Director of Public Prosecutions v Jawansher
[2020] VCC 1754
•22 October 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR‑19‑01488
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SWITA JAWANSHER |
‑‑‑
| JUDGE: | HIS HONOUR JUDGE DOYLE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 October 2020 |
| DATE OF SENTENCE: | 22 October 2020 |
| CASE MAY BE CITED AS: | DPP v Jawansher |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1754 |
REASONS FOR SENTENCE
‑‑‑
Subject: CRIMINAL LAW
Catchwords: Sentence, guilty plea, common assault, extra-curial punishment, early guilty plea, previous good character, COVID-19
Legislation Cited: s.6AAA of the Sentencing Act 1991; s 8 of the Sentencing Act 1991; s72 of the Sentencing Act
Cases Cited: R v Verdins (2007) 16 VR 269
Sentence: Adjourned Undertaking for a period of 2 years with conviction
‑‑‑
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr F. Cameron | The Office of Public Prosecutions |
| For the Accused | Mr M. Allen | Mr McGarvie |
HIS HONOUR:
Swita Jawansher you have pleaded guilty to one charge of common assault for which the maximum penalty is 5 years' imprisonment.
You were aged 46 at the time of the offence and living in Skye, near Frankston. You are now aged 47. The victim in the matter is Jon Carolan who was born on 15 July 1999 and was aged 19 years at the time of offending.
The prosecution opening was tendered and marked as Exhibit 1. I will summarise the facts set out in the opening.
Background
Between January and August 2018, the victim, Mr Carolan, was in a relationship with your daughter, Sussan Jawansher. Once that relationship ended, she started seeing Mr Pardeep Singh. Sussan told Mr Singh that the victim had sexually assaulted and raped her during their relationship. She told you the same thing.
In early December 2018, your daughter invited Mr Carolan to meet her in Dandenong. He agreed, but when he attended and observed Mr Singh was there, he left immediately.
Between 30 December 2018 and 2 January 2019, Mr Singh and Sussan met up with Mr Carolan on two other occasions, during which Mr Singh impersonated a police officer and began interrogating Mr Carolan about his previous relationship with Sussan. Mr Singh recorded these discussions that he had with Mr Carolan, and Mr Carolan believed he was a police officer had that he had to comply with Mr Singh's instructions. Mr Singh had the victim follow him and Sussan to a local park where he was held against his will and he was assaulted by Mr Singh.
On 6 January 2019, between 2.25pm and 2.47pm, Mr Singh sent Mr Carolan a series of text messages confirming another time and place to meet up. You drove Mr Singh and your daughter to the corner of Yarram Court and Warrawee Circuit, Frankston, where Mr Singh got out and met up with Mr Carolan. You then got out of the vehicle, approached the victim and grabbed his left bicep, attempting to hit him in the face. Mr Singh then pushed the victim up against a fence and you punched him twice in the ribs. Mr Singh told the victim to follow him, which he did. Your actions referred to in grabbing him by the bicep and punching in the rib are put by the prosecution as contextual to the common assault to which you have pleaded guilty.
You followed then, behind Mr Singh and Mr Carolan in back, driving the vehicle. Mr Singh and Mr Carolan then got into the car, and you drove them to the George Pentland Botanical Gardens in Frankston.
There, Mr Singh got out of the car and told Mr Carolan to follow him into the Botanical Gardens, which he did. While they walked Mr Singh told Mr Carolan that he wanted him dead, but there would be too much paperwork. Mr Singh took Mr Carolan to a secluded area of the park and conducted another pat-down search before asking him if he had any drugs or knives. Mr Singh told Mr Carolan to place his hands behind his back and get on his knees. Mr Carolan complied with this. Using a black and white scarf he had been wearing, he tied Mr Carolan's hands behind his back. It is not put that you are complicit in this conduct by Mr Singh; again, this is put as relevant context.
10.You then came over to Mr Carolan and, using your all of your weight, slapped him approximately 10 times to the face, winding up for each next slap.
You began interrogating Mr Carolan before being pulled away by Sussan Jawansher. You then returned and wound up and delivered another between 10 and 15 slaps to the victim’s face and also pulled his hair, causing him pain. You then stepped back on your left leg and you kicked Mr Carolan in the genitals causing him pain. During this assault, Mr Singh was still holding the victim from behind with the scarf.
A short time later, Mr Singh untied the victim and made him walk to another secluded area of the park near a toilet block whereupon the victim was interrogated by both you and Sussan Jawansher. After that interrogation finished, Mr Singh grabbed the victim by the arm and walked him out of the Botanical Gardens.
Mr Singh walked him back to the white Camry, which was parked outside 138 William Street, Frankston, opposite the Botanical Gardens. He ordered Mr Carolan to place his hands on the bonnet, spread his legs and take off his shoes, and he complied. Mr Singh conducted a pat-down search before taking him to the rear of the vehicle and instructing him to place his head on the boot, and he complied with this.
He wrapped the black and white scarf around Mr Carolan's head and told him to get into the vehicle. Mr Carolan was feeling very scared and he complied with this direction. While travelling in the car, Sussan Jawansher asked Mr Singh why they couldn't take Mr Carolan to the police station, and Mr Singh said something about not having a warrant for that, and that the boys would pick the victim up at his house.
You drove Mr CAROLAN back to the end of the court near his house and he was told by Singh to get out of the car, and he did. Mr Singh then walked Mr Carolan to outside of his address and gave him his phone back.
Mr Singh and Mr Carolan were captured on CCTV outside Mr Carolan's address.
17.Later on that day, Mr Carolan went to the Frankston Police Station, supported by his mother, and made a detailed statement.
18.Your offending relates to slapping the victim as described in this summary, pulling his hair and kicking him in the testicles. You are not charged with false imprisonment or impersonating a police officer, matters to which Mr Singh pleaded guilty. I turn to Mr Carolan's victim impact statement.
Victim Impact Statement
19.In his victim impact statement, Mr Carolan says he was unable to attend work for a week after the incident due to an inability to sleep properly. He had continuous thoughts of abuse that occurred against him, and a lack of appetite.
20.He says that since the incident, he finds it difficult to remain alone and requires the company of family and friends which elevate his mood from being constantly frustrated and angry.
21.He states that since the incident he finds it difficult to trust new people he meets and has difficulty in making friendships with both males and females.
22.I take into account the effect on the victim of this offending having regard to the fact that the victim impact statement was prepared in relation to Mr Singh and it is difficult to delineate the impact of his overall conduct relative to your more confined role. Nevertheless, I have regard to what Mr Carolan said in the statement. I turn to the gravity of this offending.
Objective Gravity
23.This physical assault of Mr Carolan was a nasty incident.
Serious aspects of this offence include the fact that it was committed in company with Mr Singh; that Mr Singh was behind the victim and had his hands disabled with the scarf when you hit him; the level of force you used to hit the victim; that you returned and delivered a second bout of blows to his face and then pulled his hair and kicked him in the testicles. Mr Carolan was defenceless and although he did not sustain any injuries, this would undoubtedly have been a frightening and painful experience for him.
25.As an aggravating circumstance and a matter adverse to you, I am not satisfied beyond reasonable doubt that you knew Mr Singh was not a policeman or working with the police, and hence this was a clear-cut planned vigilante assault. The prosecution conceded the evidence did not establish this beyond reasonable doubt.
On the other hand, it is clear that your daughter knew Mr Singh was not a policeman. She understood him to be a DJ and she had been seeing him for some time. In all of the circumstances of this case and on the state of the evidence before me, I am not prepared to accept positively on the balance of probabilities the positive assertion that you genuinely believed Mr Singh to be a policeman or associated with the police and that you therefore participated unwittingly in a charade orchestrated by Mr Singh. In coming to that view, I have regard to all the matters put by Mr Allan, including in his updated submissions filed on the second day of the plea or just before the second day of the plea.
27.What I do accept in the end is that this is a neutral matter in the instinctive synthesis.
I do make the observation, though, that putting aside whether you thought Mr Singh was police man or associated with the police in some way the assault that you inflicted was entirely unjustified, and a motive for the assault was retribution against Mr Carolan.
I do accept that your daughter told you she had been raped by Mr Carolan. The truth or otherwise of this allegation is irrelevant, but I am satisfied you held this belief. I have read your daughter's interview. She says she told both you and Mr Singh Mr Carolan had raped her in their relationship. Your daughter also refers in that interview to you becoming upset about this given that you have been raped yourself.
30.I take into account that these events were set in train by Mr Singh and there were other incidents where you were not involved.
31.Indeed, Mr Singh pleaded guilty to a greater number and more serious charges than you, including two charges of false imprisonment, two common assaults and a between dates offence of impersonating a police officer. He had substantial prior convictions involving serious offending and had been sentenced to periods of custody prior to this offending. He had been remanded in custody for these matters. Considerations of parity, therefore, are not in my mind significant in sentencing you for your role in this offending.
32.I do not sentence you on the basis that this was a pre-planned assault. You certainly seem to have attended though, with a view to having some sort of confrontation with Mr Carolan, but I am prepared to act on the basis that you lost control on seeing him and assaulting him in this undeniably nasty way. I turn to the procedural history and your guilty plea.
Procedural History & Guilty Plea
You were charged over this incident on 25 Feb 2019 and eventually committed for trial in July 2019. Prior to that date, you had offered to plead guilty to the summary offence of unlawful assault and therefore have the matter finalised in the Magistrates' Court in the middle of last year. As I understand it, at that point, the prosecution view was to press on with the more serious charges including false imprisonment and impersonating a police officer on the basis you were complicit with Mr Singh.
34.The matter finally resolved in July of this year. The prosecution ultimately decided not to proceed with the more serious charges.
35.It was conceded on the plea that given the resolution to common assault this matter would have been capable of being heard in the Magistrates' Court, had such a resolution been reached pre-committal. It seems from your earlier plea offer that you did not dispute the facts involved in the assault but denied complicity with Mr Singh in the more serious charges. Hence, it seems to me, that had the prosecution not decided to pursue those charges it is highly likely the matter would have resolved over a year ago in the Magistrates Court, albeit to a charge of common assault rather than unlawful assault. Those discussions never took place because at that point the prosecution were pursuing the issue of complicity with Mr Singh.
36.In the circumstances your plea is significant and, in my view, indicates remorse and a willingness to facilitate the course of justice. The utilitarian value is significant and heightened by the current situation with jury trials suspended and a large backlog of trials accumulating.
37.This has been your first interaction with the criminal justice system and I accept the experience of your arrest, charge, committal, and arraignment on indictment has been a difficult, intimidating and salutary experience for you, exacerbated by the length of time it has taken to finalise this matter, which as I said could have been resolved in the Magistrates' Court last year for a common assault, the facts of which you never disputed, as evidenced by your offer to plead guilty to unlawful assault.
38.You have had this matter hanging over your head since February 2019. I turn now to your personal circumstances.
Personal Circumstances
39.You were born and raised in Kabul, Afghanistan, before migrating to Australia in 1992 at the age of 19. You were one of eight children. Your upbringing was affected by the political unrest and violence in your city and country.
40.At the time you came to Australia, you had recently married your husband in an 'arranged' marriage, held in absentia, meaning your husband was not present. He remained in Australia. Immediately after the wedding, you were taken by your parents-in-law from Afghanistan to India, where they commenced a visa application process with the Australian Embassy to join your husband in Australia. The application took some eight months to process, during which time you were confined, for the most part, to an apartment block in New Delhi.
41.In September 1992, having obtained your visa, you travelled to Melbourne where you met your husband for the first time. You moved into in his house in Melbourne, which he shared with his brother and sister-in-law and their children.
42.I am told you found this uncomfortable and stressful, living in close quarters with a new husband and another family – all of whom were strangers to you.
43.You report that as time went by your husband became abusive and violent. Ms Alison Mynard, the psychologist who assessed you and provided a report, details that your husband would put you down and demean you and that he was also, at times, physically violent.
44.In about 1994, you and your husband moved to Fitzroy. You undertook TAFE courses, including in office administration skills, and you did factory work in clothing and shoe manufacturing in inner-city Melbourne. Your husband was working full time as a machine operator.
45.Between 1997 and 2007, you had four of children with your husband. You say that he was rarely involved with parenting and was not physically or emotionally present for the family.
46.In 2013, you had an affair with your brother-in-law (your sisters' husband). He had come to Australia for work from Afghanistan.
47.After some time, you sought to end the affair. When you did so, your brother-in-law told you that he had been covertly recording video and photographs of their sexual activity. He threatened that, if you did not continue the affair, he would release the video and photographs to your family, friends and community, both in Afghanistan and in Melbourne.
48.You refused to accede to his demands. In response, you say that your brother-in-law raped you. He then followed through with his threats and released the sexually explicit videos and photographs to your family and friends in Afghanistan and in Melbourne. I am told that malicious gossip spread and you were ostracised from your community. In Melbourne, you held onto only two friends. In Afghanistan, your family all but disowned you. Your husband provided little comfort to you and I am told continued being violent towards you. Your marriage ended not long after these events and I am told you had a breakdown or a mental breakdown as a result of these matters. I turn now to the psychological evidence in the case.
Mental Illness
In her report dated 9 September 2020, Ms Alison Mynard, diagnosed you as suffering from post-traumatic stress disorder (“PTSD”), arising predominantly from your trauma in having been raped by your brother-in-law and the breakdown of your marriage and social ostracization. She says your PTSD is accompanied by "secondary psychotic features", noting that you have in the past suffered from 'hearing voices' and have experienced paranoid ruminations about being covertly recorded and watched.
50.And she says you "continued to experience a low level of these symptoms" and that you suffer from "severe anxiety".
51.She says you have the symptoms of Post-Traumatic Stress Disorder, psychosis, and anxiety since approximately 2013 and that these symptoms were active at the time of the offending and remain active.
52.She said this of the connection between your mental state and the offence:
'Ms Jawansher was highly triggered at the knowledge that her daughter had claimed that she had been raped by the young man she was seeing. Ms Jawansher's PTSD symptoms were triggered, feeling helpless, with her threat perception very high and activated. She had already experienced traumatic events within her marriage, being verbally, emotionally and sometimes physically abused.
When Ms Jawansher was triggered with her daughter's allegations, Ms Jawansher's 'survival mode' was prominent over her 'thinking brain' .…
In the writer's opinion, Ms Jawansher displayed extreme hyperarousal of her nervous system, not only feeling the threat and anger toward the victim, but with underlying PTSD symptoms of hyper-arousal, anger and feeling very triggered from her own traumas. In the writer's opinion, her 'fight' response was heightened, with her display of aggression and attempt to fight back from an injustice she had experienced.'
53.Mr Allen also referred to your emotional stress occasioned by feeling inadequate at being unable to protect your daughter against the background of your own abuse. In making that submission, he referred to another passage in the report of Ms Mynard dealing with that issue.
Soon after the offence in January 2019, you were placed on a mental health care plan. This led to your commencing psychological treatment in March 2019, with Ms Nadine Brown, psychologist.
55.You have seen Ms Brown on 10 occasions last year which was the maximum number of sessions available on the mental health care plan. The treatment has recently recommenced pursuant to a new mental health care plan and will now be ongoing. Ms Brown has diagnosed you with "major depressive disorder … with severe anxious distress", as well as PTSD.
56.Ms Brown says your mental illness is ongoing and "requires long-term therapy".
57.She also says the court case has made you more depressed and your ability to regulate your moods has deteriorated.
58.In her assessment, any prospect of you reoffending is "unlikely". She says you are in need of ongoing mental health treatment, which would be best administered in the community.
Since March 2020, you have also been receiving treatment from a Mr Simon Jacobs, a psychologist. Initially, you accessed his services through a vocational agency in connection with Centrelink. You have seen him on 18 occasions this year. Mr Jacobs also describes symptoms of "depression, anxiety, stress, grief and post-traumatic stress". You continue to see Mr Jacobs. He also describes your risk of reoffending as "minimal" and that you should undergo continued psychological counselling.
Verdins
60.It was submitted by Mr Allen during the plea that your moral culpability is reduced for the following reasons:
a.That the offence was committed in circumstances where you genuinely believed that Mr Carolan had raped your daughter;
b.That you came to interact with the victim at the suggestion of Mr Singh (the co-offender in this matter). Mr Allen also submitted that you genuinely believed he was a police officer or associated with the police. But I haven't accepted that as a positive assertion. I do accept that you came to offend at the suggestion of Mr Singh.
c.Mr Allen also relied on the belief that the victim having raped your daughter "triggered" your "own trauma of being raped" and that this, in turn, activated acute PTSD symptoms, leading to a compromise of your "capacity for reasoned thought, planning and consequential thinking"[1]. In this way, your ability at the time of the offence to exercise appropriate judgment, and make calm and rational choices, was materially impaired; and
d.He relied on the fact that your assault of the victim caused him no injury.
[1]See Report of Ms Alison Mynard, Clinical Psychologist, dated 9 September 2020, p 5.
61.He submitted that limbs 1-4 Verdins[2] are engaged.
[2]R v Verdins (2007) 16 VR 269
62.Mr Cameron, the prosecutor, when asked, said he did not seek to cross examine any of the psychologists in this matter. He challenged the application of Verdins Principles on the basis that the accounts you have given of the underlying causes of your Post-Traumatic Stress Disorder, being the sexual assault or rape by your brother in law, are inconsistent and I should treat what you say about those matters with caution. In his submission, this throws into doubt the psychological evidence of a link between the Post-Traumatic Stress Disorder and the offending. He took no issue with the existence of the Post-Traumatic Stress Disorder.
63.On 19 October 2020, the second day of the plea in this matter, the defence filed the following documents relating to your relationship with your brother-in-law: a statement to police officer Timothy Jamieson, a copy of an intervention order you took out against your brother-in-law and an email from Officer Jamieson setting out his recollections of your complaint to the police. These documents were tendered as exhibits. Whilst there is no direct allegation of rape in the statement, there is a reference in Officer Jamieson's email to a disclosure by you that this relationship with your brother-in-law had been a sexually abusive one.
64.This is a case where I have unchallenged evidence from three psychologists that you suffer from an array of psychological problems, including Post-Traumatic Stress Disorder. Additionally, your daughter told police in her interview, soon after your offence, that you had been raped and that you were upset at her allegation of being raped by Mr Carolan. It is the case that in 2014, you went to the police and told them about the blackmail and that your brother-in-law had been sexually abusive. The prosecution submission essentially amounts to a suggestion that you have concocted the rape allegation and that I should therefore reject the underlying causes of your psychological problems.
65.In the end, given the material filed on the second day of the plea, the psychological evidence and what your daughter said in the interview, I am satisfied you hold the view you were raped by your brother-in-law and that he circulated sexually explicit videos of the two of you and that you were subsequently ostracized by your community. I am also satisfied that you suffer for the various psychological problems dating back to this period. I also note that you have been in counselling with two psychologists over an extended period since the offending in this case. There may well be cases where the underlying facts giving rise to a diagnosed psychological disorder are so manifestly untrue or without foundation that the psychological opinions can be discounted without challenging the psychologists, but in my view, this case is not one of them.
66.In all the circumstances, I am satisfied there is a realistic connection between your mental state and the offending that requires some reduction in your moral culpability and some moderation of general and specific deterrence, but short of what might be appropriate in cases involving an offender in the grip of a serious psychiatric disorder where the causal link is very direct. But I do apply Verdins Principles in the way I have outlined.
Current Circumstances
67.Your current circumstances are that you are living in Skye, in rental accommodation, with three of your four children. You have a son aged 23, who is your eldest child and he is living and working in Sydney.
68.You are currently unemployed and in receipt of social welfare. You are, in effect, solely responsible for the care and the rearing of your children on a daily basis and financially responsible for them.
69.Your son in Sydney will occasionally send money down to help with utility bills but he is not in high-paying employment. Your ex-husband has minimal contact and involvement in family life. I am told he provides no regular financial support. He occasionally assists with groceries and food for the children with whom I am told he has a strained relationship.
70.Soon after the offence in January 2019, you asked your ex-husband back into the family home for a period as you and your children were feeling vulnerable in the aftermath of the offending and your arrest. This, however, was short-lived as I am told the old dynamic returned whereby you were again subjected to violence and emotional abuse.
71.You do not have substantial support or help in the community. But you have your two main friends who have provided references to which I will refer shortly.
72.You have apparently married again to another Afghani man. You married this man in 2016 in India. This man, has however, lived entirely in India and is presently in Afghanistan.
73.You met him online after you had been ostracised in the wake of the incidents with your brother-in-law. It was in this context that you found and formed a relationship with him and you hope he will move to Australia one day.
74.I should note that your daughter, Sussan also suffers mental illness. She lives at home with you and receives treatment (including psychotropic medication) through Monash Mental Health. Your other two children are still at school.
75.Sussan, continues to battle her mental health. She had a mental health episode this year where she was violent to you and attempted suicide. Police and ambulance attended and involuntarily admitted your daughter to a psychiatric hospital, where she remained under medical care for some days.
76.This recent episode has left you feeling concerned and anxious for your daughter's welfare. I turn to the issue of your good character.
Good Character
77.
You are a person of mature age, with no criminal history at all. I accept that you have worked hard throughout your life to look after your four children. A reference was tendered from Ms Marzia TIMORI, a close friend of yours, who describes you as "a very caring and loving person". She also speaks of your dedication to your family. I take into account the contents of that reference. A further reference was tendered from Ms Nadia SLEIMAN, who describes you as "compassionate", "kind-hearted and caring".
78.I accept the defence submission that your assault of Mr Carolan was an aberration and totally out of character.
Indeed, Ms Timori says in her reference that when she learnt of your offending, she was, "very surprised and shocked as [she] felt that this was very out of character for her". Ms Sleiman says that in 21 years of her friendship with you, she has "never known" you "to be aggressive or physical towards anyone" and "sees the incident as out of character".
80.I accept the defence submission that good character – particularly where a person is a first offender of mature age – is a powerful mitigating factor and that you are entitled to call in aid your good character and have it given very substantial weight in the sentencing process and I have full regard to that in formulating the sentence in this matter.
Extra Curial Punishment
81.I accept that the publicity after the last hearing and the publicity generally as set out in Mr Allen's submissions has caused you embarrassment and I have had regard to this matter in formulating the sentence. I turn to your prospects of rehabilitation.
Prospects of Rehabilitation
82.Having regard to the unusual circumstances that led to this offending, your previous unblemished history, your mature age, the counselling that you have had for your psychiatric state and the views of the three psychologists that you are unlikely to reoffend, I take the view that you have excellent prospects of rehabilitation. Continued psychological counselling seems to me to be desirable as a support for you.
Submissions
Mr Allen on your behalf has submitted that I should impose an adjourned undertaking without conviction. Mr Cameron submitted I should impose a community correction order with conviction but accepted that if I found Verdins had application then a fine with or without conviction was in the range of appropriate sentences.
I have had regard to all of the available dispositions for this matter:
84.Prison – Firstly, neither party suggested that a sentence of imprisonment was within the range of appropriate sentences in this matter for this offending, having regard to the absence of any criminal history, and I agree with that view.
85.CCO- I have considered whether or not a community corrections order is appropriate and having regard to your age, previous good character, prospects of rehabilitation, it seems to me it would offer little as a sentencing disposition in this case. You have been seeing two psychologists in counselling for over a year now and made significant progress and you have excellent prospects of rehabilitation. Presently, community work is suspended and in my view, there would be no point in such a disposition.
86.Fine – I turn then to a fine.You have very limited resources – you rely on social welfare payments for your income and you have three children at home including two of school age which you must support. You live in rented accommodation and your daughter, Sussan continues to suffer from a psychiatric illness. In my view, you would not be able to pay a fine of any significance commensurate with this offending.
87.Adjourned Undertaking – I turn then to an adjourned undertaking.I do not view this as an insignificant disposition. The provisions of the Sentencing Act allow an adjourned undertaking of good behaviour to be imposed for an extended period of up to five years. These provisions effectively replaced the disposition of common law bonds which could also be imposed for a period of 5 years. Such a penalty keeps the matter open against you for a further extended period of time and I can impose conditions on you that in my view meet the purposes of sentencing in this case, including a condition that you continue to attend for psychological counselling and any such undertaking has a condition that you are to be of good behaviour. Having regard to the fact that this matter has now been hanging over your head since February 2019 and could have potentially been resolved in the middle of last year, and given I can keep the matter open against you pursuant to this disposition for a further period of years, in my view, this is an appropriate disposition in the case. I have had regard to those matters and the other powerful mitigating factors in your favour, including the application of Verdins that moderates your moral culpability and general and specific deterrence to an extent.
Conviction or Non-Conviction
88.
I turn finally, to the issue of conviction or non-conviction. Mr Allen relied on your good character and past history, and what he submitted was the minor nature of the offence and submitted on that basis it would be appropriate not to record a conviction.
89.
He also referred to the impact of a conviction on a Working With Children check and therefore future employment.
90.Section 8 of the SentencingAct provides that:
(1) In exercising the discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including:
(a) the nature of the offence;
(b) the character and past history of the offender; and
(c) the impact of recording a conviction on the offender's economic and social
well‑being or on his or her employment prospects.
91.In my view the offence here cannot be categorised as a minor assault. You hit Mr Carolan to the face approximately 20 times, you pulled his hair, and you kicked him in the testicles. The blows were delivered with significant force. You were in company with another offender at the time and the assault took place in circumstances that would have been very frightening for Mr Carolan.
92.I have had full regard to all the matters submitted by Mr Allen, but I have ultimately formed the view that the seriousness of the offence warrants a conviction in this case.
93.Therefore, pursuant to s72 of the Sentencing Act 1991 you are convicted, and I adjourn this proceeding for a period of 2 years. I will release you on an undertaking to be of good behaviour.
94. The Undertaking is subject to the following conditions:
- That you are to be of good behaviour during the period of the adjournment.
- You are to attend before the Court if you receive a notice telling you to do so during the period of the adjournment.
Special Conditions
95. I order that you are to attend upon psychologist Nadine Brown of Bayside Counselling or a nominee of Nadine Brown pursuant to the existing Mental Health Care Plan, or Mr Simon Jacobs and that you obey any lawful direction of Nadine Brown or Mr Jacobs or their nominees during the period of the adjournment. Are you prepared to enter into an undertaking of that type, Ms Jawansher?
OFFENDER: Yes, Your Honour.
HIS HONOUR: Yes. All right. Yes. I will just have that drafted and then Ms Jawansher - Mr McGarvie, if you could take the document down and have her sign the document. There are no ancillary orders, is there, Mr Cameron?
MR CAMERON: No, Your Honour, nothing's sought. Thank you.
HIS HONOUR: All right. I think that will do. Yes. Mr McGarvie, if you could just have a look at that document. There are no issues are there, with any of the conditions relating to the psychologists?
MR McGARVIE: No, Your Honour.
HIS HONOUR: All right. Mr Cameron, we will provide your instructor with a copy of that document.
MR CAMERON: Thank you, Your Honour.
HIS HONOUR: All right. Nothing further?
MR CAMERON: No, Your Honour.
MR ALLEN: No, if Your Honour pleases.
HIS HONOUR: All right. I will stand down until 2 o'clock.
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