Director of Public Prosecutions v Ibrahimi
[2021] VCC 1556
•15 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01267
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HOSSAIN IBRAHIMI |
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JUDGE: | Her Honour Judge Hassan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 October 2021 | |
DATE OF SENTENCE: | 15 October 2021 | |
CASE MAY BE CITED AS: | DPP v Ibrahimi | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1556 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence — recklessly cause serious injury — plea of guilty — stabbing — knife — CCTV — stab wound — life-threatening injury — punctured kidney — early plea — remorse — community correction order — bail — criminal history — criminal record — traumatic childhood — immigration detention — drug addiction — methamphetamine — cannabis — cocaine — stimulant use disorder — cannabis use disorder — post-traumatic stress disorder — PTSD — major depressive disorder — MDD — depression — anxiety — subsequent offending — serious offending — general deterrence — specific deterrence — denunciation — community protection — prospects of rehabilitation — COVID-19
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:R v Verdins (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571
Sentence: Total effective sentence of three years with non-parole period of two years
Section 6AAA declaration: total effective sentence of five years with non-parole period of three years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Devlin | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr B Nibbs | Valos Black & Associates |
HER HONOUR:
1Hossain Ibrahimi, you have pleaded guilty to one charge of recklessly cause serious injury (charge 1), for which the maximum penalty is a term of imprisonment of 15 years.
2A prosecution opening setting out the full facts and circumstances of your offending was tendered at the plea. CCTV footage depicting events leading up to your offending, and the incident itself, was also tendered.
3In brief, the circumstances of your offending were as follows. On Saturday 21 March 2020, two groups of young people rented apartments at the Bella Apartment complex in Southbank. One group included the victim in this matter, Nicholas Moshi. Mr Moshi and his friends rented apartment 1807 for a birthday celebration. Mr Moshi was 19 years old. The other group included friends of yours. In particular, this group included your then girlfriend’s brother, Denis Selimovski. This group rented apartment 1407 and was also using the apartment for a celebration.
4A conflict broke out between the two groups. It started out as an exchange of words, but it turned physical, with the males from each group involved in skirmishes. Sometime after 7:30pm, the victim and his friends went to the door of apartment 1407 and males from that apartment, including Mr Selimovski, came out and a brawl took place in the corridor.
5After this, Mr Selimovski and some of his friends went to reception. They asked the receptionist for the telephone number of apartment 1807. The receptionist refused. They then asked that the receptionist call the police. Again, the receptionist refused. At around 7:53pm, Mr Selimovski received a telephone call from his sister, who shortly thereafter telephoned you.
6You arrived at the apartment complex at around 9:55pm with your co-accused Alan Tago. You went up to apartment 1407. You remained in the apartment until 10:24pm, when you exited with a number of the other male occupants.
7At approximately 10:24pm, you are depicted with other males from your group, including Mr Tago, standing in the front doorway of the apartment complex. Mr Tago walks off camera and you follow him.
8A few seconds later, you return into camera vision and are depicted tucking an item into the front of your pants as you return to the entrance of the building. The item you were depicted secreting into your pants was a knife.
9At approximately 10:33pm, males from your group, including Mr Selimovski, returned inside the apartment building and stood near the lifts, waiting for the victim and his friends from apartment 1807 to exit the lift. Mr Selimovski is seen to give a thumbs up and you are then shown on CCTV walking to the lift lobby.
10CCTV footage shows you walking through the lobby before removing the knife from your pants. You stand behind two other males at the lift. You then take the knife from your pants, step out and lunge at the victim as he exits the lift, stabbing him once to the lower left abdomen. You then put the knife back down the front of your pants and quickly exit the foyer.
11After the stabbing, an affray occurred in which you did not participate. Your co-accused Mr Tago was involved, and he has pleaded guilty to the offence of affray. No issues of parity therefore arise in sentencing you.
12You and Mr Tago left the apartment complex together.
Serious Injury
13The victim suffered a stab wound to his left flank and immediately lost a significant amount of blood. He was taken by ambulance to the Alfred Hospital suffering life-threatening injuries and admitted into the Intensive Care Unit.
14The stab injury was noted as:
· left flank penetrating injury which passes through the peritoneum into the perirenal space with moderate volume hemoperitoneum; and
· left renal laceration with perinephric haematoma.
15Emergency surgery was required to his punctured kidney and he remained in hospital for a week.
Arrest and Interview
16You were identified and contacted by the police. By arrangement, you surrendered yourself to Mill Park police on 26 March 2020. You made a ‘no comment’ record of interview.
Plea of Guilty
17A committal had been scheduled to take place in April 2021 but had to be abandoned because of technical difficulties. It was rescheduled to 15 June 2021, when it proceeded by way of a straight hand-up brief. I am told plea negotiations were on foot at this time. You pleaded guilty in this Court on 2 August 2021. This is an early plea. It carries significant utilitarian value in the current context of COVID-19 and its impacts on the administration of criminal justice in this State.
18I am also prepared to find it is indicative of some remorse on your part and a preparedness to accept criminal responsibility for your actions.
Victim Impact Statement
19No victim impact statement has been filed in this matter, but this must have been a frightening and distressing experience for Mr Moshi.
Objective Gravity of Offending and Your Moral Culpability
20Your attack on Mr Moshi was cowardly and gratuitous. It seems you involved yourself in the conflict at the apartment complex because of some misplaced sense of loyalty to your friends who were in attendance. It was the prosecution’s position that you received a tip-off from Mr Selimovski, communicated by his sister, your then girlfriend, to the effect that there was trouble at the apartment complex. This is disputed by you. You maintain that you attended at the apartment complex because there was a party, and for no other reason. I am not able to find beyond reasonable doubt that you were aware there was conflict occurring and attended in order to involve yourself. However, your offending remains objectively serious and your moral culpability high.
21Once there, you not only involved yourself, but you took it upon yourself to assume the leading role in the escalation of violence that occurred. You armed yourself with a knife, and you were the one who stabbed the victim. You ambushed him when he came out of the escalator and lunged at him with your knife. At the time you stabbed the victim, he was posing no threat to anyone. This is clearly depicted in the CCTV footage.
22The victim’s injuries were life-threatening on the night. You inflicted a penetrating injury which punctured his kidney and required hospitalisation and surgery. I have not received any updated medical evidence about the victim’s progress. On the information I have, my assessment of the victim’s injury is that it is in the low to mid-range of seriousness for a serious injury, but this is just one matter to be taken into account in the assessment of the gravity of the offending.
23You were on a community correction order at the time of your offending. You were sentenced at the Heidelberg Magistrates’ Court on 6 February 2020, so only around six weeks earlier, to a two-year community correction order in combination with 94 days’ imprisonment, already served, for dishonesty, driving and drug offences. You were on bail when you committed those offences. Your current offending occurring when you were on a community correction order is an aggravating circumstance which I take into account.
Personal Circumstances
24I turn now to your personal circumstances and, in doing so, I refer in the main to the report of Sandra Cokorilo, psychologist, who assessed you on 10 July 2020 and 25 August 2021, and who prepared reports dated 16 August 2020 and 15 September 2021. Those reports were tendered at your plea.
25You were born in June 1999. You were 20 when you committed these offences and you are presently 22. You were born in Iraq. Your parents are both Iraqi. You have a younger sister and brother. Your family fled Iraq in 2005, arriving in Australia in 2009. You spent the better part of the next two years in detention. You arrived in Melbourne when you were 12 years old.
26Your childhood was traumatic. You have witnessed a lot of violence; first, in the conflict in Iraq, then in the family home where your father was violent to your mother and to the children, including you. You have always had a good relationship with your mother and with your sister. You are highly protective of your younger sister.
27You began school for the first time when you settled in Melbourne. You struggled, not speaking English, and you were bullied. You were moved by your parents to a different school around two years later when you were in year 9, but again, you did not apply yourself to your education and you got into fights. You only stayed the year, leaving in year 9 to begin a construction course. You ended up, with the assistance of a youth justice worker, going to Mill Park College and completing year 10 there.
28You have numerous appearances in the Children’s Court, beginning in March 2015 when you were 15 years old. Your offending includes dishonesty, drug, driving and violent offences. You have spent time in youth justice detention, including a stint of 12 months for offences of armed robbery, aggravated burglary, theft of a motor vehicle and criminal damage. You were sentenced to another four months at a youth training centre in October 2017 for offences of theft, burglary, handling stolen goods and driving while suspended, committed when you were on bail. Your final appearance in the Children’s Court was in April 2018 when you were fined for speeding. Your only prior appearance in the adult jurisdiction is your appearance at the Heidelberg Magistrates’ Court in February 2020, when you were put on a community correction order in combination with time served, and which has already been discussed in these reasons.
29You began using cannabis and methamphetamine when you were 15 years old. You started using cocaine at 16, becoming highly addicted and using daily.
30You have been in a relationship with a woman called Sebell with whom you have fraternal twins, now aged three years old. You described your relationship as ‘toxic’. You have separated. Prior to your incarceration, you had regular contact with your children.
31You have had a sporadic work history. You were working with your father in a painting business that you started together, but because your father has become unwell and you are incarcerated, that business has floundered. I am told by your counsel, Mr Nibbs, that you have become interested in cooking and hope to pursue a career in cooking when you are released from jail.
32You reported to Ms Cokorilo that you struggle with your mental health. You told her you had been diagnosed with depression and anxiety at the age of 15 and that you were prescribed an antidepressant which you stopped using in 2020 because it was causing you to gain weight. You told her you experienced a further decline in your mental health when you separated from your partner in 2019. You told her you were seeing a psychologist in custody for a short time but you are not participating in any mental health programs in custody.
33I interpolate to note here that a report by Mr Phil Gibbs from the Mental Health Community Corrections Screening Program at Heidelberg Magistrates’ Court states that you have had no registration with mental health services in Victoria in the past.
34Ms Cokorilo in her August 2020 report gives the opinion that you have a primary diagnosis of post-traumatic stress disorder (‘PTSD’) referable to your childhood trauma and hitherto untreated and, subsequent to your relationship breakdown, you experienced an episode of major depressive disorder (‘MDD’). She also opined that you have stimulant use disorder and cannabis use disorder.
35In her subsequent report of 15 September 2021, Ms Cokorilo assessed you in August 2021 after you had been remanded back into custody in January 2021. You told Ms Cokorilo that you were experiencing a deterioration in your mood since going into custody. Nevertheless, she found your mental health improved, with your depression, anxiety and stress symptoms within a normal range and your PTSD symptomology reduced to subclinical levels. You told her that you were now feeling positive about the separation from your former partner and that you now believed ending the relationship had a positive effect on your mental health.
36Given the positive improvement noted in Ms Cokorilo’s second report, there was no submission made to me that Verdins principles were engaged in sentencing you.[1]
[1] R v Verdins (2007) 16 VR 269 (‘Verdins’).
37You have committed subsequent offences.
38You were remanded for the offence for which you now fall to be sentenced on 26 March 2020 and were granted bail on 19 August 2020. Your bail was revoked on 21 January 2021. On 26 April 2021, you were sentenced in the Magistrates’ Court to four months’ imprisonment.
Submissions of Prosecution and Defence Counsel
39I turn now to the submissions of the parties.
40Mr Devlin, who appeared to prosecute, submitted that this was serious offending which called for the imposition of a head sentence and a non-parole period.
41Mr Nibbs submitted that you had had a difficult life. He made no submission that Bugmy principles were engaged,[2] but submitted that in accordance with general sentencing principles, your offending had to be viewed in the context of your background, which of course I will take into account in sentencing you. He submitted that you were still a young man, and although you had committed a serious offence, he urged me to consider a sentence of imprisonment in combination with a community correction order. He submitted that in the current conditions inside prison necessitated by the COVID-19 pandemic, there was little that could be put in place to foster your rehabilitation. He submitted that you have reflected on your situation and are now wanting a more positive future.
[2] Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).
Consideration
42Your offending was serious. I consider the sentencing principles of general and specific deterrence, denunciation, and community protection are all engaged in sentencing you.
43I regard your prospects of rehabilitation as guarded at best, given your criminal history and your offending in breach of court orders and in breach of bail, although, on the other hand, you have made progress in custody, abstaining from drugs, which has seen an improvement in your mental health. You have completed a number of courses and you are working as a cook. A number of certificates were tendered subsequent to the plea and I exhibit them on this plea, and I have had regard to them. You are still a young man and fostering your rehabilitation remains an important sentencing consideration.
44I take into account the current difficult conditions in prisons given the restrictions put in place to deal with the COVID-19 pandemic.
45I had you assessed for a community correction order. You were assessed as suitable. However, while a community correction order is punitive in nature, its punitive element is insufficient to reflect the gravity of your offending. I am satisfied that I have no alternative but to impose a sentence of imprisonment. It is appropriate that there be a head sentence and a non-parole period.
46The Court must send a clear and unequivocal message that the community will not tolerate wanton acts of violence by young men involving weapons and occasioning serious injury.
47On charge 1, recklessly causing serious injury, you are sentenced to a term of three years’ imprisonment.
48This makes a total effective sentence of three years’ imprisonment. I am directing that you must serve a non-parole period of two years.
49Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of five years, with a non-parole period of three years.
50Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 303 days of the sentence I have passed upon you and I direct that this be entered into the records of the Court.
51I make the disposal order sought by the prosecution.
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