrates the blind rage in which you were acting that night.
Before I consider your personal circumstances, I want to say something about the effect your actions have had on others.
When Sahar gave evidence at trial, she was visibly upset in describing the events of that evening; however, she chose not to file a victim impact statement on her own behalf, or on behalf of the children.
Mr Nejad did file a victim impact statement, describing the harm you have caused him. Immediately after your attack, Mr Nejad was in a lot of physical pain and constantly losing consciousness. He subsequently underwent numerous operations, and was in hospital for more than a week.
Mr Nejad struggles to sleep and has frequent nightmares. He is anxious, and worries that something like this might happen again.
The scars on his face, neck and hands remind him of your actions, every time he looks in the mirror. Due to the nerve damage he sustained, he has lost functionality in his arm, hand and fingers. The left side of his face is still numb. He still suffers from ongoing pain, including headaches so severe that he is unable to open his eyes. Mr Nejad is still receiving ongoing medical treatment.
Mr Nejad used to work as a tiler; he is now unable to work because he cannot hold anything in his left hand. The financial impact on him has been devastating. He has had to sell many of his assets to pay for rent, bills and medication, and to borrow money for living expenses.
Mr Nejad’s life has completely changed because of what you did to him. Even though he did nothing wrong, he feels that the Persian community now views him as a criminal, and he has lost many friends. This offending has changed who he was as a person, and reduced his independence and his capacity to enjoy life.
I turn to consider your personal circumstances. You were born in December 1981 and were 38 at the time of offending. You are now 41.
You grew up in Iran, the eldest of five children. When you were six or seven years old, you were sexually assaulted by an older boy. Throughout your childhood, your father was violent towards you, your siblings and your mother. This violence affected your studies, and you only completed about seven years of schooling. You were also bullied at school, and had few friends.
After leaving school, you worked in various manual jobs, and completed two years of national service. Although you were not exposed to conflict conditions during your national service, you saw one of your friends have his hands burned in an accident.
You met Sahar through family relationships, and entered into an arranged marriage with her in 2006.
In 2013, you fled Iran with Sahar and your first child, feeling persecuted for following the Baha’i religion. After arriving in Australia, you were detained in detention centres for 14 months. During that time, Sahar gave birth to your second child, after which she suffered post-natal depression. You both started utilising the mental health services available within detention. You found that helpful.
In 2014, you and your family were released from detention and placed in community housing. In 2015, you started working as a commercial painter. In 2017, you and your family received a five-year protection visa, and you started your own painting business.
In 2018, your marriage to Sahar began to break down, and you eventually separated.
Your parents and siblings still live in Iran, and you report a good relationship with your mother and siblings. There is no evidence that you have any particular support network here in Australia.
You were assessed by Ms Carla Lechner, clinical psychologist, on 12 and 18 October 2022. In a number of places in her report, Ms Lechner described you as “presenting with” or “evidencing” certain symptoms of complex post-traumatic stress disorder (“PTSD”), including “poor emotional and behavioural regulation, chronically low self-esteem, interpersonal mistrust, hypervigilance to situations of conflict or violence and a high level of baseline anxiety”. She said that this affects your relationships with others and your ability to manage stress and distress; you become irritable or angry in response to relatively minor triggers.
Although I accept that you suffer from some of the symptoms of PTSD, Ms Lechner’s report did not suggest you meet all the diagnostic criteria for PTSD, or had ever been diagnosed as suffering from it. Nor did she suggest that your symptoms played any role in relation to this offending. Furthermore, your counsel did not seek to rely on Verdins principles 1 to 4.
Your counsel did argue that Verdins principles 5 and 6 applied in this case, so as to reduce or moderate the sentence that might otherwise be imposed. That is to say, they argued that a custodial sentence would weigh more heavily upon you in comparison to a person of normal mental health, and there is a risk that a custodial sentence could have a significant adverse effect on your mental health.
Whether there should be any such reduction or moderation depends on what the expert evidence shows about the nature, extent and effect of any mental impairment. Ms Lechner’s report was not particularly helpful in this regard, stating as follows:
Imprisonment is particularly onerous for all persons with mental health issues, given the nature of the environment. For persons with complex PTSD, such as Mr Dastmozd, the ongoing stress, conflict and unpredictability within a custodial setting, provides a constant source of potential danger and therefore the need to be hypervigilant. Persons with complex PTSD can potentially become more anxious and depressed in such an environment, particularly if the conflict is reminiscent of their original trauma. Whilst Mr Dastmozd is not currently reporting a high level of psychological distress, any untoward experience in prison could lead to a resurgence of post-trauma symptoms.
I do not accept her starting point, namely, the sweeping assertion that imprisonment is particularly onerous for all persons with mental health issues. I accept that, for many offenders with mental health issues, imprisonment can be more burdensome than for a person in normal health, and may exacerbate their mental health problems. However, I am well aware from other cases that some offenders cope better with the structure, routine and medical care in custody than they did when they were living in the community, and not all mental health conditions are necessarily adversely affected in custody.
I accept Ms Lechner’s general observations about potential problems in the prison environment for sufferers of PTSD. I accept that there is a theoretical potential for you to suffer an aggravation of your symptoms, in the event of any “untoward experience” in the future. But there is no evidence that you have in fact suffered any decline in your mental health as a result of being in custody for more than two years. Ms Lechner’s report does not provide an evidentiary basis for concluding that you are entitled to any significant reduction in sentence based on Verdins principles 5 and 6.
You reject the jury’s verdicts. You continue to be angry and resentful that your former wife had a male visitor. You still assert that Sahar invited you into the house, and that you were unarmed at the time. Incredibly, you still maintain your assertion that Mr Nejad’s wounds were self-inflicted. It is clear that you lack any remorse, and are unwilling to accept responsibility for your actions in relation to charges 1 and 3.
Your prospects of rehabilitation are mixed. On the one hand, your lack of prior convictions, your previous good work ethic, and lack of substance abuse issues, are all favourable. On the other hand, your refusal to accept responsibility for your offending, and the psychological symptoms identified by Ms Lechner (including the various anger management issues), are unfavourable in terms of rehabilitation.
Ms Lechner believes that you would benefit from psychological work to help change your response to triggers that remind you of your past. She assumes that this treatment is unlikely to be available in a custodial setting, especially with a psychologist who speaks your language. In the interim, she recommends that you learn simple stress and mood management strategies.
While I accept that you do have reasonable prospects of rehabilitation if you are able to overcome your anger and denial, and address your psychological issues, there is still a need for specific deterrence and community protection in this case.
There is also a clear need for general deterrence and denunciation of your conduct. Unfortunately, the courts are faced too often with behaviour of this sort, when people resort to violence because they refuse to accept that a relationship is over and that their former partner is entitled to move on with their lives.
You have been in custody since you were arrested on 1 October 2020. I accept that your experience in custody has been made more difficult by the various restrictions that have been in place during the COVID-19 pandemic. I also accept that you have no family support in Australia, and that your time in custody has been and will continue to be more burdensome for you for that reason.
Although no evidence was led in relation to this matter, the prosecution conceded that, given your visa status, the fear of being deported after the conclusion of your sentence has, and will continue to, cause you additional stress. I have had regard to that in sentencing you.
You are entitled to a small discount on the sentence to be imposed upon you for the offence of damaging property, in recognition of your guilty plea to that charge. However, the utilitarian value of that plea was minor; the evidence and submissions in relation to this charge would have been very brief, in the context of the trial for the more serious offences of which you were found guilty.
Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, for the offence of causing serious injury intentionally (charge 3),[1] I sentence you to 9 years’ imprisonment. This will be the base sentence.
[1]The maximum penalty for this offence is 20 years’ imprisonment.
For the offence of aggravated burglary (charge 1),[2] I sentence you to 4 years’ imprisonment.
[2]The maximum penalty for this offence is 25 years’ imprisonment.
For the offence of damaging property (charge 5),[3] I sentence you to 8 months’ imprisonment.
[3]The maximum penalty for this offence is 10 years’ imprisonment.
These offences were committed within a relatively short period of time, and around the same location. However, there should be some cumulation to reflect the nature and seriousness of each individual offence and the different victims. I order that 1 year of the sentence for charge 1, and 2 months of the sentence for charge 5, be served cumulatively on the base sentence.
That makes a total effective sentence of 10 years and 2 months’ imprisonment. I fix a period of 7 years as the period you must serve before you become eligible for parole.
Had you not pleaded guilty to the charge of damaging property, I would have sentenced you to a total effective sentence of 10 years and 4 months’ imprisonment, with a non-parole period of 7 years and 2 months.
I declare that the period to be reckoned as already served under this sentence is 869 days, not including today’s date. I direct that there be noted in the records of the court that fact that such a declaration was made and its details.
I have already made a compensation order and a disposal order in this matter.
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