Director of Public Prosecutions v Iramiyan
[2021] VCC 1220
•27/8/2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00497
CR-19-00498
CR-19-00499
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH IRAMIYAN, JORDAN SEMMENS, & BRETT TYRRELL |
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JUDGE: | RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 04/05/21, 05/05/21, 17/8/21 & 23/8/21 | |
DATE OF SENTENCE: | 27/8/2021 | |
CASE MAY BE CITED AS: | DPP v Iramiyan & Ors | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1220 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW -- Sentence -- Intentionally Causing Serious Injury in Circumstances of Gross Violence -- Affray
Catchwords: Intentionally Causing Serious Injury in Circumstances of Gross Violence – Affray – Three offenders – Unprovoked stabbing attack on sleeping victim in car – Serious facial and neck injuries – Lasting physical and psychological impact – Plea of Not Guilty – Mandatory Minimum Term – Special Reason – Impaired Mental Functioning – R vVerdins – Limited remorse
Legislation Cited: Crimes Act 1958 s.15A --Sentencing Act 1991 s.5(2G), s.10, s.10A
Cases Referred to: Gencev v The Queen [2021] VSCA 188 -- Nash v R [2013] VSCA 172 -- Chol v R [2016] VSCA 252 -- Cedic v R [2011] VSCA 258 -- DPP v Hudgson [2016] VSCA 254 -- DPP v Farha [2017] VCC 1386 -- DPP v Slatter [2019] VCC 938 -- DPP v Arias-Jones [2017] VCC 987 -- DPP v Whittle [2017] VCC 2017 -- Lukudu v Queen [2019] VSCA 248 – R vVerdins & Ors [2007] VSCA 102 – Veen (no 2) (1988) 164 CLR 465 – Stevens v The Queen [2021] VSCA 218
Sentence: Iramiyan: 7 years and 8 months imprisonment with non-parole period of 5 years 6 months imprisonment
Semmens – 9 years and 3 months imprisonment with non-parole period of 7 years imprisonment
Tyrrell – 9 years and 3 months imprisonment with non-parole period of 7 years imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Guesdon | Office of Public Prosecutions |
| For Mr Iramiyan | Mr A Hands | Emma Turnbull Lawyers |
| For Mr Semmens | Mr M Page | Greg Thomas Lawyers |
| For Mr Tyrrell | Mr M Habib | Papa Hughes Lawyers |
HER HONOUR:
Summary
1At about 8:45am on the 11 August 2018, 25 year old Jarryd Wilson was asleep in a car when you Joseph Iramiyan, Jordan Semmens, and Brett Tyrrell attacked him and seriously injured him. It was a most cowardly attack, committed in company on a sleeping and defenceless victim trapped in a car. It was unprovoked and vicious, involving the infliction of multiple stabbing injuries to his face and neck. The consequences for him were potentially life threatening and serious. He managed to escape the car and stumble across a car park before collapsing. You three then left him for dead.
2The courageous and compassionate acts of nearby residents who heard the commotion and came to administer first aid to Mr Wilson almost certainly saved him from more serious injury and possibly saved his life.
3Those events were captured on CCTV footage.
4You each cross-examined Mr Wilson at a Committal and then ran a Trial over 11 days. On 16 February 2021 a Jury found you each guilty of one charge of Intentionally Causing Serious Injury in Circumstances of Gross Violence, and one charge of Affray.
Background
5Mr Wilson thought you were his friend Mr Iramiyan. He called you Joe. He knew you through your mutual friend Ibrahim Ali. He had no association or acquaintance with either of you Mr Semmens or Mr Tyrrell. However you are both friends of Mr Iramiyan.
6On Friday 10th August 2018, the victim Mr Wilson and Mr Ali were together at a Hotel where they won about $6000 on the pokies. Police attended the hotel and arrested Mr Ali in relation to an unrelated matter. Before being removed Mr Ali gave Mr Wilson his belongings including his cash winnings. Mr Wilson left the hotel and went to your house in Coburg Mr Iramiyan. You lived there with your partner Hollie Nelson. Mr Wilson left the money with you.
7The next day, Saturday 11th August 2018, Mr Wilson contacted Mr Ali’s girlfriend, Ms Katya Brosca. Mr Wilson said he was hoping to broker some sort of peace or be a mediator over relationship issues between Mr Ali and Ms Brosca.
8Later in the evening he and Ms Brosca met up in Collingwood. They talked and drove around throughout the early hours of the morning in Ms Brosca’s black Mazda CX-7. Ms Brosca overheard Mr Wilson talking on the mobile phone to you Mr Iramiyan. You were arguing and she could hear you saying to Mr Wilson “How could you meet up with her?”
9They drove to Mr Ali’s apartment to check it was secure. Shortly afterwards you, Mr Iramiyan arrived at the apartment with Hollie Nelson. You and Mr Wilson had an argument about why you were both there. He described a bit of animosity between you. He became suspicious of you and asked you for the money he had left with you, but you said you didn’t have it on you. You said you would park the car and return however you and Ms Nelson drove off, leaving Mr Wilson there.
10Mr Wilson returned to Ms Brosca’s vehicle. She again overheard Mr Wilson on the phone speaking with “Joe” and that you were arguing about her and why Mr Wilson was with her. At one stage Ms Brosca and Mr Wilson smoked some “ice”. They then drove towards the Duke of Edinburgh Hotel, at 430 Sydney Road in Brunswick.
11Mr Wilson suffers narcolepsy and at some stage during the drive he fell asleep in the front passenger seat of the car. Ms Brosca was unable to wake him.
12When Ms Brosca arrived at the Duke of Edinburgh Hotel she parked her black Mazda in the rear carpark, close to the entrance so she could keep an eye on Mr Wilson. She then entered the venue to use the bathroom and play the pokies.
Offending
13The following is captured on CCTV within and outside the hotel.
14As Ms Brosca played the pokies, you, Mr Semmens and you Mr Tyrrell walked into the hotel via the rear entrance. She recognised you both as friends of Mr Ali. Ms Brosca observed you, Mr Semmens to be visibly agitated. Both of you were asking her who she was with.
15Shortly afterwards Hollie Nelson’s silver Mazda, driven by you, Mr Iramiyan pulled into the rear carpark. You got out and walked to the rear entrance, glancing towards Ms Brosca’s black Mazda. Once inside the hotel, you said to Mr Semmens and Mr Tyrrell “He’s in the car outside”. You, Mr Semmens and you, Mr Tyrrell immediately left via the rear entrance. You, Mr Iramiyan spoke with Ms Brosca. You were yelling at her accusing her of giving Mr Wilson Mr Ali’s house key.
16You Mr Semmens and you Mr Tyrrell walked outside and past the black Mazda and across the car park. However Mr Iramiyan you came outside and it is apparent on the CCTV footage that you called Mr Semmens and Mr Tyrrell back and pointed them in the direction of Mr Wilson in the black Mazda.
17You, Mr Tyrrell approached the driver’s door, and you Mr Semmens stood at the passenger door. You both began punching and banging on the vehicle. You, Mr Iramiyan walked over to the Mazda and also stood by the passenger side. As you surrounded the car, all three of you were yelling at Ms Brosca to unlock the door.
18She manually unlocked the driver’s door and as she did so you Mr Iramiyan can be seen taking a silver metal pole of some sort out of your pants pocket. You, Mr Tyrrell forced yourself over the top of Ms Brosca and into the car. You immediately started assaulting Mr Wilson inside, likely stabbing him to the right side of his neck. At the same time, you, Mr Semmens leaned into the passenger side of the Mazda and began assaulting Mr Wilson from that side. While this was occurring, you Mr Iramiyan leant into the car over Mr Semmens and then stood nearby with the metal pole in your hand.
19Mr Wilson described in evidence that his next memory was of waking up to a sharp pain across his neck. He put his hand to his neck and realised it was bleeding. He saw a figure at the passenger door towering over him and saw a knife coming towards him. He raised his hand, which was then cut. He described the knife entering the left side of his face. He described seeing two people and two weapons. One of the two males said something to the effect of “Are you ready to die” or ‘Are you willing to die” or “Get ready to die”.
20Mr Wilson described managing to undo the seat belt and push himself with all his might into the back seat. The CCTV footage shows you Mr Tyrrell pursuing him and leaning from the front seats into the rear of the car with your feet visible on the middle console. Mr Semmens at that point you stepped back and can be seen wiping your hand on your pants, likely from a cut to your thumb.
21Ms Nelson who had driven the silver Mazda nearby, and Ms Brosca were both screaming at you all to stop. Ms Brosca observed you, Mr Iramiyan step away from the assault to calm Ms Nelson, but stated that you, Mr Semmens and you, Mr Tyrrell continued for a further minute or so. The CCTV timer indicates that the assault lasts for approximately 2 minutes.
22Mr Wilson was able to crawl out of the rear side of the Mazda and fell onto the ground. There was blood pouring from his face from the open wounds. I find that as he was on the ground you Mr Tyrrell further assaulted him by kicking or attempting to kick him. I make that finding on the basis of the pooling of Mr Wilson’s blood in that location, suggesting he lay there for a period of time; on the observations made by a witness that he saw a stocky man in a black t-shirt and with shaved or bald head thrashing his legs towards something or someone on the ground between the cars; and on the basis of your bloodied handprints in that location on an adjacent car.
23I find that during the course of the assault Mr Wilson was cut multiple times to both sides of his face and to the right side of his neck with bladed instruments, causing him serious injuries. I find those injuries were caused by you Mr Semmens and you Mr Tyrrell. I cannot make conclusive findings about which of you caused which injury. All three of you are complicit in the offending. The offending was committed in circumstances of gross violence, namely the serious injury was caused in pursuit of your arrangement, agreement or understanding with both other offenders to inflict serious injury on Mr Wilson. (Charge 1 intentionally causing serious injury in circumstances of gross violence)
24A number of witnesses heard or observed the fighting in the carpark and made observations consistent with the CCTV footage. They describe the screaming and yelling, the activity around the cars and seeing the injured victim emerge. Ms Brosca describes Hollie Nelson as screaming and hysterical. She described herself as ‘freaking out’. The charge of Affray of which the jury also found you guilty reflects the capacity for your violence to cause terror to members of the public. (Charge 7 – Affray)
25Mr Wilson managed to stumble to a concrete island in the centre of the car park and collapsed face forward to the ground.
26Mr Tyrrell you took Ms Brosca’s bag from the black Mazda and told her to get in the silver Mazda. You, Mr Iramiyan told your co-offenders they needed to go. At one point Mr Tyrrell you got back out of the silver Mazda and moved aggressively towards where Mr Wilson was lying on the ground. You Mr Iramiyan directed Mr Tyrrell back into the silver Mazda, using the metal pole. You all eventually got into that vehicle and you, Mr Iramiyan drove away.
Mr Wilson’s injuries
27From the concrete island, Mr Wilson managed to get up and move across to the rear area of a shop where he again collapsed. He said he felt very cold.
28Mr Travis Robb, resident of a nearby apartment overlooking the carpark had heard and observed the altercation and heard screaming. He saw Mr Wilson emerge from between the two vehicles and could see even from his distant vantage point that he was covered in blood. He watched him stumble and collapse in the gutter. He called 000 and went to his aid. When he got to Mr Wilson others were already attending him. He described ‘massive cuts’ and ‘blood everywhere’. Mr Robb waited in the car park in order to direct police and ambulance to Mr Wilson.
29Mr John McDaid, resident of a nearby apartment building awoke to the sound of a female screaming and males yelling. He went out to his balcony where he recorded footage of this event on his mobile phone. That footage captured the silver Mazda which was of assistance to police in identifying you as the offenders. He then called out, offering his help and asking what was needed. He took towels and water to assist with first aid for Mr Wilson.
30Mr Joshua Hall was visiting a friend who lived near the Duke of Edinburgh. He heard shouting and a woman’s voice screaming. He said “I realised it was serious so I went to go and help.” He walked into the car park around the time you three drove away. Aware that he had been seen and was a potential witness, he nonetheless followed the direction of Mr Wilson and found him on the ground being attended to by shop keepers. He said “I straight away jumped in to help try to stop his bleeding, because it looked like he was cut from his forehead down his face and down his neck …. I just applied pressure to his wounds and was asking what his name was and trying to keep him conscious…. He was definitely in shock and completely …white in the face, but he remained conscious, but we didn’t get much information out of him.”
31Mr Hall and Mr McDaid both remained with Mr Wilson, applying pressure to his injuries for about 10 minutes until the police arrived. Mr Wilson described at that point thinking he was going to die, and of feeling lonely, and said “the next memory I have is of a good Samaritan coming up… he held a towel to my head.” Mr Hall, Mr McDaid and Mr Robb, along with two shopkeepers, were each good Samaritans on this occasion. They are to be commended for their willingness to assist.
32Once police arrived Constable Adam Read took over the first aid, applying pressure to Mr Wilson’s injuries for another 10 minutes until the ambulance arrived. Senior Constable Disken maintained a crime scene around the black Mazda.
33Paramedics arrived and took over. At 9:09am Mr Wilson’s blood pressure which was 69 on 25, and 10 minutes later 63 on 34, was dangerously low. They instituted intravenous fluids. He was treated for haemorrhage and given pain relief and transferred to the Royal Melbourne Hospital. Constable Read accompanied him in the ambulance.
34On arrival at the RMH Mr Wilson’s blood pressure was still ‘dangerously low’ as the result of significant blood loss causing haemorrhagic shock. According to expert witness Dr Rachel Marr medical treatment may have been lifesaving.
35He was observed to have the following injuries:
a. Multiple deep incision wounds observed on each side of the face;
b. An incision extending from the left side of his forehead, past his left eye, running down his left cheek and past the left side of his mouth;
c. A lengthy incision under the right side of his jaw;
d. Small incisions to his internal lower lip, right temple, and right middle finger;
e. An incision injury to his left little finger;
f. Reduced sensation to left side of face including a left sided facial droop.
36Mr Wilson was admitted under care of the Trauma team and underwent surgery by the Plastics Team on 13th August 2018.
a. Three branches of the facial nerve on the left side of Mr Wilson’s face had been completely severed and were repaired;
b. The left salivary gland duct had been severed and was repaired. A stent was inserted to keep the gland open while it repaired;
c. Open wounds to the left and right side of his face and neck were sutured closed.;
d. In his left little finger 80% of the tendon along with the ulnar digital artery and digital nerve had been severed and were reattached and repaired;
e. A small wound to his right middle finger was sutured closed.
37Mr Wilson has been left with asymmetry or facial droop on the left side of his face and left side of his mouth. His right eye appears less open than left, indicating possible eyelid droop caused by reduced muscle tone.
38Expert witness Dr Marr opined that despite timely repair of facial nerves it is possible Mr Wilson may be left with long term cosmetic and functional deficits. She stated once 12 months is passed ‘you’ve probably achieved as much as you’re going to get in terms of healing.’
Subsequent events
39Inside the silver Mazda, you, Mr Semmens and you, Mr Tyrrell were laughing about what you had just done. Ms Brosca described you Mr Iramiyan ‘asking the two boys why they did what they did.’ You, Mr Semmens pulled out a flick knife. You had blood all over your hands and said you had a cut on your thumb. You gave the knife to Mr Tyrrell who threw it out of the car window.
40Mr Iramiyan you drove the group to an apartment complex in the Melbourne CBD. After an hour or so you Mr Iramiyan exited those premises with Ms Nelson and Ms Brosca. You drove back to the Duke of Edinburgh Hotel hoping to collect Ms Brosca’s vehicle, however police were in attendance, so you continued to your home address in Coburg. Ms Brosca was collected by a family member Roland Fewtrell. Mr Fewtrell on hearing what had occurred drove Ms Brosca to Fawkner Police station where she provided a detailed statement outlining these events.
Police investigation
41The black Mazda was observed to have a damaged windscreen and the hazard lights were on. There was blood at various points inside and around the vehicle.
42The CCTV footage as well as forensic examination of various items and the registration of the silver Mazda led police to you three.
Arrest and interview – Iramiyan
43Police attended at your home Mr Iramiyan on 12th August 2018. $6600 in cash was found. You were arrested and interviewed. You told a number of lies. You denied having anything to do with the fight which occurred; you denied knowing Mr Semmens and Mr Tyrrell; you denied knowing the victim; you claimed to be trying to stop the fight and said you were trying to hit one of the men to separate them; that you were swinging your arms to try and stop them.
44You struggled to explain why you left with Mr Semmens and Tyrrell, and why you are seen on CCTV footage at an apartment complex in the city with your co-offenders. You claimed the $6000 cash found at your premises, and consistent with Mr Wilson’s version of events, was your savings.
45The jury by their verdict rejected your explanations.
46Rather tellingly, you stated that your girlfriend Hollie knew Ms Brosca would be at the Duke of Edinburgh Hotel and that she would be gambling. You said you went there ‘to tell her not to gamble and also to see who she was with’ as she was going out with your friend Ibrahim Ali. You said ‘She’s going out with a friend of mine and they’re having problems at the moment…. just to see if she was like up to something with another person.’
47You admitted that during the assault the victim was not fighting back; and that something ie. flesh was hanging off his face. You became emotional describing his injuries. You said you had never seen blood like that in your life and described the assault as ‘pretty brutal.’ Again, rather telling is your admission that the victim looked ‘like he died in front of you’, a recognition of the seriousness of his injuries at the time you fled the scene and left him.
Arrest and Interview – Semmens
48On 16th August 2018 you, Mr Semmens were arrested in a bungalow at premises in Ardeer. You were in possession of the driver’s licence of Ms Brosca. You made a no comment record of interview. You were observed to have a bandaid on your left thumb.
Arrest and Interview – Tyrrell
49On 11th September 2018 you, Mr Tyrrell were arrested in a vehicle in North Melbourne. You gave a “no comment” record of interview.
Sentencing Principles
50To say this is serious offending is to state the obvious. The seriousness is reflected in the maximum penalty of 20 years imprisonment. Affray carries a maximum penalty of 5 years imprisonment.
51Parliament has also declared that the offence of Intentionally Causing Serious Injury in Circumstances of Gross Violence is a Category 1 offence pursuant to s.5(2G) of the Sentencing Act 1991. Thereby, an offender must be sentenced to a period of imprisonment without a Community Correction Order.
52In addition, the charge of Intentionally Cause Serious Injury in Circumstances of Gross Violence attracts a minimum non-parole period of 4 years pursuant to s.10 of the Sentencing Act 1991 unless special reasons exist pursuant to s.10A. No special reason was proffered in relation to you Mr Semmens and Mr Tyrrell. On behalf of Mr Iramiyan, Mr Hands submits a special reason exists by way of impaired mental functioning. I will return to those issues in due course.
53The sentence I impose on each of you must generally deter other offenders from carrying out attacks such as this. It must express the Court and the community’s denunciation of such vicious and abhorrent violence. It must also deter you each from committing any similar offence in future and must punish you for this offending.
54People who plan to inflict serious injury together on another person, regardless of any purported reason, must be dealt with sternly. Here it seems the reason for you Mr Iramiyan was related to the victim being in company with your friend’s girlfriend. In relation to you Mr Semmens and Mr Tyrrell there is no evidence of any grievance with the victim. Your involvement remains unexplained. The level of violence inflicted by the two of you is even more difficult to comprehend in those circumstances.
Objective Gravity of the Offending
55The offence of intentionally causing serious injury in circumstances of gross violence was introduced to the criminal calendar in Victoria in 2013. There are few higher Court decisions considering that offence. Where they exist they tend to be in quite different circumstances.[1]
[1] See for example Gencev v The Queen [2021] VSCA 188
56However, there are numerous higher court authorities regarding the offence simpliciter – that is without the circumstances of gross violence – and which are instructive.
57In determining the objective seriousness of this offending, I am guided generally by the comments of His Honour P Maxwell in the 2013 decision of Nash v R[2] where the court considered an appeal against sentence for a charge of intentionally causing serious injury.His Honour identified a list of factors routinely taken into account in assessing the gravity of instances of offences of intentionally causing serious injury. They are:
· The proven intent: was it to cause serious injury, or really serious injury, or the maximum possible injury?;
· The seriousness of the injury actually caused including both the immediate and long-term consequences for the victim;
· The vulnerability of the victim;
· Whether a weapon was used;
· How long the attack lasted; and
· Whether it was committed alone or in company.
[2] Nash v R [2013] VSCA 172
58That list is descriptive rather than prescriptive. It was intended to provide a useful framework for a sentencing judge, and with the stated aims of achieving consistency in sentencing and enhancing public confidence in the criminal justice system.
59The Court of Appeal in the 2016 decision of Chol v R[3] referred to that list and stated that the first two factors will ordinarily be key indicators of seriousness whereas the presence of one or more of the other factors would likely aggravate the seriousness.
[3] Chol v R [2016] VSCA 252
60In Nash a sentence of 7 years imprisonment after a plea of guilty by a person without relevant prior convictions was not seen to be manifestly excessive. In a 2011 case of Cedic v R[4] a sentence of 7 years 6 months was also upheld. The Court in Chol looked at sentences in other cases involving the causing of serious injury intentionally and stated that Nash and Cedic should be seen as yard sticks against which to examine a proposed sentence for an offence of intentionally cause injury in that category of seriousness.
[4] Cedic v R [2011] VSCA 258
61What the discussion in Chol demonstrates is that although comparison with other cases assists in determining current sentencing practices, invariably there are examples of less and more serious instant offences and that those factors, coupled with the particular mitigating or aggravating personal circumstances of the offender will necessarily result in sentences of varying lengths.
62Similarly in Nash, His Honour JA Priest stated that experience shows the circumstances of the commission of the offence of intentionally causing serious injury are almost infinitely variable and thus sentences will vary.
63None of those cases, nor the cases to which they refer, dealt with the additional layer of circumstances of gross violence. The first occasion that that offence was considered by the Court of Appeal was in the matter of DPP v Hudgson[5]. The court there referred to Nash and Cedic, and then stated “if anything s.15A with its additional element of gross violence makes it clear that the offence of intentionally causing serious injury in circumstances of gross violence must be viewed by the courts as being extraordinarily serious.”[6]
[5] DPP v Hudgson [2016] VSCA 254
[6] ibid at [85]
64The court noted that there is yet no established sentencing practice through appellate judgments for the aggravated form of intentionally causing serious injury. There are a number of decisions in this court to which I have had general regard[7] and to the Judicial College of Victoria summaries for intentionally causing serious injury. I have also had regard to s.6AAA declarations where relevant. Ultimately I must impose a just sentence in all the circumstances and that is what I have endeavoured to do.
[7] DPP v Farha [2017] VCC 1386; DPP v Slatter [2019] VCC 938; DPP v Arias-Jones [2017] VCC 987; DPP v Whittle [2017] VCC 2017
Objective Gravity
65In assessing the objective gravity of this offending, and with His Honour President Maxwell’s list from Nash in mind, I take into account the following matters.
66The circumstances of gross violence here, namely your mutual agreement that together with two others you would seriously injure this man, are a prominent feature of your offending. You arranged or agreed to inflict that serious injury together. You then carried out that planned assault together. Your group presence, surrounding Mr Wilson in the vehicle and attacking him simultaneously enabled that serious injury to occur.
67The fact that an offence of violence is committed in company is generally considered to be an aggravating factor in sentencing. Assaults which occur in company are more likely to be frightening, cowardly and fatal.[8] Here it is part of the agreement and therefore part of that additional element of gross violence. Therefore, that feature is not further aggravating but an element of the instant offence which elevated it to an offence of gross violence. I take those circumstances into account as part of the offending.
[8] DPP vTerrick [2009] VSCA 220
68Your offending was premeditated. I find that you Mr Iramiyan initiated and orchestrated the arrangement. That conclusion is supported firstly by the fact that there was no connection between Mr Semmens and Mr Tyrrell to the victim. Secondly it is supported by your behaviour Mr Iramiyan, observable on the CCTV, namely, you look to see Mr Wilson in the car when you arrive; you tell your co-offenders that he is outside in the car; and when you go out, you direct them to him.
69In this case I cannot make any conclusive findings about the extent or duration of that planning, other than a conclusion that the decision to assault and injure him occurred some time within the preceding hours when you Mr Iramiyan became aware that Mr Wilson was in the company of Ms Brosca, and at a time prior to you all arriving at the Hotel. I make that conclusion on the basis that there is no discussion between you at the hotel other than those comments of Mr Iramiyan to which I have just referred. You all pursue your common purpose, immediately surrounding the vehicle and once the vehicle is open, immediately assaulting Mr Wilson with weapons.
70The assault here was sustained. It lasted for approximately 2 minutes, with almost of that time in the vehicle. The affray lasts longer until you drive away.
71The assault occurred in a public place where bystanders and witnesses who observed the violence and or its aftermath may be negatively affected.
72The victim here was extremely vulnerable – asleep and trapped in a vehicle. He had no forewarning and no capacity to defend himself.
73All three of you came armed with weapons for the purpose of carrying out this assault. That is a significant aggravating feature of this offending.[9] You Mr Semmens and you Mr Tyrrell were armed with a knife and another bladed weapon, clearly capable of inflicting the type of serious incision injuries which occurred. The serious injuries here were inflicted with those bladed weapons and reflect the intention of you both to inflict ‘really serious injury’ using the descriptor from Nash v R.
[9] Lukudu v Queen [2019] VSCA 248
74The seriousness of the offending is elevated by the fact that the injuries inflicted were to the face and neck of the victim. They were serious slashing injuries caused to multiple parts of his face and neck. In relation to his face they were inflicted on both sides. In relation to his neck the cut came perilously close to impacting his carotid artery. I do not take into account the potential for death of such an injury, but the fact that in targeting the face and head there is a higher potential for really serious injury, reflecting your intention. The basis of the charge here is that the serious injury caused was substantial and protracted. It is on that basis that I sentence you.
75You Mr Iramiyan carried a metal pole or retractable baton of some sort. I could not find you used it on the victim, however your behaviour in taking it out of your pocket in readiness as the car was opened demonstrates the reason for your possession of that weapon. That is, you were willing to at least brandish it at the victim if not use it on him. Once the car door is open you leaned in for that purpose, although it is unlikely you managed to hit him with it given the presence of Mr Semmens between you.
76The injuries inflicted were instant. Ms Brosca stated “…when I saw his face.. I couldn’t believe it. He was covered head to toe in blood. I saw a massive gash on the left side of his face. I felt sick.” Mr Wilson described being in agony at that point. He says he blacked out and was in and out of consciousness. He gave evidence that he couldn’t see and had lost vision. He described being disorientated and said, “I was on the ground for a long period thinking I was going to die.”
77His injuries required surgical repair. There were complications because of proximity to his eye and his carotid artery in his neck.
78The injuries inflicted have caused ongoing physical disfigurement for Mr Wilson. He has been left with obvious scars to his face and neck including a large scar underneath his jawline on the right side, a large scar extending from above his left eye to the corner of his mouth, a scar from the corner of his left eye to and over his left ear, and a scar on the right side of his face near eye level.
79He has been left with palsy or a facial droop to the left side of his face. He was unable to move the left side of his mouth and face for approximately 6 months. He continues to learn to use his face symmetrically. He gave evidence at trial that he has no feeling to the left side of his face from about the level of his cheekbone down to below his mouth. The facial droop is most apparent when he tries to smile. He stated that the cut to the area of the left side of his mouth took the longest time to heal. A sphincter muscle in his cheek and saliva gland was cut requiring a drain to be inserted in his mouth for approximately 8 months. It affected his ability to eat. There were complications with that injury and its healing and he re-attended the hospital approximately 6 times.
80He has numbness in his left finger, which has relevance in his work as a carpenter.
81He has also suffered the trauma of this event and the ongoing psychological sequalae. In his Victim Impact statement he described: how his scars will never heal, nor be unnoticed; how the scars present a constant reminder of these events, changing his life forever as he will never be allowed to forget what happened; how it causes him difficulty in his everyday life, including awkwardness in photos, difficulty in interactions and has generally reduced his confidence; that in every new interaction people comment on the scars, leaving him feeling “branded for life”.
82Mr Wilson stated that the psychological scars are more difficult to overcome. He has a diagnosis of Post-Traumatic Stress Disorder. He has overwhelming recurring thoughts and re-lives his experience of the incident; he re-lives the feeling and fear that he is going to die; the fear he experiences when dealing with anything that involves blood or knives, in unfamiliar situations, and which causes him trouble sleeping; his ongoing PTSD that has caused persistent psychological issues, including irrational outbursts of anger and difficulty trusting people - causing him to push away friends and family.
83Mr Wilson is an articulate and intelligent young man who gave his evidence about this traumatic and shocking event in a dignified, straightforward way. He returned at the plea to read his victim impact statement. In the circumstances, his statement is a measured one describing the life-changing impact of your serious violence against him.
84In assessing the seriousness of his injury for the purpose of sentencing, I am required to consider where Mr Wilson’s injuries sit in a spectrum of injuries. It is not in any way to detract from Mr Wilson’s experience. I am mindful that there are cases where the resulting injury is more serious for example where there is brain injury, paralysis or loss of limb function. The serious injury caused here is beyond a mid-range example of possible serious injury.
85My assessment of the objective gravity of this offending is that it is a serious example of an extremely serious offence.
86There is no doubt that this offending warrants significant terms of imprisonment for each of you.
Personal Circumstances of Mr Iramiyan
87Turning to your personal circumstances Mr Iramiyan. You were born on 1 April 1989 and you are now 32 years old, 29 at the time of the offending.
88Your mother is of Iraqi Christian background. She is 51 years’ old and suffers serious physical and mental health problems including epilepsy, anxiety, depression and heart problems. She is on a Disability Support pension. Before you went into custody, you were living with your mother and your partner Ms Nelson at your family home. You were acting as your mother’s carer.
89Your father is of Turkish Muslim background and worked as a refrigeration mechanic. He was a drug user and you describe him as an angry and abusive individual who was physically violent towards your mother and his sons. You told Psychologist Mr Ian MacKinnon -
“Dad used to hit me and my brother. We’d try to stop him from hitting mum. We’d have to escape the house to call the police. Police attended multiple times. He’d breach Intervention Orders and get locked up for it. It was a distressing childhood, lots of anxiety and conflict…As a kid, dad never took is anywhere. Not to sports, no camping. Dad was into drugs, heroin, choof. Now he’s calmed down a bit. He used to smash up the house. I think he’s on methadone. He still smokes cannabis.”
90Your parents separated about 10 years ago and you have had almost no contact with your father for some years.
91You have two siblings, an older brother and a younger sister, both married and both supportive of you, as is your sister-in- law.
92You describe wagging school during Year 7 and 8. You say every time you went home your family was fighting. You have basic literacy and numeracy skills at best and struggled recently to attempt an English and literacy course in custody. You cannot fill out forms and require help. You left Sydney Road Community School after year 9. You have minimal work-related skills and have not been in any paid employment since you were 20.
93In that context of disengagement with school and difficulties at home you started using drugs in your teenage years. In particular you have used cannabis since age 15. By the age of 17 years, you were smoking ice and cannabis on a habitual basis. That has been an ongoing addiction for you until your remand on these matters in 2018. You were ice affected at the time of this offending and report using for several days leading to it.
Mental Impairment – Verdins and s.10A Sentencing Act 1991
94Mr Hands on your behalf submitted that your mental health history enlivens the principles enunciated by the Court of Appeal in R v Verdins and also brings you within the special reasons provision of s.10A(2)(c) of the Sentencing Act 1991, thereby removing the mandatory minimum term of imprisonment.
95Relevantly that section as in force at the time of your offending provides as follows –
(2) For the purposes of section … 10 … a court may make a finding that a special reason exists if—
(c) the offender proves on the balance of probabilities that—
(i) at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender's culpability; or
(ii) he or she has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment;
96Your mental health history is as follows. You have received a Disability Support Pension for several years. According to the Statement of Intellectual Disability dated 23 December 2013, and in line with the definition in the Disability Act 2006 you have “significant sub-average intellectual functioning” and “significant deficits in adaptive behaviour” both conditions being present before you were 18 years old.
97Your General Practitioner medical records show that in 2014 you were placed you on a Mental Health Treatment Plan in relation to anxiety and ‘coping strategies’. In 2017 you were described by your GP as having ‘multiple psychological illnesses… and on psychotherapy behaviour treatment.’ These were not identified.
98Mr MacKinnon has assessed you twice – first in April 2019 and then in March 2021. His findings in those reports differ in a number of respects. In his 2019 report he assessed your functional intelligence and general cognitive functioning to be within the normal adult range. He was later provided with the Statement of Intellectual Disability and accepts the veracity of that assessment, thereby opining that you suffer a mild Intellectual Disability. There is no record of your IQ or relevant testing in either of his reports.
99In 2019 he assessed you as suffering chronic Post Traumatic Stress Disorder which “appears to have its antecedents in developmental traumas - especially his father's physical and mental abuse - and subsequent adverse experiences [assaults and exposure to violence] that have been a consequence of his involvement in a milieu that revolves around illicit substance abuse and associated criminality.”
100He says your chronic substance abuse has been a way of self-medicating chronic distress. He stated that your chronic PTSD which is of moderate intensity ‘subsumes a substance abuse problem, [and] significant anxiety and depression.’ Although he nominated a number of potential symptoms, he did not state whether you suffer any or all of them.
101In 2019 he concluded that you were suffering PTSD which made a “significant contribution to his offending, degrading his ability to reason and make sound judgement, elevating his impulsivity, lowering his powers of consequential thinking, lowering his frustration tolerance threshold, raising his propensity for delusional, paranoid, angry and aggressive reactions, and encouraging a self-destructive and self-absorbed perspective that lacked empathy and concern for other individuals or the wider community.” [emphasis added]
102In 2021 Mr MacKinnon stated that “at the time I re-assessed Mr Iramiyan, he was suffering a Psychotic Disorder (“PD”), type unspecified” perhaps “schizophrenia or a substance-induced psychosis or even an outcome of both.” [emphasis added] There was no explanation for the basis or foundation of that conclusion. There was no psychiatric assessment to confirm that opinion. In the same report he later stated that you were suffering a Psychotic disorder at the time of the offending.
103Ultimately in 2021 he referred to all three diagnoses and concluded,
“Mr Iramiyan’s ID, CPTSD and PD made a major contribution to his offending by severely degrading his ability to reason and make sound judgement, elevating his impulsivity, lowering his powers of consequential thinking, lowering his frustration tolerance threshold, raising his propensity for delusional, paranoid, angry and aggressive reactions, and encouraging a self-destructive and self-absorbed perspective that lacked empathy and concern for other individuals or the wider community. [Emphasis added]
104The two reports were filed with the Court on the afternoon before the plea.
105Mr Hands relies on the opinion of Mr MacKinnon to argue that the principles in Verdins are applicable to you. That is, he submits that as a man with a mild intellectual disability who also suffers CPTSD and PD, you have a mental impairment which has a nexus to your offending. As such he submits your moral culpability is lessened and that deterrence should be moderated, effectively calling in aid limbs 1-4 of Verdins. Although they are to be separately considered, these arguments overlap with the considerations under s.10A(2)(c)(i).
106The applicability of Verdins and s.10A(2)(c)(i) were challenged by the Prosecution. Ms Guesdon submits the unchallenged evidence about your dispute with the victim, along with your ice use were the causal factors behind your offending. She points to aspects of Mr MacKinnon’s report which relate to your chronic substance abuse. Those aspects are as follows.
107Mr MacKinnon confirmed you stated to him that “On the day, I’d been smoking ice and been up for four days. Mentally, I was in really bad shape. Paranoid, easily annoyed, impulsive.” And also that you reported “I wish I wasn’t there. Craziness on the day. On drugs, stupid. Wrong place, wrong time. I shouldn’t have done what I did. It was wrong.”
108You admit in a letter to the Court “My ice use led me to be involved with people I normally wouldn’t. Our common interest was drugs.”
109Mr MacKinnon in both reports also stated the following, “At the time of the offences, Mr Iramiyan was in a chronically distressed state and habitually using ice and cannabis.” And further, “In my opinion Mr Iramiyan possesses troubling antisocial and criminal traits, including occasional violent impulses. Mr Iramiyan is more likely to become aggressive and violent when he is abusing illicit substances.” In the 2021 report he adds, “illicit substances being likely to destabilise him and engender florid psychotic symptoms.”
110Neither party sought to have Mr MacKinnon called to give evidence.
111At a further hearing I raised my concerns as to the adequacy of the findings in Mr MacKinnon’s reports and whether defence counsel had established the necessary causal links to the offending and precisely how they related to the limbs of Verdins. Mr Hands sought to call Mr MacKinnon and Ms Guesdon supported that application so that he could be cross examined.
Viva Voce Evidence – Mr MacKinnon
112On 23 August 2021 Mr MacKinnon gave evidence. He confirmed he had not sought any collateral information from family or your GP. He did not have access to any prison medical records. In relation to your Intellectual Disability he confirmed that he relies on the Statement of Intellectual Disability though once aware of that condition he concluded it was consistent with your presentation. He confirmed yours is a mild intellectual disability, and difficult to differentiate from your learning difficulty, in particular your lack of literacy and numeracy.
113He confirmed his opinion relating to your diagnosis of ‘complex’ PTSD. He included the word ‘complex’ not to make a different diagnosis but to reflect the fact that your PTSD has arisen from several traumatic events in your formative years. He said in answer to leading questions you reported to him experiencing flashbacks and nightmares, anxiety and depression and that you were prone to getting angry easily and defensive easily and paranoid. He conceded paranoia, anger and defensiveness could at least in part be explained by methamphetamine use.
114In relation to his conclusion that you suffer from a Psychotic Disorder he confirmed this is based on the fact that you have been prescribed anti-psychotic medication both before your remand (Seroquel) and during your remand (Seroquel and Olanzapine). However, he conceded the anti-psychotic medication Seroquel may be prescribed as both an anti-psychotic and anti-depressant. He conceded depression and anxiety are the themes running through your medical records, and that the GP records refer to Seroquel being prescribed as a sedative. He believed olanzapine was only anti-psychotic.
Interplay of Drug use
115In relation to the interplay of illicit drug use, Mr MacKinnon gave the following evidence –
He's operating under the influence of post-traumatic stress disorder with significant substance abuse and bearing in mind that he was apparently using ice and cannabis, so quite strong psychoactive drugs. …
He was using them habitually, I believe, and sleep deprivation in itself - if he's been up for four days … then that in itself combined with his drug use and the negative features of his post-traumatic stress disorder in my opinion are likely to really significantly and substantially … affect … his ability to reason and make sound judgment et cetera. …
116Under cross examination Mr MacKinnon agreed that the offending here was goal directed and planned violence, though described it as a ‘classic over-reaction’ by a person behaving in a paranoid and distorted way. He also gave the following evidence –
Ms Guesdon: … if you accept Mr Iramiyan had some symptoms of post-traumatic stress disorder that he was self-medicating with methamphetamines to the point where he's got a substance-abuse problem … and that on this particular occasion he's been abusing that drug and been sleep deprived for four days that it's that in particular that has negatively affected his ability to make sound judgments and act in the way he did because he's ‑ ‑ ‑?---Yes, I would agree … ‑ ‑ ‑
‑ ‑ ‑ paranoid and aggressive?---Yes, I agree with that.
117And further -
In terms of the methamphetamine use on this occasion, has that … made a substantial and possibly the most major contribution, given that this may not have happened at all if he was not in the throes of a four day ice binge?---Yeah, I think that's probably likely, if he hadn't been abusing anything, … it wouldn't have happened, no.
Verdins Limbs 1-4 and s.10A(2)(c)(i) Sentencing Act 1991
118Ultimately I make the following findings. First, although I accept the existence of s.10A does not remove the need for consideration of Verdins, there is a deal of overlap. Both require the existence of a mental impairment and a nexus to the offending.
119On the evidence before me I do not accept that you suffer from a Psychotic disorder. That diagnosis in my view was speculative, based on the prescriptions of anti-psychotic medication which can equally be given for depression. Regarding your time on remand, there is no information regarding dose, frequency, duration or reasons for prescription. There was very limited evidence given by Mr MacKinnon regarding a report by you of hearing voices and distorted thinking. There is no reference in the GP medical records of any psychosis, psychotic symptoms or psychiatric disorder.
120However, I find that you had impaired mental functioning at the time of your offending as contemplated by Verdins and the cases which follow and as defined by s.10A(2)(c). You are a person with a mild intellectual disability. You are a person suffering complex post-traumatic stress disorder of moderate severity.
121The more difficult argument is whether your impaired mental functioning was causally linked to the offending. On balance I find that it was. That is, looking through the prism of your intellectual deficits, your reduced capacity for judgment and consequential reasoning and your lower frustration tolerance as described by Mr MacKinnon played a part in your offending.
122There is little doubt that your illicit drug use at the time exacerbated those deficits in your cognitive functioning. Although the fact of and likely impact of your drug use reduces the amount of moderation I will make to considerations of moral culpability and deterrence, it does not eliminate the fact that underlying your drug use is a mild intellectual disability and complex PTSD rooted in your early life experiences. I find that meets the test in Verdins, specifically that those matters invoke the application of limbs 1, 3 and 4. That is, your moral culpability is somewhat moderated by your mental impairment, as is the appropriateness of using you as a vehicle to generally deter others, and the applicability of specific deterrence.
123In my view the requirement for your impaired mental functioning to ‘substantially and materially’ reduce your culpability in s.10A(2)(c)(i) is a higher hurdle than Verdins. I do not find the level of your impaired mental functioning is such that it ‘substantially and materially’ reduces your culpability. Your intellectual disability is a background factor. Your complex PTSD is also a backdrop, though more influential on your behaviour. Those conditions with the overlay of significant drug use were operative factors. At most they result in a moderate reduction in your culpability. Therefore, you have not established a special reason pursuant to s.10A(2)(c)(i).
Verdins – Limbs 5 & 6 and s.10A(2A)(c)(ii) Sentencing Act 1991
124Principles 5 and 6 of Verdins, alongside section10A(2)(c)(ii) were relied on by Mr Hands. Mr MacKinnon in his 2019 report predicted you were likely to find imprisonment ‘especially arduous’ noting you had been attacked on two occasions and were suffering anxiety attacks for which you had twice been hospitalised. He stated your ‘PTSD is not likely to be ameliorated and may in fact regress.’
125In his 2021 report and in evidence Mr MacKinnon indicated that your mental state without illicit substances and with medication has in fact stabilised and that you may maintain that current stability, although you continue to suffer episodic anxiety attacks though none resulting in additional hospitalisation. He reiterates your CPTSD is not likely to be ameliorated and may in fact regress.
126I accept that you will find imprisonment more burdensome than a person without those conditions and that there is some risk that despite your positive progress to date, your mental health may decline. I accept therefore limbs 5 and 6 of Verdins are enlivened.
127The test pursuant to s.10A(2)(c)(ii) is more stringent. It requires a finding that your impaired mental functioning would result in you being subject to ‘substantially and materially greater than the ordinary burden or risks of imprisonment.’ While I accept your burden will be heavier than someone without an intellectual disability and complex PTSD, I could not find that the level of your impairment is such that the burden will be substantially and materially greater than the ordinary burden of imprisonment.
Conclusion
128Even if I am wrong in relation to my findings pursuant to s.10A(2)(c)(i) and or (2)(c)(ii), in all the circumstances of your case I find in any event that a minimum period of imprisonment beyond 4 years is nonetheless appropriate. The particular circumstances to which I am referring include the fact that you initiated the plan to inflict serious injury on the victim; that you participated in that plan; that you and your co-offenders were armed; that the victim was defenceless, asleep and trapped in the vehicle; that his injuries have resulted in long term impairment; that you were significantly drug affected; and that you have shown little if any remorse.
129In determining the appropriate length of both head sentence and non-parole period I must and do take into account the findings I have made in relation to Verdins. Any moderation to sentence in your case can only be modest. In relation to limb 1, your moral culpability in the absence of mental impairment considerations is extremely high. With moderation it remains high. In relation to limb 3 given the seriousness of this offending and your drug use at the time, the need for a sentence which acts to generally deter others cannot be eliminated and any reduction can only be moderate. In relation to limb 4, the need to specifically deter you is also high. Again, given the level of violence, your chronic drug use and what Mr MacKinnon described as your troubling antisocial and criminal traits, including violent impulses and your likelihood of becoming aggressive and violent when abusing illicit substances, moderation of that consideration can only be modest. Despite your impairments you are quite capable of understanding right from wrong and of appreciating the effect and requirement of punishment.
130As outlined in Veen (nos 1 and 2)[10], and referred to by the Court of Appeal very recently in Stevens v The Queen[11], features of mental impairment which point towards moderation of sentence may point equally towards the need for protection of the community. That is a prominent consideration in sentencing you. It is inevitable that some of the benefit from applying the principles of Verdins will be offset by the need to impose a sentence which achieves community protection.
[10] Veen (No2) (1988) 164 CLR 465
[11] Stevens v The Queen [2021] VSCA 218
Prior Criminal History
131You have a number of prior criminal convictions. The first, when you were 19 years old. You were convicted of theft, intentionally damaging property and associated offences and placed on a 12 month Community Based Order with 40 hours unpaid community work. Two months later you were placed on a concurrent CBO for dishonesty matters. You failed to complete those orders and committed further dishonesty offences including burglary. You were given another opportunity to complete the CBO, but a string of driving offences resulted in your eventual imprisonment and cancellation of the CBO. After your first term of imprisonment there was a gap of some years between 2009 and 2012 where you did not appear in any court. You offended again by driving, including failing to stop on police request. You drove while disqualified. Fines which were to be paid by community work were not met.
132In April 2017 for a raft of dishonesty matters including 7 burglaries, 16 deceptions, a range of driving offences and a charge of possession of amphetamine you were imprisoned for 3 months and then released to a 12 month CCO with an attached Justice Plan. Further appearances for dishonesty followed as well as intentionally destroy property, dangerous driving and failing to stop on request of police and in November 2017 you were sentenced to the equivalent of pre-sentence detention of 41 days and again released to a 12 month CCO. You were on that order at the time of this offending.
Totality
133I take into account the fact that you were also sentenced in September 2019 for driving offences, dishonesty offences including burglary and attempted burglary, and drug possession charges. You received a term of 5 months imprisonment.
Prospects of Rehabilitation
134In your favour, I find that you have no prior convictions for any offences of personal violence. This offending is out of character. You did not personally inflict any of the injuries on the victim here. You drew away from the immediate confrontation and you rounded up your co-offenders to get them to depart. That is notable in relation to Mr Tyrrell where you are shown on the CCTV footage directing him back into the car when he goes to pursue the injured victim. Once in the car I accept that you expressed some shock to your co-offenders asking them ‘why they did what they did’ and despite your untruths in your record of interview you were clearly troubled by the extent of injury inflicted on Mr Wilson. The jury verdict reflects a conclusion that you were part of the plan to inflict serious injury on Mr Wilson, and you are complicit in the overall offending, however I find on balance that the extent of that serious injury likely extended beyond what you personally had contemplated.
135You have remained drug free in custody. Urine screens conducted between December 2018 and September 2020 have all been negative for illicit substances.
136At the plea hearing I challenged your Counsel regarding remorse. Shortly after, I received a letter written on your behalf expressing remorse. That must be viewed very cautiously.
137I accept the comments of Mr MacKinnon that each time he assessed you, you presented as a genuinely distressed individual who is not proud of your criminal history. Further, that you expressed to him a sincere wish to change and rehabilitate. He says you have made positive progress during this lengthy period on remand and that you currently possess significant determination to comply with the law in the future. He opines that your psychological picture is complex and you will need professional assistance in order to achieve those aims. Your lack of literacy skills and vocational experience act as barriers to you making rehabilitative progress. You attempted a literacy and numeracy course in custody but discontinued. You must continue to take up opportunities within the prison system.
138You have the ongoing support of your mother and your partner and plan to live with them on release.
139I accept you understand the serious nature of your predicament and the fact that you must make efforts to engage positively in the community on your release. Your prospects of rehabilitation are reasonable. They will largely depend on your ability to withstand drug use.
Personal Circumstances - Semmens
140Turning to you Mr. Semmens. I have received a Psychological report from Ms Gina Cidoni dated 28 April 2021 and written submissions from your Counsel. I have also read letters written by your mother and grandmother.
141You have recently turned 33 years of age. You were born in Oakleigh, Victoria but your family moved to Footscray. You do not know your father. Your mother raised you on her own but with support of her mother, your maternal grandmother.
142Your mother worked various jobs to keep the family fed, including being a butcher and cleaner. She re-partnered when you were approximately 15 years old and you have three half siblings from that relationship. You got along with your step father, but you and your mother clashed. As a result you moved away from her to live with your grandmother. Your grandmother and mother have attended Court throughout these proceedings. They both write in support of you.
143You attended Footscray Primary School then various Secondary Schools. You were academically strong, at times being placed in accelerated learning programs. However, boredom and distraction meant you were barely attending. You were expelled from school in Year 11.
Drug use
144At ages 16-17 you lived in a share house with a friend. You began using cannabis but later stopped. You then began binge drinking, which you did until the age of 18. You experimented with ecstasy and amphetamine in a social context.
145Of significance, when you were 17 your best friend was struck and killed by a taxi driver. You were present and your friend died in your arms. The taxi driver was charged and you went through court proceedings. He was sentenced to 6 years imprisonment.
146Those events were traumatic for you and you report ongoing thoughts and dreams about them. Your mother has observed the impact of that event on you over time and reports you have never received counselling. Significantly your drug use increased at that time. Ms Cidoni opines that part of the escalation of your drug use was self-medication over that distressing event.
147Any stints of employment, with your uncle doing fencing for 6 months, at Hungry Jacks and in telemarketing were short lived. You were doing some short photography courses but those also stopped after your friend’s death. You report becoming reclusive.
148You had a relationship which ended due to your drug use. At the end of that relationship drug use became the primary focus of your life. From age 20 you were smoking ICE, using Xanax, ketamine and benzodiazepines. Psychologist Dr Aaron Cunningham in 2013 stated that you met the criteria for a Substance Use Disorder. You presented with a dependence to ice and in that context had symptoms of depression and anxiety.
149In late 2017 you went to Europe for about 10 months in an effort to rid yourself of your addiction. That was successful, however on your return to Melbourne your drug use soon recommenced. At the time of this offending, when you were 31, you told Ms Cidoni your drug use was ‘very high’. You were using approximately 1 gm of methamphetamine and 50 mls of GHB per day. Your GHB use started when you were 23.
150According to Ms Cidoni, your drug use has been employed to moderate your anxieties and personal inadequacies. She says on testing you have a Generalised Anxiety Disorder and Substance Use Disorder. Your anxious symptoms include behavioural edginess, apprehensiveness over trivial matters, pervasive social disquiet and worrisome self-doubts.
Prior Criminal History
151You have a prior criminal record dating to 2008 when you were 20. You have one prior appearance for a matter of violence. That dates to 2008 when you were placed on an adjourned undertaking to pay $600 to the court fund for unlawful assault and wilful damage. That was breached but extended in 2009. In 2012 you received a suspended sentence and CCO for offences of driving including driving while drug affected, and possession of a long arm category firearm and ammunition. A condition of your CCO was directed at your drug use. Those orders were breached. In 2013 you were placed on a further CCO for trafficking methylamphetamine, again with conditions aimed at your drug use. Those orders were again breached and in 2014 the suspended sentence of 9 months was reimposed cumulative on 6 months imprisonment for breaching offences including 23 charges of dishonesty including burglary. On appeal to this court in August 2014, you were sentenced to a total of two and a half years imprisonment with a non parole period of 15 months. You had served approximately 9 months pre-sentence detention. You were released on parole during 2015 but twice breached parole and returned to custody. That is your last sentence before the offending before me.
Prospects of Rehabilitation and need for Specific Deterrence
152You report abstinence from drugs during your lengthy period of remand. Initially you experienced heightened anxiety. You struggled with the lockdowns and report having panic attacks. In September 2020, you were fortunate to be granted bail on condition that you reside at a drug rehabilitation facility in Shepparton, called The Cottage and abide by their rules and directions.
153Letters authored by those conducting the program at The Cottage were tendered at your plea. Although there were some positives about your engagement with the program, you breached their rules by engaging in an intimate relationship with a co-resident. You were warned and withdrawn from the program for a week in November. On return all rules were spelt out to you again. Despite that warning and removal, you continued to disobey their rules. Your refusal to desist resulted in attitude and behavioural issues and you were removed from the program and returned to custody in December 2020. That was a golden opportunity missed.
154Your prior criminal history and your now chronic drug use speak to a need for specific deterrence. They do not bode well for your prospects of rehabilitation. Your level of drug fuelled violence on this occasion is disturbing. You have had numerous opportunities to address your drug addiction and have failed to do so. In particular, the opportunity given to you on bail in 2020 which was squandered. Your prospects of rehabilitation hinge on your capacity to fully address your drug use. In my view your prospects of rehabilitation are guarded given those matters.
155I do accept that you have now been abstinent for a significant period of time. Importantly you did not relapse after time on bail. I accept the positive comments in the letters from The Cottage to the effect that you expressed a strong desire to live a drug and offence free life and that you diligently worked to reduce your methadone dose in order to become fully abstinent.
156I also accept the comments from your mother and grandmother that you are talking positively about your life upon release and view it as a new chapter. They say you have had time to reflect. Your mother says you have always been a very positive, thoughtful person with empathy and compassion for people. She says “I did not recognise the person at all in the footage I watched in the courtroom as part of the trial.”
157You have been having contact with your family while in custody which is a positive. You will live with your grandmother on release. At 33 your family hope this lifestyle of drug use and criminal activity is behind you.
158You acknowledge the need to improve your skills in custody so that you can pursue employment in the community. You previously had a role as a canteen billet which is a position of responsibility in the prison setting. Accessing courses as a remand prisoner is not easy but you report being keen to enrol in some TAFE courses when you are able to do so. You have intelligence. I accept your comments to Ms Cidoni that you regret not taking advantage of what the Cottage offered you, and that you acknowledge needing help to address your drug addiction.
Lack of Remorse
159You said to Ms Cidoni that on seeing the photographs of Mr Wilson’s injuries you were disturbed and ‘felt very bad about it.’ Beyond that comment you have shown no remorse for your victim in this offending.
S.10A Sentencing Act 1991 - Special Reason
160Your Counsel properly conceded that there are no special reasons in your case which would call in aid any exceptions to the mandatory minimum term of imprisonment required by s.10 of the Sentencing Act 1991.
Totality
161In your case I take into account in a totality sense the fact that you served a sentence of 11 months imprisonment during the period covered by your remand. That sentence was imposed on 19 July 2019 for dishonesty offending which occurred in approximately 2017, as well as a range of drug possession charges relating to drugs found on you at the time of your arrest for this matter, and possession of false documents, a firearm and ammunition. 326 days presentence detention was declared. I cannot declare any of that period as presentence detention for the offending before me.
Personal Circumstances - Tyrrell
162You, Mr Tyrrell were born on 17 November 1989 – you are now 31, 29 at the time of the offending.
163You were born and raised in Melbourne, growing up in the Altona North area with your parents and twin sister. Yours was a positive family environment. Your father had worked on the docks but had been on workcover for some years due to an injury. Your mother worked for 20 years in an administrative role for an architecture firm in St Kilda before cleaning private homes and schools. You told Psychologist Mr Bernard Healey that you admire your mother for the way she provided for your family. Your sister is a general manager for a clothing company and her husband an electrician. Together they have a 2 year old daughter. Your mother and sister were present throughout the trial and I had the benefit of hearing evidence from your sister at your plea.
164I have read a number of references from those close to you – your mother, twin sister, partner, her mother, a family friend and former employer. They variously describe you as kind, caring, supportive and generous. It is difficult to reconcile your offending in this incident with the person they know. In many ways those references underline the corrosive effects of chronic drug use on a person.
165Growing up you were close to your grandmother and spent a great deal of time with her after school while your parents were working. She was clearly a loving and caring presence in your life and you were close to her.
166You attended school at Albert Park Secondary College until year 10. The school closed during your Year 11 and you moved to the Brunswick campus of RMIT. You completed a VCAL course through RMIT, and later obtained a Bachelor of Textiles from RMIT. You are artistic and have creative talent in design.
167During school you had assisted your mother by delivering pamphlets and working at Coles part time, and later QB in the city. You later worked in a scrap metal yard for approximately 3 years and then had a number of factory roles. Your mother says your life was on track.
168However, a growing drug addiction was unfolding. You began smoking cannabis in your early teens. Your drug use progressed to ecstasy and then methamphetamine when you were 17 and 18, smoking it in social settings. By 19 you were using ice daily. Your family paid for you to go to the United States to attempt to rid you of that addiction. There you used cocaine. On return to Australia your ice use recommenced after 4-5 months. Soon after, you obtained work again in scrap metal and then obtained a job cleaning milk tankers and similar vehicles. You managed to largely cease your drug use during your period of employment. I have read a reference from your former employer who has known you for 8 years. He describes you as a team player who made the workplace more efficient and who made positive connections with your co-workers.
169The real issues began after your grandmother died in December 2013 and then your father died suddenly in May 2014. He was an insulin dependent diabetic. He had had open heart surgery and remained in hospital for some time. He was released to home but after only a week and a half he suffered what was later diagnosed as a heart attack. He returned to hospital. You spent 2 days and 2 nights at your father’s bedside before your family made the difficult decision to turn off life support. He was 63. You were 24. You describe him as your best friend.
170Your mother, sister, family friend and former employer all describe the death of your grandmother followed by the sudden death of your father as the turning point of your life. Your sister says you withdrew and started to isolate from your family. She says it was like losing a brother as well.
171According to your self-report to Mr Healey your drug use escalated. You were using ice and heroin and eventually expanded into abusing Xanax and using GHB. Mr Healey says you are emotional still discussing your father’s death and have unsolved grief.
172You began a relationship around that time and mutual drug use became corrosive. You lost your job because your partner frequently attended your workplace. Your partner was asked to leave your family home because of your mutual addiction issues. You moved out with her to a unit in Yarraville. At one stage you and she lived with your sister. She described that situation ending quite badly. She said you were a different person. You were disconnected, uncommunicative and untrustworthy. Your current partner who has known you since 2016 describes your lifestyle at that stage as toxic.
173At the time of the offending before me you were using methamphetamine and a cocktail of drugs heavily. You describe your state under the influence of ice as if in a dream, like being in a fog. You do not however resile from taking responsibility for your involvement and role in this offending. Mr Healey describes your offending as having occurred in the context of ‘serious, alarming cocktail of ongoing drug abuse’.
Prior Criminal History
174Your sister says you were in and out of jail. You have only one prior appearance however the nature of charges, including committing an indictable offence on bail, suggest a number of incidents.
175The offending is relevant, involving a charge of recklessly causing injury as well as robbery and other dishonesty offences. The causing injury charge occurred in October 2015 and involved you assaulting a neighbour. He received a cut below his eye and bruises. You were bailed but committed further offences including the robbery which occurred at an ATM. On 15 July 2016 for those matters you were placed on a 12 month CCO with conditions directed at your rehabilitation. In addition, you were fined $5000 and ordered to pay compensation. I was told you completed that CCO despite significant ongoing drug abuse.
Totality
176You also appeared at Melbourne Magistrates Court on 10 October 2018. You were sentenced to a term of 3 months imprisonment for offences relating to your theft of a car, failing to stop that vehicle on police direction, failing to stop after an accident and failing to report a person injured, as well as reckless conduct endangering serious injury. That related to your collision where a pedestrian was injured. Charges of possessing a controlled weapon and possession of amphetamine heard at the same time, resulted from your arrest on the matter before me.
177That is not a prior matter though the driving related offending occurred in June 2018. I take it into account in the sense of totality.
Bail
178You were released on bail on 13 March 2019, however you were arrested on 23 March 2020 in relation to allegations of further offending. Those allegations are serious. They involve offences of aggravated burglary, intentionally causing serious injury and committing an indictable offence on Bail. They are currently before this Court on Indictment and your Counsel says you are likely to run a trial on those charges. If proven they would represent significant reoffending.[12]
[12] I do not take those unproven allegations into account as part of my assessment of prospects of rehabilitation.
Prospects of Rehabilitation and Need for Specific Deterrence
179Despite those allegations there were some positive signs for you when on bail. You returned home to live with your mother. You took on your role as uncle. You had some employment. You started a relationship which is positive. Your partner describes you as a support to her at a difficult time in her life. Her mother is supportive of you.
180You have ongoing contact with your family and partner almost daily. You will have their ongoing support on your release. They believe you can have a positive future. They say you are using your time to make a positive difference to yourself. Your partner says you are not the same person as when this offence was committed but are now working towards becoming a contributing member of the community.
181I received a number of certificates in relation to courses you have completed during your time in custody. Those relate to self-improvement, anger and drug addiction as well as a number of certificates from Kangan Tafe regarding Cleaning and Kitchen operations and Construction Pathways. Those are very positive steps along with your past history of employment.
182You have also worked as a kitchen hand during your time in custody and more recently were appointed as a Peer Support Educator and Listener.
183Nonetheless your Counsel described your prospects of rehabilitation as guarded. Given your role in this offending and chronic ice addiction that is correct. As with your co-offenders your success will largely depend on your ability to withstand the lure of drugs.
Remorse
184You have expressed remorse, importantly saying to Mr Healey that you hope the victim has made a reasonably sound recovery. You wish you could change the course of these events. Your family also report your remorse over your involvement in this offending. They variously describe you as regretful and devastated about your involvement. Your sister stated you have expressed remorse, not just over your predicament and the impact on yourself and your family, but that you have expressed remorse for the victim. She says you are upset that you could hurt another person in that way. I take that into account.
Special Reasons
185It was not suggested that any reason exists whereby the mandatory minimum period would not apply to you.
Common considerations
186The following comments relate to all three offenders.
Covid-19 Pandemic
187You have all served your periods of remand during the Covid-19 pandemic. That has been a difficult time for all persons in custody. It has involved quarantines. It has resulted in longer periods in cells. It has limited the availability of courses and activities. Importantly, it has meant family and friends who would otherwise visit in person have been unable to do so. For the most part, visits have been conducted online. That has impacted each of you, given you were receiving in-person visits prior to any lockdowns.
188Covid-19 has created heightened anxiety within the community generally, and in prisons where persons cannot make autonomous choices, that has been particularly difficult. I take those matters into account.
189In your case Mr Iramiyan I take into account your impaired mental functioning, in particular your anxiety and PTSD and the additional burden Covid-19 has added.
190Mr Semmens in your case I also take into account your level of anxiety as described by Ms Cidoni.
Delay
191On behalf of each of you your Counsel submitted that delay is a relevant consideration. Delay is ordinarily a mitigating factor for two reasons. First because an offender has serious criminal charges hanging over him or her for an extended period of time. Second, where an offender can show rehabilitation in the intervening period.
192Delay here is complicated by the fact that each of you elected to take your matter to trial. You did that despite an overwhelming Prosecution case. Limited offers were made to resolve these charges. The fact they were rejected does not absolve you from your part in the delay in finalising this matter. Sensibly Mr Page and Mr Habib conceded delay cannot be afforded much weight in the circumstances.
193I do however take into account the Covid related delay. That is, your trial was originally listed to be heard in early 2020. It was delayed because of the Covid-19 pandemic which resulted in suspension of all criminal jury trials for various periods. It was one of the first heard upon resumption, in February 2021. I take that delay into account.
194I also take into account on behalf of Mr Semmens and Mr Tyrrell that while I was originally intending to pass sentence on 17 August, the matter was further delayed to enable Mr MacKinnon to give evidence. I take that short additional delay into account.
195I take into account that delay creates uncertainty. I acknowledge the hardship to your families caused by the length of time finalising these charges and passing sentence.
196In relation to each of you, I accept that on the second aspect of delay you have each been drug free on remand. That is a significant step in the right direction towards rehabilitation. For each of you, that is a significant time period in the context of longstanding addiction. I take that into account.
Parity
197I am mindful of the issues of parity when dealing with co-offenders. Parity is an aspect of equal justice. There should be no unjustifiable difference in sentences imposed upon similar offenders for similar offending. The key words are 'unjustifiable difference'. That is because parity takes into account consideration of the offending and your roles but must also take into account your personal circumstances at the time and since. In that sense, equal justice may result in different outcomes.
198It was conceded at the plea that there is nothing in the case of Mr Semmens and Mr Tyrrell which would lead to a disparate sentence. In other words both your roles and personal circumstances are such that you should receive the same sentence.
199In relation to Mr Iramiyan, your sentence will be different. On consideration of the offending, the fact that you did not personally inflict the serious injury is largely balanced out by the fact you enlisted your co-offenders in commission of the assault and were yourself armed. However, I refer to and repeat my findings in relation to the ultimate extent of serious injury inflicted. The main difference in relation to you Mr Iramiyan are the findings I have made in relation to the applicability of Verdins principles. Those apply both to the head sentence and non-parole period. That fact will reduce your sentence to an extent.
Affray
200The affray charge is largely subsumed by offending which constitutes the charge of Intentionally Causing Serious Injury in circumstances of Gross Violence. Cumulation on that charge will be very modest but should reflect the separate offence.
Sentence - Iramiyan
201Mr Iramiyan, on Charge 1 – Intentionally Causing Serious Injury in Circumstances of Gross Violence you are convicted and sentenced to 7 years 6 months imprisonment.
202On Charge 7 – Affray you are convicted and sentenced to 2 years imprisonment. 2 months of that sentence will be served cumulatively on Charge 1.
203The total effective sentence is 7 years 8 months imprisonment.
204I direct that you are to serve a minimum term of 5 years and 6 months imprisonment before becoming eligible for parole.
205I declare that you have already served 959 days pre-sentence detention and that that period should be reckoned as having been served under this sentence.
Sentence - Semmens
206Mr Semmens, on Charge 1 – Intentionally Causing Serious Injury in Circumstances of Gross Violence you are convicted and sentenced to 9 years imprisonment.
207On Charge 7 – Affray you are convicted and sentenced to 2 years imprisonment. 3 months of that charge will be served cumulatively on Charge 1.
208The total effective sentence is 9 years 3 months imprisonment.
209I direct that you are to serve a minimum term of 7 years imprisonment before becoming eligible for parole.
210I declare that you have already served 668 days pre-sentence detention and that that period should be reckoned as having been served under this sentence.
Sentence - Tyrrell
211Mr Tyrrell, on Charge 1 – Intentionally Causing Serious Injury in Circumstances of Gross Violence you are convicted and sentenced to 9 years imprisonment.
212On Charge 7 – Affray you are convicted and sentenced to 2 years imprisonment. 3 months of that charge will be served cumulatively on Charge 1.
213The total effective sentence is 9 years 3 months imprisonment.
214I direct that you are to serve a minimum term of 7 years imprisonment before becoming eligible for parole.
215I declare that you have already served 615 days pre-sentence detention and that that period should be reckoned as having been served under this sentence.
Ancillary Order
216I propose to make the Disposal Order in the terms sought.
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