Director of Public Prosecutions v Hassan
[2023] VCC 146
•9 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00613
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABDOU-ELLAH HASSAN |
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JUDGE: | KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 October 2022 9 February 2023 | |
DATE OF SENTENCE: | 9 February 2023 | |
CASE MAY BE CITED AS: | DPP v Hassan | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 146 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Resisting an emergency worker on duty – Causing injury intentionally – Assaulting an emergency worker on duty – Plea of guilty – Covid-19 pandemic – Worboyes – Verdins – Reasonable prospects of rehabilitation – Mandatory sentencing regime.
Legislation Cited: ss 5(2G), 5(2GA), 5(2GB), 6AAA, 10A, 10A(2)(c), 10A(2)(c)(i), 10A(2)(c)(ii), 10A(3)(aa), 10A(3)(ab), 10A(3)(b), 10A(4), 10AA, 10AA(4), 44A, 48CA Sentencing Act 1991 (Vic).
Cases Cited:R v Verdins [2007] VSCA 62; Worboyes v The Queen [2021] VSCA 169.
Sentence: Mandatory Treatment and Monitoring Order alongside a 16 month Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | J. Ollquist | The Office of Public Prosecutions |
| For the Accused | P. Smallwood | Massi Ahmadzay & Associates |
HER HONOUR:
1Abdou-Ellah Hassan, you have pleaded guilty to resisting an emergency worker on duty, causing injury intentionally and assaulting an emergency worker on duty. You have also agreed, and pleaded guilty to, the following summary offences: two charges of drive whilst authorisation suspended; two charges of careless driving; fail to give name or address and refuse preliminary breath test. These offences occurred in the early evening of 11 July 2021.
Circumstances of the offending
2The full circumstances of your offending is contained in the prosecution opening dated 13 September 2022. I sentence you on the basis of the facts as set out in that document.
3As an overview of your offending, on Sunday 11 July 2021 you were involved in two separate collisions prior to assaulting two police members in the course of their duties, and resisting arrest. You caused a physical injury to one of the police officers.
4At around 7.00pm that night you were driving north on Mount Alexander Road in Essendon when you failed to give way to a vehicle travelling southbound and entering a roundabout at the intersection of Mount Alexander and Keilor Roads. You collided with the passenger side door of that vehicle. Fortunately the occupants did not suffer any injuries. You pulled over and exchanged details, though you provided incorrect details.
5You returned to your vehicle, conducted a U-Turn and headed north on Keilor Road towards Bulla Road.
6A very short time later you were involved in another motor vehicle collision with a removalist van. The van was stationary, with indicators on and, upon seeing the road clear, the driver moved on to it. You were travelling at a speed more than the 60 kilometres per hour limit and collided with the rear of the van, causing extensive damage to your vehicle. Police were contacted by a witness who was watching nearby. These incidents form the basis of the summary charges.
7Constables Lin and Walpola arrived at the collision site.
8You became agitated, and additional police were requested to attend. Detective Acting Sergeant Wren and Senior Constable Boal who were patrolling nearby attended the scene. At approximately 8.00pm further police members, Detective Senior Constable Stanley and Senior Constable Eagle attended with a preliminary breath test device.
9You were requested by police to undergo a preliminary breath test. That was met with the you stating ‘I was not driving’, ‘I don’t care, I was not driving, do you understand’.
10Your behaviour escalated and you became aggressive. You attempted to confront witnesses who were showing police members videos they had taken clearly showing you exiting from the driver’s side of the car. You then attempted to push past Detective Senior Constable Stanley to get to the witnesses. Detective Senior Constable Stanley grabbed your chest with two hands and attempted to walk you backwards away from the situation.
11You then struck Detective Senior Constable Stanley to the left side of his face with a closed right fist, causing a split lip and possible tooth damage (Charge 2 – Intentionally cause injury). As Detective Senior Constable Stanley tried to grab hold of you, he lost his footing and fell to the ground.
12You then took flight, running east on Keilor Road with police in close pursuit. As Senior Constable Boal was approaching you, you turned and punched him to the left side of his face with a closed right fist. Senior Constable Boal suffered tenderness and pain to his left face but did not require medical attention (Charge 3 – Assault an emergency worker).
13You resisted being arrested by police, abusing police members calling them ‘dogs’ and refused to place your hands behind your back (Charge 1 – Resist emergency workers on duty).
14You were ultimately apprehended by police and transported to Melbourne West Police Station and interviewed. You were held overnight for the purpose of a remand application at the Melbourne Magistrates’ Court.
15Detective Senior Constable Stanley was treated by a dentist, Dr Doig, on 12 July 2021, who concluded that he had ‘soft tissue damage to the lower left lip and upper midline frenum’.
16Although Dr Doig concluded that Detective Senior Constable Stanley had ‘concussion injury to the upper left central incisor’ she also stated that ‘the final prognosis cannot be determined for years’ and offered her views as to favourable and unfavourable possible outcomes, as outlined in the prosecution opening.
Mandatory sentencing regime
17Charge 2 on the Indictment is a Category 1 offence and attracts the mandatory sentencing regime as outlined in s10A(2)(c) of the Sentencing Act1991 (Vic). On this charge a Court must impose a term of imprisonment of not less than six months unless the court finds under s10A that a ‘special reason’ exists.[1]
[1] See ss 5(2G), 5(2GA), 10AA, 10AA(4) Sentencing Act 1991 (Vic).
18It is best to commence with a consideration of this regime and its application in your case and to address other relevant factors within this framework.
19On your behalf, your Counsel, Mr Smallwood, submits that the Court should make a finding that a ‘special reason’ exists in your case, as follows:
a)At the time of the commission of the offence, you had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces your culpability; and/or
b)You have impaired mental functioning that would result in you being subject to substantially and materially great than the ordinary burden or risks of imprisonment.
20Your Counsel relied heavily on the evidence of Dr Paul Gretch. Dr Gretch provided two reports of 6 October 2022 and 2 November 2022 and he also gave evidence in Court on 15 December 2022.
21I note that after the plea hearing, and with the benefit of Mr Gretch’s evidence in Court, the prosecution obtained updated sentencing instructions. They indicated their position that, while it is obviously a matter for the Court, it was reasonably open to find that your Post Traumatic Stress Disorder (PTSD) was causally linked to the offending and that a Community Corrections Order is within range.
Psychological evidence
22Given its prominence in your case, I’ll turn to the evidence of Dr Gretch.
23In his reports, Dr Gretch canvasses your personal history. You grew up in a religious family and with a strict upbringing. You completed high school and you were very athletic and played AFL football with your brothers. You completed a Certificate IV in plumbing and you’re now fully licensed in the trade and operate your own business. You maintain a total of five employee, three of whom are first year apprentices.
24Growing up, your family were very close. You had three brothers and three sisters. In 2006 your older brother passed away from a heroin overdose. In 2016 another brother, whom you describe as your best friend, was fatally shot. Dr Gretch reflects that you had never dealt with the grief of losing your first brother, and upon further loss, your residual grief reaction was reactivated and you suffered from acute trauma, which developed into PTSD. You reported experiencing a multitude of symptoms, including stress, anxiety and depression.
25You first attended upon Dr Gretch in December 2020 and became an ongoing patient in August 2021, diagnosed with PTSD, residual grief, reactive depression and adjustment disorder. After your re-referral on 15 August 2022 you have attended for psychological assessment and treatment on an ongoing weekly basis over at least 16 months.
26Dr Gretch notes that within this time you have expressed embarrassment, shame, remorse and insights into the circumstances of your offending.
27Dr Gretch conducted formal testing as outlined at page five of his report and he concludes generally at page ten of his report:
The constellation of symptoms reported by Mr. Hassan, considered in the context of DSM-IV criteria, were clearly indicative of the existence of severe PTSD symptoms involving intense emotional distress, symptoms of anxiety, depression and sleep disturbance (including regular nightmares about each of his brothers’ deaths and the incident in 2021), feelings of guilt, unwanted, intrusive and disturbing thoughts and ruminations, extreme anger and feelings of being misunderstood and mistreated.
28In relation to the causal link between your PTSD and behaviour on 11 July 2021 he provides the following opinion at page 11:
There is strong and direct causal link between Mr Hassan’s PTSD and his behaviour towards others, including emergency services personnel and police on 21 July, 2021. Mr Hassan has reported experiencing extremely elevated levels of anxiety following the initial accident on 11 July, 2021 and being unable to think clearly following the second accident, resulting in a “blind panic” and a sustained panic attack (involving hyperventilation), which triggered a light-flight response, in direct connection to his untreated PTSD and a need to flee the situation at almost any cost. In hindsight and with the benefit of sustained psychological treatment for his PTSD, he recognises that his untreated PTSD meant that he was a “ticking time bomb” in the absence of professional intervention.
29In his addendum report Dr Gretch opines that an immediate term of incarceration would have an extremely deleterious impact and effect on you, with psychiatric decompensation and a deterioration in your mental state anticipated with a high degree of certainty. You would not be able to access specialised care and you would likely emerge from custody with compromised psychosocial functioning.
30In in his evidence in Court, Dr Gretch stated that you first attended upon him in December 2020 and further that he had seen you on 9 February, 13 and 19 July 2021 and 3 August 2021; in other words, dates surrounding the offending. In December 2020, Dr Gretch confirmed the diagnosis of PTSD that had previously been made. He outlined the traumatic incidents that have contributed to your disorder, including the tragic deaths of your brothers and also a severe assault on you in 2018 where you suffered concussion and required medical treatment. He confirmed your diagnosis of PTSD and also considered that you suffered from generalised anxiety disorder and panic disorders. As of December 2020, and currently, you meet the diagnosis for all three disorders.
31Dr Gretch gave evidence as to the intrusive and pervasive effects of your PTSD on your everyday functioning. He confirmed that you have been prescribed medications for years, including the mood stabiliser, Sodium Valproate, and that from time to time you have struggled with the medication because of side effects. He has principally provided you with cognitive behaviour therapy and he described the nature and objectives of such therapy. He considered that you had made considerable progress, particularly over the last year, based on his own observations, and ongoing reports from you and your family. Progress has not been linear and at times there have been platitudes in treatment but overall there has been an improvement and amelioration of your symptoms. Prior to your offending you had recognised that you often felt irritable, not in control and agitated and that your reactions could quickly escalate. The extreme events of July 2021 caused you to fully recognise the extent of your PTSD and the need for regular and ongoing treatment and greater pharmacological interventions.
32Dr Gretch confirmed that he had had an opportunity to consider a range of material, including the police summary of offending, your record of interview and the footage. He confirmed his opinion that on the day of the offending you met the criteria for PTSD, generalised anxiety disorder and panic disorder. He stated that ‘without a shadow of a doubt’ he considered that there was a nexus between these diagnosis and your offending conduct. His opinion was based on factors, including – the persistent and enduring nature of your PTSD; the nature of the traumatic incidents that inform your condition, including additional traumas such as your fathers battle with cancer and the severity of your symptoms. He had the benefit of observing you at a time generally proximate to the offending and the symptoms he was observing during your consultations were moderate to severe PTSD, high levels of anxiety, regular anxiety with panic attacks.
33In relation to the offending Dr Gretch considered that you had been attempting to communicate with witnesses on the evening and events unfolded in a manner leaving you likely feeling extremely threatened by the presenting situation. In this context, you reacted and retaliated in the most atrocious and reprehensible manner towards police.
34Whether or not the situation evolved by reason of your actions, once in it, by reason of your trauma history and PTSD, you were more likely to feel physically threatened and at risk. You were more likely to react in an aggressive or violent manner and to experience anxiety and parasympathetic arousal during the course of triggering events. Your PTSD impacted and effected your capacity to self-regulate, to reflect or delay your response. It would have contributed to a compulsive and overwhelming urge to act or react with a fight or flight response mechanism. In your case, you tried to fight your way out of the situation. Dr Gretch also agreed in cross-examination that there were likely other stressors, as identified in your record of interview, that would have triggered and activated your PTSD at the time of offending.
35In respect of the risk of imprisonment on your conditions, Dr Gretch confirmed his opinion that there is a high likelihood that if you were imprisoned for a significant period of time there would be a deterioration in your mental well being and that your PTSD, currently treated, would reach moderate to severe levels, raising concerns of suicidal ideation and aggression and violence. Dr Gretch outlined his extensive experience with the custodial regime and his contemporary knowledge and experience within the system and gave evidence as to the likely limitations and challenges someone like you would face. While Dr Gretch would endeavour to maintain contact with you, it would not be to the same level as the care he provides you within the community, and that he is able to continue to provide you.
Findings
36I accept that PTSD is a mental illness within the meaning of the Mental Health Act 2014 (Vic) and meets the definition of ‘impaired mental functioning’. On the evidence, I accept that at the time of the commission of the offences you suffered from PTSD and that you continue to suffer from this condition. I found the evidence of Dr Gretch, in both his reports and in Court – that I’ve only referred to here in summary form – to be comprehensive and of considerable assistance. He had the advantage of working with you over a relevant and substantial period of time. He provided very clear detail as to your conditions, their genesis, symptoms and the likely effects and impact on your functioning and behaviours and on the offending.
37On the evidence, I therefore accept that at the time of the offending you had impaired mental functioning that is causally linked to its commission and substantially and materially reduces your culpability. For completeness, on the evidence I am also satisfied that your impaired mental functioning would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
38I am therefore satisfied, to the requisite standard, that an exception to the statutory regime is enlivened in your case, pursuant to s10A(2)(c)(i) and (ii).
Further sentencing considerations
39Having found that an exception in enlivened in your case, I must consider the appropriate sentence to impose. This also requires me to consider other relevant sentencing factors and principles and synthesise these matters to arrive at the appropriate and just sentence in your case.
40Your offending was serious and your conduct deplorable and unacceptable. Denunciation and general deterrence ordinarily are factors that loom large in such matters and inform the mandatory legislative regime. It is the clear intention of Parliament that offences involving violence against emergency workers must be strongly denounced. Emergency workers, including police, are entitled to go to work without fear of being assaulted by members of the public. They are entitled to a safe workplace and to the protection of the law.
41I accept that you are remorseful and ashamed of your conduct. Consistent with your statements to Dr Gretch, in your recent assessment with Corrections you expressed considerable remorse. You were able to identify the potential longstanding harm caused to the police officer victims because of your behaviour, stating ‘they would be worried or scared that someone is going to hurt them. They are just doing their job’.
Matters in mitigation
42There were a range of other mitigating factors advanced on your behalf by Mr Smallwood, which I accept and take into account in sentencing you.
43You entered an early plea of guilty which entitles you to a substantial discount in sentence. Your plea of guilty has significant utilitarian value, particularly in light of the burden imposed on criminal Courts by the Covid-19 pandemic.[2] The utilitarian benefits that flow from your guilty pleas inform the extent of your willingness to facilitate the course of justice. I take into account also that you have served one day in custody in respect of these matters.
[2] Worboyes v The Queen [2021] VSCA 169.
44I have already canvassed your personal background and will not repeat it again in any detail. You are now 31 years of age. You are supported by your family, who have also attended Court on numerous occasions, and live with your parents in stable accommodation. You are a qualified plumber and maintain your own business with several employees. You have suffered enormous grief and loss in the past and continue to be engaged in treatment, addressing these issues. I have also had regard to your prior criminal history, which is mostly for driving matters.
45As I’ve already made clear, I accept that the evidence is sufficiently cogent to establish that at the time of the offending you were in an impaired mental state which adversely affected your capacity to exercise proper judgment and control of your behaviour and that there was a realistic nexus between your PTSD and your offending. This is sufficient to enliven the first, third and fourth principles of Verdins[3]. Also, for the reasons previously stated, I accept that the fifth and sixth limbs of Verdins have application in your case.
[3] R v Verdins [2007] VSCA 62.
46Further, I take into account the significant steps you have taken since the offending towards your rehabilitation. It is not an easy process but you have engaged meaningfully and continuously. Currently I assess your prospects of rehabilitation as reasonably good and as inextricably tied up with your ongoing treatment for your PTSD. You have accepted responsibility for your offending and demonstrated insight. You have a supportive family and run your own business, employing others. I have also taken into account the evidence of Dr Gretch that in treatment you are extremely engaged, focused, conscientious and that you are highly committed to the therapeutic process. I accept that, in your case, the community is better served by allowing you to progress and continue in your mental health treatment.
Sentencing considerations
47The basic purposes for which a court may impose a sentence are punishment, general deterrence, specific deterrence, denunciation, rehabilitation and protection of the community. I have already referred to these matters in the context of your case. I take into account the principles of proportionality, parsimony and totality, noting that your offending is very closely connected in time and circumstance. I must also have regard to the seriousness of the offending, your culpability, your personal circumstances and also the general sentencing landscape for such offending.
48In your case, both defence and prosecution submit, having regard to the evidence and the unique circumstances of your case, that a Community Corrections Order (‘CCO’) is an appropriate sentence.
49Turning to the legislative regime again, s5(2GA) provides that where the Court has found a ‘special reason’ exists, as I have, and having regard to the Parliament’s intention set out in section 10A(3)(aa) to (b), it must proceed in the manner stipulated, which includes the option of imposing a mandatory treatment and monitoring order if:
(a) You prove on balance that, at the time of the commission of the offence, you had impaired mental functioning that is causally linked to its commission and materially reduces your culpability; and
(b) The Court is satisfied that such an order is ‘appropriate’.
50In his evidence, Dr Gretch has clearly examined you in relation to the offending and has addressed the matters relevant to this s5(2GB). As I’ve already stated, I’m satisfied of the causal nexus between your PTSD and your offending.
51I have taken into account Parliament’s intention as provided in s10A(3)(ab), and I have also had regard to whether the cumulative impact of the circumstances of your case would justify a departure from the ordinary, expected sentence to be imposed in cases such as this.
52After considering all relevant matters in your case, that I’ve already canvassed, I am satisfied that a mandatory treatment and monitoring order is available and appropriate in your case. Section 44A of the Sentencing Act 1991 (Vic) provides that in making such an order the court must make a CCO with a number of mandatory conditions. The section itself does not otherwise limit the conditions which a Court may attach to a CCO. .
53I had you assessed for a CCO and you were assessed as suitable for such an order and expressed a willingness to engage with therapeutic intervention. You were considered to present with identifiable protective factors such as secure housing, stable income and familial support. I have also had regard to the MHARS Forensicare report which also recommends psychological treatment.
Sentence
54Synthesising all these matters, taking into account all of the considerations here, particularly your mental health and having regard to the unique factors here and the principle of totality – on all charges, namely Charges 1, 2 and 3 on the indictment and in addition summary charges 9 and 13, which are the drive suspended charges, you are convicted and you are sentenced to a Mandatory Treatment and Monitoring Order pursuant to s44A.
55As part of this order, I make a Community Corrections Order for a period of 16 months with the following conditions. There are mandatory conditions, Mr Hassan, judicial monitoring – and we will obtain a date – so these are the conditions I must impose. And I must impose a treatment and rehabilitation condition, and I do so in the following terms: that you engage in and undertake assessment and treatment for your mental health, all right.
56I also propose to impose a community work component in the order, but again, in setting the hours and these conditions, I have given consideration to the unique factors in your case, particularly the application of Verdins. What I will impose a total amount of hours of 80 hours of community work, and I will offset 60 hours pursuant to s48CA of the Sentencing Act 1991 (Vic).
57Do you understand?
58OFFENDER: Yes.
59HER HONOUR: Now, in respect of the additional matters, again, I am required to take into account a range of factors including your income and, again, the principles of totality and other matters I have referred to. So what I propose to do is on Summary Charges 10 and 14, which are the two counts of careless driving, 11, which is the failing to give your details, and 12, which is the refusing the testing – I will impose an aggregate fine, convicting you and imposing a fine in the amount of $900.
60On Summary Charge 12, I will and I am required to interfere with your licence, disqualify you from driving for a mandatory minimum period of – Ms Ollquist, that was two years?
61MS OLLQUIST: That is right, Your Honour.
62HER HONOUR: Yes. 24 months, two years as of today, all right. Pursuant to - just for completeness, Counsel – s10A(4), I think I have clearly indicated what the special reason is, and I cause that reason to be entered into the records of the Court. I am not required, as I read the Sentencing Act 1991 (Vic), to make a formal declaration pursuant to s6AAA. I will not do that because it would be a very complex exercise, but what I can indicate, Mr Hassan – what that refers to is what this Court would have done or likely have done had you not pleaded guilty.
63I can indicate, as I have in my reasons, that that is a significant matter, your plea of guilty, your acceptance of responsibility and your remorse. Had you not proceeded in that matter or engaged – your remorse is reflected also in the work that you have been doing, particularly with Dr Grech. Had you not been remorseful, not done that work, not entered a plea of guilty, then you could have expected a term of imprisonment. And as Parliament makes plain, for good reason, that is ordinarily the sentence imposed, all right.
64So I can give you that broad indication so that you have an appreciation of how you assuming responsibility and the way in which you have dealt with this matter really has mattered. All right?
65OFFENDER: Thank you.
66HER HONOUR: Thank you.
67ASSOCIATE: We will need to have a date for judicial monitoring hearing.
68HER HONOUR: We do need a date, actually. Perhaps while that is being done, we do need a date for judicial monitoring. I am proposing a date. So I have given a 16 month order. I would propose a date – three months. He is undertaking treatment. It seems to me that I really do not want Mr Hassan constantly before the court in light of the findings I have made as to the independent initiatives that he has taken, so I think three months is an appropriate time.
69MR SMALLWOOD: Yes, Your Honour.
70HER HONOUR: Yes, all right. We will obtain a date, then. What that means, Mr Hassan, is you will need to attend for judicial monitoring. That can be done remotely, all right. It does not actually need to be done in person, and I would be minded to list judicial monitoring in your case at 9.15am. And once we adjourn today and we are completed, I have no doubt that Mr Smallwood and his instructing solicitor will ensure that my associates have relevant email addresses and so forth.
71MR SMALLWOOD: Yes, Your Honour.
72HER HONOUR: All right. So can we have a date for three months' time at 9.15am.
73ASSOCIATE: We can do Wednesday 10 May 2023 at 9.15am.
74HER HONOUR: Wednesday 10 May 2023 at 9.15am?
75ASSOCIATE: Yes, Your Honour.
76HER HONOUR: All right. On that occasion, Corrections will provide a report, and within that report, I will be updated and told about what you have been doing and your compliance. And usually what happens at a judicial monitoring is that is discussed, and if you are doing really well, then it is likely we will have another date, but it is a relatively informal discussion, really, to see how you are progressing on the order, all right. And as I said, it can be done remotely, all right.
77MR SMALLWOOD: As the Court pleases.
78MS OLLQUIST: May it please the Court.
79HER HONOUR: We will adjourn.
80MS OLLQUIST: Thank you, Your Honour.
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