Director of Public Prosecutions v Ewaz

[2016] VCC 1507

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01981

DIRECTOR OF PUBLIC PROSECUTIONS

v

ARIF EWAZ

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 October 2016
CASE MAY BE CITED AS:	DPP v Ewaz
MEDIUM NEUTRAL CITATION:	[2016] VCC 1507

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	Ms K. Hammill
For the Accused	Ms R. Waters

HIS HONOUR:

1Arif Ewaz, you have pleaded guilty to one charge of causing serious injury recklessly, and one charge of causing injury recklessly.  Those crimes carry maximum penalties of 15 years and five years respectively.

2You are 25 years of age.  You have pleaded guilty, and whilst somewhat problematic, I accept that there is appropriate remorse.  You must also of course get the utilitarian benefit of that plea of guilty.

3You have no prior convictions, but I am informed quite properly that you do have a couple of subsequent matters which do involve a level of violence.  The situation is that the matter is some three and a half years old, and I take that delay into account.  I do not need to buy into what caused it all, but you were not charged for 12 months, and I take that into account.  That means that you were only 22 at the time that the offending occurred, and at that stage had, on what is before me at least, no previous criminal history.

4A summary of the offending is that in May of 2013, a Mr Nazari and a Mr Foladi were friends of yours.  They both went to your house in Dandenong South.  They arrived separately, so the opening says, about the same time, which was around ten to 11 at night.  Mr Nazari went to your house and yelled and banged on the door.  A housemate of yours, Mr Hossani, recognised his voice. 
Mr Nazari had been to your premises previously.  He is a man with a significant psychiatric problem, and on the two or three nights previously had been taken away by police having been violent and threatening.

5Mr Hossani told you that Mr Nazari was angry.  You said you would come home straight away, and shortly afterwards you arrived at your house.  There is a couple of versions as to what happened next, but in any event, Mr Nazari was outside your house, and whether he rushed at you or you rushed at him, I am not even going to buy into.  The end result was that you were holding a knife, and clearly you stabbed him.

6You also, during the course of that, and again it depends on which version you accept, managed to cut Mr Foladi.  Whether that is really a reckless injury, or a negligent injury, does not really matter.  In any event, you caused the wounds. 

7You were arrested, ultimately.  A knife was found in your kitchen, which was said to be the knife.  How you came by it is a matter of some conjecture.  In any event, Mr Nazari, was in the Alfred Hospital for a few days with a
3-centimetre open stab wound as the penetrating injury to the lower rectus muscle and open wounds to his chest, upper right abdomen, right upper back, right lower back, and the right hand.  He was in there, I think I just said, for three days.  He was intubated and went under exploratory laparotomy.  In any event, after three or four days in intensive care, he was transferred to a psychiatric unit.  Mr Foladi had wounds as well, obviously caused by the knife.

8There is a victim impact statement.  It was prepared by Mr Nazari, which, as I discussed with counsel, has matters in it which are, I would have thought, clearly delusional.  The end result is that you cannot stab people with a knife.  You did cause serious injury to the man, and I have no doubt it has had serious and ongoing consequences for him, and I simply sentence on that basis.  The matters in the victim impact statement asserted that he had been in hospital for a year and a half and all sorts of other things, so I would be very reluctant to place any reliance on what was contained therein.

9However, at the end of the day it is a serious charge.  It calls for the application of general and specific deterrence, as well as denunciation and appropriate punishment.  In your situation, having done it at the age of 22 with no prior convictions, you have a number of mitigatory factors going your way.

10Gaol in this jurisdiction is the fairly normal result of a charge such as this, and you have now been in custody, as I understand it, for 86 days. 

11The submission was put on your behalf that a combination order, that is, a short gaol sentence with a community corrections order to follow would be appropriate, and I have had you assessed and you have been found acceptable.  I think that is the appropriate way to deal with you.  I have read the report of Mr Ian Mackinnon, the psychologist who goes through your background. 

12You were born in Afghanistan and are Hazara ethnic background, that is a group of people widely persecuted in Afghanistan and Pakistan.  You have six brothers and two sisters, but two of your brothers have died in Afghanistan.  Some members of the family have come out to Australia, including yourself obviously, about the age of 18.  You have clearly, in my view, post-traumatic stress disorder, and I simply quote from what you have told Mr Mackinnon, I have no doubt it is true.

"It was more than difficult.  I saw a lot of people killed in front me.  Family and friends.  We could not go more than ten kilometres from where we all lived.  I cannot slept at night.  I have seen misery all my life.  I have bad dreams, I wake up shouting, screaming and crying.  Sometimes I cannot breathe.  Too much violence and killings in Pakistan.  I saw a lot of dead bodies in front of me, without legs, without arms.  I have difficult facing people in crowds.  I cannot go to a nightclub.  Only once, I cannot handle it."

13It is very difficult people who have lived all their lives in this country to understand the ultimate consequences that that sort of experience has on people, and I think that a community corrections order is the best way of dealing with it.  You have indicated that at the time - around the time this offending was occurring, you were having some anger management problems, and I notice there has been also some psychotic symptoms, and an apparent suicidal episode. 

14You have used cannabis on a few occasions, and unfortunately at around about the age of 21 years, a year or so before this, you started smoking amphetamine, and you have used it on and off since.  The psychosis, I think, is probably drug-induced, and as is common knowledge, ice is not the best substance to be being taken by people with anger management difficulties.

15You have been, for reasons that I do not understand, at Ararat during the course of your remand.  You have had virtually no visitors, and it has been an isolating experience for you.  You do have a normal adult range intelligence, and that all goes well for your prospects of your rehabilitation.  It would seem to me that with proper psychological assistance and an anger management course, and that is known to the Office of Corrections, that the risk of you re-offending should be significantly reduced, and your prospects for rehabilitation really are available, but are up to you.  I think that the post-traumatic stress disorder gives rise to the principles attached in Verdins as to moral culpability.  I have no doubt that in situations such as that, where you perceived yourself as under threat at least, that disorder have a fairly dramatic effect on your response to a perceived threat.

16It is pointed out by Mr Mackinnon that you would be likely to be benefit from long-term engagement with a psychologist, and I think that is clearly right.  Not only you would benefit from that, but I am sure that the community at large would benefit from it.

17You do find imprisonment particularly difficult, and I have accepted that is what has happened.  On the positive side, you do have a good work record.  For a period of four or five years, you were running your own painting and decorating business, and you are clearly a person with a work ethic and the capacity to be a responsible citizen within this community.

18When I take all those matters into account, as I said, I think that a short sentence of imprisonment for specific deterrence and general deterrence, as much as anything else, together with a community corrections order, is appropriate.

19Accordingly, if you agree to enter into it, you are sentenced to be imprisoned for a period of four months.  I direct that 86 days be reckoned as having been served under that sentence.  That gives you about another month to get your head around being released into the general community.

20You will also be sentenced to a community corrections order, if you agree.  It will be with conviction.  It will be for two years, and will have attached to it the conditions of treatment and rehab for drugs, treatment and rehab for mental health, and treatment and rehab programs to reduce re-offending.

21I do not propose to put any work hours in, if I am gaoling somebody, I do not do that.  That CCO will commence within two days of your ultimate release from prison.

22All right, now there is no other orders I have to make?  That is about it?

23MS HAMMILL:  That is correct, Your Honour.  Did Your Honour propose to order supervision with that corrections order?

24HIS HONOUR:  That is what I was trying to work out.  I thought it was automatic.

25MS HAMMILL:  I am not sure if it is, Your Honour, I think that ‑ ‑ ‑

26HIS HONOUR:  It does not say in here that it is going to be there. 

27MS HAMMILL:  There may be a - I am not sure, Your Honour, there may be a box to tick, and perhaps if that box was not ticked, supervision is not suggested.

28HIS HONOUR:  Well, they usually tell me what they want to do anyway, no matter what I ask for.

29MS HAMMILL:  Yes, Your Honour.

30HIS HONOUR:  I think the thing I think is more the mental health.  It is the real issue, so I might just - well, that is what they have recommended, so that is what I will do.

31MS HAMMILL:  Yes, Your Honour.  There was also an application for the taking of a forensic sample, which I understand was not opposed?

32MS WATERS:  It is consented to.

33HIS HONOUR:  All right.

34MS HAMMILL:  The orders were handed up on the last occasion, Your Honour.

35HIS HONOUR:  I have got about three associates in ten minutes, so ‑ ‑ ‑

36MS HAMMILL:  Yes, Your Honour.

37HIS HONOUR:  Have you got - well I can make those.  They will be - I will make them non-custodial ones, because I am going to get to him the next month, that is a bit ridiculous. 

38MS HAMMILL:  Yes, Your Honour.

39HIS HONOUR:  So what I will do is I will make them, and if you could him copies of them, the non-custodial ones, I will just sign them in chambers.

40MS HAMMILL:  Thank you, Your Honour.

41HIS HONOUR:  And put s.464ZF.  It will be for saliva only.

42MS HAMMILL:  Yes.  It is likely that that will come across to your associate tomorrow, because my instructor is not ‑ ‑ ‑

43HIS HONOUR:  That is okay.  There is no timeframe to it.

44MS HAMMILL:  And otherwise, Your Honour, s.6AAA declaration?

45HIS HONOUR:  No, not when I am giving a combination.  The section says you cannot, so.  Not the part of the Act that s.6AAA applies to.  All right, yes. 

46MS WATERS:  Your Honour, may I approach my client?

47HIS HONOUR:  Yes, yes, I want you to go over there.

48MS WATERS:  Thank you for that time, Your Honour.

49HIS HONOUR:  All right, well that is done.  I direct that 86 days be reckoned as having been served under the sentence.  What I have done is I have made an order that you provide a saliva sample for DNA purposes.  That will not happen until you are out, but you will need to go to a police station.  When it is signed, a copy will be sent to your lawyers, and they can make sure that you get a copy so you know where to go.  That will not - I think I will have to make it a custodial - I do not think I can.  He has got to report within 28 days, and I cannot do that.  It will have to be the custodial, and they will have to take their chances.

50MS HAMMILL:  Yes.

51HIS HONOUR:  I have got to make it today, I cannot make it - and I cannot post-date it, so I will make it the custodial one.

52MS HAMMILL:  Yes, Your Honour.

53HIS HONOUR:  And the officials will just have to do whatever they can with that.

54MS HAMMILL:  Yes, thank you.

55HIS HONOUR:  All right.  So that order will be made.  I have just got to tell you that if you refuse to provide a saliva sample, police can use reasonable force to take it from you.

56OFFENDER:  That is all right.

57HIS HONOUR:  All right?  So it is a good idea to give.

58OFFENDER:  (Indistinct words.)

59HIS HONOUR:  All right.  Is that all done, there is no orders we need to make?

60MS HAMMILL:  No, Your Honour.

61HIS HONOUR:  No?  Thanks ladies.

62MS HAMMIL:  If the court pleases.

63HIS HONOUR:  Yes.

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