Director of Public Prosecutions v Kiamil

[2019] VCC 2240

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-18-01839

DIRECTOR OF PUBLIC PROSECUTIONS

v

TONGEZ KIAMIL

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	13 December 2018
DATE OF SENTENCE:	20 December 2018
CASE MAY BE CITED AS:	DPP v Kiamil
MEDIUM NEUTRAL CITATION:	[2019] VCC 2240

REASONS FOR SENTENCE

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Catchwords: Intention to cause injury

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms J. Fallar	OPP
For the Accused	Ms N. Kaddeche	Emma Turnbull Lawyers

HER HONOUR:

1       Tongez Kiamil, you have pleaded guilty to one count of intentionally causing injury.  The maximum penalty for this offence is ten years.  The circumstances of your offending are set out in the prosecution opening, Exhibit A, and can be summarised as follows.

2       You had been in a relationship with Katie Rose McAuliffe since September 2016 and lived with her between December 2016 and June 2017 at your parents' house though your relationship was volatile and you frequently argued.

3       On Saturday, 13 January 2018, at about 1.15 in the morning Ms McAuliffe was walking to her friend's house when you drove up in your mother's car.  You asked her several times to get in the car but she refused.

4       Ultimately she got in the car and you went to your house so you could get changed.  You arrived at your house at about half-past two.  After you had changed Ms McAuliffe got back in the car.  You went to the front garden tap and filled a water bottle which contained caustic soda.

5       During the trip Ms McAuliffe was using her phone.  You started arguing as you wanted her phone.  You threatened her that if she tried to get out of the car that she knew what you would do with the caustic soda solution.  You continued to argue and she hit you in the back of the head.

6       You pulled over again and threatened her.  She tried to get out of the car but you warned her, asking her if she wanted to burn.  She managed to open the car door and then whilst getting out you squirted caustic soda solution all over her and yelled at her to get back in the car.

7       Immediately she felt a burning sensation on her face and underarms.  She was screaming in pain and agony and ripped off her top.  She then dropped to the ground.  Her face and arms were burning and she couldn't see.  You picked her up and took her to the hospital.  You told her you were sorry and that you loved her.

8       You gave her water and told her to wash it off.  This, however, made the burning sensation more painful.  You told staff at the Royal Melbourne Hospital that you didn't know her and that you'd found her on the street.  You gave staff her bag with her belongings and left the hospital.

9       CCTV footage at the hospital revealed that you had emptied some liquid on the nature strip before you took Ms McAuliffe into the hospital.  Her family were able to identify you as the person driving the car and taking her to the hospital.

10      Police contacted your mother, who told them you weren't at home.  Soon after you went to Broadmeadows Police Station.  You were interviewed and released without charge on 13 January.  The next day Ms McAuliffe was discharged and at that time had only 20 per cent vision in her left eye.

11      On 15 January 2018 she was examined and her injuries were photographed, copies of which were tendered on the plea.  She suffered burns, mainly over the left side of her face and chin, but also on the right side of her face and frontal throat.  There were other burns on her outer right chest, abdominal, right flank and below breast areas.

12      There was bleeding over the inner aspect of the white of her left eye.  These injuries were caused by chemical burns as a consequence of you splashing the chemical solution on her.  The solution sodium hydroxide is a highly caustic substance that can cause severe burns.  It is used in various manufacturing industries, such as paper and textiles, and a common ingredient in cleaning products, such as drain cleaner.

13      On 17 January 2018 a search warrant was executed at your address and you were arrested.  You did not answer relevant questions when interviewed and you have been on remand since that date.

14      Ms McAuliffe did not make a victim impact statement.  I also note that she made a statement of no complaint in March 2018.  I was informed that you continued in a relationship with her after you were remanded, though you have had no contact with her in the last five months.

15      I accept that she had suffered painful injury as a consequence of your actions.  Deliberately pouring an acidic substance on her face, eyes and other parts of her body caused her excruciating pain.  She was unable to tolerate touching the affected areas and was in immediate agony.  It is fortunate that she has made a complete recovery with limited scarring to the affected areas and her eyesight has been fully restored.

16      You are currently aged 33.  Your mother, sister and other extended family members remain supportive of you.  Some of your family were in court.  I was informed that a family death had meant that your mother and sister could not attend.  I received a letter from your sister which is consistent with the personal history provided to me and I take it into account.  That's Exhibit 1.

17      When you were aged about 18 your family started a bakery business.  You assisted with running that business whilst you were completing a building course.  Unfortunately, your father became ill in approximately 2014 and the business closed down.

18      Your father's condition deteriorated over the following years and you moved home to care for him.  Your father passed away in 2017.  I was informed this was a factor in your resumption of drug use.  Drugs have been a problem for you over a number of years.  Your drug use escalated in about 2011 when you were aged 26.  Your family organised paid residential rehabilitation in Geelong in 2012 for two months, though you relapsed into drug use again in 2014.

19      Given the situation with the health of your father and his ultimate death your drug usage, principally ice, escalated at the end of 2017.  I received a letter from Dr Sabin, your family doctor, Exhibit 2, who reports that you have had a long history of anxiety, depression and insomnia.  

20      You have been prescribed medication and your symptoms were exacerbated by the situation with your father.  It was not, however, submitted that Verdins principles had any application to your situation.

21      You have prior matters relating to driving and drugs dating back to 2010.  There are no previous matters relating to violence.  You have been on a suspended sentence and a CCO, both of which were breached.  In July 2013 the suspended sentence imposed in 2010 was restored and you served two months in custody.

22      This current period on remand is your longest period in custody.  Your most recent prior matter was in December 2014 and you were placed on a CCO, which you successfully completed.  I was informed that there were outstanding warrants and that you were on bail for drug driving offences at the time of the commission of this offence.

23      

You have pleaded guilty to this charge once this charge was finalised.  The matter proceeded by way of hand-up brief and no witnesses, including

Ms McAuliffe, were required to be called.  There is a utilitarian value in your plea.  By your plea you have accepted responsibility for your actions and shown a willingness to facilitate the course of justice.

24      I accept your plea is indicative of a level of remorse.  Your actions immediately following the assault could be viewed as inconsistent.  In the agreed summary you took Ms McAuliffe to hospital, tried to help her with water to ease the burning and attended police voluntarily on 13 January.  However, you did not assist at the hospital and did not cooperate with police in subsequent interviews at a later time.

25      Your counsel submitted you had good prospects for rehabilitation.  Your prior matters do not involve violence, nor was there any suggestion of other domestic violence in your relationship with Ms McAuliffe.  You retain the support of your family.  You have shown insight into your drug issues and have successfully completed a drug rehabilitation program in 2012.

26      You anticipate participating in a rehabilitation program on your release and have been assessed as suitable by ACSO.  See Exhibit 3.  The prosecution did not concede that assessment.  It appears to me that your principal issue is your drug use.  I regard your prospects as reasonable as long as you persist in your attempt at drug rehabilitation and treatment and thus are able to sustain abstinence.

27      Your counsel submitted that this offence was not pre-planned and that you had the substance with you as it is frequently utilised by ice users to clean the pipe or equipment for smoking that substance.  However, when you had access to it you warned or threatened Ms McAuliffe with it prior to throwing the liquid on her.

28      There was very limited or no provocation by her.  Ms McAuliffe was unable to get out of the car.  You clearly were able to control her in the confined space of the car.  Ms McAuliffe's injury was immediate and painful.  It is accepted she has made a full recovery. 

29      You were not forthcoming with hospital staff, re Ms McAuliffe's identity or circumstances of her injury.  And you were on bail when you committed this offence.  Your counsel submitted that all relevant sentencing purposes could be served with the imposition of a lengthy CCO, that your rehabilitation would be best served by such an order, particularly considering the time you have already spent in custody.

30      I had you assessed for a CCO and received a favourable report from Corrections.  The prosecution submitted that the gravity of this offending was such that the course submitted by defence counsel was outside the range of appropriate sentencing options.

31      I take into account all the matters in mitigation, including your plea of guilty.  I regard general deterrence and just punishment as important sentencing considerations.  The resort to this kind of unprovoked attack with full knowledge of the dangerousness of the substance in the context of a domestic situation should not be tolerated and a message needs to be sent to those who engage in such behaviour will be punished.

32      Specific deterrence is also a relevant sentencing consideration.  Given the objective seriousness of this offence and taking all other matters into account I propose to sentence you as follows.  If you could please stand.

33      In respect of the charge of intentionally cause injury, you are convicted and sentenced to a term of imprisonment of three years.  I set a non-parole period of 18 months.

34 Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter I would have imposed a sentence of four-and-a-half years with a minimum term of two-and-a-half years.

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HER HONOUR:  Pre-sentence detention, please?

MS FALLAR:  337, excluding today, Your Honour.

HER HONOUR:  337 days PSD is declared.  I have got the disposal order here, signed.  Was there a forensic sample order sought?  I don't have that.

MS FALLAR:  It was consented to on the last occasion, Your Honour.

HER HONOUR:  All right.  Well, I'll have my associate print that out and that will be provided to you.  There's no other matters I need to deal with, is there?

MS KADDECHE:  Sorry, Your Honour.  Just to confirm that Your Honour received yesterday an additional report from Latrobe Health.  It should have been sent.  The prosecution have got a copy, I should have asked Your Honour before sentence.

HER HONOUR:   No, I haven't seen it.

MS KADDECHE:  All right.  So I'll just make sure that that's available.

HER HONOUR:  No, let me see it now, if I can.  Is it long?

MS KADDECHE:  No, Your Honour.  Just to confirm the matters that were put.

HER HONOUR:  It doesn't contain any additional information?

MS KADDECHE:  No, it just - - -

HER HONOUR:  That's all right.

MS KADDECHE:  Just the matters that were put that he was assessed.  It's a step further than ACSO, that's all.

HER HONOUR:  All right, okay.  When the sentence is revised I'll incorporate a reference to that as well.

MS KADDECHE:  As Your Honour pleases.

HER HONOUR:  All right.

MS KADDECHE:  And I'll just double-check that that has been filed.

HER HONOUR:  Yes, all right.  Thank you.

MS FALLAR:  As the court pleases.

HER HONOUR:  Thank you.

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