Director of Public Prosecutions v Lohide

[2016] VCC 1245

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00770

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAITHAM LOHIDE

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:	23 August 2016
DATE OF SENTENCE:	24 August 2016
CASE MAY BE CITED AS:	DPP v Lohide
MEDIUM NEUTRAL CITATION:	[2016] VCC 1245

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Mahady	Office of Public Prosecutions
For the Accused	Mr D.Cash	Dribbin & Brown

HIS HONOUR: 

1Mr Lohide, you have pleaded guilty to one count of recklessly causing injury.  You have heard the learned prosecutor, Ms Mahady, tell this court that the maximum sentence that can be imposed for this offence is that of five years' imprisonment. 

2But having pleaded guilty, I will impose a lesser sentence that I otherwise would have imposed.  In other words, you receive a discounted sentence because you pleaded guilty.

3It was on 6 April 2014 that you and a group of friends were drinking at a residential premises in Parkview Close in Dandenong.  Amongst the group there were two co-accused people, that is people who have also been charged with this offence, the same as yourself.  One co-accused was Akech Barach, his nickname was, "AK47."  Also drinking in the group was a young lady called Akn, that is her Christian name, surname Cinwell.

4In addition to those two persons who were also charged with this offence, the same as yourself, there were other people present.  One was David Salah. 
Mr Salah is the victim of the recklessly causing injury matter.  Also present was Hannah Ogy, Ogy being her surname. 

5Further, there was another person called Nagwa Didumo and Hanan, surname Ouy.  All of those persons were present at the party drinking with you and
Mr Salah.

6As the afternoon progressed, David Salah became intoxicated and became abusive towards other people in the house.  The co-accused, Ms Cinwell, attempted on several occasions to get Mr Salah to go to bed.  However,
Mr Salah kept getting up and returning to the lounge room, continuing to drink and abuse the various persons that were there at this function or party.

7At one point, Ms Cinwell because totally frustrated with Mr Salah and punched him in the face, which caused swelling and bleeding to his lips. 

8Now turning to the count of recklessly causing injury, you, Mr Lohide and
Mr Barach then kicked Salah to his body.  Sometime after this, you walked into the kitchen and returned to the living room with a kitchen knife and threatened to kill Salah.  All of you continued to drink and at approximately 2 o'clock in the morning of Friday 11 April an argument occurred between you, Mr Lohide,
Ms Cinwell, Mr Barach and Mr Salah. 

9Ms Cinwell walked into the kitchen and got a frying pan from the bench.  She then struck Mr Salah across the head with the frypan, approximately three times.  Mr Barach and you also kicked and punched Mr Salah during this period.  Salah fell to the ground, his head hitting a table as he fell.  Salah fell into a state of unconsciousness and an ambulance was called. 

10The injuries suffered were as follows.  As a result of these actions, that is of you, the co-accused, Cinwell and Barach, Mr Salah required intensive medical support, including incubation at the scene.  He was found to have suffered (a) a subdural hematoma and (b) a frontoparietal sub bacaralnoid haemorrhage, which required a craniotomy, that is an opening of the skull, surgical opening of the skull, and an evacuation of the subdural hematoma.  Salah was kept in an induced coma and his skull was restored nearly a month after the incident.  That is when the skull top was removed it was replaced approximately a month after the operation.

11Salah spent ten days in intensive care and 32 days in the Alfred Hospital, before then being transferred to the Acquired Brain Injury Unit at the Royal Talbert Hospital.  Mr Salah suffered severe traumatic brain injury and has ongoing medical issues as a result of this assault. 

12Mr Lohide, you are now aged 36, having been born on 1 January 1980.  Whilst there appears to be some confusion in the hospital notes and records, as to your family constitution I quote a couple of excerpts from those records.  The report dated May 26 2016, amongst the notes, says this, "His parents and seven siblings are still in Sudan." 

13Then on another report at a later time within the medical records, a report from the Monash Health says this and I quote, "There is no date shown on this report."  But the report says this under the heading, "Development and personal history."  It says that you were born in Sudan and that you were unclear about the makeup of the family tree. 

14The author of this report notes that you have told multiple versions including, and I give three of those versions.  The first one is that you are the third youngest in a sibship of nine.  The second version, you are the fourth youngest in a sibship of five (all sisters.)  The third observation recorded by the author is this, you are the oldest in the sibship of four, whereby all sisters and parents had died in the Sudanese Civil War.

15It is also recorded there that you have no family members in Australia, that you have completed three years of secondary school in Sudan and that you studied economics at university.  It is further recorded that you left the war torn Sudan and migrated to Egypt in 2003 as a refugee and then as a refugee you migrated to Australia in 2005 to "Start a better life." 

16The last notation I quote is this, that your first job recorded by this author was, "When you arrived in Australia, you worked as a fruit picker, you have also worked in various manufacturing jobs.  The last you worked was for a roof truss manufacturer, that was some two years ago."  That is the end of the quotation from the Monash Health report.

17Mr Lohide, these inconsistencies are common throughout the medical documents.  I have no doubt that these inconsistencies are due to your significant health problem.  I do not propose to embark or embarrass you by embarking on a discourse as to your health problems in any way.  You are burdened with schizophrenia and that is truly a debilitating health issue. 

18As you know, you are presently subject to the provisions of a community treatment order.  You are allocated a case worker to assist you to negotiate your medications.  You have, on occasions, found yourself confined within mental hospitals.  But obviously, you were discharged as soon as your health was brought back to a stable state so you can enjoy your freedom in the community.

19Mr Cash, your counsel, reveals that the difficulty of communicating with you broke down.  I accept that you were not trying to evade your responsibilities or fail to answer these charges.  It was just an unfortunate breakdown in communications.  I implore you or urge you to keep your caseworker informed as to your current living arrangements so the people that are looking after you have you moved or had you moved your accommodation so that those that need to know where you are can find you.  I do not believe that you have in any way tried to avoid your responsibilities. 

20You have no previous court experiences and you have no prior convictions.  The victim in this matter, Mr Salah, has filed a victim impact statement.  You heard Ms Mahady yesterday mention that.  Sometimes those victim impact statements are read to the court, I am not going to read all of it to you, but I am going to quote just a couple of matters so it is recorded the difficulties that this gentleman, Mr Salah, is still encountering. 

21In his victim impact statement, he says this amongst other things, "Since my injury I cannot sleep well.  I have fear of being attacked again and feel unsafe.  I am still feeling depressed about that, I am not able to do anything as I used to do before.  I have very limited abilities now." 

22Then later in his victim impact statement, Mr Salah says this, "I find it very hard to trust people.  I am scared of crowded places, my body is weak, I get sick easily, I cannot do any sports anymore."  There are other matters contained within his victim impact statement so obviously this gentleman is still struggling to get his life back together again.

23You just heard, and it probably is totally meaningless to you, but Ms Mahady mentioned Verdins case.  I do not wish to give you a lecture in the law, but Verdins is a decision of the Court of Appeal where five or six principles are to be addressed by courts such as this when dealing with offenders such as yourself for offences of this kind.  Because of your health problems, you classically fall within the principles of Verdins, where one must moderate what otherwise might have had happened.

24I do not wish to in any way offend you, but I am trying to keep this simple.  Were you a person of good health, with no mental issues and no problems at all and this was just and it was obviously an assault that had dreadful consequences, you would be in a very difficult predicament in terms of maintaining your liberty.  But obviously you are burdened, as I mentioned earlier, with this dreadful schizophrenia and you are, as I observe, responsibly trying to deal with the matter.

25Mr Lohide, I assure you I will take into account the principles of Verdins and I do that in terms of the disposition I now make.  I assure you that I have taken into account all that has been said on your behalf by your counsel, Mr Cash.  Your plea of guilty was certainly registered early, that plea is in indicative of your remorse. 

26Your rehabilitation is dependent on your compliance with the community treatment order, that you are presently being supervised on.  As long as you, as I observe it, comply with your caseworker's instructions and the conditions of the community treatment order, you can enjoy a useful, productive life.

27I have been told many times in court that the side effects of the medication often is difficult to manage and for that reason, frequently persons in the same position as yourself take yourselves off the medication and then it is a disaster because you become anti-social because of your illness.  Now your caseworker will be of great assistance to you because your caseworker will now be alerted to this this difficulty that you have encountered and I will explain that in a moment.

28You will be convicted and released on a community corrections order.  There are only one or two special conditions that you must comply with and I will explain those in a moment.

29I will just read what the result is and then I will explain it to you.  Pursuant to s.48D(3B) of the Act, you are to undergo assessment and treatment, if necessary, for alcohol problems.  I do appreciate that you have not had a drink since this night.  That is to your credit.  It may well be that just a counselling session will further assist you in maintaining your abstinence from alcohol.

30Pursuant to s.48D(3C), you are to undergo treatment and rehabilitation for your mental health problems.  I pause there for a moment, that is already happening, you are on a community treatment order.  So long as you comply with all the conditions of your community treatment order, then you are complying with that special condition that I have just imposed.  I will come back to that again in a moment.

31The last, but not least, special condition is that you are subject to the supervision of a community corrections officer.  So you will have appointed to you another individual with whom you can communicate if you are having any difficulties or you have got any need for help or counselling, please raise those issues with whoever the supervisor is that is appointed to you.

32Now, I said I would come back to the metal health issues.  It is my understanding that the supervisor who will be appointed to assist you on your community corrections order, will be in close contact with, as I understand it, your caseworker, and between the two of them they will escort you, if you like, through the community corrections order whilst you are on the community treatment order.  Do you understand that  Good.  Just for the record, Mr Lohide is nodding.

33Let me put it this way.  If you cut loose and decide not to comply with your community treatment order, then you will be in breach of the community corrections order.  Do you understand that?  Again, he is nodding.

34What will happen is, both of these persons, the supervisor from Corrections and your caseworker no doubt will discuss these matters with you.  If you comply, in 12 months' time then the community corrections order is the complete.  I cannot make any comment about the community treatment order, that is beyond the jurisdiction of this court. 

35Apart from s.6AAA, are there any other ancillary orders required?

36MS MAHADY:  No, Your Honour.

37HIS HONOUR:  I believe it is very hard in this circumstance particularly, but I believe I would have imposed a prison term of at least 18 months, with a minimum term of 12 months for this assault.

38Just come and take a seat behind Mr Cash, please?  Then you have got to sign a form.  Once you have signed that form, you are free to leave.  Mr Cash, will you make sure, because he appears to be very compliant, he was here very early this morning.  He was certainly at the Corrections office very early this morning.

39MR CASH:  Yes.

40HIS HONOUR:  But make sure he understands which Office of Corrections he has got to attend in Dandenong.

41MR CASH:  Yes, Your Honour.

42HIS HONOUR:  He must attend there within two days.

43MR CASH:  Yes.

44HIS HONOUR:  It is all written on the form.

45MR CASH:  I make sure that he understands fully.

46(At this stage the court proceeded to another matter.)

47HIS HONOUR:  He will just bring the form up for you.  All right.  Have a good day.

48MR CASH:  If Your Honour pleases.

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