Director of Public Prosecutions v Kamal
[2016] VCC 1714
•16 November 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-15-02238
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABRAHAM KAMAL |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 15 and 16 November 2016 |
| DATE OF SENTENCE: | 16 November 2016 |
| CASE MAY BE CITED AS: | DPP v Kamal |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1714 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – recklessly causing serious injury
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: Ibbs v R [1987] HCA 46; R v Nguyen [2006] VSCA 293
Sentence:Convicted and sentenced to 5 years’ imprisonment with a non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr K Doyle | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr C Pearson | James Dowsley & Associates |
HIS HONOUR:
1I will pronounce sentence immediately, albeit the very wise comments of the Court of Appeal that such should be a rarity. In this situation, fortunately, the circumstances are not difficult to comprehend and I have had the benefit prior to plea, and overnight, of having all of the depositions, the medical material and this morning, the submissions, tendered as exhibit 1, of Mr Pearson, together with exhibit 2 which is the medical report of Carla Lechner.
2Coming to the circumstances themselves, there can be no doubt, as I have stated, that the objective seriousness of this matter is grave. The objective culpability of inflicting this injury in the manner in which it was done cannot be gainsaid. Together with that, we have a determination by the Parliament that the maximum penalty prescribed for a sentence of this type is one of 15 years. That in itself is an indication of the serious nature of this behaviour.
3Such behaviour covers, of course, a wide spectrum. The High Court, in Ibbs v R [1987] HCA 46, determined that one must assess the objective criminality upon a scale of heinousness, where you have offences which cover a range of particulars.
4Insofar as to the actual offence tendered has been the CCTV video of this crime and the happening of this crime and the lead up to the crime and colour images. It is put by way of instruction that the background to this matter was that the victim, Carruthers, I am referring to paragraph 6 here, had threatened to assault and kill Mr Kamal. What relationship that threat had to the circumstances in this day I am unable to conclude. There is, however, evidence that Mr Kamal certainly had a makeshift body armour, the best you can do no doubt in gaol, which was a motor magazine tied to your stomach, no doubt to stop the effect of any stabbings that he would receive himself.
5It is suggested, in paragraph 16, that Mr Kamal reacted to the threat posed by Carruthers by incapacitating him. To accept that behaviour given the CCTV would be outrageous.
6It is conceded that while he was initially acting in self-defence, Mr Pearson goes on in paragraph 16 to say that Mr Kamal went too far when he stabbed Carruthers. As I said to Mr Pearson, I have closely analysed the photographs and videos. There is no basis to the suggestion that at any stage, in my view, Mr Kamal was acting in self-defence.
7In saying that, I am not saying that there may not have been a threat. We are, after all, talking about a prison environment. The context of this seems pretty amazing. It seems to be occurring on the CCTV some intra prison contretemps, involving a number of prisoners and warders, this attack takes place within that. I cannot conclude exactly what was happening although it is clear on the photographs that up until somewhere around Photograph 40, Mr Kamal seems to be intent on being involved with what was going on with another prisoner, nothing to do with Carruthers and three other warders.
8Why Carruthers came to the scene, whether his intent was to have some contact with Kamal or whether he, like Kamal, was simply going to where this altercation takes place. It is impossible for me to conclude whether in the background, or within the mental state of Mr Kamal, as soon as he saw Carruthers he felt threatened. Again, I am unsure. However, what happened clearly is that there is no evidence, unless there was some verbal threat, of any physical threat to Kamal by Carruthers at that stage, indeed as is seen on the video they are separated by a prison officer. Kamal strikes out with a weapon and causes the injuries that have been described to this Court by the prosecutor.
9I noted, as I have said to Mr Pearson in the report of Carla Lechner, a reference to earlier violent behaviour in 2012, where Mr Kamal stated that he had seen the person in the nightclub, known as Chasers, a person who had hit him previously. He decided to carry out the assault because that person may have hit him again, so “I thought I’d get in first”.
10As Mr Pearson says, understanding the context in which this assault took place, that is a prison context, placing that on the background in which unfortunately Mr Kamal has lived, which has involved a lot of violence, it may well be that again, Mr Kamal was acting in the same manner, “getting in first,” when not directly threatened by Carruthers. I am unable to say. However, I do conclude beyond reasonable doubt, on the material before me, that there was no acting in self-defence by Mr Kamal on this particular occasion.
11The attack itself is a heinous and deliberate attack. The impact was obviously dramatic as you can see on the video, the injuries were serious, as is identified by the plea. There was a perforation made to the eye. In addition, there was a fracture of the orbit, indicating the force of this attack. The victim was taken to hospital and required two operations to repair the eye. He was required to wear an eye patch, and sutures were placed in the eye by way of repair which had to be left in place for a period of six months. As a result of this attack, the lens to his left eye was removed and as best I can see of the medical materials, he will eventually need a prosthesis to replace that lens which may well assist insofar as his eyesight is concerned.
12Tendered today, I think did we say as exhibit E, was the medical report of the forensic physician which is at page 91 in the depositions. That is a report of Dr Jason Schreiber, forensic physician. He notes at paragraph 20 that there is no doubt that without emergency treatment and complex specialist eye surgery, Mr Carruthers’ normal eyesight would have been lost.
13Insofar as the future implications are concerned, and I have no other more up-to-date information before me than this, there has been, as I understand, attempts by the police to talk to the victim. Given the circumstances and his own status and his own background, it is understandable that there has been no cooperation. The Court has to do its best in those circumstances, where no victim impact statement has been filed.
14The specialist forensic physician makes the point that the risk of diminished eyesight is high, and that is obvious because of lens injury. The risk of bone structure not healing is high. There is a risk of ongoing pain, blood clots, thrombosis and infections and there will be a diminishing of his future quality of life. I do not take into account the fact that he may have scars because I just do not know, and I cannot hold that against Mr Kamal in those circumstances.
15Coming to a conclusion on the objective criminality, I have no hesitation in concluding that the placement on the scale of heinousness of this crime should be between mid-range and high.
16This was a particularly obnoxious crime where serious injury is caused by the use of the weapon. It is a crime deserving of appropriate denunciation and punishment. There has been no issue made in regard to that.
17The sentencing tasks of a Court, of course, do not involve simply assessing the objective culpability of a crime, but trying to understand, in the interests of the community and particularly in the interests of the person to be sentenced, Mr Kamal, what are the subjective factors that surrounded this criminality and indeed hopefully, try to seek some explanation.
18As I said to Mr Pearson, there is a lot about this matter that saddens me. Mr Kamal was born in Ethiopia during the time of the civil war. We are all aware of the horrors of that war. His mother died in that war when he was only three. His father, also apparently recruited as a soldier in that war, was missing and presumed dead. I am told by Mr Pearson that Mr Kamal last saw his father when he was five. He was looked after by his auntie and taken to a refugee camp. He was then relocated with her. She apparently, having been a, what is known in those societies as a child-bride, and as a result she was relocated with her husband to New Zealand. She took Mr Kamal to New Zealand with her in 1997. He was eleven years old at the time and had spent five of his formative years in squalid conditions in a refugee camp.
19Mr Kamal, in fact, obtained on the basis of a family reunion type visa, New Zealand citizenship which he still has. He lived in New Zealand for a period of three years, finally coming with his auntie in the year 2000 when he was 15 years old. His education is limited. He had limited education in this country. Unfortunately, his education was completed after two years when he left school at Year 8.
20Mr Kamal thereafter became part of a disaffected group of youths committing alcohol and unfortunately, as the report of Carla Lechner shows, getting involved in drugs at a very early age. Having arrived in Australia at 15, found himself at the age of 16 placed in a youth detention centre. Unfortunately, his life has beat a similar course since that time.
21It brings no joy to this Court, knowing the purpose of opening up this country for the assistance of refugees from the horrors of wars, to see that in this instance there just has not been a success. One would be naïve of course to expect success or think that people with such backgrounds are always going to be successful. Indeed it is and may be that very background violence and uncertainty, the traumas of youth that may well lie at the background of his violent history.
22Since leaving school he has had, as has been pointed out in exhibit 2, the report of Carla Lechner, little employment. His offending is of some long history now. He is a person who is of low, average, borderline intelligence.
23As I say, he began smoking marijuana at the age of 15 which must have been shortly after his arrival here. He indeed noticed some impact from daily smoking of marijuana upon his health and was also using amphetamines. He admitted a problem with constant use of ice, and was also using Xanax to get over ice or assist in getting over ice. He also was drinking quite a considerable amount of alcohol. His housing has been somewhat disrupted, and he has often been house-surfing.
24Insofar as Mr Kamal’s offending behaviour, he explained to Ms Lechner the circumstances that I have already referred, the offence that took place in 2012 where he decided to get in first. Now, unfortunately, when you live in this type of milieu, when you carry weapons and you are involved in assaults, people do try to get in first. Whether that is the reason why Mr Carruthers was assaulted on this day following the threat I am unable to be precise.
25It is of interest that looking at his, what was described by Ms Lechner in her report of 2012, his historical clinical risk, she deemed him to be a moderate risk. It is, as I have said, this report was dated February 2012 and as we know, this serious offence of recklessly cause serious injury took place the following May.
26The view at that time was that he:
“… is deemed to be a ‘moderate’ risk of further involvement in violent behaviour although this risk (I am reading from page 5) would be reduced if he was involved in regular substance abuse counselling and engaged in meaningful employment. He has a high loading on ‘historical’ factors such as exposure to violence and engagement in aggressive behaviour at an early age, substance abuse problem and family/employment instability. Clinical risk factors centre on unresolved post-trauma issues, impulsivity and limited insight. A positive factor is a more positive attitude to intervention. (He had been having some while in gaol, apparently, some intervention in regard to drug assistance.) His limited social network remains an ongoing concern.”
27It was indeed as a result of the behaviour of which he is about to be sentenced and for what the report was produced that he was then sentenced to a period of 12 months’ gaol and it was during that time that this offending took place. His history is concerning, especially when you put it in the context of the fact that he is still a young man, at the age of 30.
28As I say, from the age of 16, he was in youth training centres. By the age of 18, he had committed his first serious offence which is an offence of robbery and false imprisonment for which he was given 14 months’ gaol. That is in May 2004. In June of 2007 and November of 2004, there were property matters. In June of 2007, also drink matters and offensive language but by the December of 2007, a serious offence of assault in company for which he was given a period of imprisonment of eight months and then a period of imprisonment pronounced by my then Brother Hart on the sixth day of June 2008 for an intentionally cause serious injury.
29The sentencing remarks of his Honour were tendered and have been read by me. I make it clear to Mr Kamal the fact that you have been previously before the Court and been subject to sentencing is not a matter that aggravates your crime in any way. The problem is that such limits, when you have had offences of this type, the steps that a court can take.
30Clearly, as his Honour found, the assaults carried out by you were grave, leading to the sentence. There was an infliction by a Stanley knife, deliberately as he found, of slashes upon the victim in that instance.
31His Honour said, insofar as you were concerned, at paragraph 11 as follows, His Honour had been told, by coincidence, by Mr Pearson that you have been “running with a lawless crowd” and that you “involve yourself in nightclubbing and drinking to excess”. His Honour said: “I am told, but I am afraid I am not convinced that you want to move away from that circle of friends and stop wasting your life. There is little sign of this.”
32Suffice to say that the subsequent offence occurred in 2012 and again, for a number of other matters you are now in gaol. It is of grave regret to think that a person of your age and background has spent so much time in gaol over the last 15 years.
33Mr Pearson has in his submission, exhibit 1, in particular at paragraph 22, tried to assess the offences for which you were subsequently sentenced in June 2016 and given the current 13-month-period of imprisonment that you are now serving which has a release date of 13 April of next year. True it is that none of them involve violence, albeit that a sentence imposed upon you for a domestic issue, but involving assault by kicking, being a four-month partially suspended sentence committed, subsequent to this offending with which I am dealing, was reimposed upon you at that time in addition and to be served cumulatively upon the nine months imposed on you with a series of offences which Mr Pearson has detailed for me, predominantly involving drugs, and driving matters. There is however one problem with the police, and two concerning matters showing that on the 20 July 2014, you were carrying a silver folding knife which fell out of your pocket and on 7 December 2014, you were carrying a small flick knife.
34Again, the reality of the circumstances in which you were living may give some explanation to why you are required to carry knives, but unfortunately the concern expressed by his Honour in the sentence in June 2008 seems to be far more in line with the reality of your subsequent offending, than the positive assessment made by the psychologist that I have referred to, Carla Lechner.
35Insofar as the aspects that I need to take into account, the first and foremost matter is that you have pleaded guilty. I will pronounce, as I am required by Parliament, the effect that would and has made on the sentence I am going to pronounce upon you.
36Mr Pearson put a number of matters to me. Firstly, it was the issue of the burden of deportation. I accept the principles set out in R v Nguyen [2006] VSCA 293 that there will be a burden in your instance. I have no doubt that you will be deported, although that is not a matter for me. I understand you have had two prior applications for, to be relieved of determinations made to withdraw your visas.
37As I understand it, the legislation has now changed. Your visa has now been cancelled and as I further understand with being convicted again of serious matters, you will be subject to a determination by the Minister that you be returned to the place of your citizenship which is New Zealand. I do not know whether there is any ability for you to take steps to fight that; however, I accept the proposition put at paragraph 5 of the submission of Mr Pearson that your sentence of imprisonment therefore has the additional burden of being served in an uncertain state of suspense and clearly with the burden that you do not have support in New Zealand. You have grown up and spent all your adult life and a portion of your life as child in Australia. You have the support of your auntie who is still apparently living in Australia and if you are subject to deportation, all of those matters no doubt create an additional burden and I take those matters into account.
38I have already mentioned your criminal record. Mr Pearson was at pains to try and explain that record and I think I comprehended it. The explanation must be in the background that you have experienced and the life you have led since you have been here. I also take into account the psychological aspects set out in the report of Carla Lechner at paragraph 9.1. Mr Pearson describes or ascribes to Ms Lechner a degree of prescience when she made the comment in the report at page 3 that it is “most likely due” – that is your previous criminal behaviour – "due to his earlier (perhaps pre-language) experience. He is generally hypervigilant to danger and is inclined to interpret the world around him as hostile and threatening.”
39I have already mentioned her finding of your intelligence quotient and of your problems with depression and the confirmation that you have suffered a degree of Post-Traumatic Stress Disorder, having been exposed to such early trauma and attachment disruption. All of these matters are explanations for the level of violence, the level that violence has played in your life. It does not in any way explain, well, it might explain it, it does not excuse the criminality that you were involved in in this particular matter.
40You are to be sentenced to a considerable period from the date of these offences, indeed, some four years. The first interview took place with you in July of 2012 and the committal did not take place until December 2015. There are a number of reasons for that and not the least that on two occasions, on 22 May 2015 and 6 July 2015, you failed to appear at committal case conferences leading to the need for a warrant of arrest to be issued.
41The learned prosecutor, insofar as the earlier times, that is between 2012 and 2014, tells me that you were subsequently released from gaol and it was not until 2014 that the informant in this matter was able to catch up with you, he having no notion of where you were living. However, there is no doubt that for all those comments there has been considerable delay in this matter and you indeed, for the period of nearly four-and-a-half years, have had the fact that you will have to account for your crimes hanging over you. I take into account that issue of delay in your favour.
42As I said, I also take into account the guilty plea which was entered on the first occasion that this Indictment was before you. You are entitled to an appropriate discount for those matters. I have also been asked to take into account the issue of totality. I accept what the learned prosecutor says that there is a considerable degree of temporal separation between the offences for which you are currently serving and of which I am now dealing and those matters have been, as I say, detailed. However, I do take into account those propositions.
43In the end, what has to be balanced against these matters is to try to ensure that the sentence effects in your case specific deterrence. You are a person inclined to use weapons such as you have used in this instance. You are a person who has been given many opportunities, but unfortunately, they have all led to you being subsequently imprisoned and you have continued to offend.
44True it is, as Mr Pearson pointed out, that since approximately 2013, that is when you were subject to the kicking assault, most of the offences have not involved gross violence of this sort. However, the factors that play very much in your life are still present whereas those offences for which you are now serving demonstrate not only a failure to comply with the law, but on two occasions the carrying of dangerous weapons and unfortunately, continued use of drugs, which leaves you in a very vulnerable position.
45As I say, those matters, and all of the matters that I have spoken about in, subjectively in regard to you, have to be balanced against the need, firstly, for specific deterrence but also for general deterrence, denunciation and punishment for this, what I have found to be a grave crime, aggravated not only about by the use of the weapon to effect it but the serious injury caused to Mr Carruthers which will no doubt have lifetime impacts upon him.
46If you would stand up please. Mr Kamal, for this offence of recklessly inflicting serious injury on Mr Carruthers, I sentence you to a period of imprisonment of five (5) years. I order that the period that you must serve before being eligible for parole is three (3) years.
47Insofar as you pleading guilty Mr Kamal, I want to state, pursuant to s6AAA of the Sentencing Act 1991 (Vic), had you not pleaded guilty, the sentence I would have imposed upon you would be a period of six years and eight months, with a minimum period of four years.
48I will not make any order as to cumulation in the circumstances save your period of service of sentence will be three years from today before you will be eligible for parole. I have signed, I think, a disposal order. I don't think there is anything else I have to sign. There is no pre-sentence detention?
49MR PEARSON: No, Your Honour.
50HIS HONOUR: I think they’re all the matters. Mr Pearson, any matters I haven’t mentioned?
51MR PEARSON: No, Your Honour.
52HIS HONOUR: Yes, Mr Kamal well, I don’t know what I can wish you but all I can say is this: If you don’t change your ways, next time is going to be a murder case. So, you have really got to be careful. Yes, thank you. You can take the prisoner away.
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