Director of Public Prosecutions v Hamid
[2018] VCC 644
•3 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.CR 17-01724
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHAHID HAMID |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 May 2018 | |
DATE OF SENTENCE: | 3 May 2018 | |
CASE MAY BE CITED AS: | DPP v Hamid | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 644 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Brown | Office of Public Prosecutions |
| For the Accused | Mr D. Hallowes QC | Balmer & Associates |
HER HONOUR:
1 Shahid Hamid, this is the second time that you have been before this court to be sentenced for inflicting life-threatening injuries by stabbing somebody.
2 On the first occasion in 2011, you pleaded guilty to intentionally causing serious injury in circumstances described by her Honour Judge Douglas, the sentencing judge, as a cowardly and unprovoked attack on a young man who posed no threat to you. He was alone and outnumbered by you and the gang or group that you were with. On that occasion you did not know your victim and the offence appeared to be spontaneous and committed whilst you were severely impaired by drugs, particularly methamphetamine.
3 On this occasion the prosecution, having initially charged you with attempted murder, alternatively intentionally causing serious injury and further alternatively recklessly causing serious injury, has accepted an offer made by you to plead guilty to recklessly causing serious injury in resolution of the charges that had been brought against you.
4
The circumstances of this offending are frankly appalling. You had known your victim, Rolllin Shah, since you were boys at boarding school together in Malaysia. Your friendship and association had continued from that time. Although you came to Australia to conclude your secondary schooling and would appear to have remained here since, the friendship continued. Mr Shah has had time in Melbourne and times in other countries. The continuation of the friendship between you and Rollin Shah is, in part perhaps because
Mr Shah and your sister commenced a relationship, which continued for about ten years. For extended periods it was a long distance relationship, as by the time it came to an end, she was living in Malaysia and he in Indonesia. Malaysia and Indonesia appear to be the countries of origin of each of the two of them. Malaysia also being your original country of origin, although you are and have been since you were very young, an Australian citizen.
5 The relationship between Rollin Shah and your sister came to an end, it would appear, at Mr Shah's instigation, in August 2016. A measure of what appears to have been the closeness between the two families, is that the ending of the relationship was communicated by Mr Shah’s parents arranging to meet and explain the circumstances leading up to his decision to terminate the relationship to your sister’s parents, so your parents as well. Although by the time the relationship had come to an end, Mr Shah had been living in Indonesia for some years and your sister in Malaysia, you were still living in Australia. On the agreed summary, there had been no contact between Mr Shah and your sister or any member of your family, including you, since the relationship came to an end in August 2016.
6
In late-January 2017, Rollin Shah came to Australia and New Zealand for a visit. In Melbourne he had arranged to stay with a friend by the name of Joey Ho. On the night of his arrival and fortuitously, it would appear, Mr Shah met a friend of Joey Ho's, a man by the name of Michael Pavlidis. Mr Shah and
Mr Pavlidis discovered that they both knew you. Mr Shah went to New Zealand the following day and returned to Melbourne on 8 February. He again stayed by arrangement at Joey Ho’s house. Again, on the night of his arrival, Mr Ho had invited some friends over, including Mr Pavlidis. On that night, the night of 8 February, Mr Pavlidis invited Rollin Shah and Joey Ho to a party that he,
Mr Pavlidis, said he had organised at a private room at a karaoke bar for two days later, 10 February. Mr Shah and Joey Ho declined Mr Pavlidis’ invitation, because they had another commitment.
7 That same day, 8 February, you sent a number of messages to a friend of yours. They included these:
"My ex-brother-in-law is in Melbourne. I'm going to hurt him this weekend. Dishonoured my blood sister. I wanna wreck this dog and I'm going to send him back with a dog scar."
8
Repeatedly, on 10 February, that is, the day that Mr Pavlidis had apparently arranged the party at the karaoke bar, Mr Pavlidis contacted Joey Ho, asking him where he was and pressing him to come to his party and to bring Rollin Shah. Joey Ho continued to decline. As the agreed summary says, he found it strange that Mr Pavlidis was so persistent in wanting to catch up with Rollin Shah, when he had only met him on those two occasions in late-January and again on 8 February at Joey Ho’s home. Mr Pavlidis again contacted Joey Ho on 10 February, that time asking if he could attend the party that Mr Ho and
Mr Shah were attending. Mr Ho told him he could not, because he was not invited. But it appears he did, in the course of that conversation, tell Mr Pavlidis the address of the party.
9 Shortly after that, Mr Pavlidis entered the house where Mr Ho and Mr Shah were at the party. Mr Shah asked Mr Ho to ask Mr Pavlidis to leave, because he was not an invited guest. Mr Pavlidis and Mr Ho went outside and were standing on the nature strip and a short time later, Rollin Shah joined them out there.
10
Unbeknown to Rollin Shah and Joey Ho, you and Mr Pavlidis had driven to the address together. On the way to the house you had sent some text messages to the same person you had sent the WhatsApp messages that I have just quoted. On this occasion, you told him that you were with
Mr Pavlidis and you were waiting for the skunk. You said that if you wanted something done, you had to do it yourself. When Mr Pavlidis went inside on his own to the party, you got out of the car and waited outside. You were standing behind a tree where you could not be seen.
11 When Mr Shah came outside and joined Mr Pavlidis and Mr Ho, you emerged from behind the tree. Mr Ho, who knew you, put out his hand to greet you. You walked past him, ignoring him, went straight up to Mr Shah and punched him in the neck. You were yelling at him to fight you. Mr Shah told you to relax, but you continued to chase him and punch him in the head and the neck. Mr Ho was trying to stop you, but unsuccessfully. He, that is, Mr Ho saw you adjusting knuckledusters on your hand and saw a shiny blade attached to the knuckledusters. He then saw you continue to punch Mr Shah to the head and neck before turning to Mr Pavlidis saying, "Let's go." You then walked back to your car.
12 Mr Shah realised that he was bleeding and realised that he had been stabbed by you in the neck. He called out to you, pointing out that you had stabbed him in the neck and said he was going to die. You just walked away.
13 Mr Ho got Mr Shah into his car and drove away, intending to take him to hospital. He was intercepted by police on the way and fortunately, they and paramedics, who shortly thereafter arrived, assisted to stem the flow of blood from Mr Shah's neck. He was ultimately taken to the Alfred Hospital, where he underwent emergency surgery.
14 The most serious injury was a stab wound to his neck. It was deep, ten to 15 centimetres deep, extending deep into the muscle and long, running from behind his ear to his jawline. He had other cuts and stab wounds. A laceration to his left ear lobe, in fact he lost part of his ear lobe, an oblique stab wound running down his back, 20 to 25 centimetres long and a laceration above his elbow on his left arm. That too was long, eight to ten centimetres. All those wounds required considerable numbers of stitches, as well as surgical debridement. An X-ray of his spine also showed that he had a fracture at T6. Whilst that was a non-displaced fracture that with conservative treatment would and ultimately did heal, it is a painful injury.
15 Mr Shah was examined by a forensic medical officer some days after the stabbing. Dr Guyer, the forensic medical officer, reported that but for the timely medical intervention, Mr Shah may have suffered catastrophic blood loss. In other words, the wounds, particularly the one to the neck, were life-threatening.
16 Mr Shah is left with scars to his neck, back and arm and the loss of part of his left ear lobe. Whilst the wounds themselves have healed, the scars, both physical and emotional, remain. The physical scars will last for life. It is unknown how long the emotional scars will last, but they are likely to endure, having regard to the victim impact statement, for a considerable time.
17 In his victim impact statement, Mr Shah spoke, first of all of the sense of shock and betrayal that somebody who he had regarded as family and thought was his friend could treat him that way. Someone who, at least from his perspective, he thought he had only ever done good by and meant good by. He spoke of trying to get over and hoping ultimately he would get over the nightmares of thinking that he was going to die, of hearing the paramedics speak about that whilst he was being treated, of the concerns that he had in hospital that he was not safe and his early discharge as a result. He spoke of the physical injuries, the pain, the time off work and the efforts still he is undergoing for rehabilitation. But he said:
"But those things can be worked through, in comparison to having a reminder on my neck, every day I wake up to brush my teeth that says ‘the people you have cared for and helped in good heart may one day, quite literally, stab you in the back.’ Because I knew him, the defendant’s cowardly assault took me by surprise as I did not expect it nor the viciousness with which he caused my injuries.
18 You were interviewed by the police three days after the stabbing. You told the police that you knew Rollin Shah, as you had been to school together and because he had been in a relationship with your sister for a long time. You described him to the police as being like part of your family. You told the police that the reason you had gone to the house where Mr Shah was, was because you knew the newly married couple in whose honour a party that was being held there. You said that you knew that Mr Ho and Mr Shah were attending it, and that, because you had heard that Mr Shah was in Melbourne, you wished to offer him the opportunity to stay at your house and to drive him there. You told police that Mr Shah did not want to stay at your house and so you left the party and went to your girlfriend’s place. You said you went to the party and left it on your own.
19 So far as the relationship between Mr Shah and your sister was concerned, you told the police that you believed that they still loved each other, that they were having a break in their relationship and that had nothing to do with you. You denied punching Mr Shah, asserting that you were not, in any event, capable of doing so because you had dislocated your shoulder in a motorbike accident.
20 Every part of that account is patently false. Not only is there a large body of objective evidence which contradicts it, but by your plea of guilty, you acknowledge the manifest untruthfulness of the account you gave.
21 As I have already noted, that charge to which you pleaded guilty and for which I must sentence you, is one of recklessly causing serious injury. When I asked why it was a charge of recklessly causing serious injury and not intentionally causing serious injury, having regard to the evidence of the circumstances in which the wounds were inflicted, I was told by Mr Brown, the prosecutor, that it was a plea resolution. It is clear that the acceptance of the plea offer made by you, obviated the need for a committal or a trial. There was a benefit to you clearly in the withdrawal of the more serious charges. There was also a considerable benefit to the victim and to the other witnesses. They did not have to come to court, they did not have to relive the events. Mr Shah particularly, did not have to suffer the indignity of being cross-examined and challenged on the truthfulness of his account.
22 There is clearly a utilitarian benefit in your plea of guilty and the avoidance of a committal and trial and with the benefits that flow to the complainant from that, as well as the benefits that flow in the saving of time and cost of a trial and committal. You are entitled to a reduction in the sentence otherwise appropriate for the utilitarian benefits the plea and the advancing of the interests of justice that carries with it.
23 This is, in my view, one of the gravest examples of the offence of recklessly causing serious injury. Whilst it appears to be fortuitous that you came to hear that Mr Shah was in Melbourne, once you had that knowledge, it is clear that you went to considerable steps to make sure that you could surprise and confront him. Ambush might be a better, more apposite word. On your way to the house where he was stabbed, you sent those messages, making your intention to do him harm very clear. The messages that were sent three days some days earlier also made that very clear. You went to the house armed with a weapon. This was no kitchen knife pulled out of the drawer in an impulsive moment, but a specially designed weapon, knuckledusters with a blade attached. You punched Mr Shah repeatedly in the neck and the back whilst the knuckledusters were on your hand. There can be no doubt that you foresaw the probability of serious injury by using such a weapon and punching Mr Shah repeatedly to those parts of his body.
24 You appeared to have been motivated by something to do with the breakup of the relationship between Mr Shah and your sister. Whatever happened between them – and I want to make it clear that there is no evidence before me that Mr Shah had mistreated your sister physically, emotionally or in any other way – whatever happed between them, it was not for you to seek to harm him or to exact some sort of vengeance on him.
25 As I have noted, the injuries he suffered, particularly the wound to the neck, were life-threatening. It is through the timely intervention of the police, their interception of Joey Ho, as he drove Mr Shah to the hospital, the first-aid administered by them and then the intervention of the ambulance officers after their arrival at the scene, followed by the skilled care of the staff at the Alfred hospital, who were able to intervene as quickly and effectively as they did, that Mr Shah did not suffer the catastrophic blood loss that otherwise would likely have occurred from the wounds inflicted by you and that he did not suffer secondary harm, such as infection, as a result of wounds of that extent and gravity.
26 It is clear therefore that subject to considerations personal to you, just punishment, denunciation and deterrence must carry considerable weight in the sentencing mix.
27 We, as a community cannot, simply cannot countenance people deciding for whatever reason that they wish to inflict serious harm on another person, or that they are reckless as to the infliction of serious harm on another person. No matter what you might have believed had occurred in the relationship between Mr Shah and your sister, and I repeat, there is no evidence that he treated her badly, no civilised society can countenance a person deciding to inflict punishment or harm another to avenge what they perceived to be a wrong to somebody else, even if it is a beloved family member, a sister. There is simply no place for such behaviour and we cannot, in this community, countenance people using weapons, particularly weapons such as a bladed knuckleduster, to inflict harm on others.
28 Mr Shah was unarmed. He had no idea you were outside. It would appear he had no idea that you bore him any ill will. There is no suggestion that he had made any threats to you, or that you had any reason to fear him. He is an entirely innocent victim. He was entitled to go about his life, to spend his time when in Melbourne with his friends, minding his own business, free from harm or threat of harm from you.
29 The effect on him has been profound. He thought of you as family and he trusted you. You have taken away from him a deep sense of trust in humanity, a sense of trust in people, not only strangers, but people he knows and thought he would be safe with.
30 It is correct to characterise it as a cowardly, vicious and entirely unwarranted attack.
31 For all these reasons, your conduct warrants stern punishment.
32 You are now a mature adult, 29 years of age. You are a person of sufficient intelligence to have been able to complete school, to complete tertiary studies, to obtain a Bachelor of Business degree, to complete a TV acting and drama course, to engage in paid work consistently with those post-secondary qualifications, to commit yourself to employment, to live independently and to support yourself. You are more privileged and advantaged than many of the people who come before this court.
33 You appear to have come from a background of some comfort, if not privilege. Although you describe your upbringing as lacking close regular contact with your parents and lacking in parental warmth, it is clear that at least your physical and educational needs were well catered for. Whatever were the deficiencies as you perceive them to be in your childhood in your relationship with your parents, they are, and apparently always have been and remain supportive of you. I am told that there has been an improving relationship between you and that no matter what you felt in the past, you do not want to dwell on the shortcomings of the past, but rather work to build a more constructive present and future relationship with them. That is something that obviously could be of considerable benefit to you.
34 I have already noted this is the second time you come before this court on a charge of inflicting serious injury on a person by stabbing.
35 On the first occasion that you were before a court for that offence, it was not the only offence that was dealt with. You were also dealt with for a separate offence of affray, committed five days after the stabbing. Insofar as the affray offence is concerned, you and a group of other young people set upon a young man previously unknown to all of you, in and around a nightclub in Melbourne Central. The evidence recited by Her Honour in her sentencing remarks, indicates that you were seen on CCTV to be engaged in some sort of verbal confrontation with that young man, but what was said or why, is unknown. At one stage you were seen to arm yourself with a bottle and try and follow him into a toilet, where he had gone to escape from you and your friends. You were then seen in a group, following him out of the nightclub and into the street where he was set upon by members of your gang. Someone else, not you, hit him on the head with a beer bottle with sufficient force to break it. And at some other stage, somebody unable to be identified by the victim, an eyewitness or CCTV footage, stabbed him. Your role, as it would appear, was as the original provocateur and your engagement in pursuing him into the toilet and with others out the street, was clearly a significant one.
36 The investigation of that first stabbing and the five day later affray offence, led to the police coming to your home and discovering a large quantity of drugs there. You were trafficking. You ultimately pleaded guilty to charges of trafficking in drugs, using drugs and possession of drugs and possession of unlicensed firearms. The possession of firearms appeared to relate to your drug trafficking activities. You were also found in possession of other knives. That is significant having regard to that first stabbing offence.
37 At the time of that earlier offending you were 21 and you were 23 by the time you came to be sentenced by Her Honour Judge Douglas. Dr Cunningham, the psychologist who conducted an assessment of you for the purposes of that plea, reported then that you presented with a long history of youth gang involvement, which supported the use of illicit substances and anti-social behaviour. That was consistent with the offending that Her Honour was dealing with. You reported to Dr Cunningham that you had started your illicit drug use at the age of 13 and whilst at boarding school in Malaysia. It appears this was the boarding school where you met Rollin Shah.
38 Although you left that boarding school and came to Australia to complete your secondary schooling at the age of 16, it would appear from what was put before Her Honour Judge Douglas, that your anti-social gang-related and drug abusing behaviour continued whilst you were in Australia, between the ages of 16 and 21. It was said on your original plea that your substance abuse had escalated to significant abuse of ice particularly, although you substance abuse was not confined to that.
39 By the time you came to be sentenced in 2011, Judge Douglas was presented with evidence which she accepted, that you had, in the two years between the offending and sentencing, successfully taken steps to change your lifestyle and rehabilitate yourself. The offending on that occasion was characterised, it would appear, as essentially caused or driven by your drug use and your association with anti-social peers, in what was described by Dr Cunningham as the gang relationships. The violence was explained predominantly by reason of your drug abuse and the anti-social peers with whom you were mixing. Her Honour noted you had used the two year gap between the offending and your sentencing to address your substance abuse, your anti-social behaviour and your associates and so to rehabilitate yourself. She was persuaded that you were unlikely to commit offences of the sort that had brought you before her again.
40 Her Honour sentenced you to what can only be seen to be a lenient sentence, having regard to your age and what she found to be your good prospects for rehabilitation, weighing them and giving them considerable weight against the objective gravity of the offending.
41 On the charge of intentionally cause serious injury, you were sentenced to a term of imprisonment of four years and on the charge of affray, to 18 months' imprisonment.
42 After sentences for the other offences, the drug and weapons offences and partial cumulation orders were made, you ultimately were sentenced to a total effective sentence of four and a half years' imprisonment and a non-parole period of two and a half years was imposed. That is still a significant sentence for a 23 year old in respect of offences committed at the age of 21.
43 I am told that you satisfied the parole authorities sufficiently for you to be released on parole. You did not have to serve the whole of your sentence, but were able to be released on parole and complete your sentence under supervision in the community. On your release you completed the university course that you had commenced before being sentenced. Until now, you had not been before a court again.
44 Unfortunately, however, your confidence that you could remain drug and offence-free and Her Honour's confidence that your prospects for rehabilitation were good, as evidenced by this offending, was misplaced. Although you completed your university degree, you reported to the psychologist, Dr Patrick Newton, who assessed you for the purposes of this plea, that you had returned to regular and significant substance abuse. It would appear that the extent of your substance abuse was not as significant as it was on the first occasion. There is no evidence before me that you had returned to drug trafficking. Indeed the evidence suggests that you have been engaged in meaningful and paid employment.
45
It is difficult to know the extent of your substance abuse in the time leading up to this offence, as there is nothing before me other than self-report and as
Dr Newton noted in his reports, there was difficulty in your participation in the assessment process. He said that you were discursive and vague during the two interviews he conducted with you; that your answers to questions tended to be rambling and were often lacking in relevant detail. He said it was difficult for you to remain focused on the matters under discussion. Having said that, he did also say that your discourse was not overtly affected by any sort of psychosis or interference with your voluntary mental processes. In other words, there was no sign of underlying or significant mental illness.
46
You told Dr Newton that you had only a hazy recollection of the specific events that led to this charge. However, Dr Newton also noted that despite this, that you indicated you did not contest the facts and that you were pleading guilty to the charge. You told Dr Newton that Mr Shah been a long-term relationship with your sister and that it had recently ended under circumstances which
Dr Newton said you said you found “troubling”. He reported you as having told him that on the night in question, you had been informed that Mr Shah was in Melbourne and that you had formed a plan to "have a chat with him" about the situation. You told Dr Newton that you had been severely intoxicated with a variety of substances and that when you meet with Mr Shah, you rapidly lost control of your feelings and assaulted him violently.
47 This is a different account of events to that which you told the police when interviewed and it is different again from the agreed summary of facts presented on the plea. Unfortunately Dr Newton not only based his assessment of you on your self-report, including your account of the circumstances of the offence, but he made no attempt in his reports to reconcile your account with the accepted facts. It is clear that you had known for some considerable time before the night you confronted Mr Shah that he was in Melbourne and that you had done more than form plan to “have a chat” with him. The description of your behaviour makes it clear that it was purposeful. If you were substance impaired, it was not apparent to Mr Shah, or it would appear to those other witnesses who too were affected by your conduct on that night.
48 It certainly did not impede you sending the purposeful messages that you did to your friend whilst you were in the car on the way to the house where Mr Shah was. So this is not a case of rapid loss of control, having intended only to have a chat, as you told Dr Newton. I have to deal with this not on the basis he assessed you, but on the basis of a pre-planned and premeditated assault with a weapon designed as an assault weapon.
49
This is enough, in my view, to give me serious concern about whether I can rely on anything that you said to Dr Newton that is not objectively supported by other evidence as truthful and reliable. Therefore it gives rise to serious concerns about whether I can rely on any conclusions of Dr Newton, based on your
self-report.
50 In any event as I said in the course of discussions with your counsel in the course of the plea, I was concerned that there was no reference in Dr Newton’s reports to the circumstances of the previous offending and no reference in his assessment of your prospects for rehabilitation or any assessment, for that matter, of your potential dangerousness having regard to the circumstances of the previous offence, that is, that it too was a life-threatening stabbing offence with a knife.
51 Hence whilst I accept that you may benefit, as Dr Newton says, from intensive drug-related treatment, mental health care programs and programs for adaptive living skills, as he suggests, the way in which you could benefit from such programs, or the way such programs could be developed or adapted to your needs, will depend, not on the matters taken into account by Dr Newton, but rather on a frank and reliable account from you of your circumstances.
52 That is not to say you would not benefit from programs. I urge Corrections to make a careful assessment of you now, so that you can, as soon as possible, be put in the way, if you choose to do so, of participating in programs that address any substance abuse issues you have, but more importantly, that address your violence issues and your view about relationships and revenge. I urge you to do what you can, if such programs are offered to you, to participate in them in order to reduce your risk of future offending and to maximise the safety of the community upon your release.
53 I am satisfied that if you were substance impaired in the period leading up to the offending or at the time of the offending, that there is no evidence before me to suggest that there is a significant or causal connection between substance impairment and the offending, or to say that but for substance impairment, you would not have acted as you did. In any event, it is clear that substance impairment would not provide a defence or a mitigator.
54 I do accept Dr Newton’s conclusion that your prognosis is guarded. There are some good protective factors. You are obviously of reasonable intelligence and you have shown, in the past, including in the recent past, a capacity to apply yourself and to sustain effort in study and employment. You have many friends who speak very highly of you and the large bundle of testimonials tendered on your behalf, is very powerful evidence of that. I say that even though the testimonials do not grapple with the circumstances of this offending or, where relevant, the circumstances of the previous offending. I accept the characterisation given by Mr Hallowes that the people who wrote the testimonials appear to have been concerned to speak of those things that were good about you and they could speak of, rather than express a view as to how that is balanced against the offending behaviour.
55 So I am not dismissing them or discounting them. What is clear, is that you do have many people who speak highly of you and with whom you have managed to sustain good and it would appear safe and respectful relationships, many for over extended periods. You have also shown a history of engagement in community affairs, which again sits at odds with the violently anti-social behaviour in which you engaged on this occasion and which you engaged in all the way back in 2009.
56 So despite Dr Newton’s description of you as a vague and discursive historian, you are clearly a person, no matter what effect substance abuse has had on you over the years, of sufficient intelligence to continue to work, to study, to engage in meaningful and valuable employment and study. So you have got the capacity to engage in meaningful work, you have got the capacity to engage in further study if you wish and you have the capacity, if you wish to and if indeed substance impairment is still a real problem in your life, to engage in sensible and meaningful drug rehabilitation programs. Of more concern, in my view, is your view about violence and what can only been seen in light of your previous conviction and this matter, as your propensity to engage in violence and with a bladed weapon. And, what I see to be a progression from using a knife as a young person in an impulsive, spontaneous but apparently angry or reactive way to the planned and premeditated attack on a victim to whom you apparently bore some ill will and the use of a purpose-designed weapon.
57 I suspect much more exploration of your motivation and your reasons to engage in violence in those different ways, is going to be needed before any proper and meaningful programs can be identified to help you deal with that, but it is something, in my view, you and Corrections must grapple with, if your risk of re-offending is to be reduced and if the community is to be safe upon your release. But It is clear you have got the capacity, if you choose to do so, to engage in soul-searching in therapy and in programs designed to address all of those problems and they are significant protective factors. So too is having the wide social network that you have and the loving and supportive family.
58 The sentence must reflect specific, as well as general deterrence. It is clear that your previous sentence did not deter you from engaging in this violence, this knife violence which, although I must sentence it in the context of the charge of recklessly causing serious injury, is, in my view, an escalation in the type and nature of violence for the reasons that I have indicated.
59 So I am of the view that your prospects for rehabilitation, whilst there are those good protective factors I identified, must be characterised as guarded.
60 You indicated your intentioness or your preparedness to plead guilty to this charge of recklessly cause serious injury at an early stage and although the plea offer was not accepted until immediately before the start of a contested committal, given the stage at which the offer was first made, you must be and get benefit of having that plea treated as one entered at the earliest possible opportunity and get the appropriate sentence reduction for that as a result.
61 I have listened to and engaged vigorously with Mr Hallowes in discussions about remorse. I want to make it very clear that absence of remorse is not an aggravating feature and you are not punished for the finding I make that you are not remorseful, in the sense that that is described by the Court of Appeal in the case of Barbaro and Zirilli[1] to say or to say to people, "I'm sorry for what I did" and particularly when you said to Dr Newton you were sorry, but you gave him a patently false account, does not count for much.
[1]Barbaro; Zirilli [2012] VSCA 288.
62 So it is really up to you at the age of 29 what you make of your life from now on. You have got a lot going for you if you choose to make something of it and I have structured the sentence to allow you the opportunity to do that. But as you acknowledged and your counsel have acknowledged, you must receive a term of imprisonment and a substantial one. I have said it before but I will say it again, you clearly have the capacity, should you choose to avail yourself of it, to engage in meaningful engagement within the community and you have shown you have been able to do it in other aspects of your life. And you have shown that you have been able to do so, despite the evidence of substance abuse before the first lot of offending and if there has been substance abuse, the significant extent since then in that period as well.
63 It is up to you obviously, whether you remain drug-free. But more importantly, it is up to you to decide whether again to engage in violence, particularly bladed weapon violence or not.
64 I have already noted this is high in the level of seriousness for the offence of recklessly cause serious injury and the sentence must reflect that, although tempered by your guilty plea and those protective factors relied on and which I have identified. As I said in my discussions with Mr Hallowes, it is my view that despite the seriousness of this offending, particularly seen against your previous conviction for causing serious injury by stabbing, it is in your interests in the community’s interests to structure the sentence in a way that will allow the maximum possibility for you to be released upon parole, that is, to be under supervision upon your ultimate return and reintegration into the community.
65 I have therefore fixed upon a non-parole period designed to facilitate that. Having done that, that is as far as I can go in it. It is up to you and to the Parole Board as to what ultimately happens when you get to that minimum term.
66 Could you now please stand.
67 Shahid Hamid, on the charge of recklessly cause serious injury, to which you have pleaded guilty, you are convicted. You are sentenced to be imprisoned for a period of ten years and I fix a period of seven years as the time you must serve before being eligible for parole.
68 I declare that you have spent 443 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
69 Pursuant to s.6AAA of the Sentencing Act, I declare that but for you plea of guilty, I would have sentence you to a term of imprisonment of 12 and a half years and would have fixed a period of ten years as the minimum term to be served before being eligible for parole.
70 COUNSEL: As Your Honour pleases.
71 HER HONOUR: Any further orders required to be made?
72 MR HALLOWES: No, Your Honour.
73 HER HONOUR: Could you please remove Mr Hamid. Adjourn.
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