Director of Public Prosecutions v Goldman
[2013] VCC 1176
•19 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-08-00830
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID GOLDMAN |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 & 21 August 2009, 15 April & 30 May 2013 | |
DATE OF SENTENCE: | 19 June 2013 | |
CASE MAY BE CITED AS: | DPP v. Goldman | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1176 | |
REASONS FOR SENTENCE
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Catchwords: Trial – sentencing – intentionally causing serious injury
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APPEARANCES: | Counsel | Solicitors |
| For the Crown on 20 & 21 August 2009, 30 May & 19 June 2013 For the Crown on 15 April 2013 | Mr P. Stefanovic Ms J. Croxford | Office of Public Prosecutions |
| For the Accused on 20 & 21 August 2009 For the Accused at sentence | Ms J. Clark Ms K. Ballard | Doogue O’Brien George |
HIS HONOUR:
1 Mr Goldman, if you could just remain seated until I ask you to stand towards the conclusion of these sentencing remarks, please.
2 David Goldman, on 9 July 2009 you were found guilty by jury verdict of one charge of intentionally causing serious injury.
3 The maximum penalty for this offence is 20 years' imprisonment.
4 You were born on 1 January 1975 and were aged 31 at the time of offences; you are presently aged 38.
5 At the time of offending you were the joint lessor of commercial premises at an address in Campbellfield.
6 The victim in this case had been running a business of a mechanic's garage from premises in Campbellfield and had done so through a period of approximately five months prior to the incident which formed the basis of the charge. He had initially shared the garage with a third party to whom he paid rental, and when this person left, had indicated that he would leave when he found new premises.
7 You wished to terminate the lease agreement immediately and had continually over the preceding two months visited the garage premises in an attempt to persuade the victim to vacate the premises. The victim had ultimately agreed to do so, but you also sought that rental be paid if he were to continue to remain in the premises, at a payment of $100 per day.
8 At approximately 6 pm on June 26 2006, the victim was present at the premises when you attended in company with another person, who was a friend of yours.
9 At the time that you and your friend drove into the workshop, the victim was working on the front seat of a Toyota motor vehicle which was being repaired whilst his son was assisting him and standing approximately one metre away from him. You spoke to the victim, who remained partially on the Toyota vehicle, and an argument developed over whether the premises should already have been vacated.
10 There was a physical altercation with conflicting accounts, and the precise circumstances are unable to be discerned.
11 At one stage the victim had picked up a metal bar, chased you and threw the bar at you. It missed you and fell to the ground. You then turned, picked up the bar, chased the victim and struck him several times to the upper body including the head.
12 The victim's son and the garage owner, who had followed the son, intervened and entreated you to stop. You then stopped the assault and the victim was taken back to the garage where an ambulance was called for him.
13 As a result of the attack upon him, the victim received a 10-centimetre-long fracture to the skull, undisplaced fracture to the left ulna, a hairline fracture to the left eye socket and severe bruising to his left eye. He spent a total of four days in hospital receiving medical treatment in respect of his injuries.
14 Your defence at trial was that at no stage did you strike the victim and that the victim's injuries were the result of his own son wielding the bar as the aggressor and accidentally hitting his father.
15
A trial commenced before me on 29 June 2009. The charges before the jury were intentionally - and in the alternative, recklessly - causing serious injury to the father and intentionally - and in the alternative, recklessly - causing injury to the son. A “no case” application by your counsel on 7 July 2009 as to the charges with respect to the son was granted by me, and the jury was directed to bring in verdicts of not guilty to those charges.
16 On 9 July 2009 the jury returned a verdict of guilty on the charge of intentionally causing serious injury to the father, who is the victim in these proceedings.
17 You were bailed to a plea hearing on 14 August 2009, with one of the bail conditions being that you surrender any passport you may have and not attend any point of international departure. The hearing of your plea in fact commenced on 20 August 2009, continued on 21 August 2009 and was then adjourned to 21 September 2009 for a further report to be produced concerning your compliance or otherwise with a Community-based Order.
18 On 21 September 2009 you did not appear in this court as required, and a warrant was issued for your arrest. On that day the court received a letter from your wife saying that your mental condition had deteriorated and you had been acting strangely, including talk about self-destructive behaviour. Nothing further was heard until earlier this year, 2013.
19 In February of this year a phone call was received at the court from a lawyer, not your current lawyer, indicating that you had gone to his office and told him something of your circumstances. This court was subsequently contacted by your present lawyers, and your further plea in this matter was heard on 15 April and 30 May this year.
20 I turn now to your personal circumstances.
21 Your criminal history comprises driving offences, for six of which you were given a suspended sentence of one month's imprisonment in January 2004. For seven subsequent driving offences plus a fail to answer bail you were given a suspended sentence of three months' imprisonment in June 2005. It appears that you breached the first suspended sentence. No order was made as to the suspended sentence in respect of the breach, and I am satisfied that there were extenuating circumstances regarding that breach relating to your understanding of the terms.
22 Your complex history has been well documented in the most recent May 2013 report of Ms Cidoni, psychologist. Ms Cidoni has previously provided a report dated 10 October 2008, and has referred also to psychiatric reports of Dr Reid (November 2008), Dr Syme (August 2008) and a report from Dr Wardill, clinical neuropsychologist, dated 23 January 2009. Each of these reports was tendered on your plea.
23 Character reports were received from Ms Xia Yang and Ms Jane Brooke. Ms Brooke also gave sworn evidence of your character and personal circumstances.
24 Further information was provided through a bail support program progress report from your case manager in 2008, and a brief report was provided as to your current condition and medications from your general practitioner, Dr Ahmed Alhaidary.
25 Your personal history reflects an unfortunate life of personal tragedy in the context of the violence in Iraq and its consequences.
26 You were born in Bagdad, Iraq, and are one of nine children. You completed only six years of formal education before fleeing Iraq to Jordan and Syria. You were caught at the Syrian border at the age of 14 and imprisoned in squalid conditions for one year before being deported to Northern Iraq. You joined the Kurdish Army where you witnessed torture and murders and were eventually detained and tortured yourself in Syria. You were again deported back to Iraq where you conducted mountain watch duties and at one stage were ambushed. You witnessed your colleagues’ murders before losing consciousness from a head injury.
27 You eventually escaped to Iran on a ship submerged in oil and arrived in India before being caught and imprisoned in inhumane conditions for six months. You apparently escaped that prison and ultimately travelled to Australia via Bangladesh and Malaysia. You obtained permanent residence here in 2003.
28 You have been employed in Australia as a cleaner, in an automotive workshop and as a labourer. At the time of offending you were self-employed in a business importing shoes and other goods from China.
29 You married in 2006 and have a daughter aged six and a son aged five. The marriage unfortunately was tumultuous and your wife left you in 2008 and you relocated to several share houses across Melbourne. For a period in 2008 you were homeless. You attempted reconciliation with your wife several times without success. You currently live with your brother and sister-in-law.
30 Under the stress of the relationship breakdown, homelessness, legal matters and your mental health issues, you moved to Mildura in 2009. You did not return to court when required for these proceedings. You lived in a caravan park for 12 months before moving to Adelaide briefly and then returning to your family in Iraq. You report conditions in Iraq were still unsafe, and at one stage an uncle was shot dead in front of you. You then fled to Malaysia.
31 Your former wife moved to Malaysia to support you and you reconciled your relationship. She returned to Melbourne after six months on the premise that you would eventually return.
32 You moved again to Iraq before returning to Melbourne in February 2013 with the intention to be with your family and finalise this current matter.
33 You sustained a head injury at age 20 when you were struck to the head with a rifle butt, resulting in a loss of consciousness and/or post-traumatic amnesia. You have suffered migraine headaches since the head injury and have experienced memory and concentration difficulties and behavioural changes. These result in difficulty controlling your anger, subsequently causing inter-personal difficulties and leading to relationship breakdowns. You suffered a subsequent head injury in 2002 when you were struck to the head with a bottle, losing consciousness and being treated in hospital for two days.
34 You have reported a long-standing history of episodic depression and anxiety and occasional auditory hallucinations. You were voluntarily admitted to the Alfred Hospital Psychiatric Unit in 2008 where you presented with suicide ideation and plans to jump from the West Gate Bridge.
35 According to the psychiatric report by Dr Syme, your presentation was a result of several psychosocial stressors, including separation from your wife following allegations of domestic violence, homelessness, financial pressure and the outstanding legal matter. According to Dr Syme's report, you presented with adjustment disorder with a mood disturbance, post-traumatic stress disorder and alcohol abuse.
36 Dr Syme reported that there were not verifiable psychotic symptoms during your admission. You were discharged after three days without medication and recommendations were made for ongoing psychological counselling and reduced alcohol use.
37 In summary, you have suffered chronic and severe levels of acute psychological disturbance for most of your life exacerbated by acquired brain injury and alcohol abuse.
38 Your current mental health remains unstable. You continue to suffer from chronic and severe post-traumatic stress disorder, depression, anxiety, hypomania, a paranoid schizoid trend and alcohol abuse.
39 In Ms Cidoni's opinion, it is highly likely that your mental disturbance was operating at the time of your offending, and also at the time of your failure to attend court on the scheduled date for the return of the plea following an adjournment for more relevant evidence.
40 At your plea the prosecution submitted that the appropriate sentencing range is a sentence of imprisonment for two to three years as head sentence, however, the prosecution also conceded that a partially suspended sentence was in permissible range, it "being a matter for the court as to how that was to be served."
41 Your counsel submitted that in light of the circumstances and your chronic mental health issues in particular, a fully suspended sentence was within sentencing range and the most appropriate disposition.
42 Your offending is serious. At the time of the assault you were no longer under any physical threat and the victim was unarmed. The subsequent assault by you was with a metal bar used a weapon, and you struck the victim repeatedly to the upper body and to the head. It was brutal and highly dangerous conduct. Because of the plea of not guilty and the subsequent necessity for the victim to give evidence, little allowance can be given for any later remorse.
43 Furthermore, you broke your bail conditions during an adjournment of the sentence and plea and left the country for several years.
44 Subsequent to this offending, you were convicted in December 2006 with possession of goods with false trademark and failing to answer bail, and on 27 August 2007 for offences of burglary, theft and criminal damage. You were sentenced to imprisonment for four months, wholly suspended for 12 months. That sentence was breached by further driving offences, and on 19 March 2009 you were placed on a Community-based Order in respect of the breach. The Oakleigh Community Corrections Services reported that you simply reported on one occasion, claimed you had never consented to the order, minimised your offending and refused to participate with any aspects of the order. You failed to respond to their office to further discuss the status of the order. This subsequent offending is not relevant as prior history of offending, however, it can be considered in the context of your prospects of rehabilitation.
45 In mitigation I take into account the matters urged upon me by your counsel, and in particular that:
- your particular act was spontaneous and responsive to the fact that you had just been chased yourself by the victim and had the metal bar thrown at you;
- it was not you who originally introduced the weapon;
- you have not before been convicted of any offence of violence;
- you have a chronic psychological condition which I accept was present and was relevant to your moral culpability at the time of offending and will mean that a given sentence will weigh more heavily on you than upon a person in normal health.
46 I also accept that there is a serious risk that imprisonment will have a significant adverse effect on your mental health.
47 I take into account also your physical injury to your foot, which restricts your movement and causes pain, the improvements you have made with your informal counselling with Ms Brooke and the fact that you eventually voluntarily surrendered yourself to the court.
48 Balancing the various sentencing considerations, in particular, the matters set out within s.5 of the Sentencing Act 1991, I am first satisfied that the purposes for which the sentence is imposed cannot be achieved without a sentence of imprisonment. I have carefully considered the possibility of imposing a short sentence combined with a Community Correction Order in order to give scope to rehabilitative measures outside the prison environment, however I consider that the sentencing constraints imposed by Parliament on the maximum length of prison time permitted to be ordered preclude that option.
49 In light of your previous responses to fully suspended sentences and the Community-based Order, I am also guarded about your commitment to those alternatives.
50 I am satisfied that the seriousness of the offending requires that a reasonable proportion of a sentence of imprisonment should be immediately served to reflect the principles of denunciation as well as general and specific deterrence. I am further satisfied that the mitigating circumstances do permit that those principles be sensibly moderated, and that can be appropriately reflected in a partial suspension of the sentence.
51 Mr Goldman, could you please now stand.
52 On the charge of intentionally causing serious injury, I propose to sentence you to a term of imprisonment which I intend to partially suspend for a period of 12 months.
53 The purpose and effect of the proposed suspension order is to grant you conditional freedom from its commencement, the condition being that you avoid conviction for an offence punishable by imprisonment for in this case 12 months from the commencement of the suspension period. If you commit such an offence in that period, you will be liable to again attend court, and if necessary that will be under arrest, and in the absence of exceptional circumstances you will be ordered to serve the whole of the suspended sentence. Do you understand that, Mr Goldman?
54 PRISONER: Yes.
55 HIS HONOUR: On Charge 1 of intentionally causing serious injury, you are convicted and sentenced to 18 months' imprisonment.
56 The sentence starts today. I order that you serve six months in custody, and the balance of 12 months is to be suspended. In accordance with s.27 of the Sentencing Act, I declare that the operational period of the suspended sentence is 12 months.
57 At the plea hearing the Crown sought a disposal order, which was not opposed, and I have made that order today.
58 You may be seated, Mr Goldman. Mr Stefanovic and Ms Ballard, the ability to give such a sentence no longer exists but existed at the time of the commission of these offences and the sentencing that was to take place following it. Is that period of 12 months as an operational period, just reflecting on that, within the capacity at that time where there's a sentence of imprisonment of 18 months, 12 months suspended, with an operational period of 12 months. Is there any problem with that?
59 MR STEFANOVIC: There's nothing I can see.
60 HIS HONOUR: No. Ms Ballard?
61 MS BALLARD: Nothing.
62 HIS HONOUR: Thank you. Anything further arising out of those matters? I indicated the disposal orders have been signed, and we'll have those.
63 MR STEFANOVIC: Yes.
64 HIS HONOUR: All right. Is there anything further, Ms Ballard?
65 MS BALLARD: No, Your Honour.
66 HIS HONOUR: Mr Stefanovic?
67 MR STEFANOVIC: No, Your Honour.
68 HIS HONOUR: At the earlier plea hearings in 2009, there were two matters that came to the court's attention that weren't tendered. One was a letter from Mr Goldman's wife, which was delivered to the Court Registry here on the morning of 21 September. I referred to that letter in the course of my sentencing remarks. That letter remains on the court file. On the adjourned plea listing for 21 September, that same day, an extract from a letter received from Mr Goldman's lawyers at the time, that is Doogue O'Brien, was read into the transcript as well, that being a report from Oakleigh Community Corrections Services. That material was received by the court by email sent and delivered to the court on 18 September 2009, and a printout of that email from Mr Goldman's solicitors at the time containing that information from Oakleigh Community Corrections Services is also retained on the court file. I think that concludes these matters.
69 MS BALLARD: As Your Honour pleases.
70 MR STEFANOVIC: If the court pleases.
71 HIS HONOUR: Thank you. Mr Goldman, you may now be removed. Thank you.
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