Director of Public Prosecutions v Farha

[2017] VCC 1386

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00352

DIRECTOR OF PUBLIC PROSECUTIONS

v

NAZIH FARHA

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	8 September 2017
DATE OF SENTENCE:	22 September 2017
CASE MAY BE CITED AS:	DPP v Farha
MEDIUM NEUTRAL CITATION:	[2017] VCC 1386

REASONS FOR SENTENCE
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Subject:Trial - sentencing

Catchwords:             Causing serious injury intentionally in circumstances of gross violence

Legislation Cited:     Sentencing Act 1991

Cases Cited:            

Sentence:7 years’ imprisonment, 5 years non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions at hearing For the Director of Public Prosecutions at sentence	Mr N. Batten Ms H. Devany	Office of Public Prosecutions
For the Accused at hearing For the Accused at sentence	Ms K. Blair Ms M. Walker	Melinda Walker

Pages 1 - 9

 

 

HIS HONOUR:

1Nazih Farha, you have been found guilty by a jury verdict of two charges of causing serious injury intentionally in circumstances of gross violence.  This offence carries a maximum penalty of 20 years' imprisonment with the added requirement that a non-parole period of not less than four years be fixed unless the court finds that a special reason exists.

2You are presently 29 years of age, having been born on 1 August 1988, and you were aged 26 when this offending occurred in June 2015.

3The circumstances of the offending involved you and a co-accused attending an address in Fawkner in the early hours of the morning on 6 June 2015 and viciously assaulting two of the residents by slashing their faces with a Stanley knife.  A third man who had been shot ten days earlier was also at the house.  Police and an ambulance had been at the house on 5 June.

4The case accepted by the jury was that you and your co-accused had met late on the evening of the 5th and were acting as part of a joint understanding or agreement to commit the offences.  It is clear on the evidence that the motivation for the assaults was to intimidate each of the victims so as not to speak to police about the circumstances of the shooting of the other man.

5It cannot be established beyond reasonable doubt which of the two of you actually wielded the knife causing the injuries.  You were convicted on the basis of complicity.  Regardless, your participation in the intent of the incident is clear.  When your co-accused asked the victims if they had spoken to police he asked one of them for his phone and passed it to you.  You looked through the phone and asked the victim "Have you been talking to police?"  On the evidence it was you who produced the knife.

6The evidence from Dr Moller concerning the injuries was - as to the first victim:

“a curved open wound approximately 20 centimetres in length to the right side of the face from the angle of the mandible [jawbone] to the corner of the mouth … through fat, skin and down to the parotid capsule, which is the salivary gland … in the corner just under the ear … deeper at the jaw side than on the mouth side … no apparent damage to the nerves of the face.

“Risks associated with that sort of injury [are] … damage to nerves or the salivary gland … scarring [with] psychological or social sequelae.”

7As to the second victim,:

“… a linear wound with clean separation of the tissues and with straight edges.  There are no tissue strands, there is no surrounding bruising and it stretches from the corner of the mouth to the angle of the jaw … it was an incised wound and it occurred recently relative to the taking of the photograph … it was deep enough to expose bone but it didn't penetrate through the mouth … the wound did penetrate the parotid capsule and there was tissue visible but there was no apparent damage to the nerve and there were no facial fractures … the outer shell [of the parotid capsule] had been breached but the parotid gland itself had not been damaged.

“[The injury resulted in] risks of damage to glands and to nerves in this area of the face and there's also likelihood of scarring. … The medical notes [did not provide evidence of] any damage to the gland or the nerves in this case.”

8Dr Moller said that both men underwent surgery with general anaesthetic and had their wounds cleaned and repaired.

9Dr Moller further said that the injuries themselves were not life-threatening, that pain is a subjective sensation and that psychological sequelae depend upon the personality of the subject.

10The first victim said in evidence that an ambulance was called and he was taken to hospital.  He saw a plastic surgeon and she said he had to go into surgery and theatre.  He was in constant pain relief the whole time.  The immediate effects were that the injury affected his speech, he had to have mashed food and could not resume eating for a long time.  He subsequently has problems sleeping, still finds it hard to sleep on the injured side of his face, and it is still hard to shave because of the cuts on his face.  It still has not healed because he suffers from ingrown hairs, and he always has pain because of the ingrown hairs. 

11He now has a scar on the side of his face.

12The second victim said in evidence that he was taken to hospital by ambulance, was in shock when it happened, had surgery under general anaesthetic, was on medication at the hospital, was in hospital for two to three days and has felt anxiety but has not felt any residual pain.

13I now turn to your personal circumstances. 

14As I noted earlier you are now 29 years old and were 26 at the time of offending.  You have an extensive history of prior offending, including convictions for theft, armed robbery, aggravated burglary, burglary, recklessly causing injury and possession of a prohibited weapon.  Your first appearance before this court was in 2010, when you were sentenced for armed robbery to two years' imprisonment with a non-parole period of 12 months.  Your second appearance at this court was in June 2011, when for aggravated burglary, recklessly causing injury and criminal damage you were given a three-year gaol term with a non-parole period of 18 months.

15Tragically, since the age of 21 you have spent the majority of your time in custody.  According to your counsel, you have had only 17 months of liberty over that time.

16You were born in Australia to parents of Lebanese descent and attended school to Year 9.  You felt agitated at school, found it difficult to relax, were easily distracted and unable to concentrate.  As such you fell behind and struggled academically.  Upon leaving school you commenced work in conjunction with a tiling apprenticeship, but did not complete it. 

17Whilst expressing some difficulties in your relationship with your father, whom you perceived as rather devoid of emotion and critical of you, you otherwise have described your family as close and providing a lot of love and respect.  You are particularly close to your mother and siblings.  Your sister gave evidence of your increased reflection and developing maturity whilst in custody.

18You have had a five-to-six-year relationship with a Ms Hall and you have two children, currently aged nine and seven.  Despite separating in around 2011-12, and you having another significant relationship in the meantime,
Ms Hall has contacted you and you are in the process of regaining contact with your children.  Ms Hall provided a letter to the court and has expressed her view that you were a great and loving father when you were part of their lives.

19Your other interest is boxing.  You had numerous amateur bouts with some success, but have not boxed competitively since 2007.  A character report from Keon Park Youth Sporting Club was tendered as evidence of your support in working with troubled youth.

20A psychological report from Ms Carla Ferrari, consultant psychologist, was tendered on your plea.  The report was requested by your solicitors for possible use for submissions on mitigation in sentencing before this court. 
Ms Ferrari essentially relied upon a statement by you at a clinical interview on 31 July 2017, followed by psychometric assessments conducted on 29 August 2017.

21It is noted in the report that you have, over an extended period, experienced depression and anxiety symptoms, particularly when in custody, and a history of anxiety, restlessness, irritability and other associated emotions which, in combination, are consistent with a diagnosis of Attention Deficit Hyperactivity Disorder.  Ms Ferrari hypothesises that you have suffered with these symptoms from childhood, which in adulthood you have learned to moderate somewhat with illicit substances.

22You described experimenting with substances at around the age of 18 and soon descended into a daily habit with amphetamines which had, paradoxically, a calming effect upon you.  You have also admitted that whilst in custody you had developed an addiction to Buprenorphine, and were using this to numb and avoid emotional triggers.  Whilst in custody you have been prescribed methadone from October/November 2016, and you have found this treatment effective.

23Overall, I do not consider that the formulations and conclusions contained in paragraphs 93 to 99 of Ms Ferrari's report are capable of any application under the Verdins principles so as to reduce your moral culpability, to provide moderation of general or specific deterrence, or to affect the weight of the sentence upon you because of any condition of impaired mental function.  I note that it was not urged upon me in the plea hearing to so find.

24In my opinion, whilst there is evidence consistent with a currently existing condition of periods of anxiety and depression, these emotions are understandably reactive to your current circumstances.  In my opinion there is insufficient objective evidence to accept your described emotions as establishing a pre-existing condition of Attention Deficit Hyperactivity Disorder beyond a speculative possibility.  I do accept that your offending behaviour probably has a contextual background reflective of a restless and anxiety-affected personality, and that this may have led you to be vulnerable to self-medication by illicit drugs.  This is no excuse, but may be acknowledged in considering your vulnerability to poor decision-making and prospects of rehabilitation.  I note your voluntary admission into prescribed medication of methadone in this respect.

25Furthermore, I cannot accept the emphasis Ms Ferrari placed on your recently stated empathy for the victims as evidence of genuine remorse.  You pleaded not guilty and ran a strenuously contested trial on the basis of denial that you were present at all at the house in the face of evidence that:  

(a)you were identified clearly as present by a victim who knew you;

(b)DNA evidence on a beer bottle top identified you as being at the house; and

(c)you and your co-accused's movements together were identified by closed circuit television and road toll photographs.

26I do accept that with reflection you have come to regret your association with your co-accused and the criminal life that you had intended to lead.  You have expressed at least empathy for the suffering of your victims.

27The offending obviously is very serious.  Causing serious injury intentionally in circumstances of gross violence is a vicious crime causing great terror, physical and emotional pain and suffering and may end in permanent disfigurement.  In the present case each victim received a relatively deep slice to his face from the ear to the chin.  There are noticeable lengthy residual scars, and in the case of the first victim, residual pain.  The offending is aggravated by the fact that there were two victims, the event was considered and planned, it was committed in the early hours of the morning, in the home of one of the victims and was intended to dissuade the victims from reporting to police what they knew about the earlier shooting.  In your case the offending was committed in the context of a background of repeated offending of an increasing level of seriousness.  Principles of protection of the public, denunciation and general and specific deterrence should receive prominence.

28In mitigation I take into account the submissions of your counsel, and in particular that the victim's injuries, while serious, were not in the worst case of possible seriousness; your community service in assisting troubled youth; the time you have served in significantly confined custody through no fault of your own; and your more recent maturity, reflection and sensible use of prescription medication in addressing your anxieties and restlessness.  This, and the support you have from your family, will assist your prospects of rehabilitation.  Both your sister Nada and Sheikh Ibrahim have noted a significant improvement in your maturity.

29I note that pursuant to s.10 of the Sentencing Act, in sentencing you for intentionally causing serious injury in circumstances of gross violence I must impose a term of imprisonment and fix a non-parole period of not less than four years, unless I find under s.10A of that Act that a special reason exists. In the particular circumstances of this case I advise that I do not so find.

30I also note that under the serious offender provisions of the Sentencing Act 1991, on your conviction and sentence to a term of imprisonment, whether suspended or not, on one serious violence charge, I am required, on the serious violence charges thereafter to regard the protection of the community from you as the principal purpose for which the sentence is imposed. If necessary, in order to achieve the purpose of protecting the community I am empowered by s.6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offence. 

31This means that the sentencing task in respect of Charge 3 on the indictment is to be undertaken on the basis that the protection of the community from you is the principal purpose for which the sentence is imposed, and to achieve that purpose a sentence may be imposed longer than that which is proportionate to the gravity of the offence considered in the light of the objective circumstances.  However, because of the circumstances and the mitigating factors in your case I do not propose to do so.

32The minimum term that must be imposed for this offence is an exceptional disposition in sentencing, principles of totality must still be considered and applied, you are still relatively young and it is not in the community's interests that you become completely institutionalised. I note that the Crown did not call for a disproportionate sentence, as contemplated by s.6D of the Sentencing Act.

33Section 6E of the Sentencing Act also requires that unless I otherwise direct with respect to Charge 3 the sentence I impose is to be served cumulatively.  Allowing for the matters I have already outlined, in my view it is not appropriate to impose cumulation other than that which I have ordered

34On Charge 2 on the indictment of intentionally causing serious injury in circumstances of gross violence to Hayssam Haidar, you are convicted and sentenced to five years' imprisonment.

35On Charge 3 on the indictment of intentionally causing serious injury in circumstances of gross violence to Mazen Elmas, you are convicted and sentenced to five years' imprisonment.

36Charge 2 is the base sentence.  I direct that two years of the sentence imposed on Charge 3 be served cumulatively on the sentence imposed on Charge 2.

37The total effective sentence is seven years' imprisonment. 

38I direct that you serve a minimum period of five years' imprisonment before being eligible for parole.

39Pursuant to s.18(4) of the Sentencing Act 1991 I declare that the period of 829 days, not including today, be reckoned as time already served under this sentence, and I direct that the fact of this declaration, and its details, be noted in the records of the court.

40At the plea hearing the Crown sought a disposal order to which you have now consented, and I have made that order today.  Are there any other matters from either counsel?

41MS WALKER:  No, Your Honour.

42HIS HONOUR:  You may be seated, Mr Farha.  Nothing from the Crown?

43MS DEVANY:  No, Your Honour.

44HIS HONOUR:  All right, thank you.  And that concludes this matter.  Thank you.

45ACCUSED:  Thank you, Your Honour.

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