Director of Public Prosecutions v Kazami
[2022] VCC 1154
•21 July 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
Case No. CR 20-00690
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAYAM KAZAMI |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 March 2022, 29 June 2022 |
DATE OF SENTENCE: | 21 July 2022 |
CASE MAY BE CITED AS: | DPP v Kazami |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1154 |
REASONS FOR SENTENCE
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Subject: Criminal Law. Sentence upon plea of guilty.
Catchwords: Intentionally cause serious injury - Intentionally cause injury – Delay due
to Covid-19 – Psychiatric history – Paranoid Schizophrenia - No prior
criminal history – Relatively early plea of guilty - Prospects for visa
cancellation – Moral culpability reduced by mental illness – Verdins
principles.
Legislation Cited: Mental Health Act 2014; Sentencing Act 1991; Immigration Act 1958.
Cases Cited: Tognolini v The Queen [1996] SCV 68; Worboyes v The Queen
[2021] VSCA 169.
Sentence: Total Effective Sentence of 6 years imprisonment with a non-parole period
of 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Vingerhoets | Office of Public Prosecutions |
For the Accused | Mr R. Backwell |
HIS HONOUR:
1Payam Kazami, you have pleaded guilty to one charge of intentionally cause serious injury and one charge of intentionally cause injury. The circumstances of your offending were summarised in a prosecution opening upon the plea which was accepted and I shall refer to it to describe the events involved.
2The victims in this matter are Parviz Kazami and Katayoon Taghizadeh, your parents. They reside in East Doncaster with your brother Pooya Kazami. Your father was 79 years of age, your mother 67 years of age. You had lived with them until six or seven years before these events, when you were asked to leave due to the consequences of the decline in your mental health.
3At the time of the offending, in fact, you were living in your car and had no fixed place of abode. Prior to the day of the offending, you had called your brother Pooya but he did not answer. You then called the landline and spoke to your mother. Your brother sent you a text message in which he asked you to contribute some money towards the registration of a car, which you had purchased from him some months earlier, but for which your brother was to keep paying registration. You did not respond. Pooya had collected the car from an address a week earlier, but you had not agreed with this.
4On 6 November 2019, Pooya left home at 1 pm. You caught a bus from Ashburton to the Doncaster East area at about 3 pm, heading for your family home and when you got there you went inside, went into the kitchen, where you made yourself a coffee and had a smoke. You thought there was no one home. A short time later your parents entered the kitchen and then at some point your father went to his bedroom, towards the rear of the house. Your mother went to her bedroom which was separate from your father's.
5You selected two knives from the sink rank, the first was some 25 centimetres long with a 13-centimetre stainless steel blade and a 12-centimetre handle. The second was a boning knife with a 12-centimetre-long handle and a 16-centimetre stainless steel blade.
6You went to your father's bedroom and started stabbing him with both knives. He tried to defend himself with a wooden stick. Your mother could hear loud noises and made her way to your father's bedroom, saw you over him on the bed. She grabbed you from behind to pull you from her husband.
7You then attacked her. You punched her when she had her back against a wall of the bedroom. She grabbed at your hair to try to stop you. Your father hit you with the stick in an endeavour to get you off your mother. She yelled out something like, 'I wish I'd died on the day you were born. I wish I didn't give birth to you'. You then stopped attacking her and she left the bedroom and went to her own room, where she rang Triple 0 on her mobile.
8Your brother arrived home shortly afterwards. Your mother told him not to enter the house. He also rang Triple 0. Your mother then heard you and your father talking, saw blood on your father's shirt.
9Police arrived at 5.43 pm and you met them at the front door and told them that you had also called Triple 0 to report that you had stabbed your parents with a mobile that you were holding. Your clothes were covered in blood. You were arrested and you were cooperative with police.
10Your father received multiple stab wounds to his torso, neck and groin and was transferred to the Royal Melbourne Hospital. Soon after arrival he became unstable in heart rate and blood pressure and an X-ray revealed a tension hemopneumothorax, an immediately life-threatening condition requiring emergency management to deal with an accumulation of air and blood in the cavity between the lungs and the membrane surrounding them, the pleura. Respiratory capacity is affected and a likely pulmonary or lung lesion had occurred. An intercostal catheter was inserted into the right lung where 1.2 litres of blood was removed. He then went emergency chest surgery.
11A resection of the right middle lobe of the lung was repaired, along with the repair of the fifth rib, which was fractured. He also had a stab wound to his neck, three upper back stab wounds, four middle back wounds and one lumbar back wound. They were all surgically closed. He was transferred post-operatively to the ICU where he was intubated and placed on a ventilator for 48 hours. He then remained in the Intensive Care Unit for a week.
12Your mother, Katayoon, had a right orbit region stab wound to her face, which caused extensive bleeding and a 4-centimetre laceration to the right lateral chest wall. A Victorian Institute of Forensic Medicine report by Dr Ghumman dated 15 January 2020 noted that the victim Parviz suffered stab wound injuries to his head and neck, chest, back and abdomen and then he acquired pneumonia in hospital. They satisfied the legal standard of serious injury. His life was endangered by the injuries.
13The doctor assessed also your mother's wounds as satisfying the definition of injury. They were mostly superficial. He indicated that your mother would not suffer any long-term complications from them.
14When you arrived at the Box Hill police station it was noted you had an injury to the base of your right thumb and an ambulance was called. You were taken to Box Hill Hospital where the injury was sutured and bandaged. During this time you remained mute.
15Police commenced a record of interview at about 9.30 pm and you remained mute and motionless throughout. It was suspended shortly after commencement to enable an assessment by a Forensic Medical Officer, which however could not take place until the next day, and at 11.53 am on 7 November 2019 a Forensic Medical Officer was unable to carry out an assessment as you again remained mute.
16Later in the presence of an independent third person, police did interview you. You were cooperative and answered questions. You admitted stabbing your parents, asserting they were not your parents, and it was 'Revenge time' for 20 years of abuse. You said that if you wanted to kill them 'You would have used a bigger knife'. You were remanded in custody.
17At committal case conference in May 2020 a not guilty plea was entered and the matter then proceeded in this Court, with seven directions hearings between June 2020 and November 2021, when the matter resolved into a plea of guilty. However, it was not until March of this year when the plea proceeded before me. The delay from May 2020 to November 2021 onto the plea was largely due to the pandemic situation at that time, as well as the provision of forensic psychiatric reports, which were obtained and of which there are seven. I will refer to these in a moment.
18In any event, having made an offer to plead in August 2020 and that offer being rejected, you then pleaded at the November 2021 arraignment. This matter has also been complicated by not only your psychiatric history and condition, but by the attempt of the prosecution and the Court to navigate the requirements and constraints of the legislation applicable to a Court Secure Treatment Order, an order which replaces Hospital Treatment Orders, an order which the prosecution initially submitted the Court should consider in terms of a sentencing disposition.
19The defence had always submitted that you should be sentenced to a head sentence and a non-parole period, but the Court sought to explore the possibility of the Court Secure Order, an order which can only be made if no less restrictive means are reasonably available to enable the person to be assessed or treated.
20To make such an order, the Court does not need to be satisfied that the offender's mental illness was a cause of the offending, but it is only necessary that the offender be assessed as mentally ill at the time of sentencing and that other requirements for the orders are met. Such an order enables a person to be detained and treated at a designated mental health service. It is imposed upon conviction.[1]
[1]Tognolini v The Queen [1996] SCV 68.
21The Mental Health Act 2014 and s 94B (1) of the Sentencing Act 1991 regulate this option. However, as the plea progressed it became clear that because you were in custody an assessment could not be made under s91 and this appeared anomalous but confirmed by Forensicare enquiries.
22Defence counsel submitted that the appropriate sentence of imprisonment was an immediate term with a minimum non-parole period moderated by a reduction in your moral culpability because you are not an appropriate vehicle for deterrence. Nevertheless, I obtained an updated psychiatric report from Forensicare which also reviewed the past reports which had been prepared for the Court in these past years.
23Before I go to the contents of that report, I should state that the offending is objectively very serious, with life-threatening injuries being inflicted on your father and injuries on your mother. It would not here have taken much more for any of these offences to prove fatal to a 79-year-old man. Intentionally causes injury carries a maximum penalty of 20 years' imprisonment and by this maximum the legislators have indicated the offence gravity. Intentionally cause injury carries 10 years. These are initial guideposts for the discretionary judgment which a sentence requires.
24I take the impact of the injuries into account. Although I do not have a victim impact statement from your father, I can reasonably infer that the injuries alone have caused much distress and trauma. On the last occasion on which I gave the parties an opportunity to make submissions on the latest psychiatric reports, a victim impact statement was tendered, written by your mother, which I take into account.
25Katayoon Taghizadeh wrote in May of this year that you have been suffering from schizophrenia for many years and your attack on your parents was not a case of temporary insanity. She wrote that when you do not take your medication you become quite unwell, with irrational thoughts and delusions and you can get quite violent. She bemoaned you being removed from community treatment orders in the past, at which time you would relapse. She describes it as a vicious circle resulting from being discharged from a community treatment order in the past.
26She would contact the Koonung Health Centre to notify them of your need for hospitalisation and to remain on the treatment order. She wrote that you should not be discharged from such an order. She believed you were suffering from delusions before entering the house and had made a decision to attack your parents based on these delusions. She wrote that her statement, as she was being attacked, caused you to stop because one of those delusions is about your true parentage. You said you asked her 'Are you really my mother?' She believes you are in desperate need of proper treatment, having been failed by the system before.
27This was a powerful and impassioned plea on your behalf by your mother and I take it into account. The endeavours of the Court in looking for alternatives to imprisonment were to ensure a secure treatment option, designed primarily to treat your mental illness in a secure environment for a period of time. After investigation, as I have said, it appeared also to the prosecution that the provisions of a treatment order were inapplicable to you. This is most unfortunate and a regrettable outcome.
28The prosecutor then joined in submitting that it appeared that the term of imprisonment and non-parole period was the only option available.
29I take your plea into account. I accept it has significant utilitarian value of having avoided a trial. Your remorse, due to your mental health, is difficult to assess however if I assume for a moment that you can enjoy some moments of mental clarity when medicated and stable, at which time you are regretful and remorseful for this offending and its impact on your parents.
30I also must accord a reduction to your sentence for a plea made during pandemic conditions, not just going forward, as it is still current, but throughout most of your long remand period. Although that remand has been primarily spent in specialised units, the limitations which have been imposed on imprisonment are equally applicable and have curtailed visits, rehabilitative and recreational programs, transfers and movements, work and educational opportunities and have meant greater lockdowns, isolation and restrictions as well as the potential for contagion. A palpable reduction in accordance with Worboyes[2] principles must and will be accorded.
[2]Worboyes v The Queen [2021] VSCA 169.
31I take into account your background. You have no prior criminal history. You were born in north-eastern Iran. Aged 16 you left the family and went to Pakistan. As a 19-year-old you emigrated to New Zealand. Then in 1994 you came to Australia and your parents and brother arrived here in 2002.
32I pause to note that your visa status may expose you to cancellation of your visa upon a sentence of imprisonment for 12 months or more for purposes of the character test outlined in s501 of the Immigration Act 1958. Once that sentence is passed you would be considered to have a substantial criminal record and that may lead to a second stage at which the Minister or their delegate must decide whether to exercise their discretion under s501 to refuse or cancel your visa. Such a decision is not automatic and many matters, including matters pertaining to your mental health, would be able to be considered.
33However, it is not for me to speculate about this process. It is however a prospect which would weigh heavily upon you and your family, thus rendering the period of reclusion more burdensome upon you.
34In New Zealand you obtained the equivalent of Year 12 education and then you worked in carpentry. In Australia you have worked as a house painter. In your late teens you started using cannabis. Between 2000 and 2017 you were using heroin. In 2018 you started to use ice. Your first contact with mental health services was in 1999 and have been hospitalised some 17 times due to relapses of your illness, usually in the context of a non-adherence to medication, drug use and stress. Your diagnosis is paranoid schizophrenia.
35Since your remand you have spent time in the Acute Assessment Unit at the Melbourne Assessment Prison, at Thomas Embling Hospital and in the St Paul's Psychosocial Rehabilitation Unit at Port Philip Prison. It was pointed out that at times in the past, it was thought you were not fit to stand trial and that you may have had a defence of mental impairment, but these judgments were reversed in later assessments.
36The latest report was that of Dr Elena Bhattacharya, a staff specialist in forensic psychiatry with the Victorian Institute of Forensic Mental Health dated 20 May 2022. In that report, the writer had full post documentation including psychiatric reports of 5 August 2020 by Dr Angelo De Alwis, consultant psychiatrist at Forensicare, and four psychiatric reports by Dr Pandurangi, consultant psychiatrist dated 17 May 2020, 18 May 2020, 18 October 2020 and 14 September 2021.
37I have read each of these reports and other documentation which Dr Bhattacharya had. The report is very comprehensive. It sets out your current circumstances. You were currently at Ravenhall Correctional Centre in Community 2, a mainstream unit. You were going to apply to work in order to have a single room. You were currently taking antipsychotic injection fortnightly. You expressed a number of likely delusional beliefs during your assessment.
38Upon a mental health examination, you presented with no evidence of thought disorder but good mood generally, with good sleep and appetite. You presented with a number of delusional beliefs including that which relates to disbelieving that your parents are your real parents, or that your brother was also not your real brother.
39Other such beliefs are outlined in paragraph 14 and describe your perceptive abnormalities connected to hearing thoughts at paragraph 15. Your associated beliefs, emotional response to them and the relationship from those to the index offence. You reported that you regretted your actions because you were now in prison, but you felt you 'Needed to take justice into your own hands'.
40Although you believed your diagnosis of schizophrenia, your insight into the need for medication was limited.
41As to personal history, that was also outlined at paragraph 19 to 27 in some detail, including your parents discipline of you, your school years and your departure for Pakistan, your migration to New Zealand and then Australia. Your employment in the house painting industry and unemployment since 2012 and couch surfing during this period.
42As to psychiatric history, you told the psychiatrist of an attempt to commit suicide in 2001 when you jumped off a balcony and spent three months in hospital and psychiatric units. You also said you had been raped as a child. You said you had multiple admissions to psychiatric units, particularly when you asserted that that occurred every Christmas, when your parents would call an ambulance, claim you had used drugs and have you taken away to be admitted.
43You describe community treatment orders and asserted that you were subject to one at the time of the offence and that you had not attended for your antipsychotic medication injections in the period leading up to the offending. You gave a history of the medication prescribed in the past at paragraph 37. You accept that as accurate the diagnosis of schizophrenia. Dr Bhattacharya then summarised the various reports from paragraphs 39 onwards, which outlined inpatient admissions, community treatment orders, placement at a psychosocial recovery centre in 2008, prolonged hospitalisation between November 11 to March 12 and August 2019. A drug and alcohol history were noted at paragraphs 47 to 51.
44As to the index offence, you described the motive for your actions and your reasons, but that despite your regret because you are now in prison, you stated you did not want to see your parents again.
45A summary of Dr Pandurangi's reports has then reported and added to by Dr De Alwis of August 2020, which is also summarised at paragraph 33. You told Dr Pandurangi in September 2021 that you had pleaded guilty in order to avoid a lengthy stay in a psychiatric hospital, rather than in a gaol.
46Dr Bhattacharya expressed her opinion. In her assessment you continue to display psychotic symptoms and delusional beliefs and that your mental illness played a significant role in carrying out the offences. She noted a history of violence which can be gleaned from past reports. She outlined a number of factors to reduce the risk of further violence at paragraph 73.
47Your medium to long-term risk is associated clearly with your mental illness. The mental health specific offence work with an experience psychologist would be required in order to manage the risk to others on release from prison. Importantly, she outlined that prison services are able to provide adequate acute and follow-up mental health case through Forensicare, including in-reach teams, admissions to mental health units within prisons, a Secure Treatment Order as a pathway to short term hospitalisation if required, pre-release planning, assessments of functioning and reintegration programs, as well as substance misuse programs and education.
48She concluded you can remain subject to Forensicare attention while in prison and transfer to Thomas Embling Hospital if necessary and be linked to mental health services at the expiration of any term.
49I find that your moral culpability is reduced by your mental illness to a significant extent. I am also satisfied that your treatment needs and medication requirements are best met in a secure, stable and restrictive environment where you can be given adequate assistance, as well as provide for community protection.
50You are not a good vehicle for both general and specific deterrence, so that your period of reclusion must of necessity reflect that conclusion. However, the offending requires just punishment and denunciation. As currently advised, I do not view your incarceration as prospectively more burdensome than that of a prisoner who does not have your condition, but of course that may deteriorate depending on your circumstances and I take that potential into account, although I am confident in Correctional authorities' capacity to adequately respond to provide optimum care when required in difficult times.
51I have found this a particularly difficult sentencing exercise and it may be that post incarceration you may require ongoing supervision of some kind. However, in dealing with the index offence, with the parties in agreement and without specific submissions from the defence as to Verdins considerations beyond what I have stated, I impose the following sentence.
52Before doing so I should say that in my view Verdins principles fully are operational here. The prosecution also properly accepted that the Court should proceed on the basis that this was a relatively early plea, entitling you to a significant reduction.
53On intentionally cause serious injury you are convicted and sentenced to five and a half years' imprisonment.
54On intentionally cause injury you are convicted and sentenced to two years' imprisonment.
55I order that six months on Charge 2 be served cumulatively on count 1, making a total effective sentence of six years.
56I order a non-parole period of four years.
57But for your plea, a total effective sentence of seven years with a non-parole period of four years and nine months would have been imposed.
58I declare that you have served 988 days, excluding today, by way of
pre-sentence detention and I will have that number noted in the records of the Court.59I have signed the disposal order.
60Is there an argument about the accuracy of the pre-sentence detention?
61MS VINGERHOETS: No, Your Honour, not from me.
62MR BACKWELL: No, Your Honour.
63HIS HONOUR: Thank you. I have signed the disposal order which I think covers the two knives involved.
64MS VINGERHOETS: That is correct.
65HIS HONOUR: Mr Backwell, do you need or wish to take an opportunity to have time to speak to Mr Kazami, or is that not required right now?
66MR BACKWELL: Not right now. I will organise a conference next week.
67HIS HONOUR: Thank you. Yes, thank you very much. Thank you both.
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