Director of Public Prosecutions v Hussaini
[2025] VCC 203
•3 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-23-01294
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAYED HUSSAINI |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 April 2024 (plea) | |
DATE OF SENTENCE: | 3 March 2025 | |
CASE MAY BE CITED AS: | DPP v Hussaini | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 203 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: One charge of recklessly causing serious injury – one summary charge of possessing a controlled weapon – youthful offender – serious example of offending – multiple blows with knife - life-threatening injuries – victim unknown to offender – victim struck the offender prior to commencement of offending –alcohol intoxication – substance abuse history – significant hardship and trauma throughout childhood – Verdins and Bugmy principles enlivened –reasonable prospects of rehabilitation – prospect of deportation – limited criminal history – early plea of guilty – delay -
Legislation Cited: Crimes Act1958 (Vic), s17; Control of Weapons Act1990 (Vic), s6(1); Sentencing Act1991 (Vic), s6AAA, s18; Migration Act1958 (Cth), s501; Community Based Sentences (Transfer) Act 2012 (Vic); Community Based Sentences (Transfer) Regulations 2023 (Vic)
Cases Cited:R v Verdins [2007] VSCA 62; Bugmy v The Queen (2013) 249 CLR 571; Winch v The Queen (2010) 27 VR 658Guden v R (2010) 28 VR 288
Sentence: Sentenced to 5 years imprisonment with a non-parole period of two years and ten months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D White (Solicitor) | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms O A Thompson | Bowler & Co |
HER HONOUR:
Introduction
1Sayed Hussaini, you have pleaded guilty to one charge of recklessly causing serious injury on Indictment N12294403, contrary to s17 of the Crimes Act1958 (Vic). This charge stems from an unfortunate sequence of events that occurred shortly after midnight on Friday 21 October 2022, culminating in you inflicting three significant stab wounds on your victim Mr Alyas Khevali.
2The maximum penalty for this offence is 15 years’ imprisonment.
3
You have also pleaded guilty to one related summary charge, being summary charge 4 on the Notice of Related Summary Offences filed by the prosecution on
29 February 2024, possession of a controlled weapon (the knife) without lawful excuse, contrary to s6(1) of the Control of Weapons Act 1990 (Vic).
4The maximum penalty for this offence is 120 penalty units or 1 years imprisonment.
5You have also admitted your prior criminal history.
Circumstances of offending
6The summary of prosecution opening[1] outlines in detail the facts which relate to the offences and upon which you fall to be sentenced. Through your counsel, you agreed that the contents accurately reflect the events in question. I will now briefly summarise those.
[1]Exhibit A
7Around midnight on 21 October 2022, you were refused entry to a nightclub on Malvern Road in Prahran. At the time, you were with an associate, Mr Mohammed Rezai. You and Mr Rezai then moved towards a “no standing” sign near the intersection of Malvern Road and Little Chapel Street.
8Approximately 10 minutes later, you were approached by the victim, Mr Kheyali and an unknown male.
9For unknown reasons, the victim struck you once to the head without warning, then struck Mr Rezai commencing a brawl.
10CCTV footage from the nightclub captures the brawl in which you can be seen struggling with the unknown male.
11During this brawl, you received a knife from a man called Ishak who exited the nightclub and ran towards the area of the brawl.
12First you chased the unknown male down Chapel Street.
13Then you returned to the scene of the brawl and you, together with Mr Ishak and Mr Rezai chased after the victim who ran along Chapel Street.
14The victim tried unsuccessfully to enter a taxi, giving you time to catch up to him. CCTV from nearby stores depicts the victim holding a belt in his right hand running down Chapel Street. Carrying the knife in your hand, you caught up to him.
15CCTV depicts the victim whipping the belt towards you. A scuffle occurred during which you stabbed the victim once in the back.
16Bystanders filmed the incident on mobile phones.
17The victim managed to escape. You chased after him. He ran along Chapel Street into the path of oncoming traffic, fleeing from you.
18At the intersection of Chapel Street and Malvern Road, in the middle of the road you caught your victim and stabbed him twice more in the back.
19For a third time, the victim, now seriously injured, escaped from you and ran west along Malvern Road. You and your associates again ran after him.
20Fortunately for the victim and for you, police were driving along Malvern Road and brought the incident to an end.
21At the scene, the victim showed police where he had been stabbed. There were three stab wounds, one to the left scapula, one to the right scapula and a third to his right flank. Police administered first aid while waiting for an ambulance.
22At the Alfred Hospital, the victim was treated for a right collapsed lung, loss of blood and his wounds were sutured. He spent four days in hospital.
Arrest and Interview
23You were arrested at approximately 4:20AM on 21 October 2023 at your home in Dandenong and interviewed later that day.
24In the interview, you told police that you had been attacked by an unknown man outside a nightclub and had tried to go after the man who attacked you. You denied having been in possession of a knife and said you had no memory of stabbing anyone because you had been drinking. You claimed you had consumed five drinks and you were not drunk.
25Police photographed your injuries which included a cut and swelling to your lip.
Victim Impact
26The prosecutor did not tender a victim impact statement but submitted that the only appropriate finding in the circumstances is that this offending had a profound impact on the victim who was seriously injured.
27Th prosecutor also submitted that you chased the victim for over 80 metres during which he took his belt off to protect himself from you and desperately tried to convince a cab driver to allow him into the car.
28All of the circumstances outlined in the Crown Opening suggest that the incident must have been terrifying for the victim who ran for his life while you chased and stabbed him.
29He underwent surgery to repair his wounds and spent a number of days in hospital recovering. I find this must have had a significant impact on your victim who was unarmed and defenceless against a group of you chasing him.
30Even if he was the initial aggressor, the incident must have been a terrible ordeal for him.
Personal circumstances
31You were born in Afghanistan in May 1995. When you were four years old, your family fled to Pakistan.
32From there in 2011, when you were 16 years old, you came to Australia by boat from Indonesia. You have spent time in detention on Christmas Island. You completed Year 11 in Adelaide.
33You were twenty seven years old at the time of the offences and are now twenty nine years old.
34You have worked in the meat industry and the security industry. Your counsel described your work in the security industry as instrumental in exposing you to drug and alcohol use.
35Your counsel submitted that a combination of factors personal to you were relevant to the sentencing exercise. These included a diagnosis of a pituitary tumour, a genetic vision impairment called an Advanced Cone Dystrophy and a PTSD condition which included anxiety.
36Dr Jahangir confirmed you have a pituitary tumour diagnosis but no other opinion about its impact on you, or any role it might have in your behaviour or whether it might worsen over time was tendered on your behalf.[2]
[2]The defence submissions dated 8 April 2024 envisaged the provision of medical material on this issue [at 22]
37The eye condition was investigated and a report from Dr Hauptman was tendered into evidence[3].
[3]Exhibit 4
38You have 6/60 vision which means you are legally blind. You have poor central vision making it difficult to read, recognise faces or perform tasks that require detail.
39Your vision is especially poor in bright, well-lit environments. You require sunglasses for outdoor activities. Your night vision is minimally affected.
40Your job prospects are limited due to the vision impairment.
41Dr Hauptmann considers you will experience difficulty in a prison environment, especially in brightly lit and unfamiliar areas. You might struggle with tasks which require detailed vision. Your sensitivity to light increases the risk of accidents. You will need access to sunglasses and help with reading and navigating the prison environment.
42Your condition is unlikely to improve and may worsen with time, but Dr Hauptmann did not provide any timeframe for this. Understandably, the condition has had an emotional effect on you and contributes to your stress and anxiety.
43Your counsel also tendered supportive letters from your family.[4] Your uncle told the court that you are very sorry for what you have done. You are now helping out at the soccer club as a ground Marshall and you want to return to study and focus on your family.
Sentencing considerations
[4]Exhibits 1 and 2
The nature and gravity of the offence
44The prosecutor appropriately referred the court to Court of Appeal authorities to assist in characterising the nature and gravity of the offence:
Random street violence is a scourge on our society. Typically, the violence is brief and unpremeditated but it has profound and enduring consequences. Innocent people are killed or seriously injured; their families are devastated; their communities disrupted. And the outburst of violence is ruinous for the offender, too. Imprisonment with all its destructive consequences is virtually inevitable, as is the shame and embarrassment felt by the offender’s family.[5]
[5]DPP v Russell [2014] VSC 292
45While not the most serious example of its type, nevertheless, this offending clearly falls within that description.
46It can only be described as serious. It occurred in the early hours of the morning in a nightclub precinct with eyewitnesses on the street and in their vehicles driving down a busy Melbourne street.
47At one stage, the victim ran bleeding into the path of oncoming traffic, you with a knife running behind him. It must have been terrifying not only for the victim but also for all those who had the misfortune to be there at the time of the incident.
Moral culpability
48Despite the fact that your victim was the instigator of violence upon you, I consider your moral culpability is high. After the initial brawl or fight between you and your victim, he began to run from you.
49I do not accept the history recorded by Dr Cunningham that you were afraid of further attack. That is not consistent with the agreed summary which says the victim was running from you, not the other way around.
50He was no longer a threat but you chased after him. You stabbed him in the back three times. After the first time, he managed to get away from you and you chased him to inflict more injuries.
51Your actions can only be viewed as the prosecutor described, “brazen, persistent, deliberate and violent”.[6] I accept the submission that you were undeterred by onlookers and bystanders. You were prepared to inflict three terrible stab injuries in the middle of a busy street in the South Yarra nightclub precinct.
[6]Prosecution submissions 15 April 2024
52The circumstances described in the Crown Opening suggest that had it not been for police intervention, the victim may have suffered more injuries.
53You were intoxicated and claim you cannot remember the incident.
54According to Dr Cunningham, impaired mental functioning such as might be caused by your untreated PTSD may be capable of reducing your moral culpability by impairing your judgement, or contributing to an excessive reaction, or making you disinhibited.
55However because of your intoxication, it is difficult to make any sensible assessment of the extent to which that may have occurred. Your counsel accepted that it is difficult to separate out the disinhibition from the intoxication from any contribution by the PTSD condition.
56The prosecutor submitted that the force of any reduction of your penalty is reduced by the fact that you had been intoxicated. I accept that submission. While I have modified your sentence somewhat on account on the accepted link between your PTSD and the offending, that modification is modest because of the presence of alcohol which disinhibited you and increased the likelihood of violence.
57Dr Cunningham’s report allows a finding that protection of the community factors are enlivened by the presence of the PTSD and the alcohol abuse, as each appears to lie at the root cause of your offending behaviour.
58The prosecutor accepted that the violent circumstances of your childhood in Afghanistan and in Pakistan may contributed to normalising violence for you and making it more likely you would act violently in certain situations.
59While those matters might lessen your moral culpability somewhat they also increase the need to protect the community.[7]
[7]Bugmy v The Queen (2013) 249 CLR 571
General and specific deterrence
60The prosecutor submitted that a significant part of your sentence ought to be aimed at deterring others who might think of engaging in this type of public violence.
61I accept that submission.
62Young people, who are minded to engage in such violence, fuelled by alcohol and armed with a knife should know that they will face the very real prosect of long periods of imprisonment when they inflict serious injury on others.
Role and parity
63The victim was charged with affray and has pleaded guilty in the Magistrates Court and received a fine with conviction.[8] The other offender is also before the Magistrates’ Court on an affray charge but his matter is not finalised.
[8]Prosecution sentencing submissions dated 15 April 2024 at [5]
64You are the only person charged with recklessly causing serious injury. By your plea, you have accepted that your foresaw the probability that your actions would cause serious injury to the victim and you went ahead regardless. This was not mere carelessness, it was a conscious disregard of a risk of serious injury which you knew to exist.[9] The best illustration of this is your persistence in chasing the victim intent on stabbing him, more than once.
[9]Winch v The Queen (2010) 27 VR 658
65I accept your counsel’s submission that the offending was not pre planned or premeditated and was an overreaction to an assault on you by the victim. I accept also that you had not arrived at the nigh club armed with the knife, but received it from someone, shortly prior to the stabbing.
Rehabilitation prospects
66Your prior criminal history is mostly driving and one drug matter. It is not strictly relevant to this offending.
67It is to your credit that you have not been charged with further offences while awaiting sentence for these matters. That may in part be attributable to your relocation to Adelaide where you can be closer to your family who have provided you with support and stability.
68You have untreated PTSD which Dr Cunningham considers was causally related to your offending. You also consumed alcohol to excess on the night in question, and it seems, at least while you were living in Melbourne this was a regular occurrence for you.
69Both of these matters may well combine to contribute to further offending and I consider your prospects of rehabilitation are tied to the need to address them.
70Overall, however I assess your prosects of rehabilitation as reasonable.
Current sentencing practice
71I have taken into account the current sentencing practice for these types of offences. However no two cases are exactly alike and I am sentencing you for this offending in your unique circumstances.
72I have taken into account the evidence led on your plea from Mr Houssein Khalil about interstate transfers of any CCO to South Australia and about interstate transfers of prison terms.
73Even if a community work component of any order could be transferred to South Australia, I do not accept your counsel’s submission that a community based disposition is within range for this offending. I consider it is just too serious.
74I accept the prosecutor’s submission that given the wanton violence, the need for general deterrence and denunciation of the conduct by the court on behalf of the community, only a term of imprisonment involving a head sentence an non-parole period is appropriate.
Factors in mitigation
Plea of guilty and remorse
75On 31 July 2023, on day one of the committal you indicated you would be prepared to plead guilty to these charges. No witnesses were called or cross examined and you were committed to this court on the same day.
76On 16 April 2024, you pleaded guilty to these offences. This is evidence of remorse and of preparedness to facilitate the course of justice. Your plea has saved he community the expense of a committal and trial and your victim, and other witnesses the ordeal of giving evidence. You are entitled and have received a significant discount for your plea.
77It is not suggested there is any other evidence of remorse. I accept that you have moved away from Melbourne to be closer to your family in an attempt to avoid further trouble with police.
The role of your mental health and trauma
78Your counsel tendered a psychological report from Dr Aaron Cunningham. Dr Cunningham administered a number of tests and diagnosed you with Post Traumatic Stress Disorder (“PTSD”) which he considered was related to your traumatic experiences in Afghanistan and Pakistan which included bomb blasts. Your counsel told the court that you have scarring on your body from such a blast when you attended Friday payers in Pakistan.
79The PTSD symptoms include distressing memories of prior trauma which Dr Cunningham reports you self-medicated with illicit drugs. Anger, recklessness and self destructive behaviour appear to be linked by Dr Cunningham to your PTSD.
80Dr Cunningham considers the PTSD contributes to your risk of offending and in the presence of drug and alcohol abuse and conflict, escalates that risk to “high”.
81In 2021, you were prescribed Olanzapine as you were hearing voices. Dr Cunningham refers to a history of the voices having stopped when you ceased the use of drugs. It appears you have now stopped taking the medication and Dr Cunningham considers you do not have a psychotic illness.
82You have one previous suicide attempt by cutting your wrists in 2020.
83I accept that your vision loss, together with these mental health conditions contributes to your overall stress and anxiety levels.
Delay
84Your plea commenced in April last year and there have been a number of adjournments to enable your counsel to obtain reports, a specialist opinion about your visual impairment, and more recently, evidence by way of subpoena from the Immigration Department about your visa status.
85Your counsel accepted there has been delay, mostly caused by the need to obtain funding for reports.
86I accept that during the delay, you have relocated to Adelaide to live nearer your family. You have been helping out at your uncle’s restaurant and have managed to stay out of trouble with the police.
87I accept also that this matter has been hanging over your head for a significant period of time. No doubt you have been in a state of uncertain suspense as to what will happen to you when it is time for you to be sentenced.
88During the period of the delay, you have not been charged with any further offences which is evidence of your rehabilitation.
89I have mitigated your sentence on account of these factors arising during the delay.
Burden of imprisonment
90I accept that your mental health, PTSD and anxiety about your vision impairment will make prison more burdensome on you than a prisoner without such conditions.
91Your family being in South Australia may also make your experience of prison more difficult as you may not be able to receive visits from them while you remain in Victoria.
92The evidence on the plea is that your vision impairment will need some accommodation, which corrections authorities are able to provide. I accept that this condition will make your imprisonment more onerous and difficult for you than a prisoner without such a condition and have moderated your sentence on account of it.
93I was told that you are a person who resides in Australia on a humanitarian visa but without Australian citizenship due to the difficulties of obtaining relevant documents from Afghanistan.
94No evidence from the Department of Immigration was tendered, however your counsel provided an updated travel document issued by Australia which shows that you are of Afghan nationality.[10]
[10]Exhibit 7
95It may be that as a consequence of your sentence, you are at risk of deportation. I take this into account as a factor in mitigation.[11]
[11]Guden v The Queen [2010] VSCA 196
96I consider the burden of imprisonment will be a harsher sanction for you than for a prisoner who does not face the same risk.
97The possibility that you may lose your right to remain in Australia may also mean that you face the risk of additional punishment arising from your offending and I take these matters into account in mitigating your sentence.
Sentence
98Stand up please Mr Hussaini on the charge of recklessly causing serious injury you will be convicted and sentenced to five years imprisonment.
99On the charge of possessing a knife you will be convicted and sentenced to one month imprisonment wholly concurrent with the sentence imposed on charge 1.
100I order that you serve a minimum period of two years and ten months before being eligible for parole.
6AAA But for your plea of guilty, I would have sentenced you to a total effective sentence of seven years imprisonment with a nor parole period of five years
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