Director of Public Prosecutions v Konani

[2019] VCC 1740

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00016

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMAD KONANI

---

JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2019
DATE OF SENTENCE:	25 October 2019
CASE MAY BE CITED AS:	DPP v Konani
MEDIUM NEUTRAL CITATION:	[2019] VCC 1740

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:  Sentence following conviction at trial for recklessly causing injury; Offender sentenced on the basis that he intentionally assisted in carrying out the offence; Traumatic background; First time offender; Ongoing health issues including HIV; Combination sentence open.

Legislation Cited:                  Sentencing Act 1991.

Sentence:6 months’ imprisonment combined with 12 month CCO.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Malik	Office of Public Prosecutions
For the Accused	Mr R. Chaudhuri	Giorgianni & Liang Lawyers

HIS HONOUR: 

1Samad Konani, on 8 August 2019 you were arraigned before a jury panel in respect of three charges on Indictment H11545008, being one charge of causing injury intentionally (Charge 1), in the alternative one charge of causing injury recklessly (Charge 2), and one charge of theft (Charge 3).  You pleaded not guilty to all of those offences. 

2On 13 August 2019, you were acquitted of Charge 3 by direction.  On 20 August 2019, after quite lengthy deliberations, the jury returned verdicts of not guilty in respect of Charge 1, the charge of causing injury intentionally, but guilty in respect of the alternative charge, Charge 2, causing injury recklessly.  My task now is to sentence you in respect of the second charge for which the maximum penalty is five years' imprisonment.

Summary of offending

3The prosecution case, as it was put to the jury during the trial, was that on 31 May 2017 the victim, Ramin Babai, arrived at his home address at around 1am.  Approximately an hour or so later, Mr Babai answered a knock on his front door and found you waiting at that door.  Mr Babai had previously seen you when he had been out in the company of a mutual acquaintance, whose name is Ali.  After greeting you at the front door, Mr Babai invited you in for a drink.

4You sat with him inside the house for a period of 10 minutes or so, and then informed him that some other friends of yours were outside.  You asked permission for them to come in and Mr Babai agreed.  You opened the front door and let the other friends in.  At that point, three males entered Mr Babai's home, one armed with a baseball bat, another with a knife.  Two of the males wore rubber gloves.  These three men were not known to Mr Babai.

5When those unknown males came in, they began searching through the house.  Mr Babai asked what was happening and the male with the baseball bat began asking about Ali's whereabouts.  Mr Babai indicated that he did not know where Ali was and that male then used the baseball bat to hit Mr Babai on his left leg.  Mr Babai screamed in response and you suggested that something be used to close his mouth.  Another male who was holding a knife then approached Mr Babai.  He was hit again on the left leg with the baseball bat which again caused him to scream in pain.

6One of the other males then removed a pillowcase from a pillow which was on the couch in the lounge room, and an attempt was made to gag Mr Babai, however, that attempt was unsuccessful.  It was then alleged by Mr Babai in his account to the jury, that you took the baseball bat from one of the other males and swung it at his head.  Mr Babai used his arms to protect himself and was repeatedly struck on the left arm with the baseball bat.  It was also alleged that during this assault, one of the other males with a knife held that knife close to the victim's throat.

7Mr Babai was again asked where Ali was.  While the victim was being assaulted, one of the other males told you to stop hitting Mr Babai because he was at risk of being killed.  It was further alleged that you took the victim's mobile telephone, although I have already indicated that you have been acquitted of that charge.  Accordingly, that allegation will not be taken into account.

8Soon after the assault with the baseball bat on Mr Babai's left arm, you, together with the other males, left and Mr Babai reported this matter to the Moonee Ponds police.  An ambulance attended at the police station and transported the victim to the Royal Melbourne Hospital, where he was treated and diagnosed with a broken arm. 

9On 2 June 2017, police arrested you when you attended at Moonee Ponds police station and they seized your mobile telephone for the purposes of analysis.  On 21 June 2017, Mr Babai was shown a photo board containing 12 photographs, which included a photo of you. Mr Babai identified you as the offender, stating, 'That's Samad, he's the one that hit me'. 

10During the course of the trial Mr Malik, who appeared on behalf of the prosecution, indicated that whilst the prosecution contended, on the basis of Mr Babai's account, that you had personally inflicted the injury that was sustained by Mr Babai to his arm, in the alternative, it was submitted that at least if you did not personally inflict the injury, you intentionally assisted those that did.  Having regard to the way in which the Crown put its case, and for the purposes of imposing sentence, I find myself in a position where I am unable to be satisfied beyond reasonable doubt that you personally inflicted the injury.

11It seems to me that both possibilities are open on the jury's verdict and nothing enables me to be satisfied to the requisite standard as to one, or the other, of those alternatives.  Accordingly, I will proceed on the alternative most favourable to you, and you will be sentenced on the basis that you at least intentionally assisted in the carrying out of this offence.

Victim impact

12Turning now to the impact that this offending has had on the victim, Mr Babai. He was seriously affected by this assault.  He spent a good deal of time in hospital to have his elbow reconstructed and the assault has had a significant impact on him personally.  He states in his victim impact statement[1]:

Prior to the assault, I was a positive, athletic and hard-working young man.  My left arm has diminished considerably in size due to muscle wastage.  The injuries have left me handicapped and unemployed, with no income to contribute to my young family, a wife and young six-month-old daughter.

[1] Exhibit A on the plea.

13Further on in his statement, he states:

The assault has had a negative impact on my personality and emotional stability and I find myself frustrated, nervous and anxious.  I attend a psychologist, but progress is very slow and my nervous state has had a negative impact on my relationship with my wife and others around me.

14It is important you understand, Mr Konani, that the impact of your offending on Mr Babai will be an important consideration in the formulation of the sentence I must impose.  I pause there to indicate that despite all of the evidence given at trial, the reason as to why you were involved in this assault on Mr Babai and indeed why you attended his house on this night remains unclear. 

Personal history

15Now turning to your personal history, it was submitted by Mr Chaudhuri, who appeared on your behalf both on the plea and at trial, that you had indeed suffered a very traumatic upbringing.  You are now 36 years of age.  You have no prior convictions and I note that this matter occurred in May 2017 and that you have, as it was put to me, no subsequent convictions.  You grew up in a small village in Iran in very impoverished circumstances, where you were the third-youngest of nine children. 

16Your parents died whilst you were relatively young.  Food and clothing were not always available to you readily.  You had very limited schooling and worked from a very young age in jobs such as a shepherd and also as a cook and a labourer.  As you grew older, work was not always available and you constantly struggled to assist in supporting your younger siblings; however, once those siblings were married, you decided to leave Iran and try and attain a better life.  Using false documentation, you made your way to Indonesia and, by going into debt, you were able to secure passage in a boat to Australia. 

17You spent eight months on Christmas Island and a further seven months at the Villawood Detention Centre in Sydney.  In 2012, you were ultimately permitted to be released into the community. It is apparent, as Mr Chaudhuri demonstrated in the material that he relied on on the plea, that your transition to life in this country was not easy.  You went to Rockhampton initially, where you were for a time homeless and became the victim of serious sexual assault which was not reported to police but which still affects you.  Eventually you settled, after finding employment in an abattoir, in the Rockhampton area and you remained in that employment for about two and a half years. 

18In 2014 or so you were diagnosed with HIV.  You have been seriously debilitated by that illness and are currently on a disability support pension.  You have lived in Melbourne for the last four or so years and for the purposes of the plea I was provided with a psychological assessment which was conducted by Mr Warren Simmons, psychologist, who provided a report dated 30 September 2019[2].

[2] Exhibit 2 on the plea.

19In that report, Mr Simmons states at paragraph 25:

With regard to the matters currently before the court, it was not possible to obtain any clear insight into these matters, as Mr Konani continues to maintain his innocence; however, as noted above, Mr Konani does not have significant antisocial personality traits and there does not appear to be a history of prior convictions.  While disposition is a matter for the court, it is respectfully suggested that Mr Konani would benefit from a psychiatric review, as he continues to demonstrate quite marked symptoms of depression with the presence of some suicidal ideation.  His medication regime does not appear to be effective and there has been a recent suicidal attempt.

Should Mr Konani receive a custodial sentence, it was felt that his mental state would deteriorate further and would be at greater risk of self-harm, as incarceration would be a significant blow to his sense of who he is as an individual, more so because he sees it as undeserved given that he does not believe he committed the offences.  In addition, given his status as an immigrant, his HIV status and his mental health issues would put him at greater risk in a custodial environment.

Given that this is Mr Konani's first offence that is known, it is difficult to make any comment with regard to Mr Konani's prospects for rehabilitation.  He has significant health issues that would appear to be a long history of depression dating back at least five years or longer, if it was in fact diagnosed while he was in immigration detention.  His life in Australia has not necessarily been the new life that he intended.  He does have some friends who continue to support him, but he will need some long-term assistance in dealing with his current circumstances.

Submissions

20Of particular significance on your plea is the fact that when you were arrested in relation to this matter you were remanded in custody and spent 221 days in gaol before being bailed.  Mr Chaudhuri submitted that you should be sentenced to a sentence where, having regard to the time you have already served in custody in respect of this matter, that imprisonment should be taken into account and imposed in combination with a Community Correction Order (CCO).  Mr Malik, on behalf of the prosecution, submitted that type of disposition was within the appropriate sentencing range for this offending.

Consideration

21In considering these submissions, I am very conscious that your actions have resulted in Mr Babai suffering considerably, not just physically, but his quality of life has been greatly diminished by your offending. 

22However, having regard to your lack of convictions, your difficult background and your ongoing health problems, I am satisfied that a term of imprisonment combined with a CCO would adequately serve the sentencing purposes that must be given emphasis in your situation, namely general deterrence, specific deterrence, protection of the community and the imposition of just punishment, whilst having regard, to the extent possible, to your rehabilitation.

Sentence

23Mr Konani, would you please stand.

24On the charge of causing injury recklessly, you will be convicted and sentenced to a term of imprisonment of six months.  You will also, in respect of that charge, be placed on a CCO for a period of 12 months.  That order will be with conviction and it will be, in addition to the core conditions, conditional on you undertaking treatment and rehabilitation with respect to your mental health.

25I will make a declaration under s 18 of the Sentencing Act 1991 that you have served 221 days by way of pre-sentence detention in respect of that sentence.  I will cause that declaration to be noted in the records of the court.

26Having regard to the sentence imposed, you will be immediately released, however, you will be required upon release to undertake the CCO, but that can only occur with your consent. 

27It is important that you understand before you give consent that you must comply with the conditions of this order as the community corrections officers have explained it to you.  You should also understand that should you breach this order then you will be required to come back before me and you would be sentenced in respect of the breach of the order but also likely resentenced in respect of the original offence for which you could receive additional punishment.  Is that all clear to you, Mr Konani?

28OFFENDER:  (Through Interpreter) Yes.

29HIS HONOUR:  Are you prepared to undertake to do a CCO?

30OFFENDER:  Yes.

31HIS HONOUR:  Yes, very well.  One other matter I must explain to you, Mr Konani, is that I am going to make an order that a forensic sample be taken from you.  You should understand that the police will have a right to demand from you a forensic sample in the form of a sample of saliva.  Were you to refuse that request, you should understand that an authorised police officer may use reasonable force to obtain a blood sample for the purposes of obtaining that forensic sample.

32OFFENDER:  They've done it twice.

33HIS HONOUR:  Yes.  Nonetheless, you understand what I have just said.

34OFFENDER:  Yes.

35HIS HONOUR:  Yes, very well, I will sign that order.  Mr Chaudhuri, Ms Stafford will provide you with the order that needs to be signed by your client.  I'm wondering if you wouldn't mind approaching him and having that done.

36MR CHAUDHURI:  If I may, Your Honour.  Thank you for that indulgence, Your Honour.

37HIS HONOUR:  Thanks, Mr Chaudhuri.

38MR CHAUDHURI:  It's been signed by Mr Konani.

39HIS HONOUR:  Mr Malik, were there any matters arising out of those sentencing remarks that you want to raise?

40MR MALIK:  No, Your Honour.

41HIS HONOUR:  Yes, thank you.  Can I say that as I've sentenced in these circumstances, I'll need to revise those remarks so that they're a little more intelligible, but hopefully they suffice for dealing with the matter today.

42MR MALIK:  Yes, thank you, Your Honour.

43MR CHAUDHURI:  Thank you, Your Honour.

44HIS HONOUR:  Thank you.  Mr Chaudhuri, thank you.  Thank you, Mr Malik, for your assistance.  Those orders have been signed, so has the CCO, and a copy of that will be provided to you. 

45COUNSEL:  As Your Honour pleases.

‑ ‑ ‑