Director of Public Prosecutions v Gage
[2012] VCC 1431
•19 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00875
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AMAN GAGE |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 August 2012 | |
DATE OF SENTENCE: | 19 September 2012 | |
CASE MAY BE CITED AS: | DPP v Gage | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1431 | |
REASONS FOR SENTENCE
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Catchwords: Plea - sentencing - intentionally causing serious injury
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N. Goodfellow | Office of Public Prosecutions |
| For the Accused | Ms F.Todd | Fitzroy Legal Service |
HIS HONOUR:
1 Aman Gage, you have pleaded guilty to one charge of intentionally causing serious injury. This offence carries a maximum penalty of 20 years' imprisonment.
2 You are now 25 years old, having been born on 20 September 1986, and you were that age at the time of offending. You turn 26 tomorrow.
3 You have no criminal history.
4 At the time of the offending you resided at the housing estate at 140 Brunswick Street, Fitzroy, as did Mr Saleh Sied, the victim. Mr Sied was 39 years of age at the time.
5 The circumstances of your offending are as follows.
6 On 29 December 2011, at approximately 9.05 am, you entered the Cigarette Express convenience store located at 109 Brunswick Street, Fitzroy. As you entered the store you were carrying two plastic shopping bags.
7 Mr Sied entered the store a few minutes after you. There was a verbal exchange between Mr Sied and you in the store. You then left the store and walked outside. You placed the plastic bags you were carrying on the ground and walked back towards the entrance of the store as Mr Sied was walking out. The verbal exchange continued. The shop assistant stated that: "They were arguing for sure."
8 You then produced a folding knife with the blade extended whilst standing in front of the store, and held it towards Mr Sied. Mr Sied backed away into the store and you turned towards your plastic bags. Mr Sied then walked towards you and you swung the knife you were still holding. The knife struck Mr Sied in the neck. You swung the knife a second time and struck Mr Sied in the upper left arm. The incident was caught on closed circuit television.
9 You then ran across Brunswick Street and into the housing estate. Mr Sied chased you into the housing estate but lost sight of you.
10 Mr Sied was treated by security staff in the foyer of the housing estate at 140 Brunswick Street. Paramedics arrived shortly after and Mr Sied was taken to the Royal Melbourne Hospital. As a result of the attack Mr Sied sustained the following injuries:
a) 10cm laceration of the left neck, small platysma breach, major vessels intact, no deep structures damaged;
b) 8cm laceration of the left axilla, full thickness skin, no deep structures damaged distally neurovascularly intact.
11 You were arrested on 30 December 2011 at your home. The knife used in the attack was located in your pocket at the time of arrest. You were conveyed to the Richmond Police Station and a recorded interview took place. During the recorded interview you admitted that you had stabbed the victim. You said that you slashed two times to the arm and neck. You did so because the victim angered you because he said you were a woman. You wanted to cut his mouth because of his bad-mouthing. You stated that you had never seen Mr Sied before this incident.
12 You were charged on 30 December 2011. You entered a plea of guilty on 18 May 2012 at the committal mention stage.
13 I now turn to your personal circumstances.
14 As noted earlier, you are now 25. You were 25 at the time of this offending and in fact turn 26 tomorrow.
15 You were born in Ethiopia and your father practised as a general practitioner in medicine. An older brother disappeared because of political issues and the ruling party took you, your father and your sister Ayantu into custody as reprisal. You were about 15 at the time, were interrogated and mistreated and were held there for one year.
16 Upon release you and your sister went to a refugee camp in Kenya where you lived for seven years until you managed to get sponsorship to Australia through your older brother.
17 Life in the camp had been hard without regular food, electricity or water. It was an unsafe environment, with little security and outbreaks of violence where people at times were killed.
18 You arrived in Australia in October 2008 and after living with your brother and sisters for a period you left the family. You remained apart despite very many attempts by your sisters to find you. One of your sisters wrote over 100 letters to a place where she believed you used to go for food. You eventually made contact and returned to live with your sisters. Upon your return, however, your personality had changed. You were no longer the happy and humorous person you had been, you no longer practised your Muslim faith, you appeared to be talking to yourself in a delusional way and your sisters referred you to a counsellor because of their concern about your mental health. You continue to live with your sisters in Fitzroy.
19 Two psychiatric reports and a medical report from a general practitioner were tendered on your plea.
20 Dr Walton, psychiatrist, reported in April 2012 that you have no family history of mental disturbance and that you told him that you had no formal past psychiatric history. You said you had been a regular smoker of marijuana since you were quite young but had not smoked any cannabis on the day of the incident and had desisted use for some months prior to interview. Dr Walton considered that mood disturbance was "not to the fore" at interview and there were no current indications for introducing psychiatric treatment. You had described your own mood at interview as feeling good.
21 You told Dr Walton that you were not under the influence of drugs or alcohol at the time of offending. Dr Walton speculated that you may have been in a state of relative cannabis withdrawal at the time of the incident which may have aggravated tendencies towards irritability and aggression when slighted.
22 Dr Anthony Cidoni interviewed you on 17 July 2012. Dr Cidoni also reported that you did not appear to have any history of psychiatric illness and denied any specific symptoms of psychosis, anxiety or post-traumatic stress disorder. You did describe some depression but it was difficult for you to acknowledge it and you did not wish to have treatment. You acknowledged some depressed mood, poor appetite and poor sleep whilst in the refugee camp. You admitted to cannabis use and said that you did not feel as well when off the cannabis.
23 Notwithstanding these observations, however, Dr Cidoni diagnosed your condition as being "a highly traumatised individual … most likely suffering from a major depressive disorder", and also suffering from cannabis dependence requiring specialist substance abuse counselling.
24 Dr Cidoni also considered that your depressive illness and your experience in a refugee camp would mean that your mental state would deteriorate whilst in custody. I also note that Dr Cidoni concluded that there is no direct contribution of any depression to the offence.
25 In summary, it appears that Dr Cidoni's opinion was very influenced by a previous diagnosis of some depression on a report by Dr Moscattini and very little evidence of traumatic circumstances in the refugee camp or other earlier custody and how it had affected your mental health. Dr Cidoni then concluded that you had a depressive disorder, the extent of which was difficult to gauge, believed you were down-playing your symptoms and speculated that you were highly traumatised and suffering a major depressive disorder.
26 Based on the interview synopsis in Dr Cidoni's report and the marginal symptoms of depression expressed in Dr Moscattini's report, I find this conclusion difficult to accept.
27 In the circumstances I do not accept that there is sufficient evidence before me to accept that your moral culpability for the offending was reduced by the existence of a major depressive disorder or that any depression you do have is likely to mean that your mental state will deteriorate significantly whilst in custody.
28 Based on the evidence of your sister, in conjunction with her heartfelt letter to the court and the evidence of Dr Moscattini's report to Dr Cidoni, I accept that it is probable that at the time of the offence you were, and had been for some time, suffering from some form of lowered mood, which probably underscored your developing illicit drug abuse.
29 There is sense, in my view, in the opinion of Dr Walton, a very experienced forensic psychiatrist, that you were more probably in a state of relative cannabis withdrawal which aggravated irritability and aggression.
30 Intentionally causing serious injury is a serious offence. You used a knife as a weapon and committed the offence in a public place. The apparent provocation you claimed is senseless and provides no excuse.
31 The consequences on this occasion could have been more serious than they were, even resulting in death. The victim was struck twice. Knife attacks, regrettably, are not uncommon and general deterrence is a major factor in your sentencing and must be given appropriate effect notwithstanding your personal circumstances.
32 In his Victim Impact Statement the victim has expressed the embarrassment he still feels from scars, the pain he experienced and the emotional effects of an acute stress disorder. Fortunately, he has managed his condition well because of his natural resilience.
33 In mitigation I take into account the matters urged upon me by your counsel, including:
· your plea of guilty and the stage of its entry, co-operation with police and the court process, which has avoided the need for witnesses to re-live the occasion by giving evidence,
· the relative spontaneity of the act,
· your lack of previous convictions,
· your age at practically 26, being youthful,
· your difficult background and challenges of life in a new and foreign country,
· the isolation you will experience in prison, linguistically and culturally,
· your underlying lowered mood and illicit drug history,
· the support you have from your family, and
· your expressions of remorse.
34 The basic purposes for which a court may impose a sentence are punishment, deterrence (both general and specific), rehabilitation, denunciation and protection of the community. In sentencing I have to have regard to a range of matters, including the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
35
Your relative youth, the absence of prior convictions and the family support that you have suggest that you still have good prospects of rehabilitation. This will be enhanced if, whilst in custody, you conscientiously embark on a program of drug counselling and for any personal issues that may have led you to self-medication through cannabis.
36 Balancing as best I can the various sentencing considerations, I am satisfied that the purpose for which the sentence is imposed cannot be achieved without a sentence of imprisonment. My concern is that the prosecution range of sentence submitted may prove counter-productive to the ultimate goal of protection of the public. With your background, relative youth and vulnerability through drug use, and a probable underlying depressive disorder, the lengthy custodial range as submitted by the prosecution may be quite corrupting and ultimately contrary to the wider public interest in your reform. I am prepared to give you the full benefit of your personal and other mitigating circumstances, however they must be considered against the objective gravity of this offending and in a manner conducive to reformation.
37 I have been guided by the sentencing statistics and comparable cases for this type of offending.
38 Mr Gage, could you please now stand.
39 On Charge 1 of intentionally causing serious injury, you are convicted and sentenced to four years' imprisonment.
40 I direct that you serve two years before being eligible for parole. I have imposed a shorter non-parole period than I otherwise would have done to give you a longer period under parole supervision should you be released after that two years.
41 I declare that the period you have already spent in custody in this matter, namely 19 days not including today, be reckoned as a period of imprisonment already served under this sentence and is to be deducted administratively.
42
For the purposes of s.6AAA of the Sentencing Act 1991, but for your plea of guilty the sentence that would have been imposed is a term of imprisonment of five years with a non-parole period of three years.
43 At the plea hearing the Crown sought an order for the taking of a forensic sample and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, the order was unopposed and the making of the order is in the public interest.
44 I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Gage, or would you like me to repeat that?
45 PRISONER: Yeah.
46 HIS HONOUR: At the plea hearing the Crown sought a disposal order, which was consented to, and I have made that order also today.
47 Is there anything else from either counsel?
48 COUNSEL: No, Your Honour.
49 HIS HONOUR: Thank you, you may be seated. I thank both counsel for their comprehensive and full submissions in this matter, both Mr Goodfellow and thank you Ms Todd for the depth of your presentation.
50 MS TODD: As Your Honour pleases.
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